• RFL3.1 Discretionary and mandatory refusals on general grounds – Paragraph 320
• RFL3.2 Refusal where false representations, false documents are used or material facts not disclosed - Paragraph 320(7A)
• RFL3.3 Refusal where applicant has previously breached UK law – Paragraph 320(7B)
• RFL3.4 Refusal where applicant has contrived in a significant way to frustrate the intentions of the immigration rules – Paragraph 320(11)
• RFL3.5 Refusal on grounds that exclusion is conducive to the public good - 320(6)
• RFL3.6 Refusal on non-conducive grounds – 320(19)
• RFL3.7 Refusal on the grounds of criminal convictions – 320(18)
• RFL3.8 Refusal as a result of a biometric hit
• RFL3.9 Refusal as a result of an IDENT1 hit
• RFL3.10 Refusal wording

See other guidance information RFL1 Refusing an applicant RFL2 Refusing family visitors RFL4 Writing and serving a Refusal Notice RFL5 Release of case notes to solicitors, applicants, sponsors etc RFL6 Representations by applicants or sponsors post refusal RFL7 Monitoring refusals – the Independent Monitor  

RFL3.1 Discretionary and mandatory refusals on general grounds – Paragraph 320

Paragraph 320 of the Rules sets out a number of different general grounds for refusal.  Mandatory grounds for refusal are set out in paragraphs 320(1) – (7) and discretionary grounds for refusal are set out in paragraphs 320(8) – (21). As with any application, an ECO needs to consider if there are any human rights grounds (in particular right to family life under Article 8) or any exceptional, compelling circumstances which would justify the issue of entry clearance.  If there are exceptional, compelling circumstances, the application must be referred to the Referred Casework Unit (RCU), using the HO Referrals process, for a decision to be made outside of the Rules.
 
If appropriate, the ECO also needs to refuse the application under the category of the application applied for, as well as the general rules.  If an ECO only refuses under Paragraph 320 and an appeal is allowed, they cannot then consider the substantive application and entry clearance will have to be issued.

This table summarises the paragraphs of the 320 rules relevant to visa applications. 

	Grounds where entry clearance must be refused	Refer before decision?
(1)	Entry is being sought for a purpose not covered by the Rules	No
(2)	Applicant is subject of a Deportation Order	No
(3)	Failure to produce a valid passport	No
(6)	SoS directs that exclusion is conducive to the public good	No
(7A)	False representations have been made or false documents have been submitted (whether or not material to the application, whether or not to the applicant's knowledge and irrespective of the applicant's age or the category of visa sought), or material facts have not been disclosed.  ECOs should also consider whether para 320 (11) is applicable.	Yes - ECM
(7B)	The applicant has previously breached the UK's immigration laws by overstaying; breaching a condition attached to his leave; being an illegal entrant; using deception in a visa application, leave to enter or remain (whether successful or not). UNLESS the applicant overstayed for 28 days or less and left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State; used deception in an application for entry clearance more than 10 years ago; left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago; left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago; was removed or deported from the UK more than 10 years ago; was unaware that the documents submitted or representations made were false; was previously issued a visa in the knowledge of the immigration breach; or was in the UK illegally on or after 17 March 2008 and left the UK before 1 October 2008; They were refused LTR as a student solely on the basis that they made an out of time application; The applicant has been accepted by UK Border Agency as a victim of trafficking.	Yes - ECM
(7C)	NB - wef 1 July 2008, under paragraph 320(7C) the provisions of 320(7B) will not apply to: Those applying for settlement categories to join family members in the UK or to exercise rights of access to a child; Those accompanying family members who will be submitted for settlement on arrival; Those applying under family reunion; Those whose breach of immigration law took place when they were under 18yrs. If an application has been refused in these categories between 1 April and 13 May 2008 and the reasons for refusal were solely under paragraph 320(7B), the decision should be revoked and then issued.	Yes - ECM
	Grounds where entry clearance should normally be refused
(8A)	Where person is outside UK and fails to supply documents or medical report.	No
(9)	Failing to meet the requirements as a returning resident.	No
(10)	Failing to produce a valid passport or travel document.	No
(11)	An applicant should normally be refused for ‘contriving in a significant way to undermine the intentions of the immigration rules.'  This is where an applicant has previously: been an illegal entrant; overstayed; breached a condition attached to his leave; or used deception in a previous entry clearance, leave to enter or remain application. but only where there are aggravating circumstances.	Yes - ECM
(13)	Failure to satisfy the ECO that he will be admitted to another country after a stay in the UK.	No
(14)	Refusal by a sponsor to give notice in writing that they will maintain and accommodate a applicant	No
(15)	Whether or not to the holder's knowledge, making false representations or failing to disclose any material fact for the purpose of obtaining an immigration employment document.	No
(16)	No written consent given by parents / legal guardian to a visa application made by a child under 18.	No
(18)	Conviction in any country including the UK of an offence which, if committed in the UK, is punishable with imprisonment for at least 12 months or (if committed outside the United Kingdom), would be punishable by imprisonment for at least 12 months if the offence had occurred in the UK.	Yes – ECO Support, Visa Services Directorate
(19)	Exclusion conducive to the public good; if, for example, in the light of the character, conduct or associations of the person seeking leave to enter it is undesirable to give him leave to enter.	Yes – ECO Support, Visa Services Directorate

