REal case studies UKBA refusal

Real case studies 15  The applicant  submitted an application for entry clearance as a General Visitor to visit friends in the UK with supporting documentation as i) employment contract; ii) application for annual leave; iii) letter from UK sponsor; but refused entry clearance because no evidence of finances was submitted the Entry Clearance Officer identified discrepancies surrounding the applicants employment; and further investigations / checks carried out by an Entry Clearance Assistant failed to confirm the applicant’s employment.

VERITAS found that , DV report was not given to the client despite several reminder, after complain to UKBA , Mumbai embassy sent the letter , which clearly shows deficiency in services and provided evidence of unfair and non transparent decision-making process. Your know the result  ????

Evidence by electronic means

An interesting case on the use of electronic means (telephone, video link, Skype, Morse, that sort of thing) has been determined in North Shields. As the tribunal comes close to saying, it is serendipitous that it should be here where this issue would arise again, after the notorious case of R (on the application of AM (Cameroon)) v Asylum and Immigration Tribunal [2007] EWCA Civ 131.

The official headnote to this new case, Nare (evidence by electronic means) Zimbabwe [2011] UKUT 00443 (IAC), reads as follows:

The decision whether to allow evidence to be given by electronic means is a judicial one, requiring consideration of the need to do so, the arrangements at the distant site, and the ability to assess such evidence, by reference to guidance such as that set out here.

In this case a decision had been made that a witness who could not afford to travel to North Shields would be permitted to give evidence by telephone. It was not known who had made the decision or what, if anything, they had considered or weighed in making that decision.

The Presenting Officer threw what is technically known as a hissy fit and refused to cross examine the witness. This is the equivalent of getting up and walking out if an adjournment application is refused. Ultimately this was the undoing of the Secretary of State’s appeal as it meant that the witnesses evidence was unchallenged. The smart thing to do might have been to ask a few questions such as “how do we know you are who you say you are?”

The tribunal, chaired by Deputy President Mr Ockelton, opines that in the common law there is a presumption that evidence will be given in person before the tribunal or court then goes on:

Departures from that model are likely to reduce the quality of evidence, the ability of the parties to test it, and the ability of the judge to assess it, particularly where it has to be assessed against other oral evidence. Any application to call oral evidence by electronic link therefore needs to be justified. There is a measure of agreement across common-law jurisdictions that the taking of evidence, or the hearing of submissions, in this way requires regulation and ought not to be regarded as routine.

Interestingly, from the point of view of immigration bail hearings, video linked evidence is now regarded as presumptive and routine, at least by the Immigration and Asylum Chamber powers that be, and a judicial decision that video link evidence will be permitted is certainly not made in individual cases. I’m pretty damn sure that video links are not used for bail hearings in the criminal or other courts. The liberty of mere migrants is the poor cousin to the liberty of free-born Englishmen.

It is also I think worth observing that this case opens the door to applying for special measures to enable children to give evidence in a friendly and safe environment. This would normally be considered to increase not diminish the quality of evidence given. See Chapter 4 on representing children in appeals in the recent ILPA publication Working With Refugee Children: Current Issues in Best Practice for ideas (disclosure: I wrote it).

The actual guidance given by the tribunal is given with the caveat that it amounts to minimum requirements and may well require adjustment over time:

a.      A party seeking to call evidence at an oral hearing by electronic link must notify all other parties and the Tribunal at the earliest possible stage, indicating (by way of witness statement) the content of the proposed evidence.  (If the evidence is uncontested, an indication of that from the other parties may enable the witness’ evidence to be taken wholly in writing.)

b.     An application to call evidence by electronic link must be made in sufficient time before the hearing to allow it to be dealt with properly.  The application should be made to the relevant judge (normally the Resident Senior Immigration Judge) at the hearing centre at which the hearing is to take place, and must give (i) the reason why the proposed witness cannot attend the hearing; (ii) an indication of what arrangements have been made provisionally at the distant site (iii) an undertaking to be responsible for any expenses incurred.

