1.10 Arriving in the UK · 2015-02-18 · 366 UKCISA Manual 2015 1. Immigration 1.10 Arriving in the UK 1.10 Arriving in the UK All passengers arriving at UK ports of entry (international

366 © UKCISA Manual 2015

1. Immigration 1.10 Arriving in the UK

1.10 Arriving in the UKAll passengers arriving at UK ports of entry (international airports, sea ports and the Channel Tunnel), other than those arriving from the Republic of Ireland (for which see subsection 1.10.8), are checked through passport control by border force officers and must produce passports or identity documents which establish their identity and nationality. Those who are British citizens, or who have Certificates of Entitlement to the Right of Abode in the UK, are admitted automatically.

Those subject to immigration control (see subsection 1.2 if you are not sure who is subject to immigration control) are in general prohibited from entering the UK unless they have leave (ie permission) to enter. In the case of individuals (as opposed to large groups), that leave might be granted at one of two stages: 1. People who arrive with entry clearance will almost certainly have been

granted leave to enter when entry clearance was endorsed in their passport, that is, before they made their journey to the UK. This will be the case if the conditions to which their stay is subject are detailed on the entry clearance sticker or biometric residence permit, for example, ‘No recourse to public funds’, and provided they are not entering on a Refugee Convention travel document issued by a country other than the UK with UK entry clearance issued on or after 27 February 2004. This should be the case for all Tier 4 migrants and their family members. For more information about how those with entry clearance should be treated on arrival, see subsection 1.10.1.

2. People who do not have entry clearance, or who have entry clearance which does not specify the conditions to which their stay is to be subject, or who enter on a Refugee Convention travel document issued by a country other than the UK with an entry clearance issued for the UK on or after 27 February 2004, will be granted (or refused) leave to enter by the border force officer they meet when they land in the UK. This will apply, for example, to non-visa nationals who apply on arrival in the UK as visitors coming for a stay of up to six months. A border force officer should not refuse leave to enter without first consulting a chief border force officer or immigration inspector. For more information about how those without entry clearance should be treated on arrival, see subsection 1.10.2.

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Border force officers have wide powers enabling them to carry out their functions. They have the power to search baggage, to order medical examinations, to detain passengers pending further enquiries and to require them to provide physical data such as fingerprints or iris scans to establish that documents such as passports relate to them, amongst other things. They have no right to question other people connected with the passenger, such as relatives in the UK, but it is usually sensible to co-operate if there is a request for a person waiting to meet a passenger to report to border force officials.

1.10.1 Passengers with entry clearanceThese passengers should pass through passport control relatively quickly as normally no decision will need to be made about whether or not to grant them leave to enter. The only questions a border force officer will be able to ask are ones that establish whether: � there has been such a change in their circumstances since leave was

granted, that the leave should be cancelled � the leave was obtained as a result of false information given by them, or as a

result of their failure to disclose material facts � there are medical grounds for cancelling the leave � it would be conducive to the public good to cancel the leave � the leave should be cancelled on the grounds that their purpose in arriving in

the UK is different from the purpose specified in the entry clearance � a Tier 4 (General) student can speak English at the level specified in the

Confirmation of Acceptance for Studies (CAS) if the CAS was assigned on or after 21 April 2011

� they have enrolled on the course for which they were granted leave, if the course has already started

� they have withdrawn from or been excluded from the course for which they were granted leave.

The Upper Tribunal (Immigration and Asylum Chamber) held in the case of Fiaz that a change in circumstances that occurs before the grant of leave and continues after the grant of leave can lead to cancellation of leave. In this case, the student stopped studying before leave was granted (following a successful appeal) and did not resume study after leave was granted. His leave was cancelled when he attempted to re-enter the UK two months after his leave was granted and too late to re-enrol. The tribunal held that:



Where leave to remain is granted on appeal for a particular purpose but that purpose disappears between the determination of the appeal and the grant of the leave to remain, we see no reason why that change of circumstance does not continue through to the period when the leave was granted and thus enable cancellation.

Since 30 November 2009, passengers aged six and over who have a biometric UK entry clearance or a biometric residence permit have had the fingerprints from their right hand thumb and first finger scanned at border control. These are checked against fingerprints already provided in previous immigration applications.

Passengers may also be examined by a medical inspector or someone authorised by such an inspector.

These questions and examinations may lead the border force officer to decide to cancel the leave and refuse leave to enter. Where this happens a passenger will have a right of appeal against both these decisions.

Following the partial implementation of the Immigration Act 2014 on 20 October 2014 the right of appeal was completely removed for people who applied for leave to remain as a Tier 4 (General) migrant, a Tier 4 (Child) migrant, the partner of a Tier 4 migrant or the child of a Tier 4 migrant, on or after 20 October 2014. In place of appeals the Act allows for an Administrative Review to be carried out by the Home Office.

At the time of writing these changes do not affect the right of appeal for passengers who have been refused leave to enter and passengers who have had their leave cancelled as their right of appeal depends on them having entry clearance (not leave to remain). Where they exercise this right of appeal they will also be allowed to stay in the UK whilst they do so. There is, however, an exception to this; they will not have a right of appeal if the border force officer asserts that their purpose for entry is not the same as the one specified on the entry clearance. In these circumstances the only remaining option for the passenger would be to lodge an application for judicial review. Making such a claim will require specialist legal advice and is subject to strict time limitations. It is therefore extremely important that the passenger is referred to a specialist without delay.



