Forced marriages and age

Two more things on this topic. One, I’ve belatedly discovered that UKBA released a draft version of the research report covered previously on this blog. The final version is in fact a more polished piece of work. One can only assume that UKBA deliberately released the less polished version in order to undermine it somehow.

Secondly, an interesting article has been published in the journal Feminist Legal Studies on age as a risk factor in forced marriages. I’m not normally an avid reader of this journal, I admit, but the article is well worth reading if you are interested in the subject. The authors are two of the researchers commissioned by the Home Office for the suppressed report. It’s an academic piece but here are just some of the interesting ideas raised:

1. Forced marriage should be seen as a species of domestic violence. Age would never usually be said to be a risk factor in other types of domestic violence cases as it is accepted that women of all ages can be victims. Why is this reasoning not applied to forced marriage cases, where there is evidence to suggest that applies equally?

2. The increase in the spouse visa age is based on the ‘common sense’ presumption that with age comes ‘maturity’ and independence. However, maturity is a cultural concept. For example, in many Asian families moving away from parents is not considered to be a sign of maturity but of something dysfunctional.

3. One perceived benefit of the visa age increase was allowing young people to complete their education. This ignores several considerations, including that marriage and education are not mutually exclusive, lots of people do not pursue higher education but will still not be able to live with their spouses in the UK.

4. The change has a disproportionate effect on minority communities and reinforces racist stereotypes. In short, it is discriminatory.

These are just a few points I’ve taken away from the article, though. As I said, I’d recommend reading it yourself.

Albanian/Kosovar deprived of British citizenship by Presenting Officer

In an unusually dramatic move, the Presenting Officer in the recent case of KB (para: 320(7A): “false representations”) Albania [2009] UKAIT 00043 served a section 40 notice on a witness in the case, thereby depriving him of his British citizenship. There is a right of appeal to the tribunal against such a decision and the tribunal records that it advised the unrepresented man to seek legal advice.

This was a case where the witness, who was sponsoring his wife to enter the UK from Albania, had claimed on arrival in the UK in 1999 to be a Kosovar. However, the tribunal records in the determination that the man was a national of Albania, although it is not clear how this was established. The Home Office accused him of lying about his nationality on entry and then continuing with the lie to obtain Exceptional Leave to Remain, then Indefinite Leave to Remain and then finally full British citizenship.

The tribunal, chaired by Mr Ockelton, found that a document obtained through falsehood and relied on in an immigration application does amount to a ‘false representation’ under immigration rule 320(7A) and therefore mandates refusal of the application and appeal. The tribunal goes on to comment that sometimes leave and even citizenship is appears to be granted when it should not have been, as well as the more usual complaint of not being granted when it should have been, before ending by observing that the Presenting Officer in court served the witness with a notice under s.40 of the British Nationality Act 1981:

Before us, Ms Tanner served on the sponsor a Notice of Decision under s40 of the British Nationality Act 1981, depriving the sponsor of his citizenship. We advised the sponsor to seek legal assistance in connection with it.

The case serves as a warning to any Albanian/Kosovans that should they by their actions cast doubt upon the basis on which they were granted ILR or citizenship — such as by sponsoring an Albanian spouse to enter the UK and presenting an Albanian passport — they are opening themselves to potential curtailment or deprivation proceedings.

Spouse visa age… again

Back to this old chestnut. I’ve been doing a bit more work on the subject and thought I’d share a minor revelation I had while writing an article for one of the immigration law journals. I’ve also learned that there is a judicial review application on this to be heard on 30 October 2009, although having spoken to the barrister instructed he’s not currently planing to challenge the rule itself, just the treatment of the individual client.

As to the minor revelation, I’m ashamed not to have picked up on this before. It is hardly rocket science. The statistics used by the Home Office in the announcement that the spouse and partner visa age would be increased showed that there were more reported forced marriages at certain ages. UKBA then used this information to argue that because there were more forced marriages at these ages, raising the visa age beyond this age bracket would help prevent forced marriages. Simple.

