Reviews of ECO decisions

News from the front line is that Entry Clearance Officers (ECOs) are overturning refusals under immigration rule 320(7B) that were made before the string of concessions was announced. Just ask for a review, you shouldn’t have to make a second application and pay the whacking great fee for their ’service’ all over again.

ECOs are apparently pretty pissed off themselves, and I can see why. First asked to do one thing, then another, then another and so on. They aren’t the ones to blame here, it’s the Home Office policy people that are the headless chickens.

Changes to immigration rules

One of the annoyingly frequent changes to the immigration rules has just been issued and can be found here. These sometimes come out as often as fortnightly, and I can remember a number of occasions when they have been so ill conceived they’ve had to withdraw them immediately. They once accidentally abolished the working holiday maker scheme by deleting Appendix 3 of the rules (akin to a Homer moment of “What if I press this big red button? D’oh!”) and they also once forbade fiance(e)s (ugh, I hate that word) from extending their stay as spouses - the entire purpose of the fiance(e) (D’oh!) category. All this incompetence just creates work for immigration lawyers, so I shouldn’t really complain.

This latest Statement of Changes comes into effect on 30 June 2008. It is mostly concerned with implementing parts of the Points Based System. The rest of Tier 1 is coming into being, which means entrepreneurs, investors and post-study work, i.e. the replacement for IGS and Fresh Talent. Interestingly, there is no requirement for existing leave at the time of an application for leave to remain in these categories, which marks a significant and very welcome change in approach. Illegal entrants are barred, but it simply says that an applicant must have or have last been granted leave in certain categories. That leaves the door open for overstayers to apply, although I believe the policy will be not to accept applications outside 28 days other than in exceptional circumstances.

Lastly, the various concessions on the no return rule are being incorporated into the immigration rules as follows in two new paragraphs:

320(7C) Paragraph 320(7B) shall not apply in the following circumstances:

(a) where the applicant is applying as:

(i) a spouse, civil partner or unmarried or same-sex partner under

paragraphs 281 or 295A,

(ii) a fiancé(e) or proposed civil partner under paragraph 290,

(iii) a parent, grandparent or other dependent relative under paragraph 317,

(iv) a person exercising rights of access to a child under paragraph 246, or

(v) a spouse, civil partner, unmarried or same-sex partner of a refugee or person with Humanitarian Protection under paragraphs 352A, 352AA, 352FA or 352FD; or

(b) where the individual was under the age of 18 at the time of his most recent breach of the UK’s immigration laws.

 

320(11) [leave should normally be refused] where the applicant has previously contrived in a significant way to frustrate the intentions of these Rules. Guidance will be published giving examples of circumstances in which an applicant who has previously overstayed, breached a condition attached to his leave, been an Illegal Entrant or used Deception in an application for entry clearance, leave to enter or remain (whether successful or not) is likely to be considered as having contrived in a significant way to frustrate the intentions of these Rules.

There are no changes to the visa officer guidance yet, but the new rules suggest that changes will be made at some point to provide more concrete examples. That would certain be helpful to some of the people who have left comments on this blog!

Contriving to frustrate

Thanks for those who posted comments pointing the way to updated guidance to visa officers on the issue of contriving to frustrate immigration rules. The guidance is here and reads as follows:

‘Contrived in a significant way to undermine the intentions of the immigration rules’ is where an applicant has previously been an illegal entrant, overstayed, breached a condition attached to his leave or used deception in a previous entry clearance, leave to enter or remain application, but only where there are aggravating circumstances. Aggravating factors include offences such as not complying with reporting restrictions, using multiple identities, a sham marriage, harbouring an immigration offender and facilitating/people smuggling. This is not an exhaustive list and all cases must be considered on their merits taking into account family life in the UK and the level of responsibility for the breach in the case of children. ECOs will need to obtain ECM authorisation for all refusals under Paragraphs 320(7A) and 320(7B) of the immigration rules.

Simple overstaying would certainly not be caught by this definition. Overstaying by using a false identity, entering a sham marriage and other ‘aggravating’ circumstances might well be caught, but even then family life with family members in the UK has to be considered. On an appeal, the Asylum and Immigration Tribunal would be able to review the way in which the ECO exercise discretion and make a decision for itself about whether the behaviour was so bad that a visa should be refused.

Essentially, it is a face-saving measure, as those caught by the definition might well have been refused under the old rule 320 provisions anyway.

I like the comments pointing out that it is often the Home Office that contrive to frustrate the immigration rules. There is a great deal of truth in this and I’ve come across some appalling cases of gross mismanagement but also highly dubious conduct. Only this week a Home Office Presenting Officer in a deportation case asked why the Home Office should have to disclose an updated new risk assessment that helped my client’s case, and I’ve just been looking at a bail application file where the Home Office has just been proven to have lied about progress in removing a person from the UK.

