Entry Clearance (Visa) — What It Is

What is Entry Clearance

Entry clearance is leave to enter granted in advance of arrival in the United Kingdom, provided its purpose is endorsed on its face along with any conditions to which it is subject.

You will not need entry clearance (a visa) if you hold a United Kingdom passport or one issued by another country in the European Union (EU) or European Economic Area (EEA), or Switzerland.

Entry clearance consists of visas for visa nationals*, stateless persons and refugees and entry certificates for non-visa nationals and British nationals other than British citizens.

Visa nationals require an entry clearance whatever the purpose of their travel to the United Kingdom and should anticipate refusal of entry if they travel without one.

Other persons (non-visa nationals) seeking entry for a period exceeding six months or for a purpose for which prior entry clearance is required under the Immigration Rules also need to obtain entry clearance.

Application

Applicants must be outside the United Kingdom and Islands at the time of their application. An application for entry clearance as a visitor can be made at any British diplomatic post offering a visa service. All other entry clearance applications must be made to the British diplomatic post in the country or territory where you are living.

An application for entry clearance will be considered in accordance with the appropriate provisions in the Immigration Rules governing the grant or refusal of leave to enter. An application is not deemed to have been made until the appropriate fee has been paid. An application for entry clearance is to be decided in the light of the circumstances existing at the time of the decision, save where a minor attains the age of 18 between making the application and the decision upon it.

Revocation

Entry clearance may be revoked in the following circumstances:

• if, whether or not to the holder's knowledge, false representations were employed or material facts were not disclosed, either in writing or orally, for the purpose of obtaining the entry clearance;
  
  
• where a change of circumstances since the entry clearance was issued has removed the basis of the holder's claim to be admitted to the United Kingdom, except where the change of circumstances amounts solely to his exceeding the age for entry in relation to "children" categories since the issue of the entry clearance;
  
  
• where the holder's exclusion from the United Kingdom would be conducive to the public good.

Conditions

Limited leave to enter or remain may be given subject to conditions:

• regarding restriction of employment or occupation in the United Kingdom;
  
  
• requiring maintenance and accommodation of the principal and any dependants, without recourse to public funds; and
  
  
• requiring registration with the police.
  
  

Adequate Maintenance

Providing the level of maintenance is broadly equivalent to that of a person receiving income support and the associated benefits that normally accompany it (e.g. housing benefit, council tax relief, free school meals) then that will be considered to be adequate for the purposes of the immigration rules.

Maintenance can usually be provided by a third party sponsor such as a relative. However, third party support is not permissible in child cases.

Adequate accommodation

Accommodation must be adequate for the person coming to the UK other than in the student category. For people seeking entry on a long-term basis there are two main considerations:

1. the sponsor/applicant must 'own or exclusively occupy' the proposed accommodation in family cases. Accommodation can be shared with other members of a family provided that at least part of the accommodation is for the exclusive use of the sponsor and his dependants. This may be as small as a separate bedroom but must be owned or legally occupied by the sponsor.
   
   
2. the proposed accommodation must not be overcrowded once the applicant arrives. A room must have a floor area larger than 50 Sq. ft. and normally used as a bedroom or living room. It relates number of rooms to number of persons, allowing for the fact that children aged between 1 and 10 years only count as half a person: 1 room = 2 persons, 2 rooms = 3 persons, 3 rooms = 5 persons, 4 rooms = 7.5 persons, and 5 rooms = 10 persons.
   
   

Public Funds

Public funds are income-related benefits paid by the state. These include:

1. Housing - accommodation as a homeless person and accommodation from a local authority register;
   
   
2. Benefits - income support/Income-based Jobseeker's Allowance, Housing Benefit, Council Tax Benefit, Attendance Allowance, Severe Disablement Allowance, Carer's Allowance, Disability Living Allowance, State Pension Credit, Child Tax Credit and Working Tax Credit.

Social housing, education, health care and benefits paid as a result of contributions such as incapacity benefit or contributory job seekers' allowance are not considered to be public funds for the purposes of the Immigration Rules.

Reporting conditions

Any foreign nationals from certain countries or territories** need to report, as do the stateless and those holding non-national travel documents, where they are given limited leave to enter the United Kingdom for longer than six months or given limited leave which takes them over 6 months from arrival.

Exempt from this requirement are seasonal agricultural workers, private servants in diplomatic households, ministers of religion, missionary or member of a religious order, persons whose leave flows from marriage to a person settled in the United Kingdom or unmarried partnership with a person settled here, persons exercising access rights to a child resident in the United Kingdom, parents of children at school, and those given leave following the grant of asylum.

Intention to leave

Intention to leave the UK is a pre-requisite for all categories which do not lead to settlement. In practice this requirement is not applied to students who are studying at a higher level and who therefore may be able to switch into Work Permit employment on completion of their studies. In considering an intention to leave the United Kingdom the decision maker can look at all the circumstances of the applicant but must not make decisions based purely on suspicion.

Relevant factors for the ECO and on appeal will include:

• Immigration history (previous compliance with immigration laws is an excellent indicator of intention to leave)
  
  
• Family links with own country, such as wife and children or elderly parents
  
  
• Other links, such as a job to return to or studies to complete
  
  
• Levels of income (not decisive taken alone, but it is not possible to argue this is not a relevant consideration)
  
  
• Absence or otherwise of links in the UK - this could cut both ways, as having a sponsor is helpful, especially if he or she can give evidence at an appeal hearing, and having someone to visit provides a visit-like purpose, but if the family has shown a 'history of immigration' this may cause some ECOs to refuse the application.

Grounds of appeal

A refusal of entry clearance is an immigration decision and may be appealed to the Asylum and Immigration Tribunal.

