The Immigration Rules at Part 9 specify that an applicant can, or sometimes must, be refused leave if one of the general grounds for refusal applies. An application may meet all the category specific requirements of the rules, but still fall to be refused under the General Grounds. They address various kinds of generic objection to a person being granted leave or entry clearance: particularly bad immigration history and criminal offending, but also practical issues such as inability to establish one’s identity or ability to depart the UK for another destination following a period of stay here.
As some categories of the Rules have been reworked in recent years, it is necessary to identify to which of them the General Grounds still apply. This is not always easy. Generally, they do not apply to applications made in relation to the family migration routes for the Armed Forces and for partners, parents, children and adult dependent relatives generally, or to visitors – because the relevant Appendices, ie Appendices AF, FM and V, have their own ‘suitability’ criteria, subject to some exceptions laid out in rule A320. Some points to note on their application:
- Some are mandatory (ie they lead to automatic refusal); others are discretionary (ie the decision maker has to decide whether leave should be granted notwithstanding the difficulty in question)
- None of the General Grounds in Part 9 apply to applications made Appendix V (for visitors). However, the ‘Suitability’ criteria in Appendix V (for visitors) are almost identical to the General grounds – Appendix V rewords many of the Rules and so helpfully may shed some light on the meaning of the equivalent General ground
- Paragraphs 320 (except subparagraph (3), (10) and (11): ie production of a non-valid or unrecognised passport, and contriving to frustrate the purposes of the Rules) and 322 do not apply to family applications made under Appendix FM or to an application for leave to remain on the grounds of private life under paragraph 276ADE(1) (see paragraph A320)
- Nevertheless, the ‘Suitability’ criteria in Appendix FM are similar to the General Grounds, but with some important differences. Importantly, an applicant under Appendix FM will not be subject to the mandatory re-entry ban provided for in paragraph 320(7B) for those with a poor immigration history
- Also importantly, paragraph 320(11), addressing those who have contrived to frustrate immigration control in the past, does apply to family applications made under Appendix FM, and is often the basis upon which entry clearance applications, particularly those made under the partner category, are refused, where the applicant has what is considered by the HO to be a very poor immigration history (see further below)
- The burden of proof in establishing the existence of a general refusal reason is on the decision maker – JC China [2007] UKAIT 27
Example
Iqbal applies for entry clearance as a visitor. He is concerned that he previously entered the UK and overstayed his visa.
Iqbal should read the Suitability criteria within Appendix V of the Rules, as he is applying in the visitor category; rather than the General refusal reasons under Part 9 of the Rules.
Javed has been refused entry clearance under Rule 320(11) for contriving to frustrate immigration control. He wants to know if the decision is discretionary or mandatory.
It is a discretionary refusal ground: simply because it appears below the heading “should normally be refused” rather than below the heading “is to be refused”.
Kirk is worried about his health record and whether he might be refused because of it. He is applying for entry clearance under Appendix FM as a partner. He wonders whether medical reasons apply or not as a general refusal reason given he is applying on family life grounds.
The general refusal reason on health does not apply, because A320 does not include 320(7) as one of the Rules which applies to Appendix FM; however this does not take him very far, because the Suitability criteria within Appendix FM include S-EC.1.7, permitting refusal where it is “undesirable to grant entry clearance to the applicant for medical reasons”