Previous Breaches Of Immigration Law As A 'Suitability' Issue

• Law Firm: Richmond Chambers Immigration Barristers
• Subject Matter: Immigration, General Immigration, Work Visas
• Author: Mr Cameron Wallis
• Published date: 20 January 2023

'Suitability' refers to grounds upon which the Home Office may (i) refuse to grant or (ii) cancel permission to enter or stay in the UK. The rules on suitability can be very complicated and differ between visa categories. Some visa categories have specific suitability requirements. Applicants for spouse visas under Appendix FM, for example, must show that they meet the suitability requirements in section S-EC.

It is important to note that specific suitability requirements are sometimes additional to the general suitability provisions in Part 9 of the Immigration Rules. This is the case for Appendix FM applications, which are subject to their own suitability requirements in section S-EC and some sections of Part 9.

Section 1 of Part 9 contains the provisions on its applicability to different visa categories. For example, Part 9 does not apply to Appendix EU, which has its own suitability requirements at EU15 of the Immigration Rules. Part 9 applies only to a limited extent in Appendix Private Life applications (only the provisions on sham marriages apply), which again, have their own separate suitability requirements, in paragraph PL 2.1. The full provisions of Part 9 apply only to some kinds of visa categories (e.g., student, visit and skilled worker visas).

The provisions on previous breaches of immigration laws as a general suitability issue under Part 9 are contained in paragraphs 9.8.1 to 9.8.7.

As this article will explain, previous breaches of immigration law can be fatal to visa applications. So too can failing to address a previous breach in an application properly.

This article answers three questions:

• What constitutes a breach of immigration law?
• How do previous breaches of immigration law affect visa applications?
• How should previous breaches of immigration law be addressed in visa applications?

What constitutes a breach of immigration law?

For the purposes of paragraphs 9.8.1 (mandatory refusal if within the relevant period) and 9.8.2 (discretionary refusal if outside the relevant period), a person will not be treated as having breached immigration laws if they were under the age of 18 at the time of the breach (per paragraph 9.8.4). It should be noted, however, that a child may still be refused permission on the suitability grounds in paragraphs 9.8.3 and 9.8.3A (previous failure to comply with conditions and use of deception in an application).

There are several ways that an adult can breach immigration laws for the purposes of mandatory and discretionary refusal under paragraphs 9.8.1 and 9.8.2 (as set out in paragraph 9.8.4 and the Home Office guidance):

• Overstaying;
• Breaching a condition of permission;
• Illegal entry (including attempted illegal entry); or
• Use of deception in an application.

These immigration offences are all found in ss24 and 24A of the Immigration Act 1971.

Overstaying

Overstaying is...