The Immigration Rules for Tier 4 (General) entry clearance provide that where a confirmation of acceptance of studies (CAS) is assigned on or after 21 April 2011, a Home Office official can require students to demonstrate English language proficiency without the help of an interpreter to the level specified in the CAS. The Rules specify that this is not to be used as an opportunity for the student to be subjected to an English test at the level stated in their CAS. Any Tier 4 (General) student, including one who has passed a secure English language test to the required level, can be refused leave to enter if that student cannot answer basic questions; a student who is feeling tired, unwell or who cannot understand the border force officer’s accent should explain this. In July and August 2014 we received an increasing number of reports of students being questioned in this way and we ask that members continue to provide feedback on where this occurring so that we can raise this with the Home Office.

Arriving with Tier 4 leave for study at one institution when the student intends to study elsewhere can result in a refusal of leave to enter and cancellation of existing leave. However, if the student is about to start study with a Highly Trusted Sponsor, the border force officer should allow the student to enter as long as the student can provide evidence to this effect by, for example, producing a CAS statement. Fiona Johnstone, Assistant Director: Border Force Operational Policy, explained in an email dated 2 July 2012 that border force officers have the following instructions:

For all applications made since 5 October 2009, Tier 4 passengers have been tied to the sponsor on their visa and will need permission to change to any other sponsor. Without this permission their visa can be cancelled under change of circumstances.

The exception to this is if a passenger has a CAS to study a new course with a Highly Trusted Sponsor (HTS). In this case they can enter to start their new course without a new Tier 4 visa, providing they have extant leave given by their existing Tier 4 visa.

We asked the Home Office whether these instructions are still in place, as in autumn 2013 some border force officers refused entry to students in this situation. The Home Office replied on 20 September 2013:

Fiona’s advice stands.

If there are any specific cases where you believe the guidance hasn’t been followed, do let us know and we’ll look into it.



We have not had any reports of this from members, but should this change please bring this to our attention.

Emphasise to students how important it is that they contact you immediately if they run into difficulties at passport control. If their leave is cancelled and they have to go through the appeals process, then it is most likely that they will be granted temporary admission to the UK whilst waiting for their appeal to be decided (as opposed to being detained here). See subsection 1.10.6 for more detail about appealing the cancellation of leave, and subsection 1.10.7 for further information about temporary admission.

Assuming the border force officer does not cancel or curtail leave, passengers are treated as having been granted leave to enter from the date they arrive in the UK until the date the entry clearance expires (unless it has effect as indefinite leave to enter), subject to the conditions indicated on the entry clearance. In most cases, if the entry clearance is issued for entry to the UK as a visitor, the passenger will be treated as having been granted leave to enter on an unlimited number of occasions, during the life of the entry clearance, from the date of arrival in the UK on each occasion – for either: � six months, if the entry clearance has at least six months still to run before it

becomes invalid; or � whatever period the entry clearance has left before it becomes invalid, if this

is less than six months.

However, it is possible, in very limited circumstances, for an Entry Clearance Officer to issue entry clearance as a visitor for a single entry only. See the Home Office’s Entry Clearance Guidance – Visitors, general VAT01 for further details of when a single entry visitor entry clearance should be issued.

Sources:The Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161) as amended by: The Immigration (Leave to Enter and Remain) (Amendment Order) 2004 The Immigration (Leave to Enter and Remain) (Amendment Order) 2005 The Immigration (Leave to Enter and Remain) (Amendment Order) 2010 The Immigration (Leave to Enter and Remain) (Amendment Order) 2013Immigration Rules paragraphs 320, 321 and 321A (general grounds for refusal of leave to enter)Immigration Rules – Paragraph 245ZV(ca)



Fiaz (cancellation of leave to remain – fairness) [2012] UKUT 00057(IAC)Email dated 2 July 2012 from Fiona Johnstone (Home Office) to Duncan Lane (UKCISA)Email dated 20 September 2013 from Rebecca Bradford (Home Office) to Christopher Benjamin (UKCISA)Entry clearance guidance – VAT01 visitors, general (29 November 2013)

1.10.1.1 Returning to the UK after a trip abroadThose who have made a trip outside the Common Travel Area during or after their studies need to know whether they are likely to have any problems in returning to the UK.

The Common Travel Area is the area made up of the UK, the Isle of Man, the Channel Islands and the Republic of Ireland. See subsection 1.10.8 for information about the effect of trips to the Republic of Ireland.

1.10.1.1.1 Non-lapsing leave Students and their family members who have entry clearance which has not expired should not have problems in being allowed to re-enter the UK after a trip abroad. This is because they have non-lapsing leave, ie immigration permission which does not come to an end just because they leave the Common Travel Area. Visitors, including student visitors, who have entry clearance, do not have non-lapsing leave, but the same legislation provides separately for them that

a visit visa ... unless endorsed with a statement that it is to have effect as a single-entry visa during its period of validity, shall have effect as leave to enter the United Kingdom on an unlimited number of occasions.

