Grounds for Refusal of a UK Immigration Application (Part 2)
In Part 1 of this two-part series on grounds for refusal of a UK immigration application, we looked at refusals on non-conducive grounds, criminality grounds and for breach of immigration laws. In Part 2 will examine immigration refusal decisions based on exclusion, deportation orders or travel ban grounds, false representations grounds, involvement in sham marriage/civil partnership grounds and exclusion from asylum or humanitarian protection grounds.
Which Immigration Applications Does Part 9 Apply To?
As set out in Part 1 of this two-part series, Part 9 of the Immigration Rules applies to the vast majority of immigration 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 immigration applications made under:
- Appendix EU
- 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 FM
- Appendix Private Life
- Appendix Armed Forces
- Part 11 (Asylum)
- Appendix Settlement Family Life
- Appendix Adult Dependent Relative
Refusals on Exclusion, Deportation Order or Travel Ban Grounds
Under paragraph 9.2.1 of Part 9 of the Immigration Rules:
An application for entry clearance, permission to enter or permission to stay must be refused where:
(a) the Secretary of State has personally directed that the applicant be excluded from the UK; or
(b) the applicant is the subject of an exclusion order; or
(c) the applicant is the subject of a deportation order, or a decision to make a deportation order.
The Home Office sets out a number of grounds for exclusion, including:
- National security
- International crimes (war crimes, crimes against humanity or genocide)
- Unacceptable behaviour
- In limited circumstances, sham marriage.
9.2.1 (a) and (b) are mandatory grounds for refusal. This remains the case as long as the exclusion decision is still in force. An exclusion decision or order remains in place indefinitely, until it is revoked.
Where an applicant is subject to a deportation order, it is possible to request as part of an entry clearance application that the deportation order be revoked, and the request for revocation should be considered prior to the entry clearance application.
Deception and False Representations Grounds
The burden is on the Home Office to establish that it is more likely than not that deception was used in respect of the current application and, if established, this is a mandatory ground for refusal.
Deception is defined in the guidance as a deliberate intention to deceive. Alongside the visa refusal, a finding of deception attracts a 10-year re-entry ban to the UK. Therefore, if you have been wrongly accused of deception you may seek to challenge the decision.
There is a further discretionary ground for refusal of an application if in relation to the application, or in order to obtain documents from the Secretary of State or a third party provided in support of the application:
- false representations are made, or false documents or false information submitted (whether or not relevant to the application, and whether or not to the applicant’s knowledge); or
- relevant facts are not disclosed.
This discretionary ground therefore also includes documents issued by a third party, for example an Acceptance of Studies document issued for a Student visa, and this ground can be engaged even when the applicant is unaware that the document is false. It further relates to the omission of information and as such it is good practice to disclose all relevant information asked for on the application form.
Involvement in Sham Marriage/Civil Partnership Grounds
Paragraph 9.6.1 of Part 9 of the Immigration Rules states:
An application for entry clearance, permission to enter or permission to stay may be refused where the decision maker is satisfied that it is more likely than not that the applicant is, or has been, involved in a sham marriage or sham civil partnership.
This is a discretionary ground for refusal.
Sections 24 and 24A of the Immigration and Asylum Act 1999 set out that a sham marriage is one in which:
- one or both of the parties is not a relevant national (this means a British citizen, EEA national or Swiss national)
- either or both of the parties enter into the marriage or civil partnership for the purpose of circumventing UK immigration controls
- there is no genuine relationship between the parties
The Home Office may conduct a marriage investigation to establish whether the relationship is a sham. This will include an assessment of the genuineness of a relationship and any potential/actual advantage that the relationship would create by circumventing UK immigration controls.
This will be decided on a case-by-case basis but guidance is given about potential circumstances which might give rise to the finding of a sham marriage:
- in relation to UK marriage preliminaries (the marriage referral and investigation scheme) where the Home Office chooses to investigate prior to the marriage or civil partnership.
- following intelligence or other Immigration Enforcement (IE) encounters that raise reasonable suspicions that a relationship may be a sham
- criminal investigations into sham marriages and related offences:
- following applications for permission to enter or remain in the UK based on spousal relationships
- following applications for a marriage visitor visa UK to enter to UK for marriage tourism
Exclusion from Asylum or Humanitarian Protection Grounds
An application for entry clearance, permission to enter or permission to stay may be refused on suitability grounds where the applicant is, or would be, excluded from protection.
Exclusion from protection means that the applicant has previously made a protection claim in the UK and any of the following apply:
- a decision has been made that the person is excluded from being a Refugee under paragraph 339AA of Part 11 of the Immigration Rules
- a decision has been made that the person is excluded from humanitarian protection under paragraph 339D of Part 11 of the Immigration Rules
- a decision has been made that the person’s humanitarian protection is revoked on the grounds of exclusion under paragraph 339GB of Part 11 of the Immigration Rules
- a decision has been made that the person is a danger to the security or having been convicted by a final judgement of a particularly serious crime, the person is a danger to the community of the UK under paragraph 339AC of Part 11 of the Immigration Rules
The above can also apply when the applicant has not yet made a protection claim, but would be excluded from protection if they were to make one.
Where this ground applies, it is likely that other suitability grounds will also apply, such as non-conducive grounds or criminality grounds).
Contact Our Immigration Barristers
For expert advice and assistance with the application of Part 9 Grounds for Refusal or any UK visa application or immigration appeal, contact our Immigration Barristers on 0203 617 9173 or complete our enquiry form below.