General grounds of refusal and appeal rights
There is only a limited right of appeal for mandatory refusals (paragraphs 1-7) except for paragraphs (7A) and (7B) where the appeal rights depend on the category of application.  The appeal rights for discretionary refusals (paragraphs 8 – 20) depend on the category of application.

Back to top

RFL3.2 Refusal where false representations, false documents are used or material facts not disclosed - Paragraph 320(7A)

3.2.1    When must you refuse under para 320(7A)?
When you have evidence that the applicant has lied, made a false statement or given false information (whether or not material to the application, and whether or not to the applicant's knowledge), or withheld a material fact in an application, either orally (at interview) or in writing.   

The legal standard of proof is ‘to a higher balance of probabilities’, so it must be more likely than not that false reps etc have been used.  It is for us to prove that an applicant has used false reps etc.  This means that it is not enough for us simply to doubt that the applicant is telling the truth. In order to refuse under this Rule, we need positive evidence that they are lying, or that a document that they have submitted is false.

ECOs should also need to consider whether it is appropriate to refuse the applicant under paragraph 320(11) (see 3.4 refusals under para 320(11) of the immigration rules) where the applicant has “previously contrived in a significant way to frustrate the intentions of the Immigration Rules.”

See RFL3.2.6 below for the 320(7A) flowchart.

3.2.2    False representations
A false representation is when an applicant or third party lies or makes a false statement in an application, either orally or in writing. The application must be refused even if the false representation is not relevant to the application or your decision and even if the applicant was not aware that false representations, information or documents have been used.   
However, you must should not refuse an applicant because you suspect that false representations have been made or because of minor inaccuracies in the application, for example an inaccurate address or mis-spelt name on a VAF.

3.2.3    False documents
You must refuse the application if you have evidence that a false document has been submitted even if the false document is not relevant to the application or your decision and even if the applicant is unaware that the document is false.  
A false document includes: a genuine document which has been altered or tampered with; a counterfeit document (one that is completely false); a genuine document that is being used by an impostor; a genuine document which has been fraudulently obtained or issued; or a genuine document which contains a falsified or counterfeit visa/endorsement.
To be satisfied that a document is false you must:

• have examined the document and completed a Document Examination Report (see 3.2.6 Document Examination Report) setting out your findings (including photographic evidence where appropriate) to justify your conclusion that the document is false; or
• have evidence, as a result of checks carried out, that the document is false, and have completed a Document Verification Report (see 3.2.6); or 
• show that the document is identical to another document on which you have current and reliable evidence that it is false and have completed a Document Verification Report (e.g. issuing body has either given information on document's security features or already advised that an identical document is false);or 
• have an admission from the applicant (in writing or recorded in the Q&A notes) that they used a false document or made false representations.

3.2.4    False information  
You must refuse the application if false information has been submitted.  The purpose of this part of 320(7A) is to allow an ECO to refuse an applicant if false representations were made to obtain a certificate of sponsorship for a PBS Tier 2 or Tier 5 application.