The problems are really, really fundamental ones. First of all, the sample size is tiny in comparison to the total number of marriages that take place at the ages affected. This is one of the justifications used by UKBA for not publishing the research report on forced marriages they commissioned, incidentally. Secondly, I suspect there are more marriages at these ages in the communities believed to be most affected by forced marriage. One would therefore expect there to be more forced marriages as well. If anyone has any ideas on how to find out how many marriages there are at different ages in, for example, the British Asian community, I’d be very interested to hear. There is therefore nothing at all to show that proportionately there are more forced marriages before the age of 21 (and in the research commissioned by the Home Office almost everyone said age is not a factor in determining risk of forced marriage). Thirdly, there is also nothing at all to show that forced marriages are more likely to be a problem if the marriage is to a foreign national – i.e. changing the visa age does nothing to tackle domestic forced marriages.

So, what UKBA are really trying to achieve is a reduction in the number of marriages to foreign nationals, in the alleged hope that this will reduce the number of forced marriages. Yet there is nothing to suggest that the age bracket affected by the change is particularly at risk of forced marriage and there is nothing to suggest that forced marriages are more of a problem in foreign marriages.

Are ministers and civil servants so daft that they think the statistical ‘evidence’ they relied on is strong? Or is this cynical and discriminatory pandering to the anti-immigration lobby? Take your pick, using my statistically sound sampling technique:

I’ll be returning to the theme of dodgy ’science’ in my next post, on the ominously entitled ‘Human Provenance Project’.

UKBA Inspectorate

I’ve been following with some interest the establishment of the snappily-entitled Office of the Chief Inspector of the UK Border Agency (OCIUKBA to its friends). Like many initiatives to establish supposedly greater accountability for the Home Office, there has been some scepticism about this new institution. The early signs are rather promising, though.

John Vine

OCIUKBA is supposed to be an entirely independent organisation. There are now around 40 staff working there, many of whom have been recruited from UKBA but also from other parts of the civil service and various inspectorates. The Chief Inspector himself, a very genial (too genial?) man called John Vine, was previously a police force chief inspector.

So far there have been several inspections and two reports published. The annual report is due in October some time and should make interesting reading. The two reports that have been published were on a without-warning inspections of the Asylum Screening Unit at Liverpool and a pre-warned visit to the Entry Clearance operation at Rome.

The Liverpool ASU report doesn’t mention the two OCIUKBA inspectors that were apparently bitten by insects from the infested carpets and doesn’t go into a lot of detail about the mother with a young baby that checked in at 11.15am but had been overlooked until the counters closed at around 5pm and had no accommodation to go to. When the OCIUKBA team brought this to the attention of the UKBA staff, there was apparently an adequate but far from ideal panicked response, followed by excuses about this being exceptional, never happened before, etc etc. The material that did make it into the report was very critical of the layout and material conditions at the ASU, particularly about the lack of privacy available to people claiming asylum, but was mainly complementary about the professionalism of the staff. It is a little worrying that even with inspectors literally looking over their shoulders some of the UKBA staff were reported to act in an unprofessional manner – it rather suggests they don’t actually know how to behave properly. This was a small minority, though.

The Rome report is perhaps a little less interesting, but still worth taking a look. The inspection team took a sample of 100 files. The report is fairly positive, but highlights an embarrassing failure to grant visas for a legitimate invitation-only sporting event run by the British army. The report includes a short comment about the introduction of the Points Based System having ‘unintended consequences’ – a perfectly well qualified and highly skilled individual had been turned down under Tier 1 but the ECO said the application would have been allowed under the more flexible previous Highly Skilled Migrant Programme.

UKBA have also published responses to the inspections. A number of quick changes are being made at Liverpool ASU, including a ‘deep clean’ and replacement of some of the knackered old chairs, but proper improvements to deal with privacy issues will wait until 2011.

The big change is that UKBA staff now know that they might be inspected without warning at any time. The Liverpool ASU inspection is said to have sent shockwaves through the organisation. Some proper accountability can only be a good thing and should motivate UKBA to self-improve.

Forced marriage research rejected

I’ve created a new category on the visa age to keep track of the different posts I’ve written on this subject over the last couple of years.