Students have non-lapsing leave if: � their current immigration permission in the UK is not an entry clearance, but

leave to remain (in the form of a UK residence permit or a biometric residence permit), and

� the last period of leave which was granted was over six months long and it has not been curtailed to a period of six months or less. Previous periods of leave cannot be added to this to make up a total period of over six months.

If the last period of leave which was granted in the UK was six months or less, students’ immigration permission will come to an end when they leave the Common Travel Area. Non-visa nationals will have to apply for fresh entry clearance while they are outside the UK or, if possible, apply for leave to enter on



arrival in the UK. If they apply for leave to enter on arrival, this cannot be under Tier 4 because entry clearance is required for this, so in most cases it will be as a visitor.

If a student whose leave was originally over six months long has had that leave curtailed, it is important to check whether on the day following curtailment the leave is now six months long or less. If a student’s leave is curtailed with the result that their total period of leave is less then six months long their leave will lapse if the student leaves the UK.

If the student is a visa national, the visa exemption scheme might apply.

If a person who has non-lapsing leave is outside the UK for a continuous period of more than two years, any immigration permission which still remains will at that point lapse, and fresh entry clearance will be required if the person wants to re-enter the UK.

Sources:The Immigration (Leave to Enter and Remain) Order (SI 2000/1161) (regulation 13 for non-lapsing leave and regulation 4 for the provisions for those with entry clearance as a visitor)Immigration Directorates Instructions Chapter 1 Section 4

1.10.1.1.2 Visa exemption schemeVisa nationals whose last period of leave was granted in the UK and was for a period of six months or less may be able to take advantage of the visa exemption scheme. This provides that visa nationals who have immigration permission which was granted for a period of more than six months in total, and who re-enter the UK on or before the date on which that leave was due to expire, do not need to obtain a new visa. Unlike the provisions for non-lapsing leave, the visa exemption scheme allows different periods of immigration permission to be added together to show that a person has more than six months’ leave. This is explained in the Immigration Directorates’ Instructions:

visa nationals who have more than 6 months’ leave to enter/remain do not need to obtain another visa if they travel and return to the United Kingdom during that leave. In assessing whether a person does have more than 6 months’ leave, it is simply a question of looking at the date when the person received leave to enter and the date his latest leave to



enter/remain expires. If this period amounts to more than 6 months there is a visa exemption.

So, for example, a student who was initially admitted for only three months to attend a very short course, and who then was granted an extension of a further four months’ leave to study another course, has been granted leave for a period of more than six months – seven months, in fact.

If students have already made a journey outside the Common Travel Area, that journey might have stopped their leave from continuing to accumulate. That will depend on what happened when they were readmitted after the journey. Their leave will have continued to accumulate if either: 1. their passport was stamped to show that Section 3(3)(b) of the Immigration

Act 1971 applied. Section 3(3)(b) provides that the limitation on and any conditions attached to a person’s leave (whether

imposed originally or on a variation) shall, if not superseded, apply also to any subsequent leave he may obtain after an absence from the UK within the period limited for the duration of the earlier leave; or

2. a border force officer stamped their passport with the wording ‘Leave varied to...’

If neither of these two stamps appears, the leave will not have continued to accumulate, and if when they were readmitted it was for six months or less the person will not meet the requirements of the visa exemption scheme. Remember that this does not apply to visa nationals who have non-lapsing leave.

Sources:The Immigration (Leave to Enter and Remain) Order (SI 2000/1161) (regulation 13 for non-lapsing leave and regulation 4 for the provisions for those with entry clearance as a visitor)Immigration Directorates Instructions Chapter 1 Section 4

1.10.1.1.3 Entry for the same purpose as leave was grantedIrrespective of whether students can re-enter with non-lapsing leave or under the visa exemption scheme, they must be seeking leave to enter for the same purpose as that for which their immigration permission was granted. This means, for example, that if they have immigration permission as a Tier 4 student or as a student visitor they must still meet the requirements of those Immigration Rules. They should carry documents in their hand luggage which they can use



to demonstrate this, if necessary, for example: � the print-out of the CAS they used to obtain immigration permission � a letter from the education provider confirming that they are students there

and, if they have immigration permission under the system which preceded Tier 4, details of the course including start and end dates

� if they have just finished one course and are about to start a new course, the CAS print-out for the new course

� evidence of finances, for example, bank statements or a letter from their financial sponsor

Students whose studies have now ended and who do not intend to take another course when they return to the UK can have difficulties showing that they still meet the requirements of the Immigration Rules for students. If a border force officer considers that their circumstances have changed or that they are attempting to re-enter for a purpose other than that for which their leave was granted, students’ immigration permission can be cancelled and they can either be required to leave the UK or, if they are non-visa nationals, be granted leave to enter as a visitor instead. If a border force officer cancels a student’s leave and refuses leave to enter, the student will have the right to remain in the country if they have the right to appeal against that decision (this right of appeal was removed for Tier 4 students and their dependants where they applied for leave to remain on or after 20 October 2014 – see subsection 1.10.1 for details). However, the student will not have the right to remain in the UK if the immigration authorities assert that the purpose for entry is not the same as specified in an entry clearance.