3.2.5    Material facts have not been disclosed
You must refuse the application if material facts are not disclosed.  You need to show that the withheld information would have been relevant to your decision. But you cannot refuse an applicant on these grounds if you have not indicated to the applicant the kind of information that is relevant to the application. The Court of Appeal (in the case of IRACKI) has held that an applicant is not obliged to volunteer information unless he is given an indication of the kind of information which is material to the application.

3.2.6    Document Examination & Verification Reports
All para 320 (7A) & (7B) refusals must be supported by a Document Examination Report (DER) or Document Verification Report (DVR)(link to ECG documents and forms) irrespective of how the forgery/deception has been practised.  This is because we must ensure that there is a clear audited trail which shows how the decision has been reached, which will enable us to withstand any legal challenges.  In some cases, the ECO will be made aware of the deception from other sources, e.g. a report, or through an interview.  A DVR / DER must be completed even if that means simply referring to a Q & A interview, or referencing another report.  It is not necessary to have written confirmation from a source that a document is false if you have fully completed a DVR.

If a copy of the DER/DVR is requested by an applicant, third party or in appeal cases, then the DER/DVR needs to be depersonalised before it is sent off.  The procedure is as follows:

• Post save a DVR/DER – depersonalised version;
• Bank account details are replaced with “xxxxx”, names of sources spoken to at banks etc are replaced with “an official” and phone numbers are deleted;
• Ensure that the depersonalised version is used for appeal cases unless it cannot be de-personalised in a meaningful but convincing way or if the DER contains sensitive information e.g. covert security features.  In these cases, reports must be sent under closed cover using section 108 of the 2002 Act. (see APL1.12).

It is not necessary to have written confirmation from a source that a document is false if you have fully completed a DVR.

 Paragraph 320 (7A) - Deception in visa application (PDF Flowchart)

3.2.7    320(7A) (7B) and EEA family permits 
If a non-EEA family member of an EEA national is applying for an EEA Family Permit under the Immigration (European Economic Area) Regulations 2006, they cannot be refused under Paragraph 320 of the Immigration Rules as their applications are not considered under the Rules (see EUN2 EEA Family Permits for further guidance).  However, if they are applying under the Immigration Rules and not the EEA Regulatuions eg.  as a visitor, they can be refused under the general grounds covered in this chapter.

3.2.8    Revoking entry clearance if false reps etc are uncovered after issue 
You can revoke the entry clearance under Paragraph 30A of the Rules in certain circumstances or you may need to refer the application to ECO support. Staff can obtain guidance on how to revoke an entry clearance in ECB18.

Back to top

RFL3.3 Refusal where applicant has previously breached UK law – Paragraph 320(7B)

3.3.1    When must you refuse under para 320(7B)?
Subject to paragraph 320(7C), when you have evidence that an applicant has overstayed, breached a condition attached to their leave, was an illegal entrant or used deception in an entry clearance, leave to enter or remain application (whether successful or not).’Overstaying’ means the applicant has overstayed their leave to enter / remain, not just stayed longer than they said they would.  The rule requires that the applicant has overstayed for more than 28 days (or for any period if, after overstaying, he went home at public expense including AVR or similar programme).

When assessing whether an applicant has breached a condition attached to their leave, the ECO should in the first instance review the relevant guidance and Immigration Rules(s) for that entry clearance category. 
 
The legal standard of proof is ‘to a higher balance of probabilities’, so it must be more likely than not that the applicant has previously breached UK immigration law and we must have good evidence e.g. our records showed the applicant overstayed.   In deception cases, you will need to take into account representations from the applicant as to why they did not use deception.  Subject to that, you can assume that the officer who took that decision applied the correct burden and standard of proof, unless the decision was overturned e.g. on appeal, Judicial Review or following reconsideration.

Examples of when you can assume that the officer applied the correct burden and standard of proof for establishing deception:

• Electronic copy of refusal notice held only (no other papers/docs).  Applicant refused under e.g. para 40 and reference made to the fact they applicant used false docs. 
• Electronic copy of refusal notice held (no other papers/docs held). Applicant refused under 320(21) (false docs), 320(7A) or other deception rule. 
• Electronic copy of refusal notice which makes reference to deception, false document/relevant papers held.

