29 September 2009 • 11:50am
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.
Filed under: PBS, Policy
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.
Filed under: Cases, Immigration rules, PBS
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.
Filed under: Gossip, Immigration rules, PBS
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.
Filed under: Immigration rules, PBS
The Home Office have today announced some changes to the Points Based System for Tier 4 students. In summary, the main changes are:
1. Transitional arrangements on maintenance are extended to 30 September 2009, meaning the applicant need only show the necessary money in their bank account at the date of application rather than for a period of 28 days prior to the application.
2. Letters about loans no longer need to include the account number.
3. Official financial sponsors can now sponsor dependants as well as the main applicant.
4. The higher financial requirements for London students now apply only to those studying in inner London.
5. The date of application inside the UK is now taken to be the date of posting or in case of use of couriers the date of delivery. Out of country, it is the date the fee is paid.
The extension of the transitional maintenance arrangements is most welcome, but is no consolation to those struggling with the three month requirement for Tier 1 and Tier 2 at the moment. The loans letter change was necessary because, as with other aspects of the scheme, the Home Office had made up the requirement without checking that it was possible to fulfil. The third and fourth changes above are probably due to lobbying pressure by educational institutions.
Filed under: Immigration rules, PBS
There are reports that the Home Office just conceded a judicial review against the maintenance requirements under the Points Based System (PBS). This could be a very important development, and more posts (or comments, below) will follow as details become available.
The challenge appears to have been based on the argument that very strict, pedantic maintenance requirements of the PBS bear little or no relation to the avowed purpose of those requirements. The purpose is to make sure successful applicants have enough money to look after themselves and their dependants and not to become a burden on public funds. An applicant has to show a certain bank balance using certain very specific documents, which some banks are proving unwilling to supply, for a period of three months. The application is rejected if the balance falls below the specified amount for any length of time and by any amount during the three month period – even £1 below for 1 day is enough to trigger refusal. However, even people with very substantial income and with no history or future danger of having recourse to public funds may not be able to meet the rigid requirements, whereas even the profoundly impecunious can borrow the necessary amount for the necessary amount of time.
The Home Office not only conceded the case but also arranged for the challenger to be readmitted to the UK and paid their costs. It was a Tier 1 case but the same principles apply to other tiers.
This could well herald the end of the current daft approach to maintenance that is causing so many silly refusals at the moment. For those with current appeals based on a maintenance refusal, they have a very strong argument that their refusal was not in accordance with the law in the general sense. See the page on finding a lawyer for advice on that subject.
Filed under: Immigration rules, PBS
The flunky that writes the Home Office press releases really needs to tone it down and get a grip. One of the latest batches of press releases is entitled ‘Tough new rules target bogus colleges and education cheats‘. The words ‘bogus’ and ‘cheats’ are very strong indeed. Yet there is nothing in the press release that justifies their usage. And this is far, far from the first time. Home Office immigration press releases increasingly read like BNP pamphlets.
OK, some colleges failed to get licences from the Home Office to sponsor students under the new Tier 4 scheme of the Points Based System. There could be plenty of reasons why colleges failed to get licences, as the Home Office conditions are really rather onerous. Maybe some of those colleges do have deficient systems in some way, or their student monitoring does not meet the Big Brother requirements of the Home Office licences, or they did not fully understand the highly complex application process. That does not make them ‘bogus’, nor does it make their students ‘cheats’.
The use of this type of language is highly damaging to the immigration debate. Ministers and officials, eventually followed by the press, were eventually shamed into abandoning words like ‘bogus’ in relation to asylum seekers, yet now we see it cropping up about general migrants. It is aggressive, it adds heat rather than reason to the debate, it encourages a highly polarised, defensive worldview and it is often plain inaccurate.
Shame on the Home Office.
Filed under: Immigration rules, News, PBS
27 November 2008 • 3:37pm
I want briefly to acknowledge the passing of the Working Holiday Maker scheme today. It was one of the last vestiges of the favourable treatment of Commonwealth countries and their nationals.
It was always problematic, to be honest. Whites could get into the country under the scheme but non-whites could not. I remember seeing the statistics for the year 2000, when 10 Bangladeshis were admitted under the scheme as opposed to 17,000 Australians. I doubt much changed since then.
It was difficult not to regard the scheme as racist, so in some respects I have mixed feelings about its passing. Most immigration lawyers and activists would agree that it would have been better to retain the scheme and apply the criteria fairly, though.
The retired person of independent means route also died today. I’ve never actually dealt with an applicant under this category before and have little to say about it, but I imagine it was very useful for well-to-do families who would not represent any risk of a burden on public funds but who were not about to meet the stringent terms of immigration rule 317 for other dependent relatives.
The Lords debated the new immigration rules on Tuesday but the only concession I can see is regarding maintenance of applicants and their dependents under the Points Based Scheme, whereby their sponsor can give a maintenance guarantee to replace the requirements to hold funds of £533 in the bank account for three months prior to entry. It looks like more thought is going into sponsored researchers. The list of permissible activities for business visitors seems to be on the UKBA website in the relevant section.
I still find it difficult to believe that the Home Office is pressing ahead with the rise in spouse visa age to 21. Anyone caught by this provision who is not involved in a forced marriage would have a very strong chance of success on appeal, I would say – but will have to wait months for the appeal and pay high lawyers fees with no guarantee of success.
The Commons are due to debate the changes because of Dave’s EDM, but with Home Office lead-in times being as short as they are, there will be no opportunity until after the changes have come into effect.
Filed under: Immigration rules, PBS
12 November 2008 • 12:25pm 2
David Cameron opposes immigration rules change
Usually, changes to the immigration rules are brought about by what is called the ‘negative resolution’ procedure, where the proposed changes are tabled by the Government and automatically become law unless a parliamentarian objects. There is very rarely any such objection, although it occurred in both the Lords and Commons over the no return rule debacle.
ILPA have been lobbying hard against these latest changes, called HC 1113, and have already produced two briefings against them (links to follow here and here when available on their website). The gist of them is that:
1. The sponsorship scheme is a nightmare for employers and educational institutions, who are being subcontracted against their will to carry out immigration control at the risk of very heavy penalties including closure if they prove not to be very good at it.
2. The documentation and bureaucracy surrounding the scheme is preposterously complex and voluminous. I quote from ILPA: “a 35-page, 58-question application form, accompanied by 130 pages of guidance on completing the form, plus reams of additional, essential, guidance)”.
3. Employers are expected to do a lot under the new scheme, but one thing they are not apparently required to prove is previous compliance with labour laws such as the minimum wage.
4. The scheme badly discriminates against countries with low incomes, whose citizens will not be able to qualify even though comparatively they might be very highly skilled and very well paid by the standards of their own country.
5. The working holiday maker scheme is being scrapped and replaced by a scheme that only covers Australia, Canada, Japan and New Zealand. This looks very heavily discriminatory on racial grounds and severs one of the few remaining historic links between the UK and the Commonwealth. That last sentence is my view, not necessarily ILPA’s.
But why is it David Cameron who has lodged the EDM? It rather looks like the Conservatives are going to oppose the changes, and presumably will vote against. This is a political minefield, so it will be interesting so see how it all plays out. The Tories don’t want to be caught looking soft on immigration, which is certainly how the Government will seek to portray them.
Filed under: Comment, Immigration rules, PBS