c.      The expectation ought to be that the distant site will be a court or Tribunal hearing centre, and that the giving of the evidence will be subject to on-site supervision by court or Tribunal staff.

d.     If the proposal is to give evidence from abroad, the party seeking permission must be in a position to inform the Tribunal that the relevant foreign government raises no objection to live evidence being given from within its jurisdiction, to a Tribunal or court in the United Kingdom.  The vast majority of countries with which immigration appeals (even asylum appeals) are concerned are countries with which the United Kingdom has friendly diplomatic relations, and it is not for an immigration judge to interfere with those relations by not ensuring that enquiries of this sort have been made, and that the outcome was positive. Enquiries of this nature may be addressed to the Foreign and Commonwealth Office (International Legal Matters Unit, Consular Division).  If evidence is given from abroad, a British Embassy, High Commission or Commonwealth may be able to provide suitable facilities.

e.      The application must be served on all other parties, in time for them to have a proper opportunity to respond to it.

f.       The decision whether to grant the application is a judicial one.  The judge making the decision will take into account the reasons supporting the application, any response from other parties and the content of the proposed evidence, as well as of the overriding objective of the rules.  If the application is granted, there may be further specific directions, which must be followed.

g.     If there is a direction for the taking of evidence by electronic link, the Tribunal will nevertheless need to be satisfied that arrangements at the distant end are, and remain, appropriate for the giving of evidence.  A video link, if available, is more likely to be suitable than a telephone link.  The person presiding over the Tribunal hearing must be able to be satisfied that events at the distant site are, so far as may be, within the observation and control of the Tribunal, and that there is no reason to fear any irregularity.

h.     There will need to be arrangements to ensure that all parties at the hearing, as well as the judge, have equal access to the input from the electronic link.  Particular attention needs to be given to the accommodation of any interpreter.

i.       In assessing any challenged evidence, the Tribunal may have to bear in mind any disadvantages arising from the fact that it was given by electronic link, and should be ready to hear and consider submissions on that issue.

j.       Nothing in this guidance is intended to affect the existing arrangements for the hearing of bail applications by video link from secure video conferencing suites. Nor is this guidance intended to affect the arrangements for video linking of one Tribunal room to another for the purposes of hearing submissions by video link.

It is, of course, for the party seeking to rely on evidence given by electronic means to make the arrangements and pay any associated costs. It should hopefully be abundantly clear after all of the above that any applications must be carefully made in very good time and must be well planned.

INVALID APPLICATION

Invalid immigration applications cause serious difficulties. The problem is that the UK Border Agency advises people not to make applications until shortly before their existing leave is due to expire. However, it often takes the Border Agency days or weeks to look at the application, by which time the person’s existing leave has expired. As long as the application was valid, this causes few difficulties because the person’s leave is automatically extended by section 3C of the Immigration Act 1971 until the end of the application or appeal process. A serious problem arises where the Border Agency in their wisdom return the application as invalid: the person becomes an overstayer, commits a criminal offence by even remaining in the UK to re-submit the application, risks a re-entry ban and loses any right of appeal if the re-submitted application is unsuccessful.

There are many reasons why applications are declared invalid. In fact, it is quite difficult to get absolutely everything right. I once acted in a case where an application where it was declared invalid because the applicant had not entered a land line telephone number in the mandatory box. He had no landline. Applications are sometimes rejected because the photographs are too small, too smiley or too frowny. Submitting the incorrect fee (too much or too little does the trick) leads to automatic refusal, despite the difficulties calculating that fee when there are dependents involved. All of this would be good reason to hold the application and ask for further information or repayment, but it is not a good reason to criminalise the person concerned. Some might think that it makes such a mockery of the idea of criminal immigration offending that UKBA can hardly continue to go around saying that overstaying is a serious matter.

There are several cases where these issues have been canvassed. One of the most useful is that of Forrester, which I wrote about at the time. A handy little new case has just come out that may help some people: R (on the application of Kisuule) v Secretary of State for the Home Department [2011] EWHC 2966 (Admin). In this case the application was refused on the grounds that photographs were not included at all. The applicant insisted that he was very sure he had included them. The judge sided with him and held that the application had been validly made in the first place. The Border Agency will have had to pay the claimant’s costs.