Where our earlier decision was overturned on appeal, you will need to consult the Adjudicator or AIT’s determination to see if it overturned our finding that deception was used.  If it did, then you should not apply paragraph 320(7B) to future applications.  If the determination is not available, then you should give the applicant the benefit of the doubt and assume that our decision on this point decision was overturned. 

ECOs need to consider whether it is appropriate to refuse the applicant under paragraph 320(11) of the immigration rules where the applicant has “previously contrived in a significant way to frustrate the intentions of the Immigration Rules.”

See RFL3.3.15 for the Paragraph 320(7B) flowchart.

3.3.2    How long are applicants ‘banned’ for?
If an applicant falls to be refused under 320(7B), applications must be refused for the following periods:

• 1 year if they left the UK voluntarily, whether or not at public expense; 
• 5 years if they left UK voluntarily, at public expense;
• 10 years if they were removed or deported from the UK;
• 10 years if they practised deception (which includes using false documentation) in support of a previous visa application.

Where applicant has overstayed, breached a condition of leave, was an illegal entrant or used deception in a leave to remain application, the ban is dated from the date the applicant left the UK. Where an applicant has used deception in a visa application, the ban is dated from the date (in which deception was used) was refused.

But passengers who have been refused at a port of entry, and have complied with the terms and conditions placed upon them by the refusing port, are only subject to a one year ban. 

Where more than one breach of the UK’s immigration laws has occurred, only the breach which leads to the longest period of absence from the UK will be taken into account.

For example, an applicant left the UK voluntarily at her own expense in January 2008 and applied for entry clearance using false documents in February 2008.   Any subsequent entry clearance application  must be automatically refused for 10 years, until February 2018.. This is the longer refusal period where deception has been used in an entry clearance application.  The shorter refusal period of 1 year for leaving the UK voluntarily is not applicable.

3.3.3    When does rule 320(7B) not apply? 
Under paragraph 320(7C) of the immigration rules, You must not refuse an applicant under 320(7B) if they are applying in the following categories:

• Spouse, civil partner, unmarried or same-sex partner (Paragraphs 281 or 295A); 
• Fiance(e), or proposed civil partner (Paragraph 290); 
• Parent, grandparent or other dependant relatvie (Paragraph 317); 
• Spouse, civil partner, or unmarried or same-sex partner of a refugee or person with humanitarian protection (Paragraphs 352A, AA, FA. FD); 
• Those applying to exercise rights of access to a child (Paragraph 246); 
• They were under the age of 18 at the time of the most recent breach of the UK’s immigration laws.

As concessions outside the Rules, you should also not refuse an applicant under 320(7B) if:

• The applicant has been accepted by UKBA as a victim of trafficking (see RFL 3.3.6) 
• the applicant was in the UK illegally on or after 17 March 2008 and left the UK voluntarily before 1 October 2008 (see RFL 3.3.5)

In addition you must not refuse an applicant under 320(7B) if:

• false documents or false representations were used in a previous visa or leave to enter or remain application, and the applicant was not aware that the documents or representations were false;  
• the period specified for automatically refusing applications has expired; or 
• following their breach of UK immigration laws, UKBA issued a visa or leave to enter or remain in the knowledge of that breach e.g. a student who has overstayed but was granted LTE following an out of time application.

3.3.4    Document Examination & Verification Reports
Please see RFL 3.2.6 above.

3.3.5    320(7B) and the 17 March 2008 concession
The concession only applies to voluntary departures whether or not at public expense.  It does not apply where the immigration offender was removed or deported from the UK.
Remember that making a decision to remove an immigration offender (Form IS 151B), or issuing a notice identifying him as an immigration offender (IS 151A part 2) does not in itself mean that the applicant has been removed from the country.  It is perfectly possible for someone to leave the country voluntarily after a decision has been taken to remove him.  You therefore need to be satisfied on the balance of probabilities that the immigration offender was actually removed before deciding that the concession does not apply to him.
 
