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1.10 Arriving in the UK

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1.10 Arriving in the UK 1. Immigration 1.10 Arriving in the UK 1.10 Arriving in the UK All 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. 366 © UKCISA Manual 2015 1. Immigration 1.10 Arriving in the UK 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 clearance These 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: © UKCISA Manual 2015 367 1. Immigration 1.10 Arriving in the UK 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. 368 © UKCISA Manual 2015 1. Immigration 1.10 Arriving in the UK 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.
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