Clayton: Textbook on Immigration & Asylum Law 3e 
End-of-chapter question guidanceClayton: Textbook on Immigration & Asylum Law 3e
Chapter 7
7.1.1 Changing nature of immigration control
As mentioned in the update to chapters one and two, the UK Borders Agency came into being in April 2008. The new dispersed intelligence and technology-led system continues to develop rapidly. The integration of customs and immigration within the new border force is one of the main objectives of the Borders, Citizenship and Immigration Act 2009. Section 1 provides for customs functions to be exercised by the Secretary of State for the Home Office. Section allows the Secretary of State to designate immigration officers as a person who exercises customs functions.
7.2 Common Travel Area
The Borders, Citizenship and Immigration Act 2009 includes a measure which enables border controls to be introduced within the Common Travel Area, for journeys beginning outside the Common Travel Area (s.50). in particular for air and sea travel between the UK and the Republic of Ireland.
7.3 Before entry – entry clearance
Following the UK government’s review of travel from non-EEA countries against criteria including illegal immigration, crime and security concerns, a number of further countries have been designated as visa national: Bolivia, Lesotho, South Africa, Swaziland, and Venezuela, though Venezuelans are exempt if they hold a new biometric, machine readable passport, containing an electronic chip. Taiwan ceased to be a visa national country on account of its strong commercial and cultural ties with the UK.
The review which led to these changes was carried out under the unlikely banner of the ‘Visa Waiver Test’ (my emphasis). The reason is presumably the approximation of the UK’s system to that in the USA, which goes under the name of a visa waiver scheme. The government announced a system for facilitating travel between the UK and USA, building on the IRIS scheme.
7.3.1 Decisions on entry clearance
The new unified Border Agency includes operations abroad, so entry clearance decisions are now made by the international arm of the UK Border Agency.
7.3.2 Entry clearance as part of e-borders
Section 4 Immigration Asylum and Nationality Act 2006, abolishing the right of appeal against refusal of entry clearance, was brought into force as regards applications within the Points-based system from 1st April 2008 (Immigration Asylum and Nationality Act 2006 (Commencement no. 8 and Transitional and Saving Provisions) Order 2008 SI 310).
7.3.3 Monitoring Entry Clearance applications
The post of the Entry Clearance Monitor will come to an end when the new UKBA Inspectorate is in place.
7.3.4 Effect of entry clearance and 7.6.5 Cancellation of leave to enter
As mentioned in 7.6.5, in rare cases, entry clearance may be revoked before travel on the same grounds as cancellation of leave to enter. In Murungaru v SSHD [2008] EWCA Civ 1015 the claimant was a former government minister in Kenya. He had a multiple entry visa for the UK which was revoked without notice about three months after it had been granted. He wanted to travel to the UK to continue his private medical treatment, but was unable to do so. He challenged the revocation of the visa by judicial review. One of his arguments was that the revocation interfered with his rights under Article 1 of Protocol 1 of the ECHR, the right to peaceful enjoyment of his possessions, that is, to his contract with his doctors. The Court of Appeal held that Dr Murungaru’s contractual rights had none of the qualities of possessions. They were intangible, not assignable, not transmissible, not realisable and had no present economic value. They could not be described as an asset. They did not count as a possession for the purposes of A1P1.
7.6.5 Refusal of leave to enter
New mandatory grounds for refusal were added to the immigration rules from 1st April 2008. Paragraph 320 7(A) added grounds where false representations have been made or there has been a material non-disclosure in relation to the application. Paragraph 320 7(B) was a radical new departure. It effects a re-entry ban. It sets a mandatory ground for refusal of entry clearance or leave to enter where the applicant has breached immigration laws by (a) Overstaying; (b) breaching a condition attached to their leave; (c) being an illegal entrant; (d) using deception in an application for entry clearance, leave to enter or remain (whether successful or not). In these cases entry clearance or leave to enter may only be granted if certain periods of time have elapsed, as follows:
- 28 days for an overstayer who left voluntarily without expense to the Secretary of State;
- 12 months for anyone who left the UK voluntarily not at the expense of the Secretary of State;
- 5 years for anyone who left the UK voluntarily at the expense of the Secretary of State;
- 10 years for anyone who used deception in an application for entry clearance or was removed or deported.
Superficially, this may look like an incentive to leave voluntarily. However, many asylum seekers whose claims fail (a) do not have the means to fund their own return; (b) would come within the category of those to whom this mandatory provision would apply. The view of ILPA (Briefing May 2008) is that individuals will be more likely challenge all decisions that include a breach of immigration law, because of the consequences of having such a breach on their record. They will also elect to make fresh applications especially on Article 8 grounds and if they fail, go underground.