3.3.6    320(7B) and victims of trafficking
Posts are unlikely to see very many cases where victims of trafficking apply for entry clearance. They will largely be dealt with by caseworkers in the UK. If an applicant states that UKBA has accepted them as a victim of trafficking, ECOs need to contact Evidence and Enquiry (using HOReferrals) to check the information.

3.3.7    320(7B) and the use of false reps, information and documents
If an applicant has previously been refused entry clearance because a false document was used or a false representation was made, the applicant may claim that they were unaware that the document or representation was false.
 
Unless the applicant can prove this, they must be automatically refused under paragraph 320(7B) for 10 years from the date deception was used. Where the documents relate directly to the applicant (e.g employment references, qualifications or financial details), such a claim would be likely to fail unless the applicant has clear evidence that an error has been made (eg written confirmation from a financial institution that they had previously supplied us with incorrect information).  

3.3.8    Removals and 320(7B)  
If an immigration offender has been removed or deported, then his future applications will be refused for ten years.  Passengers, who have been refused and removed at port of entry are only subject to a 1 year ban if they have fully complied with the terms and conditions placed upon them by the refusing port.
 
Remember that making a decision to remove an immigration offender (Form IS 141 A part 2 or IS 151B), or issuing a notice identifying him as an immigration offender (IS 151A) do not in themselves mean that the applicant has been removed from the country.  It is perfectly possible for someone to leave the country voluntarily after a decision has been taken to remove him, in which case future applications should only be refused for one or five years, not ten.
   
3.3.9    320(7B) and Assisted Voluntary Returns at public expense
Where the immigration offender left the UK voluntarily but at public expense (e.g. through an Assisted Voluntary Return), then they will have future applications refused for five years, but only if they committed a breach of immigration law before his return.

Where the immigration offender has returned under the AVRIM (Assisted Voluntary Return for Irregular Migrants) programme, they will, by definition, be an immigration offender, and so should have applications to return refused for five years.
 
Where the immigration offender has returned under the VARRP (Voluntary Assisted Returns and Re-integration Programme) scheme, you will need to be satisfied that the applicant has breached UK immigration laws.  If they are an immigration offender, they will have future applications refused for five years.

3.3.10    320(7B) and students refused LTR after 1 September 2007 
An applicant should not be refused under 320(7B) for previously overstaying in the UK if they were refused leave to remain as a student solely on the basis that they had made an out of time application (AECIP 2/2008 refers).

3.3.11    320(7B) where deception is discovered after the visa is issued 
If the applicant re-applied for a visa, we would refuse under 320(7B) and the 'automatic refusal period' would take effect from the date the deception was used eg. the date the original visa or leave was issued. If the visa is still valid, the visa will need to be cancelled first. (see ECB18 ECO revocation of and entry clearance)
 
3.3.12    320(7A) (7B) and EEA family permits
Please see RFL 3.2.7 above

3.3.13    Cancelling entry clearance if deception is uncovered after issue
Please see RFL 3.2.8 above

3.3.14  Refusing under 320(7B) for working in breach and working holidaymakers

Working holidaymakers will only have worked in breach of their conditions if they work in the UK for more than 12 months regardless of how long they have been staying in the UK.  You cannot refuse a working holidaymaker under 320(7B) if they have worked in the UK for 12 months or less, even if you are satisfied that their work was not incidental to their holiday.  A condition of their leave is "Work restricted to 12 months".  So for example, a working holidaymaker who stays in the UK for 13 months and works 10 months has not breached this condition of their leave.

See guidance on employment and permissible self-employed activity for Working Holiday Makers.

3.3.15 320 (7b) - Immigration Offender

 Paragraph 320 (7B) - Immigration Offender (PDF Flowchart)

Back to top

RFL3.4 Refusal where applicant has contrived in a significant way to frustrate the intentions of the immigration rules – Paragraph 320(11)

When can you refuse under para 320 (11)?
This is a discretionary refusal where an applicant has ‘contrived in a significant way to undermine the intentions of the immigration rules’ and where there are aggravating circumstances.  This means where an applicant has either:

• been an illegal entrant; or
• overstayed; or
• breached a condition attached to his leave; or 
• used deception in a previous entry clearance or leave to enter or remain application; 

and there are aggravating circumstances.  These include offences such as:

• absconding;
• not complying with reporting restrictions;
• using an assumed identity or multiple identities to obtain asylum benefits, state benefits, tax credits goods or services;
• receiving NHS care to which not entitled;
• a sham marriage;
• harbouring an immigration offender; and 
• facilitating/people smuggling.

