Immigration Law
The System of Immigration Control
Immigration control is the system of identifying who can enter the United Kingdom and on
what terms (i.e. they must have permission to stay). Different groups of people are subject to
difference forms of control.
*Immigration Rules à not statutes or statute instrument, they are essentially rules of practice
lay down for the administration of the Acts.
The Secretary of State for the Home Department (SSHD) is empowered under the IA 1971
(ss.1(4) and s.3(2)) to make Immigration Rules. Set out the criteria for the application. They
can be frequently changed.
The Rules have a sui generis status.
Pearson v Immigration Appeal Tribunal: the CoA stated that although the immigration
rules are not delegated legislation or rules of law, they are rules of practice laid down for
those administering the Act and have the force of law in some immigration appeals and
judicial review proceedings.
In general, the UKVI should not act more restrictively than the Rules allow.
Advice to clients will often concern whether they fulfil the terms of the Rules.
Bodies involved in immigration control and decision making
The Home Office and the SSHD: SSHD normally make almost all actual decision.
UK Visas and Immigration (UKVI): make decisions on behalf of the SSHD in respect
of people already in the UK, manage the board control, considering the application to
stay or enter into the UK.
Immigration Officers: concern of immigration control and releases.
Entry Clearance Officers (‘ECOs’): officers of the UKVI based in British diplomatic
posts – Embassies and High Commissions. They make decisions as to whether a
person is permitted to come to the UK.
The First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal
(Immigration and Asylum Chamber): former deal with appeals against decisions
made by the Home Secretary and his/her officials in immigration, asylum and nationality
matters, and the latter is a superior court of record dealing with appeals against
decisions made by the former. The decision in First-Tier is not binding to the other court
but the decision in Upper Tribunal can be binding.
Special Immigration Appeals Commission: deal with cases in which the SSHD
argues issues of national security or other public interest reasons.
Who needs leave (permission) to enter or remain in the UK?
Generally any person without a ‘right of abode’ (mainly British citizens), will require leave to
enter the UK (s.3 IA 1971)
Exception: EEA nationals and their families do not have a right of abode, but do not require
leave in the same way as non-EEA nationals because they benefit from European rights of
freedom of movement.
Leave to enter or remain?
Leave can be limited in duration, or indefinite (i.e. the person may remain in the UK for
an indefinite period without conditions)
Indefinite Leave to Remain (ILR) or Indefinite Leave to Enter (ILE) if granted before
someone enters the UK, carries no time limit, nor any other condition but subject to
some immigration control and may be subject to deportation action in certain
circumstances. à can be lapse if absent from the UK for a continuous period of 2 years.
Where immigration control takes place
1. Overseas before entry to the UK
, l Apply for Entry clearance before entry à visa nationals always require entry
clearance, non-visa nationals will not require entry clearance if intending to come
to the UK for less than 6 months.
l At the British Embassy or British High Commission
l Procedure for entry clearance:
i. Applicant submits (usually online to a Visa Application Centre): Visa
Application Form (VAF 1-10), Fee (local currency) and NHS Surcharge if
relevant, supporting documents (e.g. certificates, proof of earnings, proof of
accommodation)
ii. Biometrics (e.g. fingerprint, photograph)
iii. Entry clearance officer considers application and may interview applicant.
l NB: many of the busiest entry clearance posts now employ an agent or
commercial agent to accept and process applications before forwarding them to
the entry clearance post for decision.
2. At ports on entry to the UK
l Apply for Leave to enter on entry à may be granted on entry to non-visa
nationals in certain categories of 6 months or less.
l Application made to immigration officers
l NB: for non-visa nationals they still have the option of applying for entry clearance
in advance at the British embassy. But if they apply at the port they will need to
satisfy the immigration officer that they fulfil the rules relating to their visa (e.g.
visitor)
3. Within the UK after entry
l Apply for Leave to remain after entry
l Application made to the UKVI
l Procedure for leave to remain: similar as above but to UKVI, but terms and
conditions of existing leave will continue while application is being considered, if
the application is made after leave has expired applicant will be an over-stayer.
, Immigration for temporary purposes
What are the IO’s powers?
n The IO has the power to examine an application and detain pending that
examination (Para 16, Schedule 2 Immigration Act 1971)
n IO examining to see if applicant satisfied requirement in the IR. So IO can also re-
examine/question someone who has already been granted Entry Clearance
Visitor (Appendix V)
General requirements (Parts V1 & V2)
n A visa national (Appendix V of Immigration Rules) must obtain entry clearance
before they arrive in the UK (Para V 1.2) à submit an online application of Entry
Clearance at British Embassy/High Commission, with a fee, supporting evidence, a
valid travel document and biometric data.
n Non-visa national can apply at port and before entry
n A non-visa national may apply for a visit visa, but is not required to unless they are
visiting the UK to marry or to stay in excess of 6 months (Para V 1.3)
n Leave to enter conditions:
u Stay should not exceed period of 6 months
u Prohibition on employment
u No recourse to public funds
n No restriction on frequency of visits but there should be intervals between them –
should not spend more than 6 out of 12 months in the UK.
Suitability requirements (Part V3)
n Para V 3.12: an applicant will be refused if they fails without reasonable excuse
to comply with a requirement to provide information.
n Consider if there is any immigration history? Criminal conviction?
Eligibility requirement (Part V4)
n Applicant that have additional eligibility requirements à Para V4.1
u Child at the date of application à Para v 4.11-4.13
u Coming to receive private medical treatment à Para V 4.14-4.16
u Coming to the UK as organ donor à Para V4.17- 4.20
u coming to the UK under ADS agreement à Para V 4.21
u academic à Para V 4.22
n Standard visitor: Para V 4.2-4.10
n Must have:
u Genuine intention to visit (Para V 4.2) à thus need to consider their ties to
home country
u Funds, maintenance and accommodation
n Must not intend to:
u Work in the UK (or receive payment from a UK source) (Para V 4.5 & 4.6)
u Study in the UK (Para V 4.8) à except a maximum of 30 days incidental
study
u Receive medical treatment other than private medical treatment or to donate
an organ (Para V 4.9)
u Marry or form a civil partnership (Para V 4.10) à unless they have a visit visa
endorsed for marriage or civil partnership
Extension of stay as a visitor (Part V 8)
ànot important, as there is general maximum of 6 months, rare to grant extension that
beyond 6 months.
n a standard visitor for private medical treatment may be granted a further extension
of stay as a visitor for 6 months. (Para V 8.8)
n Para V9 sets out in what circumstances leave to enter to remain as a visitor may
be curtailed or cancelled. (e.g. false representations or false documents were
provided)
Point Base System (Para 6A)
The System of Immigration Control
Immigration control is the system of identifying who can enter the United Kingdom and on
what terms (i.e. they must have permission to stay). Different groups of people are subject to
difference forms of control.
*Immigration Rules à not statutes or statute instrument, they are essentially rules of practice
lay down for the administration of the Acts.
The Secretary of State for the Home Department (SSHD) is empowered under the IA 1971
(ss.1(4) and s.3(2)) to make Immigration Rules. Set out the criteria for the application. They
can be frequently changed.
The Rules have a sui generis status.
Pearson v Immigration Appeal Tribunal: the CoA stated that although the immigration
rules are not delegated legislation or rules of law, they are rules of practice laid down for
those administering the Act and have the force of law in some immigration appeals and
judicial review proceedings.
In general, the UKVI should not act more restrictively than the Rules allow.
Advice to clients will often concern whether they fulfil the terms of the Rules.
Bodies involved in immigration control and decision making
The Home Office and the SSHD: SSHD normally make almost all actual decision.
UK Visas and Immigration (UKVI): make decisions on behalf of the SSHD in respect
of people already in the UK, manage the board control, considering the application to
stay or enter into the UK.
Immigration Officers: concern of immigration control and releases.
Entry Clearance Officers (‘ECOs’): officers of the UKVI based in British diplomatic
posts – Embassies and High Commissions. They make decisions as to whether a
person is permitted to come to the UK.
The First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal
(Immigration and Asylum Chamber): former deal with appeals against decisions
made by the Home Secretary and his/her officials in immigration, asylum and nationality
matters, and the latter is a superior court of record dealing with appeals against
decisions made by the former. The decision in First-Tier is not binding to the other court
but the decision in Upper Tribunal can be binding.
Special Immigration Appeals Commission: deal with cases in which the SSHD
argues issues of national security or other public interest reasons.
Who needs leave (permission) to enter or remain in the UK?
Generally any person without a ‘right of abode’ (mainly British citizens), will require leave to
enter the UK (s.3 IA 1971)
Exception: EEA nationals and their families do not have a right of abode, but do not require
leave in the same way as non-EEA nationals because they benefit from European rights of
freedom of movement.
Leave to enter or remain?
