Suitability refusals: contriving to frustrate the intention of the rules

Sometimes a migrant here in the UK unlawfully will want to apply for immigration status. Lawyers and the Home Office often call this “regularising” their status, because the person becomes a “regular” migrant within the rules rather than an “irregular” one outside the rules. One of the ways to do this is by leaving the country and making an application for entry clearance from outside the UK.

Changes to the immigration rules, however, have made it successively harder and harder to acquire lawful status after being unlawfully present in the UK. One of the provisions that can make this difficult is paragraph SUI 11.2 of Part Suitability of the immigration rules.

Paragraph SUI 11.2: contriving to frustrate the intentions of the rules

Paragraph SUI 11.2 of Part Suitability of the immigration rules is a discretionary ground for refusal. It provides that entry clearance or permission to enter the United Kingdom may be refused where:

‘(a) the applicant has previously breached immigration laws as defined in SUI 11.4; and
(b) the application was made outside the relevant time period in SUI 12.1; and
(c) the applicant has acted to frustrate immigration controls (see SUI 11.7).‘

If the applicant is still within the period of their re-entry ban, the application will be refused without any further consideration given to whether they frustrated immigration controls. If the re-entry ban is behind them, the decision maker will then consider whether the “contriving to frustrate” rule applies.

Once it is established that the mandatory re-entry bans do not apply, therefore, the “contriving to frustrate” rule imposes a three-stage test:

First of all, did the applicant breach immigration laws in one of the specified ways;
If so, did they act to frustrate immigration controls;
If so, the decision maker still needs to consider whether to refuse; refusals under this paragraph of the rules are not mandatory.

To reiterate, even where a person has previously acted to frustrate immigration controls, they might still be admitted to the UK. Unlike the previous version of the rule, which said that the application “should normally” be refused, the new version simply says “may” be refused, which removes the presumption that a refusal would normally be appropriate.

Immigration law breaches that might trigger refusal

When considering an entry clearance application, immigration officials will carefully consider whether an applicant has previously breached immigration laws.

The list of immigration law breaches which might trigger this provision is a finite and exhaustive list, defined at paragraph SUI 11.4.

‘SUI 11.4. An applicant will be treated as having breached immigration laws if, aged 18 or over, they:

(a) overstayed their permission, unless an exception in SUI 11.5. or SUI 11.6. applied to that period of overstaying; or

(b) breached a condition attached to their permission, unless entry clearance or further permission has subsequently been granted in the knowledge of the breach; or

(c) were (or still are) an illegal entrant; or

(d) used deception in relation to a previous application (whether or not successfully).‘

Paragraphs SUI 11.5 and SUI 11.6 carve out exceptions for short periods of overstaying, or for periods of overstay which were due to an incorrect decision by the Home Office.

‘SUI 11.5. A period of overstaying will be disregarded for the purpose of SUI 11.4.(a) where the person left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, and:

(a) the person overstayed for 90 days or less, where the overstaying began before 6 April 2017; or

(b) the person overstayed for 30 days or less, where the overstaying began on or after 6 April 2017; or

(c) SUI 13.1. applied to the period of overstaying.

SUI 11.6. A period of overstaying will not be counted for the purpose of paragraph SUI 11.4.(a) where the overstaying arose from a decision to refuse an application, or cancellation of permission, which was subsequently withdrawn, or quashed, or reconsidered by direction of a court or tribunal, unless the legal challenge which led to the reconsideration was brought more than 3 months after the date of the decision to refuse or cancel.‘

The burden of proof is on the Home Office to show that a person previously breached immigration laws, and the standard of proof is the balance of probabilities.

As well as looking at the information presented in the application itself, officials are instructed to also review their case working systems, and carry out, when appropriate, Department for Work and Pensions checks and HM Revenue and Customs checks.n in paragraph 9.8.2, as this is neither defined in the rules nor the guidance. It appears to be a drafting error.

Frustrating immigration controls

Once it is established that an applicant has previously breached immigration laws, the decision maker must move on to decide whether the applicant “frustrated immigration controls”.