This is not an exhaustive list and all cases must be considered on their merits taking into account family life in the UK and the level of responsibility for the breach in the case of children. ECOs will need to obtain ECM authorisation for all refusals under Paragraph 320(11).
 
This is a discretionary refusal.  Where an applicant falls to be refused under 320(7A) or 320(7B), the ECO must also consider whether it is also appropriate to refuse the applicant under paragraph 320(11).  Where 320(7C) applies which makes an applicant exempt from 320(7B), an ECO must consider whether a refusal under paragraph 320(11) is appropriate. 

 

Back to top

RFL3.5 Refusal on grounds that exclusion is conducive to the public good - 320(6)

When must you refuse under paragraph 320(6)?
This is a mandatory refusal.  Where a non-conducive refusal is appropriate, applications which are high profile, involve national security or are based on sensitive information must be referred to the Home Secretary to consider exclusion rather than being refused under 320(19).  Applications must be referred using the HO Referrals process if necessary Full details available in Referrals/Deferrals (RDF) section.

In cases where the application has been referred to UKBA headquarters a decision, they will provide the wording to be used on the notice of decision. Refusal notices will always be from the Secretary of State e.g "... the Secretary of State is not satisfied that you..."

Back to top

RFL3.6 Refusal on non-conducive grounds – 320(19)

3.6.1    When can you refuse under paragraph 320(19)?
Where an applicant's entry to the United Kingdom is not considered to be conducive to the public good because of their character, conduct, associations or criminal history, the ECO should normally refuse under 320(19).  The non-conducive powers apply in a broad range of circumstances.  Each case must be considered on its individual merits and, as in all other decision making, there must be reasonable grounds for reaching a decision. However, the onus is on us to justify a refusal so there must be sufficiently reliable information to demonstrate, on a balance of probabilities, that a refusal is justified.

There must be sound evidence to support a refusal: allegations, unsubstantiated suspicions and vague generalisations are not sufficient. Equally however, intelligence provided by UK law enforcement agencies or relevant and reliable open-source information may provide a sufficient basis for exclusion; it is not necessary for there to be an actual conviction.

There may be some cases where a caution, or where the police have decided to drop charges (to effect a removal for example), attracts the application of this rule.  A caution will normally indicate that the criminal behaviour was not serious enough/the police considered it not in the public interest to prosecute.   The ECO will therefore need examine the circumstances of the case and the severity of the offence before deciding whether the applicant’s behaviour warrants refusal under 320(19).  For example a police caution for assault may warrant refusal under rule 320(19) but a caution for dropping litter will probably not.
 
Where the applicant subsequently requests further information regarding why they have been refused, the ECO may disclose to the applicant in writing or verbally any additional information noted on the “Court Certificate for Entry Clearance purposes”.

3.6.2   Referring 320(19) cases to ECO support
Any potential high profile non-conducive refusals, eg where media interest is likely, must always be referred to ECO Support at as early a stage as possible.

If a non-IDENT1 potential non-conducive refusal:   refer to ECO Support

If an IDENT1 potential non-conducive refusal: refer to the ECM.  If the ECM requires further guidance, then refer to ECO Support.

Emails  to ECO Support should be classified as necessary and marked "POSSIBLE NON-CONDUCIVE REFUSAL UNDER PARAGRAPH 320(19)".