It might be very important to students that they retain their student conditions because, for example, they want to be able to make an immigration application in the UK under a work category such as Tier 2 or Tier 1 (Graduate Entrepreneur) when they receive their exam results. In such cases, they should remain in the UK until they receive their results, make their next immigration application and, once that has been granted, leave the UK for a trip abroad. This will help to prevent problems when they re-enter the UK.

If, however, they travel anyway, they should ensure that they carry with them in their hand luggage evidence that they have been studying and that they need to re-enter for study-related activities such as attending graduation. They should avoid mention of work, if at all possible without being dishonest, as this often raises doubts in a border force officer’s mind about their real reasons for



re-entering the UK, even though students are entitled to work full time in vacations and after their course has finished, and to make applications under some work-related categories of the Immigration Rules.

Students who leave and re-enter the UK with Tier 4 leave for study with a Tier 4 sponsor that they have now left can encounter difficulties in persuading a border force officer that they should be allowed to enter in order to start study with a different Tier 4 sponsor. As far as possible, they should apply for leave to study with the new Tier 4 sponsor before leaving or before re-entering the UK. However, an email to UKCISA dated 2 July 2012 from Fiona Johnstone, Assistant Director: Border Force Operational Policy, confirmed that those moving to a Tier 4 sponsor with Highly Trusted Sponsor status should be allowed to re-enter even if they have leave for study elsewhere, and the Home Office student policy team confirmed on 20 September 2013 that this guidance is still current:

Current plans are for the notice to BF staff to act as a reminder of the current standing guidance in relation to exceptions to the ‘no change of sponsor without permission’ rules. Current wording is as follows:

For all applications made since 5 October 2009, Tier 4 passengers have been tied to the sponsor on their visa and will need permission to change to any other sponsor. Without this permission their visa can be cancelled under change of circumstances.

The exception to this is if a passenger has a CAS to study a new course with a Highly Trusted Sponsor (HTS). In this case they can enter to start their new course without a new Tier 4 visa, providing they have extant leave given by their existing Tier 4 visa.

Students should be advised to travel with evidence that the new sponsor has Highly Trusted Sponsor status and be in a position to make a Tier 4 application shortly after re-entering the UK.

Sources:Immigration Rules paragraphs 321 and 321AEmail dated 2 July 2012 from Fiona Johnstone (Home Office) to Duncan Lane (UKCISA)Email dated 23 September 2013 from Rebecca Bradford (Home Office) to Christopher Benjamin (UKCISA)



1.10.2 Passengers without entry clearancePassengers who do not have entry clearance will be refused leave to enter if they do not meet the requirements of the Immigration Rules that relate to the category under which they are seeking entry (these were described in subsections 1.5, 1.6 and 1.8, for example, the requirement for someone entering as a student visitor to have been accepted on a course), or if any of the general grounds for refusal apply to them.

Passengers without entry clearance, who have been refused leave to enter, are liable to be removed immediately, that is put on the next plane or ship back to the country from which they came. If they are returning from a trip abroad, they will be removed to that country, and not to their home country.

If that journey cannot be arranged immediately, they may be either detained or, more likely, granted temporary admission to the UK.

Sources:Immigration Rules paragraph 320

1.10.2.1 How leave to enter on arrival is grantedLeave to enter which is granted on arrival is issued in the form of a stamp which the border force officer inserts in the passenger’s passport. The stamp indicates how long the border force officer is granting leave to enter for; since November 2003, border force officers have not had the power to grant leave to enter for more than six months.

The stamp should also show what conditions are imposed on the person’s stay concerning matters like employment. Breach of any of these conditions is a criminal offence and can result in future entry clearance refusals. The border force officer uses a further stamp to indicate where in the UK the passenger arrived, and on what date. The leave to enter runs from this date.

Students should be advised to take a photocopy of the pages of their passport that contain their personal details and their leave to enter stamp and to keep those pages separately from their passport, in case their passport is lost or stolen in the future.



Until recently, student visitors were given the same stamp as general visitors. They might also have been given the letters ‘STV’ or ‘VST’ handwritten near the stamp to make it clear that they have been given leave to enter the UK as student visitors, and not as general visitors, who are prohibited from study (with very limited exceptions – see subsection 1.8.4 for details of this). However, many border force officers do not write the letters ‘STV’ or VST’ near the stamp and in September 2014 we received reports from members that some border force officers had started using the wording ‘Code 3’ instead of ‘STV’ or ‘VST’.

UKCISA raised with the Home Office the concerns institutions have about enrolling such students, particularly since general visitors granted leave between 6 September 2012 and 30 September 2013 inclusive were subject to a condition prohibiting study. Since 1 October 2013, those granted leave as a general or business visitor are permitted to undertake up to 30 days of study. We also asked if general visitors and student visitors would be given different stamps as they are now subject to different conditions. Fiona Johnstone, Assistant Director, Border Force Operational Policy, stated in an email dated 21 September 2012 that:

As I have previously advised, the practice of annotating endorsements in passports is not a legal requirement, nor is it national policy. Border Force officers will ask all passengers seeking entry to the UK what their intentions are and how long they plan to stay, and it is up to the passenger to ensure that the officer has all the relevant information.

