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Introduction
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ROUTES OUTSIDE THE POINTS BASED SYSTEM
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LONG RESIDENCE
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BRITISH NATIONALITY LAW
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European Law
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Immigration Law and Firm Course – OISC Level 1 Self Study + Expert Guidance on Firm Registration
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1.4 Travel, Enter or Remain in the UK

1.4.1 Entry clearance

Entry clearance is a form of control that is exercised before the actual entry.

Many of those seeking to enter the UK are required to possess entry clearance, a visa, before they physically arrive at an entry point to the UK. This process is controlled by Immigration Officers of UK port.

The following need entry clearance:

(i) a visa national: Visa nationals are those who need permission to enter, though some may be able to “Transit Without Visa”.  Permission to enter need to apply for at least 3 months in advance of wanting to visit the UK.

Here is the link that contains the information regarding the visa nationals/countries

https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-visitor-visa-national-list

(ii) a non visa national not a British national and is seeking entry for a period exceeding six months, or for a purpose for which prior entry clearance is required under these Rules;

(iii) a British national without the right of abode who is seeking entry for a purpose for which prior entry clearance is required under these Rules.

Entry clearance is the procedure used by Entry Clearance Officers (ECOs) at British missions overseas to check, before a person arrives in the UK, if that person qualifies under the Immigration Rules for entry to the UK. Entry Clearance is sought at the visa application centre at the country of origin usually via an online application process. There are required and mandatory documents the applicants need to submit for granting entry clearance. For less than 6 months of entry, the process takes less time. For more than 6 months the process takes longer.

If the applicant is qualified under the Immigration Rules to enter the UK, a sticker or stamp on the passport is granted to the applicant. For less than 6 months of stay, a stamp on the passport is granted. For more than 6 months stay, the stamp is valid for 30 days. Then the applicant needs to collect the Biometric Card within 10 days of entry from the nominated location like post office. If the applicant doesn’t travel in those 30 days, the applicant needs to apply again for an additional fee. 

In all cases, the authority to admit someone to the UK ultimately rests with the Immigration Officer (IO) at the port of entry. The applicant must produce to the IO a valid passport or other identity document endorsed with a United Kingdom entry clearance, issued to them for the purpose for which they seek entry, which is still in force,

An applicant for entry clearance must be outside the United Kingdom.

1.4.2 Permission/Leave to enter or remain/stay

The term ‘permission’ has been used in this document and refers to ‘permission to enter’ and ‘permission to stay’ in the UK’. 

‘Permission to enter’ has the same meaning as leave to enter under the Immigration Act 1971. ‘Permission to stay’ has the same meaning as leave to remain under the Immigration Act 1971 

Permission to Enter is the initial entry of an individual to the UK and if further permission to stay is granted it is called Permission to Stay. Permision to remain is granted either for limited period with option of  extension or for indefinite period. 

Limited Permission to enter and permission to stay allows individual to depart and re-enter the UK. If permission to stay is granted for a limited period, the individual can enter and leave multiple times during that limited period. In case of Indefinite period (usually termed ad ILR) Indefinite Leave to Enter is granted right at the outset. ILR can still lapse if the individual leaves the UK for more than two years. In these circumstances they must seek entry clearance as a returning resident if they want to come back to the UK.

Under Sections 3 and 4 of the Immigration Act 1971 an Immigration Officer when admitting to the United Kingdom a person subject to immigration control under that Act may give permission to enter for a limited period and, if he does, may impose all or any of the following conditions:

(i) a condition restricting employment or occupation in the United Kingdom;

(ii) a condition requiring the person to maintain and accommodate himself, and any dependants of his, without recourse to public funds;

(iii) a condition requiring the person to register with the police; and

(iv) a condition restricting his studies in the United Kingdom

 
 

 

 

1.4.6 Overstayers and illegal entrants (and the hostile environment)

Some people fall foul of various aspects of immigration control, which can have serious adverse consequences for them. These days Home Office refusal letters list the various misfortunes that they will visit upon people who do not leave the country when they lack permission to remain here. These measures, collectively referred to by the government as ‘the hostile environment for illegal migrants’, introduced in the most part under the Immigration Act 2014, apply to employers, banks, landlords, and the DVLA. The penalties for transgressors increase substantially under the Immigration Act 2016 (most of which has yet to come into force).