There are a number of grounds of appeal available to appellants. Contestable grounds are that:

• the decision is not in accordance with the Immigration Rules;
  
  
• the decision constitutes unlawful race discrimination by public authorities;
  
  
• the decision breaches human rights (this refers to incompatibility with Section 6 of the Human Rights Act 1998;
  
  
• the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;
  
  
• the decision is otherwise not in accordance with the law. "Not in accordance with the law" has been interpreted as including public law principles such as a failure to apply a policy;
  
  
• the person taking the decision should have exercised differently a discretion conferred by the Immigration Rules.

Those refused entry clearance as a visitor enjoy a right of appeal on grounds other than race discrimination, human rights or asylum only where their purpose was to visit a member of their family. Family members are for this purpose defined as:

• the applicant's spouse, parents, children, grandparents, grandchildren, siblings, uncles, aunts, nephews, nieces and first cousins;
  
  
• the parents and siblings of the applicant's spouse;
  
  
• the applicant's sons or daughters in law;
  
  
• the applicant's stepparents, stepchildren and stepsiblings; or
  
  
• the applicant's co-habitee.

Students applying for leave to remain in relation to short courses and prospective students, and their dependents, may not appeal against a refusal of entry clearance on grounds other than race discrimination, human rights or asylum.

Procedure on Appeal

The Notice of Refusal explains the grounds on which you may appeal against the Entry Clearance Officer's decision.

Notice of appeal on a form AIT-2 by a person who is outside the United Kingdom must be given not later than 28 days after he is served with notice of the decision.

Those who are outside the United Kingdom appealing against decisions of Entry Clearance Officers ("ECOs") can serve the appeal on the ECOs.

The Tribunal will only allow a late appeal to proceed where there are special circumstances.

When the tribunal fixes a hearing it must serve notice of the date, time and place of the hearing on every party.

In most cases, the tribunal will direct the appellant to serve, not later than five working days before the full hearing (or ten days in the case of an out-of-country appeal), on the tribunal and the respondent:

• witness statements of the evidence to be called at the hearing, such statements to stand as evidence in chief at the hearing;
  
  
• a paginated and indexed bundle of all the documents to be relied upon at the hearing with a schedule identifying the essential passages;
  
  
• a skeleton argument, identifying all relevant issues including human rights claims and citing all the authorities relied upon; and
  
  
• a chronology of events.

The respondent will be directed to serve, not later than five working days before the full hearing, on the tribunal and the appellant a paginated and indexed bundle of all the documents to be relied on at the hearing, with a schedule identifying the relevant passages, and a list of any authorities relied upon.

The appellant may by legally represented at the appeal and the sponsor should attend the oral hearing to give evidence as required. Although in normal circumstances a witness statement should stand as evidence in chief, there may be cases where it will be appropriate for appellants or witnesses to have the opportunity of adding to or supplementing their witness statements.

The immigration judge's determination should be sent to the appellant in three-four weeks from the date of hearing.

If the immigration judge does not allow the appeal there is the possibility of "statutory review" or reconsideration. Challenges may be made only on the identification of a material "error of law".

The most common errors are likely to be:

• the making of perverse or irrational findings on a matter or matters that were material to the outcome;
  
  
• failing to give reasons or any adequate reasons for findings on material matters;
  
  
• failing to take into account and/or resolve conflicts of fact or opinion on material matters;
  
  
• giving weight to immaterial matters;
  
  
• making a material misdirection of law on any material matter;
  
  
• committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings; and
  
  
• making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.

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* Nationals or citizens of the following countries or territorial entities:

Afghanistan, Albania, Algeria, Angola, Armenia, Azerbaijan, Bahrain, Bangladesh, Belarus, Benin, Bhutan, Bosnia Herzegovina, Burkina Faso, Burma, Burundi, Cambodia, Cameroon, Cape Verde, Central African Republic, Chad, People's Republic of China (with some exceptions), Colombia, Comoros, Congo, Cuba, Democratic Republic of the Congo, Djibouti, Dominican Republic, Ecuador, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Fiji, Gabon, Gambia, Georgia, Ghana, Guinea, Guinea Bissau, Guyana, Haiti, India, Indonesia, Iran, Iraq, Ivory Coast, Jamaica, Jordan, Kazakhstan, Kenya, Korea (North), Kuwait, Kyrgyzstan, Laos, Lebanon, Liberia, Libya, Macedonia, Madagascar, Malawi, Mali, Mauritania, Moldova, Mongolia, Morocco, Mozambique, Nepal, Niger, Nigeria, Oman, Pakistan, Peru, Philippines, Qatar, Russia, Rwanda, Sao Tome e Principe, Saudi Arabia, Senegal, Sierra Leone, Somalia, Sri Lanka, Sudan, Surinam, Syria, Taiwan, Tajikistan, Tanzania, Thailand, Togo, Tunisia, Turkey, Turkmenistan, Uganda, Ukraine, United Arab Emirates, Uzbekistan, Vietnam, Yemen, Zambia, Zimbabwe, and the territories formerly comprising the socialist Federal Republic of Yugoslavia.

** Nationals or citizens of the following countries or territorial entities:

Afghanistan, Algeria, Argentina, Armenia, Azerbaijan, Bahrain, Belarus, Bolivia, Brazil, China, Colombia, Cuba, Egypt, Georgia, Iran, Iraq, Israel, Jordan, Kazakhstan, Kuwait, Kyrgyzstan, Lebanon, Libya, Moldova, Morocco, North Korea, Oman, Palestine, Peru, Qatar, Russia, Saudi Arabia, Sudan, Syria, Tajikistan, Tunisia, Turkey, Turkmenistan, United Arab Emirates, Ukraine, Uzbekistan and Yemen.