Taylor Hampton explains how to understand mandatory refusal periods
This article explains the basis for visa refusal under certain circumstances. In effect, The Home Office has the power to impose what is known as a mandatory refusal period. This is sometimes referred to as a re-entry ban. In fact, these bans apply to people previously breaching immigration law or used deception in an application for leave. The ban can, therefore, last one year, two years, five years, or ten years. Indeed, in most cases, with limited exceptions, a person may not re-enter the UK during this period. Although the principle sounds straightforward, the rules themselves are complex and often difficult to navigate. Therefore, this article explains how they work in practice.
Please note however, that this overview does not cover deportation.
When does a mandatory refusal period apply?
So, the main rules are found in Part 9 of the Immigration Rules. Paragraph 9.8.1 provides that entry clearance or permission to enter “must” be refused if an applicant has previously breached immigration laws and is applying within the relevant period set out in paragraph 9.8.7.
Paragraph 9.8.4 goes on to define what counts as a breach. An adult breaks the rules if they overstayed their visa without falling within one of the exceptions. moreover, it is also applies if they breached a condition of their leave without this being corrected, entered illegally, or used deception in an application.
There are, however, some important qualifications. Paragraph 9.8.5 says that certain periods of overstaying will be disregarded; e.g. where someone left voluntarily and the overstay was for less than 30 days (or 90 days if it began before April 2017). actually, paragraph 9.8.6 also provides protection where overstaying arose because of a decision later withdrawn or overturned.
How long does the refusal period last?
The length of the ban depends on the circumstances. The Home Office guidance includes a table, but two examples illustrate how this works.
Paul applies for a visitor visa and wrongly answers “no” to the question of whether he has ever been refused a visa. In fact, he had been refused two years earlier. This will be treated as deception and his application will be refused. He will also face a ten year re-entry ban starting from the date of the refusal.
Sabrina’s case shows how overstaying is treated. If she overstays by only a couple of days and leaves voluntarily, she will not face a ban. Nevertheless, if she overstays longer and leaves at the expense of the Home Office within six months, there’s a two year ban. Also, if she remains beyond six months and again leaves at public expense, the ban will increase to five years.
The key point here, is that the ban usually starts on the date a person leaves the UK, except where deception has been used, in which case it starts on the date of refusal.
When do the bans not apply?
In fact The Home Office states that Part 9 refusal periods do not apply to applications under certain routes, including Appendix FM (family migration), Appendix Private Life, and Appendix EU, among others. These have their own suitability requirements and sometimes separate re-entry bans.
Children who breached immigration law as minors are not subject to these bans. In addition, recognised victims of trafficking and people who left voluntarily in a specific window between March and October 2008 are exempt.
What happens after the period ends?
Paragraph 9.8.2 makes clear that even after the mandatory period has expired, the Home Office still has discretion to refuse for “aggravating factors”. These can include using a false identity, failing to cooperate with enforcement action or absconding. The difference is that such refusals are not automatic and applicants may be able to persuade the decision maker to grant entry clearance.
Can the Home Office grant entry during a ban?
In theory it is possible to obtain leave outside the rules on compelling compassionate grounds. In practice, however, the Home Office stresses that such grants should be rare and limited to exceptional circumstances. Applicants in this position should rather apply under Appendix FM or another suitable route where they can raise human rights more directly.
How to avoid a visa refusal and contact info
The basis for visa refusal is complex. In essence, mandatory refusal periods are a powerful tool for the Home Office often with severe consequences for applicants. The rules are detailed, with many exceptions and qualifications. Certainly, the length of the ban varies depending on the nature of the breach. While there constitute limited avenues to challenge or mitigate a ban, these are exceptional. Anyone who thinks they meet this criteria should seek professional advice before making a fresh application.
Contact our Head of Immigration, Leena Chouhan [email protected]
Disclaimer: This article provides general guidance only and does not constitute legal advice. Civil procedure rules and case law can change. Always seek professional legal advice tailored to your specific situation before acting.