Those granted leave as student visitors may undertake short courses and no enforcement action would be taken as they have been given the correct endorsement for the leave they asked for. Institutions certainly shouldn’t be worried about enrolling such students.

However I can see the difficulties posed by the anomaly of general visitors and student visitors having the same endorsements, and I have therefore passed your comments to the UKBA team who are currently undertaking a review of all the visitor routes and are aware of this particular issue.

If those granted leave on arrival as student visitors have an identical stamp to those granted leave as general and business visitors, institutions might want to check that students who wish to enrol with them on a course which is not permitted with general or business visitor leave because, for example, it is over 30 days long, were offered a place on a course (or for a period of study) which



meets paragraph 56K of the Immigration Rules (the student visitor requirements) before they travelled to the UK. If in doubt, it should be possible to contact the airport where a student landed in order to check what the student said on the landing card and whether it was clear that entry for study was requested. You should obtain the student’s consent in writing to make this query so that it can be scanned or faxed to the airport. Alternatively, the student should be with you when you call the airport.

In 2013, the Home Office started to give general visitors the stamped condition “No study”, which makes it clear, unless an error was made, that the person does not have student visitor or child visitor leave. If students say that they made it clear that they wanted to be in the UK as a student visitor but were in spite of this given the “No study” stamp, this should be queried with the Home Office in the same way as described above. However, anyone granted leave as a general or business visitor on or after 1 October 2013 is not prohibited from study and should not have a “No study” stamp in their passport. Other visitor categories, including visitors for marriage or civil partnership, entertainer and sportsperson visitors, should not intend to undertake study, but they are also no longer subject to the ‘no study’ condition.

Sources:Immigration Rules paragraph 43A (permitted study for visitors)Email of 21 September 2012 from Fiona Johnstone (Home Office) to Duncan Lane (UKCISA)

1.10.2.2 Returning to the UK after a trip abroadUnlike students with entry clearance or leave to remain, students who applied for leave to enter the UK when they arrived do not benefit from non-lapsing leave.

This means that when they leave the Common Travel Area, their immigration permission comes to an end. If they then need to re-enter the UK, they should either apply for entry clearance before returning or apply again on arrival. As this is a fresh application, they should ensure that they have with them in their hand luggage all relevant documents to show that they meet the requirements of the Immigration Rules under which they are seeking entry. In the case of a student visitor, this means that they should have: � the letter from their institution confirming the details of the course with start

and end dates



� evidence of finances, for example, bank statements or letters from family members who are providing accommodation or meeting other costs for the student

� return ticket, if they already have it

Unless the stamp in their passport states otherwise, leave to enter runs from the date of the most recent arrival, and not from the date of previous entry. This is usually for a period of six months.

1.10.3 Students who want to ‘switch’ immigration categories on arrival

Students whose leave is about to expire and who wish to stay in the UK for a short while longer as, for example, a general visitor or as a student or child visitor, can in theory apply to change category on arrival in the UK. This is possible only if the student is not a visa national (visa nationals must always have a visa in the appropriate immigration category before travelling to the UK) and if the category into which they want to switch does not require entry clearance and is for a stay of no longer than six months. It is, therefore, limited to non-visa nationals applying as visitors and they must have with them in their hand luggage all relevant evidence that they meet the requirements of the new category.

If students re-enter the UK when their leave has not yet expired, the decision whether to consider the application for different leave is at the discretion of the border force officer. The officer can choose to refuse to deal with the application and, if the existing leave is not cancelled (cancellation is a risk if the student has just revealed that the purpose of entry is now different from that specified on the existing leave), advise the student to apply instead from within the UK. The student would have to be able to make that application in the UK; switching from Tier 4 into any visitor category is not possible, so usually it would require another Tier 4 application.

Fiona Johnstone, Assistant Director, Border Force Operational Policy, in an email to UKCISA dated 27 July 2012, has stated that border force officers will approach such cases in the following way:

It is not usual to have 2 periods of overlapping leave, so if there is extant Tier 4 leave, and there is no change of purpose, then a student would normally be admitted to continue the existing leave.



There appears to be no provision in statute or in the Immigration Rules that prevents people from having concurrent leave in more than one category, so this seems to be a matter of practice rather than of law. The difficulty is in challenging a refusal on this ground as there is no right of appeal or right to seek Administrative Review, so it would have to be done by way of judicial review, which is very expensive. Alternatively, the student could make a formal complaint, possibly to the Parliamentary Ombudsman if a complaint to the Home Office does not produce a satisfactory outcome. This would not necessarily allow the student to enter or remain in the UK but could possibly lead to clarification of or a change in the current practice.

In an email to UKCISA dated 9 August 2012 from Rebecca Dutton, Acting Deputy Director of Temporary Migration Casework, the following advice was given for those who wish to ‘switch’ into student visitor category on arrival in the UK:

Often, where an IO [Immigration Officer, now known as a border force officer] refuses student visitor leave this is done where they believe that the applicant actually wishes to continue their studies and issuing visitor leave world [sic] not allow them to switch. A person cannot switch from student visitor leave into another category in-country, so if they intend to further their studies after the exams they would have to leave the UK again and apply for fresh entry clearance. If it is clear they want to stay on, an officer may think they are assisting by re-admitting on existing Tier 4 leave. Also, students cannot work on student visitor leave so if they have indicated an intention to do so, or continue with an existing job, it is more appropriate to re-admit on Tier 4. I can confirm that where a student is returning simply for a re-sit with no intention to continue leave for study or to engage in work, visitor leave can be issued. This is contained in the guidance available to officers at port.

… there is no specific Border Force policy in place regarding student visitor leave; the available guidance covers both port and in-country decision making as the same principles apply. However Policy do understand that re-sits are not specifically referenced in the guidance and have agreed that this can be included as part of the next review of the modernised guidance.

Unfortunately, the modernised guidance has not yet been amended in line with the information above. If students re-enter the UK after their Tier 4 leave has expired, the application should be considered in the usual way and should only be refused if it is clear that the student does not meet the requirements of the relevant Immigration Rules or is subject to the general grounds of refusal.



Sources:Email dated 27 July 2012 from Fiona Johnstone (Home Office) to Duncan Lane (UKCISA)Email dated 9 August 2012 from Rebecca Dutton (Home Office) to Duncan Lane (UKCISA)

1.10.4 Difficulties at passport controlBegin by establishing whether a decision has actually been made. If it has, the student will have been issued with a written notice of refusal of leave to enter, or cancellation or curtailment of leave (unless they were seeking entry as a visitor, for example as a student visitor or child visitor, in which case notice may have been given orally).

If a decision has not yet been made, and there is some delay in making the decision whether to admit the student, telephone the border force officer concerned to try to obtain as much information as possible about the cause for concern. You will need the student’s written authority to do this. You may be able to deal with some of these concerns by providing further information yourself. Others may relate to matters on which the student’s financial sponsors can elaborate. It is much easier to convince border force officers to admit someone than to try to persuade them to reverse a negative decision they have already made.

Even so, you should make the same enquiries and attempt to make representations in the same way if you are contacted by a student at a port after a decision has been made. Representations at this stage are far less likely to be successful, and if you do not persuade the border force officer to reverse the decision, the next step is to establish whether the student has the right of appeal. Ask the student to read the notice out to you. It will indicate whether the border force officer believes there is a right of appeal.

If the notice states that there is a right of appeal, the position is clear. Refer to subsections 1.10.5 and 1.10.6 for information about appealing, and arrange an appointment for the student immediately with a local immigration specialist who can give advice about appealing.



If the notice indicates that there is no right to apply of appeal, check with the border force officer what arrangements have been made for the student’s departure, and whether the student is to be given temporary admission to the UK (see subsection 1.10.7 for an explanation of ‘temporary admission’). If the student is due to depart very quickly, you will need to find an immigration specialist close to the port or airport. If, on the other hand, the student is allowed temporary admission to the UK for a short period, you should arrange for an immigration specialist local to wherever the student will be staying during that period to advise the student. You should refer to subsection 1.10.5 to check whether the border force officer is correct in asserting that there is no right of appeal. Such mistakes should be challenged as early as possible.

Another means by which you might be able to delay removal is to persuade the Member of Parliament for the constituency in which the institution is based to take up the case. If the student was already established in the UK, you could contact the student’s MP instead, if different. The MP will not be able to ask the Home Office to defer the removal unless the MP can put forward exceptional circumstances which the border force officer did not know about or knew about but did not properly consider. If such circumstances exist, removal may be deferred whilst the MP prepares written representations for the Home Office to consider. If an immigration specialist has already taken on the case, make sure that you consult them before involving an MP in this way.

When contacting the Border Force, be ready to give the following details about the student: � full name (or names if the student has previously had a different name) � nationality � date of birth � the port reference number, if known (shown on any papers the student has

been given by the Home Office), or alternatively, when the student arrived, from where, and the carrier and flight number.

1.10.5 Appealing against refusal of leave to enter the UK At present there is a right of appeal against the refusal of leave to enter the UK, but only under certain conditions, and it does not apply to all types of refusal. The Immigration Act 2014 makes provision for the complete removal of rights of appeal for Tier 4 students. However, at the time of writing the Act has only been partially implemented (see 1.10.1 for further details) and the right of appeal



against the refusal of leave to enter remains intact. Any further developments regarding the full implementation of the Act can be found in the ‘Stop Press’ section of this Manual.

Applicants have a right of appeal against refusal of leave to enter only if: � they had entry clearance at their time of arrival in the UK, and � the purpose specified in the entry clearance is the same as the purpose for

which they are applying for leave to enter.

Applicants do not have a right of appeal against refusal of leave to enter if the refusal is on the grounds that the applicant, or a person of whom the applicant is a dependant: � does not satisfy a requirement as to age, nationality or citizenship specified

in the Immigration Rules; or � does not have an ‘immigration document’ of a particular kind (or any

immigration document) [an ‘immigration document’ means an entry clearance, passport or something serving the same purpose]; or

� has failed to supply a medical report or certificate in accordance with a requirement of the Immigration Rules; or

� is seeking to be in the UK for a period greater than that permitted in their case by Immigration Rules; or

� is seeking to enter or remain in the UK for a purpose other than one for which entry or remaining is permitted in accordance with Immigration Rules; or

� the Secretary of State certifies that the applicant’s exclusion or removal is conducive to the public good.