These invalidity cases are a huge waste of everyone’s time and effort, they make a mockery of a criminal offence and it is high time the Border Agency reverted to the old system where leave was automatically extended for 28 days to give an opportunity to resubmit an application.

 

New policy guidance on the marriage visa age of 21 to decrease at 18 good news!!!

The Government has announced today that the spouse visa age will be lowered again from 21 to 18. The change will take effect as of 28 November 2011.The Minister for Immigration, Damian Green, says as follows in his ministerial announcement:

The changes in the Immigration Rules being laid before the House today are as a result of the Supreme Court judgement in R (on the application of Quila and another) (FC) v Secretary of State for the Home Department and R (on the application of Bibi and another) (FC) v Secretary of State for the Home Department [2011] UKSC 45.

On 12 October 2011, the Supreme Court found that whilst they recognised that the Secretary of State was pursuing a legitimate and rational aim of seeking to address forced marriage, a rule (increasing the minimum marriage visa age from 18 to 21) disproportionately interfered with the Article 8 rights of those who were in genuine marriages. Accordingly, the Secretary of State has decided to revert to a minimum age of 18.

The changes will take effect on 28 November and will reduce the minimum age at which a person may be granted entry clearance or leave as the spouse, civil partner, fiancé(e), proposed civil partner, unmarried or same-sex partner of a sponsor, and the minimum age at which a person may sponsor such an application, from 21 to 18 years. It will also delete references to a minimum age of 18 for entry clearance or leave as the spouse, civil partner, fiancé(e), proposed civil partner, unmarried or same-sex partner of a HM Forces sponsor, and the minimum age at which a member of HM Forces may sponsor such an application. Guidance for those affected by the judgment will be published on the UK Border Agency website.

There is no place in British society for the practice of forced marriage. It is a breach of human rights and a form of violence against the victims. That is why the Prime Minister has announced that the Government will criminalise the breach of Forced Marriage Civil Protection Orders and that there will be a consultation on making forcing someone to marry an offence in its own right.

We are also investigating what more we can do to identify and protect those young people who have been placed at additional risk.

Watch out old work permit holders !!!!!!!!!!!!!!!!!!!!!!!!!!

Back on 6 April 2011 the UK Border Agency made a change to the settlement rules for work permit holders who had entered the UK before the Points Based System was introduced. The change required a work permit holder to be paid a certain salary in order to qualify for settlement, or Indefinite Leave to Remain. The salary required is that specified in the myriad Codes of Practice for Tier 2 of the Points Based System.

The problem since faced by many work permit holder seeking settlement after five years of living and working in the UK is that their work permit was approved for one salary, which is what they have as a consequence been paid by their employer, but suddenly, with no individual warning, that salary level is no longer sufficient and the work permit holder neither qualifies for settlement nor for an extension under Tier 2.

An announcement recently went up on the UK Border Agency website that as of 31 October 2011, work permit holders will not only need to be paid the Code of Practice salary but will need to submit certain specified documents in order to demonstrate this. Previously certification by the employer was sufficient, but no longer.

The 6 April change was clearly an unfair one in the moral sense – the rules of the game were changed without notification. Foreign workers have a potentially difficult relationship with their employer in any event, and negotiating a rise in salary might well have been difficult even had they known one was needed. However, in immigration law it is very difficult to succeed on the basis of a legitimate expectation or a fairness argument. The courts have repeatedly held that there is no legitimate expectation that the Immigration Rules will remain the same. Cases that have succeeded, like the HSMP and BAPIO challenges, were based on specific assurances that the rules would remain the same, assurances that are not normally given. I have myself struggled to come up with a robust legal solution for those facing this problem. Article 8 ECHR is the best I can offer, but I would be interested to hear if anyone has done better.

Those work permit holders coming to the end of their five years and considering applying for settlement would be well advised to make sure they have checked they are paid in accordance with the relevant Code of Practice.