The measures include:

Under the Immigration Act 2016 (s34), as from 12 July 2016, it has become a criminal offence to work (which is widely defined) in the UK without permission, and the illegal worker’s wages can be seized as the proceeds of crime. Employing someone without permission to work can lead to civil penalties for employers of up to £20,000, and prosecution and imprisonment. The HO has produced a plethora of guidance documents for employers who want to avoid penalties, the main volume of which seems to be An employer’s guide to right to work checks.

From February 2016 landlords have been required to carry out document checks to identify if a potential tenant has the right to rent in the UK, before they grant a tenancy, and to keep appropriate records during the tenancy and for at least 12 months after the tenancy has ended. The Immigration Act 2016 (s39) provides for prison sentences of up to five years for landlords who knowingly allow their property to be occupied by someone who is disqualified because of their immigration status. S40 of the new Act provides for the eviction of tenants who lose their permission to rent, without the need for the landlord to obtain a court order and with no right of appeal.  Measures that are as tough as this can be tested before the courts, and in

2019 JCWI brought a successful challenge to the ‘right to rent’ scheme, which was in part reversed by the Court of Appeal which found that the policy led to discrimination, but not intentionally. It found that the discrimination was indirect, possibly justified on grounds of public policy and in any case perpetrated by private persons rather than the state. Thus, the scheme itself was not unlawful. The subsequent appeal from that decision is ongoing at the time of writing.

The immigration service may share people’s details with financial services agencies to restrict access to credit.

The DVLA will not issue a driving licence to them and may be asked to cancel any existing licence. The Immigration Act 2016 creates a new offence of driving when unlawfully in the UK, with imprisonment of up to six months. Guidance on the current rules on revoking driving licences is in Offender management section of the Enforcement section of UKVI operational guidance.

Undocumented migrants cannot open bank accounts. The 2016 Act went further and requires bank accounts to be frozen and then closed. This has an extremely more disruptive effect given that wages may be paid in and bills paid out.  For how this is intended to be operated, see October 2017 guidance to banks and guidance for those whose accounts are affected. See also Codes of Practice on freezing orders.

The NHS (Charges to Overseas Visitors) 2015 Regulations (SI 2015/238) have tightened access to the NHS over time: they now provide for up-front payment; that immigration status checks must be made; and that information be kept on health records, from 23 October 2017. For detailed information, refer to the recent ILPA Briefing and Department of Health guidance on overseas visitors charging regulations. Employers and landlords may use the Home Office checking services to confirm the status of current and prospective employees and tenants/occupiers, though the information provided by the HO is not always accurate. The Chief Inspector of Borders and Immigration, David Bolt, has published inspection reports on the ‘hostile environment’ in 2016, particularly looking at the measures relating to driving licences and bank accounts. It noted that hundreds of people per year had been wrongly affected and criticised the Home Office for its failure to appreciate the impact on the individuals concerned.

In April 2018 media exposure of the impact of the hostile environment on members of the Windrush generation and their descendants led to a public outcry, a change of Home Secretary and commencement of a review of the policy in general and the launch of the Windrush scheme on 30 May 2018. Despite early promises it is debateable whether the general approach by the Home Office has, since then, changed at all, as no hostile environment policies were deliberately withdrawn or significantly amended, unless litigation forced the issue.

1.4.6.1 Illegal entrants

An illegal entrant (identified as liable to the mandatory ban by r9.8.1, Part 9 of the Immigration Rules) is statutorily defined at section 33 of the Immigration Act 1971:

‘illegal entrant’ means a person

(a) unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, or

(b) entering or seeking to enter by means which include deception by another person, and includes also a person who has entered as mentioned in paragraph (a) or (b) above;

So, the definition includes both a dishonest individual (e.g. who makes false representations in a visa application) and a clandestine entrant (who enters evading the immigration laws in the back of a lorry).

1.4.6.2 Overstayers

An overstayer is someone who has remained beyond their leave to enter/remain, either the original grant, or beyond a statutory extension under s3C Immigration Act 1971 (see the definitions at para 6 under ‘Interpretation’ in the Introduction part of the Immigration Rules).

When advising these individuals, always consider whether they may be better off leaving the United Kingdom and applying to return from abroad. Then there is less scope for bad immigration history to be held against them.

Remember though that it will always be necessary to take into account any relevant General refusal reasons or Suitability criteria when doing so (see Module 3: General grounds for refusal). If they can avoid, for example, the mandatory one-year ban on return, by leaving the country before they have overstayed 90 days – or, where overstaying began on or after 6 April 2017, 30 days r320(7B)(i)(b) Part 9 – then they should seriously consider so doing.

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