New guidance on rule 320(7B) refusals published

Following on from the parliamentary debate last week, the Entry Clearance Guidance (ECG, until recently rather quaintly called the Diplomatic Service Instructions - I always thought the idea visa officers were diplomatic was rather optimistic) on immigration rule 320(7B), the automatic re-entry ban for overstayers and other breachers of immigration laws, has been published.

The guidance says that the automatic refusal rules will not be applied to spouses, civil partners, unmarried partners, fiance(e)s, children, those who were children at the time they breached immigration law, those exercising rights of access to a child in the UK, spouses or civil partners of people recognised as a refugee or granted humanitarian protection, those accepted to be victims of trafficking and those who fall within the original concession.

However, if the visa officer thinks that any of the above applicants previously ’significantly contrived to frustrate immigration rules’ then they should still be refused.

Only last week I handled an appeal where the visa officer had refused re-entry to a spouse on the basis of a slight discrepancy of a few days with the date of birth and spelling of surname as recorded by a Home Office official several years ago on this person’s entry to the UK. This was alleged to be reliance on a false identity. With respect, that was clearly rubbish and it was very obviously a slight mistake involving no conceivable attempt to deceive. In the meantime, this man had been forced to wait eight months for an appeal while his wife and child struggled to get by in the UK without him. Visa officers can be complete idiots, unfortunately. If the appeal is successful, it usually takes the entry clearance post another two or three months to get their act together and issue the visa.

As previously dicussed, it would seem that the rule itself is not going to be altered, although this may follow later. At a time when the Home Office is making noises about simplifying immigration law and is even suggesting yet more legislation, with a view to increasing transparency, this is disgraceful. Anyone reading the current rules would think the above policy does not exist, unless they somehow magically know to look at chapter 26 section 17 of the ECG. Which seems a little unlikely.

New concessions on re-entry ban

Some great news on the re-entry ban saga.

There was an unusually good debate in the Commons last night, when several MPs managed to put the screws on Liam Byrne, the Minister, and extracted three excellent concessions. All credit to those responsible, who appear to be Simon Hughes, John Spellar and Fiona McTaggart. They were well briefed by a number of organisations and Steve Symonds and Alison Harvey at ILPA have yet again done some brilliant work mitigating the worst effects of idiotic government proposals.

The concessions are:

“First, we will not automatically refuse applications from people applying to join their family permanently in the UK—that is to say, those applying for visas as a spouse, civil partner or unmarried or same-sex partner under paragraphs 281 or 295A of the immigration rules; a fiancée or proposed civil partner, as set out in paragraph 290 of the rules; a parent, grandparent or other dependent relative, as set out in paragraph 317; a person exercising rights of access to a child, as set out in paragraph 246; or a spouse, civil partner or unmarried or same-sex partner of a refugee or person with humanitarian protection, as set out in paragraphs 352A, 352AA, 352FA and 352FD. Following some of the comments made by hon. Members this evening, I will of course check to see whether we have cast the scope of those exceptions correctly, but my initial analysis is that that is where the discretion should apply.

Secondly, we will not automatically refuse anyone who is under the age of 18 at the time of the breach of the immigration rules. My hon. Friend the Member for Islington, North spoke powerfully on this subject, as did the hon. Member for North Southwark and Bermondsey. That case has been well made.

The clarification that I want to make underlines comments that I have made to the Committee of my hon. Friend the Member for Hendon (Mr. Dismore) in the past that there should be a carve-out for victims of trafficking. We will put that into effect when we have ratified the Council of Europe’s convention on trafficking.”

It isn’t clear whether there will be a rule change or some sort of policy guidance. Far and away the most sensible thing to do is change the rules themselves to reflect the minister’s announcement. As readers may have previously observed, the Home Office is hardly known for being sensible…

Many applications have already been refused under the unamended rules, as previous comments on this blog show. Anyone affected should contact the entry clearance post concerned straight away and ask for a review. It will take months and months for an appeal in the Asylum and Immigration Tribunal to be listed, unfortunately, so it is better to go straight to the visa office responsible in the first place.

Guidance on DP3/96 cases

The Home Office has managed to change the online guidance on DP3/96 surprisingly rapidly and these are now available to read. See chapter 53, section 53.3 of the Enforcement Instructions and Guidance (formerly known as the Operating Enforcement Manual or OEM).

The EIG are addressed to immigration officers and other immigration officials, but are heavily used by lawyers as well as they contain all sorts of policies that are not published in the rules themselves. Is this a sensible way of organising a fair and transparent system of immigration control? I think not. To make it worse, there are sometimes top secret additional policies to that are so secret the Home Office doesn’t even tell its own staff about them properly, leading to findings in the courts of abuse of power.