New evidence in Points Based System Appeals

The Upper Tribunal has reported a decision on the effect of the new section 85A of the Nationality, Immigration and Asylum Act 2002:

 Alam (s 85A – commencement – Article 8) Bangladesh [2011] UKUT 00424 (IAC). The official headnote reads as follows:

(1) Where it applies, s. 85A of the Nationality, Immigration and Asylum Act 2002 precludes certain evidence from being relied on, in order to show compliance with the Immigration Rules.

(2) “Fairness” arguments concerning the application of the transitional provisions regarding s. 85A, in article 3 of the UK Borders Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2011, may have a legitimate part to play in a proportionality assessment under Article 8 of the ECHR, when assessing the strength of the State’s interest in maintaining the integrity of the Immigration Rules.

This new section was brought into effect back in May in controversial circumstances: the restriction on the submission of post-decision evidence took immediate effect even in appeals that had already been lodged and were about to be heard. Changing the rules of evidence half way through an appeal is rather unfair, one might think. One of my clients had submitted the appeal bundle before the commencement order took effect, and before we even knew about it, but because the hearing was after commencement that bundle was basically redundant. The client was also deprived of the benefits of the new flexibility to request further evidence that was introduced at the time of commencement.

The Senior Immigration Judge behind the new decision, Mr Lane, is untroubled by the legality of the commencement order but notes that the fairness issues that arose might be relevant to an Article 8 human rights assessment. He points out that the legality of the commencement order could have been challenged in the High Court but was not, at least in this case (I’m sure someone has lodged such a challenge). The tribunal does have jurisdiction to allow an appeal on the basis that a decision was not in accordance with the law, but generally prefers not to exercise its muscles in this way. To be fair, the Court of Appeal did say in EN (Serbia) v Secretary of State for the Home Department[2009] EWCA Civ 630 that this was probably right: lawfulness challenges could be entertained in the tribunal but the vires of a piece of secondary legislation ought to be challenged in the High Court, which was the more appropriate venue.

In the real world, the tribunal is a far more accessible and cost effective means of challenging a decision, but this is not enough of a reason for the tribunal to accept jurisdiction in such cases, regrettably.

Goodbye paragraph 395C? UK Immigration

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It is difficult to take May seriously after Catgate. She cannot really be expected to check everything that is placed in front of her by her speech writers, but the pledge on changing the rules was unusually specific. I’ve been wondering what might follow, and my guess is that paragraph 395C will be scrapped. A Presenting Officer suggested to me that it might go the other day when we chatting before court, and this would perhaps arguably fulfil May’s promise.

The rule, very recently slightly amended, currently reads as follows:395C. Before a decision to remove under section 10 of the Immigration and Asylum Act 1999 or section 47 of the Immigration, Asylum and Nationality Act 2006 is given, regard will be had to all the relevant factors known to the Secretary of State including:

(i) age;

(ii) length of residence in the United Kingdom;

(iii) strength of connections with the United Kingdom;

(iv) personal history, including character, conduct and employment record;

(v) domestic circumstances;

(vi) previous criminal record and the nature of any offence of which the person has been convicted;

(vii) compassionate circumstances;

(viii) any representations received on the person’s behalf.

In the case of family members, the factors listed in paragraphs 365-368 must also be taken into account.

The flaw is that, as you can see, the paragraph makes no mention whatsoever of human rights. Arguments under this rule have a completely different legal basis additional to and more generous than human rights arguments. I don’t think this sort of legal nicety will bother May and her speech writers, however. The arguments made under paragraph 395C are basically the same as made under Article 8 of the European Convention on Human Rights.

Paragraph 395C was a surprisingly generous addition to the rules when it was introduced in 2006 following the deportation debacle, and it also, by a legal quirk, gives huge discretion to immigration judges to make up their own mind about how to dispose of a case. That is the very last thing that the last two governments seem to want – allowing judges to judge cases on their merit under national and international law.

We Liasioning and advising for clients who got refused for entry clearance to the UK across all visa categories as Dependent refusal, business refusal, PBS refusal, Visitor refusal.

Some of the areas we specialised include: