Grounds for Refusal of a UK Immigration Application Explained
Part 9 of the Immigration Rules applies to the vast majority of applications for entry clearance and permission to stay in the UK. It contains the general grounds of refusals and in certain circumstances provides a mandatory ground for refusal, even if an applicant meets the remainder of the suitability, eligibility and validity requirements for their application.
If a mandatory ground applies, the entry clearance officer must refuse the application or cancel permission, whereas if a discretionary ground does, the entry clearance officer has the discretion to refuse permission.
This post will focus on Part 9 grounds for refusal in relation to the prospect of refusal of an application but not on cancelling existing permission. This is Part 1 of 2 posts and covers refusals under: non-conducive grounds, criminality grounds and breach of immigration laws. Part 2 will cover refusals under: exclusion, deportation order or travel ban grounds, false representations grounds, involvement in sham marriage/civil partnership grounds and exclusion from asylum or humanitarian protection grounds.
Which Applications Does Part 9 General Grounds for Refusal Apply To?
Part 9 grounds for refusal apply to the vast majority of applications. However, there are several types of applications which it does not apply to, so it is worth checking prior to the consideration of Part 9. Section 1 of Part 9 states that Part 9 does not apply to applications made under:
Appendix EU (Family Permit)
Appendix S2 Healthcare Visitor
Appendix Service Providers from Switzerland
Appendix Settlement Protection
Appendix Electronic Travel Authorisation
It also only applies in part to some applications, including those made under:
Appendix Private Life
Appendix Armed Forces
Part 11 (Asylum)
Appendix Settlement Family Life
Appendix Adult Dependent Relative
Ground 1: Breach of Immigration Law Grounds
If an applicant has breached immigration law and then makes a further immigration application, Part 9 may be engaged.
A breach of immigration law is defined at paragraph 9.8.4 as someone who:
If, when they were aged 18 or over, they:
(a) overstayed their permission and neither paragraph 9.8.5. nor paragraph 9.8.6. apply; or
(b) breached a condition attached to their permission and entry clearance or further permission was not subsequently granted in the knowledge of the breach; or
(c) were (or still are) an illegal entrant; or
(d) used deception in relation to an application (whether or not successfully).
Further information on what constitutes a breach of immigration law can be found in this blog post.
Consequences of Breaching Immigration Law for Entry Clearance and Permission to Enter
Breaching an immigration law is a mandatory ground for refusal if the application was made in the relevant time period as set out at paragraph 9.8.7. Breaching an immigration law is a discretionary ground for refusal if the application was made outside the time specified in 9.8.7 and ‘the applicant has previously contrived in a significant way to frustrate the intention of the rules, or there are other aggravating circumstances (in addition to the immigration breach), such as a failure to cooperate with the redocumentation process, such as using a false identity, or a failure to comply with enforcement processes, such as failing to report, or absconding.’ This can include individuals who have been encountered by the Home Office whilst in the UK and have failed to co-operate.
Paragraph 9.8.7 contains the relevant information on re-entry bans. The minimum ban is 12 months for applicants who left the UK voluntarily and at their own expense. The maximum is 10 years if there has been a finding of deception.
Consequences of Breaching Immigration Law for Permission to Stay
For permission to stay, there is a discretionary ground of refusal where ‘a person has previously failed to comply with the conditions of their permission, unless permission has been granted in the knowledge of the previous breach.’
For all applications (to enter or to stay in the UK) there is a further discretionary ground for refusal if there is a finding of deception regarding a previous application.
Ground 2: Criminality Grounds
Criminality is a mandatory ground for refusal if the applicant:
has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of 12 months or more; or
is a persistent offender who shows a particular disregard for the law; or
has committed a criminal offence, or offences, which caused serious harm
A persistent offender is defined in the guidance as someone who, ‘shows a pattern of offending over a period of time. This can mean a series of offences committed in a fairly short timeframe, or offences which escalate in seriousness over time, or a long history of minor offences for the same behaviour which demonstrate a clear disregard for the law.’ This can include fines, suspended sentences or community orders if a pattern of offending is established.
Criminality is a discretionary ground for refusal where the applicant:
has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of less than 12 months; or
has been convicted of a criminal offence in the UK or overseas for which they have received a non-custodial sentence, or received an out-of-court disposal that is recorded on their criminal record
For applications to enter under Appendix Visitor a specific mandatory provision applies and so the applicant must be refused where the applicant:
has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of less than 12 months, unless more than 12 months have passed since the end of the custodial sentence
has been convicted of a criminal offence in the UK or overseas for which they have received a non-custodial sentence, or received an out-of-court disposal that is recorded on their criminal record, unless more than 12 months have passed since the end of the custodial sentence
A criminal conviction could also amount to conduct which is non-conducive to the public good, as covered below.
Ground 3: Non-conducive to the Public Good Grounds
Part 9 states at 9.3.1 that:
‘An application for entry clearance, permission to enter or permission to stay must be refused where the applicant’s presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the criminality grounds).’
And 9.3.2 similarly states:
‘Entry clearance or permission held by a person must be cancelled where the person’s presence in the UK is not conducive to the public good.’
This is therefore a mandatory grounds for refusal. To meet the threshold of ‘non conducive to the public good’ there does not need to be a criminal conviction but that it itself could meet the threshold should it be serious enough.
The guidance defines non-conducive to the public good as, ‘it is undesirable to admit the person to the UK, based on their character, conduct, or associations because they pose a threat to UK society.’ This applies to matters in the UK and abroad. It is a broad test to be applied on a case-by-case basis and who is required to consider if, on the balance of probabilities, a decision to refuse is based on sufficiently reliable information.
A list of factors which weigh into the decision are also given, including:
the nature and seriousness of the behaviour
the level of difficulty we could experience in the UK as a result of admitting the person with that behaviour
the frequency of the behaviour
the other relevant circumstances pertaining to that individual
This blog post explores in further detail what can constitute conduct which is non-conducive to the public good. Examples include if an individual is a threat to national security, engaged in extremism, committed serious immigration offences and is likely to incite public disorder. It is worth noting that the decision maker must consider the reliability of the evidence before them and that, ‘Allegations, unsubstantiated and vague generalisations are not sufficient.’
What Are the Options if an Application Is Refused on Part 9 Grounds?
Should your immigration application be refused on Part 9 grounds, you will be unlikely to have a right to appeal unless your application constitutes a human rights claim.
You can make a fresh immigration application, under the same or a different route.
Contact Our Immigration Barristers
For expert advice and assistance with the application of Part 9 Grounds for Refusal contact our Immigration Barristers on 0203 617 9173 or complete our enquiry form below.