Essentially, the guidance now says that DP3/96 and DP2/93 and associated policies have been withdrawn as of 24 April 2008, but that if consideration under one of the policies had already begun by that date then the policy will be applied. Finding out whether consideration had actually begun might be difficult, but if necessary a Subject Access Request under the Data Protection Act will enable access to the Home Office file, so it can be checked properly.

I’ve got a case coming up very soon where we argue that the Home Office had failed to apply the policy. Normally, we’d ask for the case to be sent back to the Home Office for them to apply their own policy, but that would be a fat lot of good now they’ve scrapped it. We might, though, be able to argue that they had started consideration or should have started consideration, therefore the policy should be applied and the court should put the client in the position in which he would otherwise have been. The recent line of abuse of power and legitimate expectation cases might well be helpful, but it is a tricky argument to run.

Legitimate expectation

The Government has lost yet again. I’m beginning to feel embarrassed for them. These repeated legal defeats smack of a basic failure to comprehend the idea of rule of law. That’s OK with individual politicians, of whom you can’t generally expect very much, but it is deeply worrying with a whole Government equipped as it is with processes and procedures, checks and balances, consultations, civil servants and legal advisers. I’m interested mainly in the immigration field, where the HSMP case, the overseas marriage rules case and now the junior doctors case immediately come to mind, but what about the repeated knock-backs on terrorism, torture and corruption?

Anyway, the House of Lords ruled against the Government on an attempt at a back-door change to the immigration rules for overseas junior doctors. The case was brought by Bapio Action Ltd, a company formed by the British Association of Physicians of Indian Origin to represent the interests of junior overseas doctors who had been lured to the UK by promises of a career here but after arrival were being deprived of an opportunity to apply for jobs.

The judgments differ considerably in their reasoning. Lord Bingham holds that the email sent out by a Home Office official was an unlawful exercise of the power to regulate immigration status that can only be exercised by the Secretary of State (and is rather critical of the attempt to affect so many lives by so such informal, ill-considered means). Lord Carswell agrees with him, more or less. Lord Mance disagrees and decides that the email did not directly affect immigration status, but that the email was a breach of legitimate expectation. Lord Rodger agrees with Lord Mance. Lord Scott disagrees with all of them and allows the Home Office appeal.

So, it’s a score draw between the Bingham reasoning and the Mance reasoning, which are really quite radically different. Whilst I love reading the differing judgments of the Lords, this kind of stalemate makes a strong case for single judgments. Perhaps when they become the Supreme Court.

The most interesting approach from an immigration lawyer’s perspective is that of Lords Mance and Rodger. There have been several cases recently which have been allowed on the basis of legitimate expectation. These all share a common feature. A group of immigrants have been led to expect a certain outcome, but the Home Office changes its mind and pulls the rug out from under their feet. This ought to be a lesson to the Home Office about such unfairness, but somehow I don’t think anyone at Home Office HQ is listening. The ambiguity in the reasoning is also something of a let off as well.

Unfortunately, it seems unlikely that this judgment will be much use to those affected by immigration rule 320(7B). The Court of Appeal case of Odelola, unless overturned, would appear to scupper that. It effectively permits changes to the immigration rules even after an application has been submitted but before it has been decided, as long as there was no express promise not to change the rules. This does seem at odds with other recent case law, so there might be some hope for it being overturned.

DP3/96 revoked II

In terms of scraping the bottom of the barrel, this is beaten only by the withdrawal of the non-removal policy for over 65s. Why oh why would they bother? Since at least 1993, there has been a policy that where a British citizen marries a foreign national who is here illegally but who is not actively being removed, an application under the normal spouse rules will be permitted once the marriage has been going on for at least two years. Normally, it would be necessary for the foreign national to go home and apply for a visa, which is expensive, a Right Royal Pain In The Arse and risks refusal at the hands of some jobsworth entry clearance officer.

As I described in a very recent post, there was actually an equivalent policy for unmarried partners. Not any more, I imagine.

It was a confusing area and the various bits of Home Office guidance and policy documents were a real mess. The courts have said it would be a Good Idea to clean it all up a bit and rationalise the guidance. Well, you can’t get more streamlined than abolition, which is what happened on 24 April 2008, in a Ministerial Statement by Liam Byrne MP.

This would be bad enough at the best of times, but it is particularly awful gven the new ‘no return’ immigration rule 320(7B). This bans from re-entering the UK anyone who previously broke UK immigration laws. There’s a sort of tariff system of different terms of exclusion, which I’ve covered in previous posts on this.

So, not only have many couples lost the benefit of DP3/96 and the equivalents, meaning that the foreign national partner must go abroad and apply for a visa, they will also find that the foreign national spouse or partner cannot even apply for a visa for at least a year.