The Home Office have provided further reasons for rejecting the research that found that increasing the spouse visa age would be harmful to victims of forced marriage. In fairness, I feel I ought to post them up. The reasons looks very weak to me, but you can judge for yourself.

The reasons certainly do not deal with the fact that all of the acknowledged experts and the actual survivors of forced marriage interviewed by the research team thought there were substantial risks in increasing the visa age. For example, it is said that:

Participants from some groups might perceive the study as instrumental in further restricting immigration and in potentially interfering with cultural practices around arranged marriages.

I can’t see how this applies to Bradford police, IND Croydon and Sheffield or the Forced Marriage Unit. Criticising the study for ‘only’ taking place in three study areas (Birmingham, Manchester and Tower Hamlets) is ridiculous, as is the alleged ’sample bias’ to South Asian populations. It is widely thought that forced marriage is a particular problem in that community, but the researchers were very careful to look at the issue of forced marriage in other communities. See section 4 of the report on methodology:

In addition, so that information regarding the practice and perceptions of forced marriage from a wider range of communities might be obtained, 15 focus groups were carried out with 97 individuals (82 women and 15 men) from South Asian, Chinese, Middle Eastern, African, Irish and lesbian friendly communities, and including a range of religious communities: Hindu, Christian, Sikh and Muslim, with a minority of respondents identifying themselves as atheists or non believers. Ages ranged from 15 to 60 and participants were also from different social classes. Where respondents were not British, they had a variety of immigration statuses, including indefinite leave to remain, refugee, work permit, dependent visa and student visa.

The Home Office reasons are woefully unconvincing, as was the pathetic so-called statistical ‘research’ that was relied on to justify the measure. It genuinely disgusts me that ministers are willing to dress up deliberate immigration reduction measures as serving to protect victims of forced marriages when in fact good research and the government’s own experts show that the opposite is true.

Forced Marriage Unit warned Home Office of risks in increasing spouse visa age

Courtesy of the Freedom of Information Act, I can exclusively report (I’ve never written that before!) that the Home Office has finally released the full research report it commissioned into the issue of forced marriages and the spouse visa age. I have previously posted on the research summary that had already been published.

The research was carried out between March 2006 and February 2007 in three locations – Birmingham, Manchester and Tower Hamlets. It set out to examine four main issues:

1. The impact/outcome of the recent increase the age of sponsorship/entry from 16 to 18 years;
2. The benefits and risks of increasing the age of sponsorship or entry to 18, 21 and 24;
3. The range of communities in which forced marriage happens; and
4. The factors which were perceived to increase or decrease the risk of forced marriages.

As can be seen from the issues, the research was commissioned to look into the effect on the existing increase in the spouse visa age and to look at the possible effects of future increases. The research strongly suggested that a further increase would be harmful to victims or potential victims of forced marriage (sections 10, 13.1). It also concluded that the no recourse to public funds policy is very harmful to victims of forced marriage (section 7.3.2).

So, what has the Home Office done? It has gone ahead and increased the visa age and maintained the no recourse to public funds policy, all in the name of helping to prevent forced marriages. The report was not published by the Home Office because, I quote “the report (rather than how the research was conducted) is not of sufficient quality to be published in the Home Office research series. The report contains unsubstantiated findings and what appear to be potentially misleading statements. It is also difficult to establish how individuals or groups/organisations have responded to certain questions.” So says Kate Hitchcock, Head of Managed Migration Research.

Having read the report, I find it is very difficult to understand this criticism. Section 10, on the visa age, looks scrupulously fair. None of the three survey groups (stakeholder groups, including Bradford police and the Forced Marriage Unit, forced marriage survivors and community focus groups) thought that increasing the visa age would be helpful to victims or potential victims and all thought it would be harmful. The most serious identified risk was that young people would be taken outside the UK until they had reached the new visa age, thereby completely removing them from any realistic possibility of access to help or support. Both the Foreign and Commonwealth Office’s own Forced Marriage Unit and the Home Office’s Immigration and Nationality Directorate in Sheffield considered that there were ’some benefits’ to increasing the visa age to 21 but there were ’substantial risks’ (page 62). IND Croydon thought there were no benefits at all to such an increase. These are the government’s own front-line workers and experts and they have been ignored.