Leave can be limited in duration, or indefinite (i.e. the person may remain in the UK for
an indefinite period without conditions)
Indefinite Leave to Remain (ILR) or Indefinite Leave to Enter (ILE) if granted before
someone enters the UK, carries no time limit, nor any other condition but subject to
some immigration control and may be subject to deportation action in certain
circumstances. à can be lapse if absent from the UK for a continuous period of 2 years.
Where immigration control takes place
1. Overseas before entry to the UK
, l Apply for Entry clearance before entry à visa nationals always require entry
clearance, non-visa nationals will not require entry clearance if intending to come
to the UK for less than 6 months.
l At the British Embassy or British High Commission
l Procedure for entry clearance:
i. Applicant submits (usually online to a Visa Application Centre): Visa
Application Form (VAF 1-10), Fee (local currency) and NHS Surcharge if
relevant, supporting documents (e.g. certificates, proof of earnings, proof of
accommodation)
ii. Biometrics (e.g. fingerprint, photograph)
iii. Entry clearance officer considers application and may interview applicant.
l NB: many of the busiest entry clearance posts now employ an agent or
commercial agent to accept and process applications before forwarding them to
the entry clearance post for decision.
2. At ports on entry to the UK
l Apply for Leave to enter on entry à may be granted on entry to non-visa
nationals in certain categories of 6 months or less.
l Application made to immigration officers
l NB: for non-visa nationals they still have the option of applying for entry clearance
in advance at the British embassy. But if they apply at the port they will need to
satisfy the immigration officer that they fulfil the rules relating to their visa (e.g.
visitor)
3. Within the UK after entry
l Apply for Leave to remain after entry
l Application made to the UKVI
l Procedure for leave to remain: similar as above but to UKVI, but terms and
conditions of existing leave will continue while application is being considered, if
the application is made after leave has expired applicant will be an over-stayer.
, Immigration for temporary purposes
What are the IO’s powers?
n The IO has the power to examine an application and detain pending that
examination (Para 16, Schedule 2 Immigration Act 1971)
n IO examining to see if applicant satisfied requirement in the IR. So IO can also re-
examine/question someone who has already been granted Entry Clearance
Visitor (Appendix V)
General requirements (Parts V1 & V2)
n A visa national (Appendix V of Immigration Rules) must obtain entry clearance
before they arrive in the UK (Para V 1.2) à submit an online application of Entry
Clearance at British Embassy/High Commission, with a fee, supporting evidence, a
valid travel document and biometric data.
n Non-visa national can apply at port and before entry
n A non-visa national may apply for a visit visa, but is not required to unless they are
visiting the UK to marry or to stay in excess of 6 months (Para V 1.3)
n Leave to enter conditions:
u Stay should not exceed period of 6 months
u Prohibition on employment
u No recourse to public funds
n No restriction on frequency of visits but there should be intervals between them –
should not spend more than 6 out of 12 months in the UK.
Suitability requirements (Part V3)
n Para V 3.12: an applicant will be refused if they fails without reasonable excuse
to comply with a requirement to provide information.
n Consider if there is any immigration history? Criminal conviction?
Eligibility requirement (Part V4)
n Applicant that have additional eligibility requirements à Para V4.1
u Child at the date of application à Para v 4.11-4.13
u Coming to receive private medical treatment à Para V 4.14-4.16
u Coming to the UK as organ donor à Para V4.17- 4.20
u coming to the UK under ADS agreement à Para V 4.21
u academic à Para V 4.22
n Standard visitor: Para V 4.2-4.10
n Must have:
u Genuine intention to visit (Para V 4.2) à thus need to consider their ties to
home country
u Funds, maintenance and accommodation
n Must not intend to:
u Work in the UK (or receive payment from a UK source) (Para V 4.5 & 4.6)
u Study in the UK (Para V 4.8) à except a maximum of 30 days incidental
study
u Receive medical treatment other than private medical treatment or to donate
an organ (Para V 4.9)
u Marry or form a civil partnership (Para V 4.10) à unless they have a visit visa
endorsed for marriage or civil partnership
Extension of stay as a visitor (Part V 8)
ànot important, as there is general maximum of 6 months, rare to grant extension that
beyond 6 months.
n a standard visitor for private medical treatment may be granted a further extension
of stay as a visitor for 6 months. (Para V 8.8)
n Para V9 sets out in what circumstances leave to enter to remain as a visitor may
be curtailed or cancelled. (e.g. false representations or false documents were
provided)
Point Base System (Para 6A)
