HC 321: Severe Removal/Deportation Warning

[This briefing if for general information only and must not be construed as a substantive legal explanation of HC 321. Please note, NCADC will not respond to any queries on HC321. If you think any of the information below affects you or members of your family, you must seek expert legal advice.]

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HC 321: Mandatory refusal of entry to the UK from one to ten years

Statement of Changes in Immigration Rules HC 321 was laid before Parliament on 6 February 2008 and came into force on the 1 April 2008. HC 321 amends the general grounds for refusal of an immigration application.

In general HC 321 will affect those persons in the UK who;

Have exhausted their leave to remain/enter and not left the UK within 28 days of the expiration date.

Have breached their conditions of leave to remain/enter.

All appeal rights have been exhausted and have not left the UK voluntarily.

All appeal rights have been exhausted and the Home Office has chose not to enforce removal for whatever reasons.

Have entered the UK 'illegally'

Have used deception to enter the UK

And

Leave the UK voluntarily at their own expense or at the expense directly or *indirectly of the Secretary of State or are removed/deported by order of the Secretary of State. *Indirectly: Includes families/individuals returning on any assisted voluntary return scheme such as

Voluntary Assisted Return and Reintegration Programme (VARRP)

Assisted Voluntary Return of Irregular Migrants (AVRIM)

run by the International Organization for Migration (IOM).

These people will face a one/five/ten year period mandatory refusal of any application to re-enter the UK

Mandatory refusals are retrospective for those who left before 17 March 2008 and are not in the protected categories.

Pressure in Parliament forced the Government to make concessions:

Anyone subject to HC 321, who was in the UK on 17 March 2008, and leaves the UK voluntarily before 1 October 2008, will not face a mandatory refusal and consequent re-entry ban.  (However they could still be refused entry if they do not satisfy other requirements of the Immigration Rules and have contrived in a significant way to frustrate those rules.)

HC 321/protected categories: does not apply to those who have been trafficked or those who committed a breach of immigration law while still a child. Does not apply to anyone whose application for entry clearance is to join a family member, including fiancée or prospective civil partner. Parents, grandparents or other dependent relatives, those seeking to exercise access rights to a child (i.e. rights granted by a UK court). Even if someone is exempted from a re-entry ban because of a concession, he or she may be refused an application to return to the UK if: * he or she does not satisfy other requirements of the Immigration Rules * if he or she has "contrived in a significant way to frustrate those rules"

Protected categories carry on past 1 October 2008 (i.e. as long as they are coming back to see family, or are otherwise in a protected category, then mandatory refusal will not apply.

One-year mandatory refusal
Those who have exhausted/breached conditions of leave to remain/enter, appeal rights exhausted and not left the UK voluntarily within 28 days, Home Office have not chose to enforce removal for whatever reasons, entered the UK 'Illegally', who leave the UK voluntarily and at their own expense, will if they make an application for entry clearance to the UK, with in 12 months of leaving the UK, be mandatorily refused.
(Does not apply to those who have been trafficked or those who committed breach while still a child, anyone whose application for entry clearance is to join a family member, including fiancée or prospective civil partner.)

Five-year mandatory refusal
Those who have exhausted/breached conditions of leave to remain/enter, appeal rights exhausted and not left the UK voluntarily, Home Office have not chose to enforce removal for whatever reasons, entered the UK 'Illegally', who cannot afford to leave the UK at their own expense, (no matter that they are destitute) and the cost of the removal directly or indirectly is paid for by the Secretary of State, will if they make an application for entry clearance to the UK, with in 5 years of leaving the UK, be mandatorily refused. (Does not apply to those who have been trafficked or those who committed breach while still a child, anyone whose application for entry clearance is to join a family member, including fiancée or prospective civil partner.)

Ten-year mandatory refusal
a) Those who used deception - whatever their mode of departure and b) those removed or deported, whatever the particular way in which the person has fallen foul of HC 321 (eg a person who overstays for 29   days, having committed no deception still faces a 10 year ban)

Human rights: Even where a re-entry ban applies that would prevent someone from returning to the UK, this does not prevent that person from making an application to come to the UK on the basis that refusing their application would breach their human rights.

Source for this Message:
NCADC