If applicants do not have a right of appeal for one or more of the reasons listed above, they will still have a right of appeal if they can argue that: � the decision is unlawful on race discrimination grounds; or � the decision is unlawful under section 6 of the Human Rights Act 1998

(which requires a public authority not to act contrary to the European Convention on Human Rights) as being incompatible with the applicant’s Convention rights; or

� their removal from the UK would breach the UK’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the applicant’s rights under the European Convention on Human Rights.



Sources:Nationality, Immigration and Asylum Act 2002 sections 88 and 89Immigration Act 2014 section 15Immigration Act 2014 (Commencement No.3, Transitional and Saving Provisions) Order 2014

1.10.5.1 Staying in the UK to appealNot everyone who has a right of appeal against the refusal of leave to enter is allowed into the UK to appeal from here. The following are the only people who can appeal from the UK: � those with entry clearance (unless leave was sought for a purpose other than

that specified in the entry clearance) � British Overseas Territories Citizens, British Overseas Citizens, British

Nationals (Overseas), British Protected Persons or British subjects � people who make an asylum or human rights claim (though they will not be

allowed into the UK to appeal if the Secretary of State certifies that the claim is clearly unfounded)

� European Economic Area nationals and members of their families who claim that their rights to enter or reside in the UK under Community Treaties are being breached.

Others must wait until they are outside the UK to exercise any right of appeal.

Those who had leave with Tier 4 or pre-Tier 4 student leave and who appeal in the UK and who submit their appeal in time are in the UK lawfully with leave under section 3D of the Immigration Act 1971, and there is nothing to prevent them from undertaking the study for which their entry clearance was granted.

As noted above, this right of appeal will be removed if and when the Immigration Act 2014 is fully implemented. At present the Act has only been partially commenced and the Home Office have announced that it is their intention to carry out phased implementation of the remainder of the Act in the coming months. It is therefore important to check the Stop Press section of this Manual and the UKCISA website for updates.

Sources:Immigration Act 1971 section 3DNationality, Immigration and Asylum Act 2002 section 92



Immigration Act 2014 section 15Immigration Act 2014 (Commencement No.3, Transitional and Saving Provisions) Order 2014

1.10.6 Appealing against cancellation of leaveThe right of appeal against the cancellation of leave is the same as the right of appeal against the refusal of leave to enter as it applies to those who have current entry clearance. See subsection 1.10.5 for a description of that right.

This is because the Immigration Act 1971 provides that cancellation of a person’s leave... is to be treated... as if he had been refused leave to enter at a time when he had a current entry clearance.

Those who appeal in time against the cancellation of leave continue to have immigration permission under section 3D of the Immigration Act 1971. A student is not prevented from undertaking study that was permitted under the leave that was cancelled.

This right of appeal will also be removed if and when the Immigration Act 2014 is fully implemented. At present the Act has only been partially commenced and the Home Office have announced that it is their intention to carry out phased implementation of the remainder of the Act in the coming months. It is therefore important to check the Stop Press section of this Manual and the UKCISA website for updates.

Sources:Immigration Act 1971 Schedule 2 paragraph 2A(9)Immigration Act 1971 section 3D Immigration Act 2014 section 15Immigration Act 2014 (Commencement No.3, Transitional and Saving Provisions) Order 2014

1.10.7 Temporary admission and special immigration statusTemporary admission is used by border force officers as an alternative to detention in cases where there is to be some delay before further action is



taken, for example, while: � arrangements for a flight are made for someone who has been refused leave

to enter; or � further investigations are carried out before a decision is made about

whether to grant or refuse leave to enter; or � a decision is made on a person’s application for asylum or under human

rights legislation.

Border force officers usually allow someone into the UK on temporary admission in these circumstances, rather than detain them. The applicant has not been granted leave to enter, and can be recalled and detained at any time.

People who are ‘foreign criminals’ but who cannot be deported from the UK because of human rights reasons can be in the UK with special immigration status.

Those in the UK on temporary admission or with special immigration status are subject to a number of conditions, which can include a prohibition on study. Check in students’ documents whether they are prohibited from studying before allowing them to start or continue a course of study. As usual, no mention of study means that it is allowed without restriction.

Sources:Immigration Act 1971 Schedule 2 paragraph 21Criminal Justice and Immigration Act 2008 Part 10 (special immigration status)

1.10.8 Passengers arriving from the Republic of IrelandThe United Kingdom, the Isle of Man, the Channel Islands and the Republic of Ireland together make up the Common Travel Area. There is no passport control for passengers travelling within the Common Travel Area. However, this does not mean that people are authorised to travel freely between the UK and the Republic of Ireland. The situation is as follows.

1.10.8.1 Travel to and from the Republic of Ireland with permission to be in the UK

Permission to be in the UK does not ‘lapse’ if a person travels to another part of the Common Travel Area (eg the Republic of Ireland). It continues to run. The duration of the permission and the conditions attached to it therefore continue



to apply on return to the UK. A person who has leave to be in the UK may still need to obtain a visa to enter the Republic of Ireland, and should check with the Embassy of the Republic of Ireland before travelling.

