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Withdrawal of Enforcement-Related Marriage Policies DP3/96 and DP2/93
On the 24th April 2008, the long standing policies on marriage related enforcement were withdrawn by the government. The policy DP3/96 stated that ‘action to force a foreign spouse to leave should not normally be started where the subject has a genuine and subsisting marriage with someone settled here and the couple have lived together in this country continuously since their marriage for at least two years before the commencement of enforcement action and it is unreasonable to expect the settled spouse to accompany his/her spouse on removal’. DP/2/93 applied to cases that came to the attention of the Home Office before 14 March 1996. It was more generous than DP3/96 and applied to spouses as well as common law relationships ‘akin to marriage’. In withdrawing the policies, the Minister for Borders and Immigration Mr. Liam Byrne states:
‘As part of our programme of reform in 2008 to tighten Britain’s border security I am today revoking two pieces of guidance which could have helped a handful of overstayers—people here illegally in the United Kingdom (UK)—to obtain limited leave to stay in the UK as the spouse or partner of a British citizen rather than go home and apply for a marriage visa.
These policies only applied to people facing enforced removal but gave an unfair advantage to those unlawfully in the UK compared to those who complied with the immigration rules in seeking a marriage visa before arrival. Withdrawing the policies will simplify the handling of marriage cases.
The fact that an individual is married to or is the civil partner of a British citizen or someone settled in the UK will continue to be a relevant factor to be taken into account when considering removal. Each case will be considered on its individual merits in line with the Human Rights Act and the immigration rules.’
If you made an application before the policies were withdrawn, and the application is outstanding, you will not benefit from the policies because applications are decided on the basis of the applicable law on the date of the decision. However, if there has been a substantive delay on the part of the Home Office in dealing with your application, as a result of which you lost the benefit of the policies, you may able to challenge any refusal of your application on the basis that it is a breach of Article 8 of the European Convention on Human Rights. Delay and the assessment of proportionality under Article 8 is a complex area of law. If you wish further advice on this, or any other issue, please contact Just Immigration Solicitors.

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Knowledge of Life in the UK
From 2 April 2007, all adults (unless exempt) who apply for settlement will need to demonstrate knowledge of the language and life in the UK. There are two ways in which you can demonstrate this:

If you are already at or above ESOL (English Speakers of Other Languages) Entry 3 level, you will be able to undertake a specially developed short test called ‘life in the UK’; or
If you have not reached ESOL Entry 3 level, you will need to obtain an approved ESOL qualification through attending an ESOL course, which includes citizenship material, at a local college.

You can find out more about the ‘Life in the UK’ test by visiting Life in the UK Test website on www.lifeintheuktest.gov.uk. Alternatively, you can contact the Life in the UK helpline on 0800 015 4245. There is a fee for the test, which is currently £35.00.

If you feel you are not yet at ESOL Entry Level 3, and choose to undertake an ESOL course, you will need to show that you have progressed from one ESOL level to the next. You can find out more about the ESOL course by calling the Learn Direct helpline on 0800 100 900.

It is extremely important to plan the taking of the Knowledge of Life test, or the ESOL course carefully before your existing leave expires. Your application for indefinite leave to remain will fail without passing the Knowledge of Life test or showing progress in the ESOL course. For example, currently, it can take up to 4 weeks (sometimes longer) for you to be offered a place at one of the Knowledge of Life test sessions, and another 7 days for confirmation of the results to reach the Home Office. Therefore, you should always check and plan ahead.

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Refusal of Entry Clearance
With effect from 1 April 2008, the following persons will automatically be refused entry clearance for a period of up to 10 years under para.320(7B) of the Immigration Rules:

Overstayers (unless the overstaying was for 28 days or less and the person left the UK voluntarily, and not at the expense of the Secretary of State);
Those who have breached a condition attached to their leave;
Illegal entrants; and
Those who have used deception in an application for entry clearance, leave to enter or remain whether or not the application was successful.

Mandatory refusal of entry clearance or leave to enter will be for a period of:

10 years if the person had used deception in an application for entry clearance;
12 months if the person left the UK voluntarily, and not at the Secretary of State's expense;
5 years, if the person left the UK voluntarily, but at the Secretary of State's expense; or
10 years if the person was removed or deported from the UK.

A concession was announced by the government on 17 March 2008. The concession states:
Concession for applicants who are in the UK illegally on or after 17 March 2008 (the date of the announcement) and left the UK voluntarily before 1 October 2008.

Ministers have announced a concession to paragraph 320(7B), with the aim of encouraging people who are in the UK illegally to leave and apply to return under the immigration rules. In order to qualify under the concession, the applicant must meet the following conditions:-

They must have left the UK voluntarily between 17 March 2008 (this is the date the concession was announced) and 1 October 2008 inclusive.

They must also not have contrived in a significant way to frustrate the immigration rules (eg by conducting a bogus marriage). This means that if a person’s breach of our immigration rules was so serious that they would have been refused under the old paragraph 320(11) of the immigration rules (or would have been refused under those provisions had they overstayed or breached their conditions) then the concession should not be applied to them.

The concession is that Rule 320(7B) will not apply to such an applicant. However, the applicant will still have to satisfy the other requirements of the immigration rules.

For further advice on the concession, and this complex area of law, please contact us at Just Immigration Solicitors.

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