As per paragraph SUI 11.7,

‘An applicant will be treated as having acted to frustrate immigration controls, if aged 18 or over, they (for example):

(a) failed to cooperate with the redocumentation, arrest or removal process; or

(b) used a false identity; or

(c) failed to report as required or absconded from immigration custody or bail; or

(d) obtained state or public authority benefits, tax credits, employment, rented accommodation in the private sector or goods or services they were not entitled to; or

(e) used multiple identities; or

(f) participated in immigration related crime.‘

This is a non-exhaustive list.

Home Office policy builds on these examples and adds various other types of behaviour the Home Office considers comparable. These include (again, this is not an exhaustive list):

absconding
not meeting temporary admission/reporting restrictions or bail conditions
failing to comply with removal directions after port refusal of leave to enter / illegal entry
previous working in breach on visitor conditions on arrival in UK (indicating a deliberate intention to work)
receiving benefits, goods or services when not entitled
using an assumed identity or multiple identities
receiving National Health Service (NHS) care to which they are not entitled
attempting to frustrate removal from the UK
arrest /detention by Home Office or police
escaping from Home Office detention
switching nationality
troublesome / frivolous applications
not complying with the re-documentation process
taking part/attempting to take part/or facilitating in a sham marriage / marriage of convenience
harbouring an immigration offender
people smuggling or assisting in people smuggling

Exercise of discretion

As set out above, even if the Home Office establishes that the applicant breached immigration laws and frustrated immigration controls, they must go on to consider exercising discretion and still granting Entry Clearance. This is because this refusal ground is not mandatory.

Indeed, the guidance confirms that entry clearance officers must consider all cases on their merits:

‘You must consider all the circumstances of the case before refusing under paragraph SUI 11.2 or SUI 11.3. Factors which may be relevant to your decision include:

– why and how did the breach happen
– if a condition was breached, the period between the condition being imposed and the breach
– the period since the breach
– any other circumstances, such as the impact of a refusal on the individual or their family living in the UK’

Example

George entered the UK on a student visa valid until 1 December 2025. He did not make any application to renew his leave. On 15 January 2026, he returned home, paying for his own ticket.

George has overstayed in the UK, and therefore meets the first stage of the test under paragraph SUI 11.2. However, if George did not, apart from the period of overstay, frustrate immigration controls, and he has always complied with the conditions of his student leave, hasn’t broken the law etc, he will not meet the second stage of the test. If he makes a new application to enter the UK as a Student, therefore, his application should not be refused under paragraph SUI 11.2 of the Immigration Rules, provided he applies once the 12-month re-entry ban expires.

Example

Nancy entered the UK unlawfully on 12 March 2018. She is an illegal entrant and therefore meets the first stage of the test under paragraph SUI 11.2 (under the Home Office’s interpretation). Nancy never had valid leave while in the UK. On 5 May 2018, she is caught by an immigration officer and given reporting restrictions; she needs to sign at Becket House every other Thursday. Nancy never reports at Becket House. She then submits an application for leave using a false identity. This application is refused and Nancy is given removal directions on 1 September 2019. She ignores them and remains in the UK until 1 November 2020, when she decides to return home.

It is likely that any new application for a visa that Nancy submits will be refused under paragraph SUI 11.2 because Nancy has breached immigration laws, and has frustrated immigration controls (failure to report; assumption of a different identity; non-compliance with removal directions). Nancy’s family life in the UK should, however, be taken into consideration when making this refusal. It is likely that only a very strong family life (for example, a British child with a British father who lives in the UK and who cannot live with Nancy abroad) will mean that Nancy is allowed to return to the UK.

Dealing with refusals under paragraph SUI 11.2

Once a person has been refused under paragraph SUI 11.2 it will be rare for officials to change their mind on the basis of a new application. A refusal is likely to stand for a prolonged period, and potentially forever.

Where an application is refused on this basis, it will be necessary to bring a legal challenge. Where the person refused entry is a family member, there will usually be a right of appeal to the immigration tribunal on human rights grounds. In other cases where there is no right of appeal, an application for Judicial Review will be necessary.

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