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.

Aussie Tier 1 refusals

It sounds from various internet forums as if the British High Commission at Canberra is getting tough on applicants for Tier 1. Where applications have been submitted that include evidence (e.g. payslips) that show the person has worked for more than the permitted 12 months while on a working holiday maker visa, they are being refused on the basis of previous breach of a condition attached to leave. See immigration rule 320(7B) and previous posts on the re-entry ban if reading about this for the first time.

A ‘condition’ has a very specific legal meaning in immigration law. It refers specifically to the terms stated in the visa document in the person’s passport (called an entry clearance, technically). If the visa states that work must not exceed 12 months and the person has worked in excess of 12 months, they have indeed breached a condition attached to their leave. Even if the visa refers to working ‘with permission’, because the immigration rules are quite specific about the 12 month rule (see rule 95), that would also amount to a ban on working in excess of 12 months.

This then leads to a 12 month ban from the UK, starting from when the person left the UK.

There isn’t really anything that can be done for a person who falls into the above category and whose Tier 1 application is refused on this basis. An administrative review is a waste of everyone’s time as the same rule will be applied.

However, if the rule is being wrongly applied, an administrative review should be attempted. If that fails and there is a solid argument, with evidence, that the rule has been wrongly applied, it is possible to lodge what is called a judicial review. Administrative reviews are conducted by Entry Clearance Managers, who I have to say do not have a good track record in correcting silly decisions by their minions.

Judicial review is not a cheap process. It requires a UK-based solicitor, who lodges the application at the High Court in the UK. A barrister will usually be required, which also racks up the expense. If you are in this position, there is advice in finding solicitors in the ‘Getting advice‘ page.

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.

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.

Guidance published on re-entry ban

The Home Office and UK Visas have published guidance on their website about how their decision-makers should apply the re-entry ban and the concession that was announced. Unfortunately, they appear to be sticking to the strict terms of the concession that was announced in Parliament, meaning that the concession only applies to those present in the UK on 17 March 2008 who leave voluntarily before 1 October 2008. Anyone who left before 17 March 2008 does not fall within the concession and appears to face the exclusion ban.

Anyone in this position should certainly seek legal advice as it is absurd to treat worse those who had already departed from the UK in order to regularise their position than those who had lingered in the UK for longer.

Re-entry ban concession

In response to a comment left on my last post, I should make it clear that the concession as it stands in Hansard only applies to people currently in the UK who leave before 1 October 2008.  This really does not make sense as it penalises those who have already left under legal advice, like the boyfriend of Manu in the comment. I would expect there to be changes to take account of this, but with the Home Office it is never safe to assume that commonsense will prevail. If there are any changes, I’ll post about it.

For convenience, the concession reads as follows:

“A number of people have, however, suggested that we will achieve our aims better if we give people who are currently here illegally a chance to leave before the new rules are applied to them. We have listened to their argument and reflected on it, and we agree with them. I can announce that we will not apply the provisions in new paragraph 327B of the Immigration Rules to anyone currently in the United Kingdom who leaves the country voluntarily before 1 October 2008. Those people will be able to apply to come back without being automatically refused under these provisions, although it is possible that they will be refused under other parts of the Immigration Rules.

 

I emphasise that that does not mean that those people will automatically be allowed to come back. They will need to meet all the other requirements of the Immigration Rules. The BIA will also, as now, have the discretion to refuse them if they contrive in a significant way to frustrate the Immigration Rules; for example, by contracting a bogus marriage, which we know happens. They will not face a period of automatic refusal under paragraph 327B, however, if they go home after 1 October. That gives those who are currently here illegally a clear incentive to go home and, as I mentioned earlier, it promotes the Government’s objectives. We cannot withdraw the Immigration Rules in order to make the change, as I have outlined, since many of them are already in force. The change will therefore take effect as a time-limited concession outside the rules. I hope that noble Lords will find themselves able to support that concession.”