Ed O’Driscoll, a solicitor in our Immigration Department, writes about the problems that arise when applying for leave to enter or remain after previous applications have been rejected.

To have your application rejected by the Home Office can be a very upsetting experience. A lot of time, energy, and money will have been invested in making the application, and the refusal may mean that this has all been wasted, and also that your family remains painfully divided.

Sometimes there can be the immediate decision to make as to whether to lodge an appeal. There is often a natural urge to appeal, as the initial refusal may appear patently unfair, and sometimes it is indeed the best or only course of action.

However, the reasons for the initial refusal must be carefully examined. Appealing can be very expensive, and in the case of applications from overseas, not be heard for over a year. If the reason the first application was refused can be easily corrected, it is often cheaper and quicker to simply submit a new application.

Different problems arise when a previous application has been refused on the grounds that false information has been provided, as this can be used in certain circumstances as a reason to also refuse future applications, even when the initial error, whether deliberate or not, has been corrected.

Evidence will be needed to demonstrate that the information provided with the previous application was in fact correct, or that the error had been accidental and that the application had been made in good faith.

Further difficulties can be caused if the applicant has a problematic immigration history, such as previously being an overstayer, and there are other ‘aggravating circumstances’, such as not reporting when required or being deemed to have made previous ‘frivolous’ applications. This can occur all too easily, especially when the applicant has received bad immigration advice in the past.

In such cases, additional care must be taken to demonstrate why and how these past events occurred, and also to emphasise the overall strength of the application. The Home Office’s own guidelines states that all cases must be considered on their merits and that any family life in the UK must be taken into account. This has been reinforced by the Upper Tribunal in the case of PS (paragraph 320(11) discretion:care needed), where it was held that the Home Office must ’exercise great care in assessing the aggravating circumstances’.

If you are affected any of the issues discussed above, please contact us for advice. Ed O’Driscoll is available at e.odriscoll@wilsonllp.co.uk or call 0208 808 7535 to find out how we can assist you.

If you have a family law case you need assistance with, please contact Mavis on 020 8885 7986 to arrange for an appointment with a solicitor in the family team.

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