3.6.3    Examples of when where refusal under 320(19) is appropriate
Examples of the types of cases where refusal under 320(19) may be appropriate include:

• where a person’s admission could adversely affect the conduct of foreign policy; 
• where the person’s admission would be contrary to internationally agreed travel restrictions (e.g. UN sanctions or EU measures) but the relevant Resolution or Common Position has not been designated under the Immigration (Designation of Travel Bans) Order 2000.  If it has been designated under the Order, section 8B(1)(b) of the 1971 Act must be used to refuse LTE; 
• the person is a threat to national security (cases will be considered by the  Special Cases Directorate); 
• there is reliable evidence the person has been involved in or otherwise associated with war crimes or crimes against humanity.  It is not necessary for them to have been charged or convicted. (Cases will need to be referred to the War Crimes Team in the Special Cases Directorate); 
• a person's admission might lead to an infringement of UK law or a breach of public order; 
• a person's admission might lead to an offence being committed by someone else, eg. extreme views that if expressed may result in civil unrest resulting in an infringement of UK law.
  

When determining if a refusal under 320(19) is warranted the ECO must also take into account any human rights grounds and ensure that the refusal is both proportionate and reasonable.

Refusal wordings
The ECO must not make reference to the details of the caution, reprimand, final warning or arrest in the refusal notice (link to RFL8 – refusal wordings)
  
The ECO must ensure the refusal notice reflects the consideration they have given to the proportionality and impact of human rights considerations.

 

Back to top

RFL3.7 Refusal on the grounds of criminal convictions – 320(18)

3.7.1    When can I refuse under paragraph 320(18)?
Paragraph 320(18) of the Rules states that an application should normally be refused if that person has been convicted of an offence in any country, which could have attracted a term of imprisonment of 12 months or more if the offence had been committed in the UK,.  ECOs should not refuse under 320(18) if the conviction is considered “spent” under the Rehabilitation of Offenders Act.  Paragraph 320(18) will not apply where an applicant has been cautioned.  When determining if a refusal under 320(18) is appropriate, the ECO must also take into account any human rights grounds and ensure that the refusal is both proportionate and reasonable.

3.7.2    What sentence is given for a particular offence?
Details of the possible sentence which a particular offence in England and Wales could attract can be found on the Crown Prosecution Service website at:

The Crown Prosecution Office: Sentencing Manual

If an ECO cannot adequately determine the possible sentence using this website, or where the applicant was found guilty under Scottish law, the ECO should contact ECO support for assistance.

3.7.3    What if an applicant received less or served less than the 12 month maximum sentence?
To be refused under paragraph 320(18), the applicant needs only to have been convicted of a crime which carries a maximum sentence of 12 months.  They do not have to have received a sentence of more than 12 months, nor to have served a sentence of more than 12 months to be refused.   An applicant can also be refused if they have received a summary conviction providing the offence was indictable and carries a maximum 12 month sentence.  For example, dangerous driving is punishable by up to six months imprisonment if dealt with as a summary offence.  The sentence rises to a possible 2 years imprisonment on indictment so refusal under paragraph 320(18) may be appropriate.
 
3.7.4    When is a conviction spent?
When considering whether or not the offence is spent, rehabilitation periods are based on actual sentences received.  The purpose of the Rehabilitation of Offenders Act 1974 (“ROA”) is that people may behave badly at one point in their lives but may nevertheless go on to live law abiding lives. To encourage this process, after a certain period of good behaviour, and provided the offence wasn't too serious, the person is entitled to be treated as a reformed character.   The Police  Certificate should detail whether or not a conviction is spent.  The rehabilitation periods are also set out in the Rehabilitation of Offenders Act.  A person whose criminal convictions are spent is entitled to declare on the visa application form that he does not have a criminal record. If an applicant disputes the content of the Police Certificate, the applicant must contact the Association of Chief Police Officers Criminal Records Office (ACRO).  Their contact details are noted at the bottom of the Police Certificate.

 

Back to top

RFL3.8 Refusal as a result of a biometric hit

When to refuse as a result of a biometric hit? 

An entry clearance should not be refused solely on the grounds of an unfavourable biometric match, but it can shape the reasons for refusal.