1.10.8.2 Entering the UK from the Republic of Ireland without prior permission to be in the UK

Those with entry clearance for the UK can enter via the Republic of Ireland, as long as they meet any immigration requirements for the Republic of Ireland and pass through immigration control in the UK. It does not matter if their passport is not endorsed with a date stamp on arrival in the UK, though they should keep evidence of travel in case their date of entry becomes important.

Those who come to the UK without entry clearance and who enter via the Republic of Ireland are unlikely to encounter any border force officers, which means that they probably will not be able to apply on entry for leave as a student visitor, or under any other category which does not require entry clearance.

Some people who enter the UK in these circumstances are automatically subject to a limited stay in the UK, together with certain conditions, even though there is no record of this in their passport. Others, however, are not automatically deemed to have been given any permission to be in the UK at all.

Those who are not automatically deemed to have been given any permission to be in the UK are: � visa nationals who require a visa for the UK, and who do not have one � those who entered the Republic of Ireland unlawfully from a place outside

the Common Travel Area � those who entered the UK, Channel Islands or Isle of Man unlawfully (or

overstayed their leave there), and who were not subsequently given leave in one of those places, before travelling on to the Republic of Ireland

� those who are subject to directions given by the Secretary of State that their exclusion is conducive to the public good

� those who arrive on an aircraft, having begun their journey outside the Common Travel Area, if they did not have leave to land in the Republic of Ireland (unless they are citizens of the Republic of Ireland)

� people who are subject to a deportation order � people who on arrival are given written notice from a border force officer that



directions have been given by the Secretary of State that their exclusion is in the interests of national security

� those who have at any time been refused permission to enter the UK, unless they have subsequently been given permission to enter or remain in the UK.

Such people should seek advice from an immigration specialist before they travel to the UK about how to ensure that their entry to the UK is lawful.

Those who do not fall into any of the groups listed above automatically have permission to be in the UK for the following periods, and subject to the following conditions:

If they are visa nationals and have a visa containing the words ‘short visit’, they can stay for up to one month from the date of entry (or seven days if they entered the Republic of Ireland from the UK at a time when they still had permission to be in the UK and that leave has since expired) and subject to the following conditions: a) not to engage in any occupation for reward or any employment; and b) unless they are under the age of 16, a requirement to register with the police.

Otherwise, they can stay for up to three months from the date of entry (or seven days if they entered the Republic of Ireland from the UK at a time when they still had permission to be in the UK and that leave has since expired) and subject to the condition that they will not engage in any occupation for reward or any employment.

This leave is not granted under Tier 4, and the person will not be able to apply for more time in the UK as a student when it ends (see subsection 1.11.1.2 for a list of those who can apply to stay in the UK under Tier 4). However, the leave is not visitor leave either, so there is nothing to prevent students with this immigration permission from undertaking study or to limit their period of study to 30 days.

There are separate arrangements that apply to Chinese and Indian nationals entering the UK under the British-Irish Visa Scheme (see subsection 1.10.8.3).

Students who enter the UK from the Republic of Ireland should be advised to retain their travel ticket or other proof of the date of their entry, so that they are in a position to demonstrate that they have not overstayed their leave or entered illegally, should they be required to do so at any point.



1.10.8.3 British-Irish Visa Scheme In June 2014 the British and Irish governments announced a new joint visa initiative to allow Chinese and Indian nationals to visit both the UK and Ireland using a single visa when travelling on certain short stay and visitor visas.

With effect from 12 October 2014 Chinese and Indian nationals are permitted to enter the UK from the Republic of Ireland if they have one of the following Irish short stay visas: � visit (family/friends) � visit (tourist) � conference/event � business

In order to benefit from the scheme the person concerned must have: � applied for their Irish visa in their country of nationality, � been granted a short stay visa with the endorsement ‘BIVS’ for a period of 90

days or fewer, and � been admitted to the Republic of Ireland using this visa

A person entering the UK under this scheme will be permitted to remain here until the expiry of their permission to be in the Republic of Ireland. They will also be subject to a prohibition on engaging in any occupation for reward or any employment.

The scheme does not make any explicit provision for participants having permission to study in the UK. On 7 October 2014 we sought clarification from the Home Office on this point:

2. Will a Chinese or Indian national with a visit visa for the Republic of Ireland be able to study in the UK? If they will be subject to restrictions, what are those restrictions?

At the time of writing we have yet to receive a response from the Home Office. Please see the Stop Press section of this Manual for details of any response we have subsequently received.

Chinese and Indian nationals with any other type of Irish visa (for example a work or a study visa) will still need to apply separately for UK entry clearance before travelling here.



Both governments have indicated their intention to expand the scheme to include other nationalities in 2015.

Sources:Immigration Act 1971 section 9Immigration (Control of Entry through Republic of Ireland) Order 1972 (SI 1971/1610) as amended byImmigration (Control of Entry through Republic of Ireland) (Amendment) Order 2014/2475Immigration Directorates Instructions Chapter 1 Section 2

Documents

1.10 Arriving in the UK · 2015-02-18 · 366 UKCISA Manual 2015 1. Immigration 1.10 Arriving in the UK 1.10 Arriving in the UK All passengers arriving at UK ports of entry (international