In recent times, a discernible trend has emerged within the Home Office, wherein applications for spouse visa entry clearance are frequently refused under the Suitability requirements outlined in part 9 of the Immigration Rules and the suitability provisions of Appendix FM. This article aims to shed light on the specific scenario where an applicant faces refusal due to a history of illegal working in the UK and provides insights into tackling such situations from a legal perspective.
Legal Framework:
Paragraph 9.8.2 of the Immigration Rules is crucial in understanding the grounds for refusal in cases involving previous breaches of immigration laws. It delineates three distinct requirements that must be met for an application to be refused: (a) previous breaches of immigration laws, (b) application made outside the relevant time period, and (c) aggravating circumstances in addition to the immigration breach.
Notably, the conjunction ‘and’ in Paragraph 9.8.2 signifies that all three requirements must be satisfied for the Secretary of State for the Home Department (SSHD) to refuse the application. This brings us to the question of whether illegal working can be considered an ‘aggravating circumstance.’
Interpreting ‘Aggravating Circumstances’:
While the Home Office guidance on ‘Suitability: previous breach of UK immigration laws’ does not explicitly label illegal work as an aggravating circumstance, the absence of an exhaustive list allows for interpretation. Case law becomes instrumental in this regard.
In ZH (Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 8, the court held that illegal working, per se, does not constitute a separate ‘aggravating circumstance.’ However, PS(India) v Secretary of State for the Home Department (2020) provides a nuanced perspective, suggesting that illegal working may indeed be considered an ‘aggravating circumstance’ based on the specific facts of each case.
Factors Considered in Assessing ‘Illegal Working’ as an ‘Aggravating Circumstance’:
The case law underscores the importance of considering various factors in determining whether ‘illegal working’ amounts to an ‘aggravating circumstance.’ Factors include the extent of illegal work, the applicant’s honesty in disclosing such work, and whether the work was premeditated.
PS (paragraph 320(11) discretion: care needed) India [2010] UKUT 440 emphasizes the need for decision-makers to exercise caution and consider the public interest in encouraging those unlawfully in the UK to regularize their status.
Practical Guidance for Immigration Lawyers:
When representing clients facing spouse visa refusals due to a history of illegal working, immigration lawyers are advised to conduct a thorough inquiry into the client’s work history. Questions regarding the nature, extent, remuneration, and motivations behind the illegal work are crucial.
Preparation of a detailed personal statement, ensuring the client’s candid disclosure of the illegal work history, is paramount. Lawyers should leverage the legal framework and case law discussed above, incorporating recent updates, to craft a robust legal submission. This proactive approach not only enhances the chances of successful application but also equips lawyers for potential court proceedings in case of refusal.
Conclusion:
In addressing spouse visa refusals based on illegal working, a comprehensive understanding of the legal framework and relevant case law is essential. Immigration lawyers play a pivotal role in navigating these complexities by conducting thorough client interviews, preparing detailed personal statements, and utilizing legal precedents to build compelling legal submissions. This proactive approach positions lawyers to effectively advocate for their clients, whether during the initial application or in subsequent appeal proceedings.
#VisaRefusal #ImmigrationLaw #SpouseVisaAppeal #LegalAnalysis #IllegalWorkingDefense