The Court of Appeal in AS (Pakistan) v SSHD [2008] EWCA Civ 1118 held that the Secretary of State’s change of policy towards the revocation of deportation in July 2008 was relevant to a deportation decision in that the duration of exclusion was a relevant factor to be taken into account when assessing the proportionality of the deportation (Maslov v Austria [2008] ECHR 546).
On 13th May 2008 the Secretary of State announced a concession, that para 720(B) would not apply to the applications of adult relatives under paras 281, 295A, 317, 290, 246, 352A, 352AA, 352FA and 352FD of the immigration rules. See7.9.1 Acquiring settled status
Commonwealth citizens who have served in the armed forces are able to obtain indefinite leave to remain in the UK if they are discharged from service in the UK, under an Armed Forces Concession. This had never applied to Gurkhas, Nepalese soldiers of the Gurkha Brigade, as, due to the agreement that took place between India, the UK and Nepal at the time of the formation of the Brigade, Gurkhas were not discharged in the UK. After years of campaigning by and on behalf of the Gurkhas, in 2004 the immigration rules were changed to permit Gurkhas discharged after 1st July 1997 to obtain leave to remain. This was because at that date Hong Kong returned to Chinese rule, and the Gurkhas had had a base in Hong Kong. There was still a discretion to grant ILR to Gurkhas who fell outside that rule.
In The Queen on the application of D.P. Limbu, C.P. Limbu, Shrestha, Rai, Gurung and Mukhiya v SSHD, ECO Kathmandu and ECO Hong Kong [2008] EWHC 2261 (Admin) a number of ex-members of the Gurkha Brigade challenged the refusal to them of indefinite leave under the discretionary policy. Part of the reason for the discretionary policy was to honour the exceptional service record of Gurkhas. These claimants had given long and distinguished military service and served in the UK’s military campaigns including the Falklands. The judge concluded that it was irrational to refuse them leave, and quashed the refusal.
On 24 April 2009 the Government published guidance for caseworkers dealing with applications for settlement from Gurkhas who were discharged before 1 July 1997. Under this guidance one of the criteria was that anyone with 20 or more years of service could settle in the UK. The standard length of Army service by Gurkhas was 15 years. There was a public campaign on behalf of the Gurkhas (famously spearheaded by Joanna Lumley). A Liberal Democrat motion in the House of Commons voted to overturn the government policy and give all Gurkhas equal rights of residence, and on 21 May 2009 the Home Secretary announced that any former Gurkha with more than four years’ service who had been discharged from the Brigade of Gurkhas before 1 July 1997 would be eligible for settlement in the UK (HC Deb, 16 July 2009, c251W).
7.9.1.1 Long residence
In Aissaoui v SSHD [2008] EWCA Civ 37 the Court of Appeal recognised that many people who apply in reliance on the 14 year rule will have been working irregularly in some way. In this case the appellant was using a false name. The Immigration Directorate Instructions published in April 2007 advised that it would not normally be in the public interest to grant indefinite leave to remain unless the applicant had been economically self-sufficient for a significant period of his time in the UK. The Court pointed out that, if that was the case, and yet the rule was directed precisely towards people with an irregular immigration status, a key purpose of the long residence rule must be to enable persons who have been working in the UK unlawfully to regularise their position. It was therefore not appropriate in such a case to use the public interest clause to deny residence to someone on the basis that they had been using a false name for work. The Court said that the earlier case of MO (Long residence rule – public interest proviso) Ghana [2007] UKAIT 14 should be treated with caution. See also Obienna v SSHD [2008] EWHC (Admin) 1476 discussed in update 8.5.1
In FH (Bangladesh) v SSHD [2009] EWCA Civ 385 the Court of Appeal held that the former long residence concession, which was more generous than the immigration rules, remained in force until 2006, even though the rules were introduced in 2003, as it was still in the Home Office’s published guidance until then.
LL (China) v SSHD [2009] EWCA Civ 617 turned, somewhat unusually, on the continuity of the appellant’s long residence. She had undergone most of her schooling and all of her higher education in the UK. However, during her ten years of lawful residence as a student she had visited her family in China each school holiday, amounting to 27 visits – a total of around three years out of the UK. Thus the Court of Appeal held that she did not have continuous residence to benefit from the rules.
Reading list
Toal, Ronan, 'The new 'general grounds for refusal', Journal of Immigration Nationality and Asylum Law (2008) vol.22 no.2 pp. 135 -146
View print version