Their opinions might be said to be ‘unsubstantiated’ but I can’t think of better qualified people than these three survey groups to offer an informed opinion. And I trust their judgment somewhat more than that of still Immigration Minister Phil Woolas.

Many of those surveyed also expressed the opinion that an increase in the spouse visa age would target certain communities to reduce immigration selectively. Given that in raising the spouse visa age the Home Office has gone against the only research that was available on the subject and has quietly dropped the other measures it was announced in July 2008 it would implement to prevent forced marriages, these fears were well founded. The measure is clearly a discriminatory one, in reality aimed at reducing immigration from certain communities but disguised as a way to reduce forced marriages.

What’s the point?

This is a question many immigrants and immigration lawyers are asking themselves about the so-called Points Based System. Genuine highly skilled immigrants and foreign students are considering heading to other countries and immigration lawyers are conflicted: the points based system is great for business but this is because it is so maddeningly badly implemented. If only the Home Office did what ILPA suggested, there would be a lot less work for ILPA members!

More bad news: there’s a splash by the Home Office today about how a similar so-called points system is to be extended to nationality applications.

The media coverage is frustrating. The main Home Office justification for the change is that the proposed new system will allow them to refuse citizenship to those of bad character. THERE IS ALREADY A GOOD CHARACTER REQUIREMENT FOR BRITISH NATIONALITY. Even at the moment it is for the Home Office decide who has or does not have good character. A criminal offence pretty much precludes one from citizenship, but it is certainly not limited to those who have committed offences. I’ve come across cases where the aspirant citizen has a bad reputation but no convictions and is still refused. Indeed, I was instructed on a case like this only a fortnight ago and had to tell the chap he didn’t have a leg to stand on.

The Home Office press releases explicitly suggest that in the past anyone could become a British citizen. This simply isn’t true, and it would have represented a gross dereliction of duty on the part of the Home Office had this been the case.

Now, to the rub. To suggest that applications in future will be judged on points is entirely misleading. I have no doubt at all that the Home Office will not introduce a system whereby a person commits a criminal offence but can nonetheless gain citizenship by doing lots of voluntary work: points are lost through the criminal offence but can be made up in some other way. If the Home Office did implement a genuine points system of this nature, it would be a lot more generous than the current system. This isn’t exactly the spin they are putting on it now, though, I notice.

The Home Office persists in pretending that the new immigration system is a ‘points based system’, but in fact it is full of mandatory requirements. For example, 10 points are available for English language. These 10 points are mandatory and must be scored. One is awarded 0 points or 10 points. There are many other similar examples. Several so-called points based categories require a certificate of sponsorship. 50 points are available for such a certificate. 50 points are needed. There is no way other than through the certificate to score the necessary 50 points. Why dress it all up as ‘points based’ when actually it is full of mandatory requirements? The citizenship rules will no doubt be the same.

Just by-the-by, still Immigration Minister Phil Woolas’ asserted on Today this morning that only citizens have a right of free speech. Others don’t apparently. I’m not sure whether he really believes this or whether it was another example of his mouth opening and ignorant, uninformed rubbish coming out. It’s rather worrying either way.

New PBS decision: not good news

No time for a proper post on this new case from the tribunal, NA & Others (Tier 1 Post-Study Work-funds) [2009] UKAIT 00025, so I’ll just paste in the headnote, which speaks for itself:

i. The new-style Immigration Rules governing Tier 1 (Post Study Work) contain a Maintenance (Funds) requirement in mandatory terms that admit of no discretion and make no allowance for sickness or other mitigating circumstances.

ii. The effect of para 245Z (e), read together with Appendix C of the Immigration Rules and closely related parts of the Policy Guidance dealing with Tier 1 (Post-Study) Work, is that, to qualify, an (in-country) applicant must show he or she held £800 or over for each and every day of the period of three months immediately preceding the date of application.