It is definitely time to start putting in human rights applications on behalf of British citizens who find themselves separated from partners or forced to emigrate. The rights of ‘third parties’ like spouses or children cannot normally be considered by the Asylum and Immigration Tribunal (unless the House of Lords decides otherwise in the awaited judgment in a case called Betts) but they can put in their own applications under section 7 of the Human Rights Act 1998.

Unmarried partners

An interesting case is circulating amongst immigration lawyers at the moment but has not been officially reported.

The Asylum and Immigration Tribunal reporting process is somewhat opaque, to put it mildly. Back in The Day, the tribunal used to send copies of all determinations to various organisations, and then lawyers could publicise or report whichever decisions they chose. Decisions that were influential were usually written by respected judges and there was a sort of Darwinian survival of the fittest element to the whole thing. Admittedly some lawyers did try citing daft decisions sometimes.

The process was given a distinctly Creationist make-over a few years ago. The tribunal decided that it only wanted lawyers and judges reading the decisions that it chose. A panel seems to have been set up that selects its favourite decisions. There is a widespread perception amongst immigration lawyers that it only seems to select decisions that are adverse to immigrants. I couldn’t possibly comment on that.

The decision this post is about is an unusually liberal one. It finally and belatedly puts married and unmarried partners on a par. The Home Office had been insisting that a policy called DP3/96 did not not apply to unmarried partners. It doesn’t, the tribunal found, but the Home Office introduced an almost exactly equivalent one back in 1999, they put it in their guidance to their caseworkers and they should jolly well start applying it.

Bottom line: if you have been in the UK living with someone for two years before the Home Office started enforcement action against you, some or all of that time you have had no immigration status and it is not reasonable for your partner to relocate with you to your home country (watch out, this requires something more than mere hardship), then you should be granted three years of Discretionary Leave. Enforcement action includes notifying you that you are an overstayer and that you are liable to removal. The people most likely to benefit are therefore overstayers rather than asylum seekers, as most asylum seekers have enforcement action started against them fairly early on.

Why hasn’t this decision been reported? Good question. Perhaps it will be, but there seems to be no hurry.

More news on the re-entry ban

Liam Byrne, the Immigration Minister, has written to the Immigration Law Practitioners Association (ILPA) with some further clarification on the no return amendment to paragraph 320 of the immigration rules (see here, here and here for previous posts on this). There are no shocks, really, but he does rather usefully say that a previous breach of immigration laws will not be held against someone if they were later granted leave. The example he gives is a student who overstayed previously but despite this was granted leave by the Home Office.

The letter reiterates that the concession announced in Parliament only applies to those who were in the UK on 17 March 2008.

Not to put too fine a point on it, this is bonkers. It penalises anyone who left before 17 March to try and sort out their immigration position and benefits thoe who hung on in the UK. I’ve already had a few queries about this and there is a strong argument that a visa should be granted on human rights grounds. As no Entry Clearance Officer has ever knowingly granted a visa on this basis, as far as I am aware, anyone in this position will need to apply for a visa, get refused, wait six to nine months for an appeal, hopefully win their appeal, and then wait for a further three months for the ECO to grant the visa. Or, as long as they went voluntarily and at their own expense, they could save themselves the stomach ulcer and wait a year before applying. The length of time an appeal takes defeats the object of having the right of appeal in the first place.

It may seem unfair that a person who leaves the UK under one set of rules with certain expectations then has to apply to come back under a new, different set of rules. Not for immigration lawyers, though; the rules change pretty much every fortnight so this happens all the time. It does seem genuinely unfair that the case of a person who applied before 1 April is decided under rules introduced later. In a piece of rather unfortunate timing, the Court of Appeal decided only last Friday that this is perfectly lawful, however, in a case called Odelola v Secretary of State for the Home Department. It concerns different immigration rules but the principle applies to rule 320(7B).

This may seem to be at odds with the recent Highly Skilled Migrant Programme case, but that case was decided on the basis of legitimate expectation, an argument that was considered untenable in Odelola. In the HSMP case there were various pieces of guidance that could be said to create a legitimate expectation that the same rules would be applied, but there is no equivalent in the case of rule 320(7B).

So, what to do? As far as I can see, there is no easy effective remedy for those who left the UK before 17 March and are having their applications decided under the new no return rule. There have been suggestions in some cases that visa officers have cynically put applications on hold in order to apply the new rule after 1 April, and I have to say that this would not surprise me. For those with evidence of a deliberately delayed decision or suffering real hardship (for example they have children in the UK) it may be worth investigating urgent judicial review proceedings in the High Court on the basis that an appeal to the Asylum and Immigration Tribunal is not an adequate remedy. Such a case would also be suitable for arguing the human rights of the family left behind in the UK, which cannot normally be argued in the immigration courts.