For example where an applicant has claimed on their VAF never to have visited the UK, but biometric match results refute this, a refusal notice might read: On your visa application form you have claimed never to have visited the UK before, however, as a result of a Biometrics fingerscan, records held in the United Kingdom indicate that you have, in fact, previously been in the UK and applied to remain. I consider that your attempt to hide a previous application to remain in the UK has seriously damaged your credibility and casts doubt upon your whole application. I am therefore not satisfied that you are genuinely seeking entry to the UK for the purpose and duration you state. Furthermore, I note that the identity you have used in this application (Fred Bloggs, dob 01/01/70, nationality: XXX) is not the same as the identity you provided when previously in the UK (Joe Bloggs, dob 01/01/82, nationality: YYY). Therefore, I am also not satisfied as to your identity or nationality.

Back to top

RFL3.9 Refusal as a result of an IDENT1 hit

What is IDENT1? 
The biometric data of visa applicants are routinely checked against the police biometric database, IDENT1 which is linked to the Police National Computer (PNC).  This check enables the identification of people who have criminal records or who are wanted by the police in connection with an offence.  The ECO must decide whether an applicant should be refused on the basis of the information from the IDENT1 check.  
 
What paragraph of the rules do I refuse under?
The ECO will need to consider if it is appropriate to refuse the applicant under the following paragraphs of the immigration rules:

• Criminality - 320(3)

An ECO cannot refuse an applicant on the grounds that they are not sure of the applicant’s identity or nationality simply because he has used previous identities in the United Kingdom, even when he has been convicted under a different identity.(need to refuse under 320(18) -[check karen just delete this paragraph]  However, evidence of identity swapping will clearly trigger close examination of the travel document and supporting documents provided for the EC application.  The identity swap will also be relevant to the applicant’s credibility.

• Non-conducive to the public good – 320(6) (see RFL3.5 above)
• Non-conducive to the public good  - 320(19) (see RFL3.6 above)

Criminal convictions – 320(18) (see RFL3.7 above)

• Failure to disclose criminality – 320(7A) (link to 3.2) 320(7B) (see RFL3.3).
  An applicant can be refused under 320(7A)if they fail to disclose a criminal conviction that is not spent and under 320(7B) if they have fail to disclose a criminal conviction in a previous leave to enter, remain or visa application.
• Contrived in a significant way to frustrate the rules – 320(11) (see RFL3.4 above) which includes criminal activity in the UK. 

Cautions, reprimands and final warnings
Cautions, reprimands and final warnings are not criminal convictions and so are not dealt with by the Rehabilitation of Offenders Act.  So if applicants that have only been cautioned, reprimanded or given final warnings and are asked whether they have any 'criminal convictions' they can legitimately answer 'no'. 

3.9.3 Ident1 hits and credibility refusals
An ECO must not refuse an applicant because of their criminal record if the conviction is spent.  Failure to declare an unspent conviction may cast doubt on the applicant's truthfulness. Concealment of information or lack of frankness in any matter may raise doubt about the reliability of information supplied by the applicant elsewhere in the application.

However, it may be appropriate to consider refusing an applicant where the record on the PNC conflicts with the account provided on the VAF.  For example, an applicant claims on the VAF to have never visited the UK before, but the PNC record shows he was arrested in the UK in 2004.  Refusal on credibility grounds for non-PBS cases, where linked to a specific rule or refusal may be appropriate.  Refusal under paragraph 320(7A) for PBS and non-PBS applications, for making a false statement on a VAF, may be appropriate.
 
Refusal wordings
For instance:  “You stated on your application form/during interview that …[you have never been to the UK before]. You signed your application form on [date] to confirm this was correct.  However, ! records held by the UK police indicate that you were in the UK on [date]. Failing to declare your immigration history [include paragraph 320(7A) wording] undermines the credibility of the whole application.  As a result of this the Entry Clearance Officer cannot be satisfied as to your intentions.”

3.9.4 Ident1 hits and appeals
If an applicant appeals, the ECO may write fuller reasons for refusal on the explanatory statement, based on the content of the “Police Certificate”.  The Explanatory Statement should include the details behind any refusal, including date of arrest, offence and what happened (eg, arrested, charged, convicted and so on).  Where a prosecution was not sought because the applicant was removed, this should also be noted.  This is most likely to occur in the event of an immigration offence being committed.

 

Back to top

RFL3.10 Refusal wording

Wording for refusals: examples, by category, or wording for statements.

Back to top