iii. This requirement, however, is relaxed for those who applied before 1 November 2008. Under transitional provisions they were only required to provide a bank statement showing a closing balance of £800 or over bearing a date anywhere within the period of one month immediately preceding the date of application.

iv. The requisite amount of £800 or over can be shown in the form of a personal or joint account and may be shown in the form of personal savings held in overseas accounts.

v. Because the relevant provisions require applicants to show that they had the requisite amount of £800 during a three-month period of time immediately before their application, it is not possible to apply s.85(4) of the Nationality, Immigration and Asylum Act 2002 so as to enable them to succeed on appeal by proving they had the requisite funds for a period of time (wholly or partly) subsequent to the date of application.

vi. However, until s.85A of the 2002 Act is brought into force (subsection 85(4)(a) of which stipulates that in respect of appeals in Points Based System cases the Tribunal may consider evidence adduced by the appellant only if it was submitted at the time of applying), it remains possible for appellants to satisfy the requirements of para 245Z(e) by providing on appeal evidence in specified form showing that they had £800 or over in personal savings for the period of three months immediately prior to the date of application.

PBS decision on the way

Wending my way north on the train at an ungodly hour this morning, I found my reserved seat was opposite a fellow immigration lawyer I know from times past. We had a gossip, and he tells me that he was recently at Processions House, the temporary home of the Senior Immigration Judges after the Great Fire of Field House, while a three day appeal on the Points Based System was being heard. Ian MacDonald QC was instructed, amongst others, and my friend thought that one of the panel was Hugo Storey.

It sounds like the tribunal has finally gotten around to listing a test case of some sort.

Guidance is certainly much needed, although many lawyers suspect that when it comes it will not be terribly helpful to the clients caught out by the strict and arbitrary requirements of the PBS. If a taster is needed, this unreported decision (my thanks to the reader who spotted it) suggests that at least one of the arguments commonly used to mitigate the effects of the PBS has not found favour in the senior eschelons of the now doomed Asylum and Immigration Tribunal.

One possible alternative approach worth highlighting is to make use of the 28 day concession announced by Lord Bassam at the time of the debates on the PBS in Parliament (see here at column 97-98). The Home Office will consider applications submitted within 28 days of the expiry of a person’s leave as if the application had been made in time. Well, because of section 3C of the Immigration Act 1971, if an applicant under the PBS is rejected by the Home Office and appeals, that person’s leave only expires when his or her appeal rights are exhausted. Some lawyers report that PBS applications made within 28 days of the end of the appeal process have been accepted and granted.

Whether it is financially worthwhile paying a lawyer and the hefty application fee is an open question, as no-one can predict the chances of success at the moment. It may be that such applications end up being rejected by the Home Office. The only remedy at that point would be an expensive judicial review application.

First reported PBS appeal decision

The determination concerns the award of a qualification for the purposes of Tier 1: Post Study Work rather than the bigger issue of the silly maintenance requirements. Senior Immigration Judge Spencer finds that a person has not been awarded a qualification until they have received the qualification certificate.

My own view, for what it is worth, is that this is a daft outcome. What neither the Home Office nor many immigration judges seem to understand is that the world does not revolve around their other worldly evidential requirements. Banks are not willing to issue the letters the Home Office requires for maintenance to be proved. Educational institutions do not understand the fine legal distinctions and technical wording that disqualified this appellant.

I have to add that I won a first instance appeal on exactly this point a few weeks ago, where the immigration judge accepted that a results letter and a letter confirming successful completion of the course was sufficient. However, it looks like the guidance might have changed yet again on this issue since then, and of course the old guidance is now unobtainable.

Paragraph 6 of the determination is interesting, in that the tribunal seems to have entertained the possibility that had the certificate been obtained by the date of the appeal hearing that might have changed things. Immigration judges are divided on the question of whether, if an appellant meets the requirements at the date of the appeal but not when the application was made to the Home Office, the appeal can be allowed. There is no consistency at all and outcomes are quite random, making it impossible properly to advise clients on the prospects of success. However, this was not a senior AIT panel, the point isn’t decided anyway and too much should not be read into this as a precedent.