August 13, 2018

Why so many UK visit visas are refused?

It is the fact that the Home Office frequently refuses visitor’s visa with no reasonable explanation.
This may not come as a surprise to immigration lawyers, who are all too familiar with the Home Office’s culture of disbelief, but it has come as a nasty shock to many artists, authors, and performers refused entry to the UK recently.

The Radio Times reported last month that securing visas to enter the UK and play at the world music festival Womad is now proving ‘so difficult and humiliating’ that acts are turning down organisers’ invitations and staying away.

The story was also reported by the Guardian, the Independent, the Times, and the BBC. This was followed by reports last week that a dozen authors who were planning to attend the Edinburgh International Book Festival have had their visas refused. According to the festival’s director, speaking to the Guardian:

So what’s going on
Good in theory: the visit visa rules

The visit visa rules are contained in Appendix V of the Immigration Rules. They are uncontroversial. A visitor must satisfy the Home Office that they:

will leave the UK at the end of their visit;
will not live in the UK for extended periods or make the UK their home through frequent or successive visits;
are genuinely seeking entry for a purpose that is permitted by the visitor routes, such as tourism, certain business activities, carrying out a permitted paid engagement, or performing at a permit free festival;
will not undertake any prohibited activities such as working, studying, or receiving payment from a UK source; and
have sufficient funds to cover all reasonable costs in relation to their visit without working or accessing public funds.

Womad is a “permit free festival”. Festivals can apply to become part of this list each year. Performers seeking entry to attend a festival that is not on this list (such as the Edinburgh International Book Festival) must meet the permitted paid engagements rules. There are five types of permitted paid engagements:

highly qualified academics invited to examine students and/or participate in or chair selection panels;
experts invited to give lectures in their subject area;
overseas designated pilot examiners invited to assess UK based pilots;
qualified lawyers invited by a client to provide advocacy for a court or tribunal hearing, arbitration or other form of dispute resolution for legal proceedings within the UK; and
professional artists, entertainers, musicians or sports persons invited by a UK based creative or sports organisation, agent or broadcaster to carry out an activity directly relating to their profession.

All fair enough, really. The rules are not the problem.
Poor execution: the Home Office’s application of the rules

The problem is with the Home Office’s application of these rules. Often decision-makers simply don’t believe that the person seeking entry is a genuine visitor, instead assuming that they intend to remain in the UK permanently.

To be fair, some people do breach the terms of their visit visa and remain in the UK, claiming asylum or applying to stay in the UK under human rights law. There is, after all, no way to claim asylum from outside the UK. But the recent difficulties faced by artists and authors seeking entry to the UK to attend well-established international festivals suggests the Home Office is adopting an excessively restrictive approach.

A person’s intention is a difficult thing to judge. It is a delicate balance. On the one hand, there is a legitimate need to prevent abuse. On the other hand tourists, family and friends of UK residents, performers, musicians, authors, and sportspeople all need to be able to visit the UK. Even apart from the human aspect — imagine being told you can’t come to visit your granddaughter — making it difficult to run a music or literary festival in the UK does nothing for the economy. In-demand artists will simply accept the invitation from New York or Dubai instead.

Are decision-makers striking the right balance? In my experience, the scales are usually weighted against visit visa applicants. Often it feels like applicants are guilty until proven innocent. Everything is treated with suspicion.
eBook Visit visa refusals: how to challenge decisions

t is advisable that applicants submit extensive documentary evidence of their social and economic connections in their country of origin in order to demonstrate that they will return their after their visit to the UK. Where the documents could give rise to questions, additional evidence should be provided to provide an answer e.g. bank statements from your savings account to show where that recent deposit into your current account came from, a letter from your employer confirming why there is a small discrepancy between the amount shown on your payslip and the money deposited in to your bank account, a letter from your landlord confirming that you reside at their property through an informal arrangement and there is no written tenancy agreement which can be produced. Failure to provide these sorts of explanations can be fatal to the application.
The result: an unworkable system

Many applicants do not realise such extensive evidence is necessary. Last year, 260,000 visit visa applications were refused. The rate of refusal is fairly steady over time, but varies significantly by nationality: over one third of all potential visitors from Pakistan, for example, were turned away. It is hard to believe that all of these applicants were hell bent on abuse of the system.

There is generally no right of appeal against refusal of a visit visa. An appeal can only be lodged on human rights grounds and is usually only possible where a person is applying to visit close family. This gutting of appeal rights, back in 2013, coincided with an sharp increase in family visit visa refusals.

Without a mechanism to challenge visit visa decisions, there is no oversight or accountability. Officials can do what they like. Are they applying the rules correctly? Have they properly taken into account all evidence submitted? Are they refusing visas on the basis of irrelevant issues? Are their decisions reasonable? Who knows? There’s no external quality control aside from the occasional reports of the immigration inspector, who last time out found that over 40% of refusal notices were “not balanced, and failed to show that consideration had been given to both positive and negative evidence”.

The lack of appeals leaves judicial review as the only remedy. This is very expensive. The cheaper and easier option is to re-apply, this time providing extensive documentary evidence to show that you are a genuine visitor (and providing additional documentation to address any issues raised in the refusal). Providing such evidence and making multiple applications becomes the norm, without anyone at any point considering whether this is sensible or desirable.

Unfortunately, many simply aren’t willing to go to such lengths to visit the UK:

One author… wanted to back out at that point because he couldn’t bear it, but we asked him to continue (Nick Barley, director of Edinburgh International Book Festival, speaking to the Guardian)

It’s too difficult and too expensive, and it’s humiliating (Chris Smith, director of Womad, speaking to the Radio Times)

It is not really worth coming any more (manager of an African music group speaking to the Guardian)

With the government ploughing ahead with Brexit under the slogan “Global Britain“, the Home Office line is that “we welcome artists and musicians coming to the UK from non-EEA countries to perform”. It doesn’t exactly look like it.

August 1, 2018

Home Office Unlawfully Nullifies British Citizenship In Hundreds Of Cases

31 Jul 2018

Another embarrassing facts about the Home office policy has just been reveled!
I would say this time indeed serious one: The !Home Office Unlawfully Nullifies British Citizenship In Hundreds Of Cases

New figures obtained from the Home Office show that hundreds of British citizens have unlawfully had their citizenship nullified since 2013.
A freedom of information request has revealed that there were 262 decisions to nullify British citizenship between 2007 and 2017, with 176 of these occurring in 2013 alone.
The Home Office can either nullify a person’s citizenship or deprive them of it. Nullification of citizenship has immediate and retrospective effect and can be used in more cases than deprivation. Nullification is far more difficult to challenge and has no right of appeal. Therefore, the Home office decisions on citizenship applications are practicality almost final and definite!

Deprivation cases generally involve national security issues or deception leading to the acquisition of citizenship. The procedure for the deprivation of citizenship is governed by the British Nationality Act 1981 and is strictly regulated.

Nullification of citizenship is an obscure common law declaration. The Home Office can nullify citizenship if it can be proved that the applicant impersonated another person in order to obtain British citizenship. The person who loses his/her citizenship is considered never to have been British.
Therefore any family members, who have obtained their British citizenship through them, will lose their citizenship as well.

In the Supreme Court case of Hysaj [2017] UKSC 82 the Home Office itself conceded that nearly all of the nullification decisions were unlawful! A team of civil servants from the Status Review Unit is now reviewing these historic decisions.

It is believe that most of the historic nullification cases are based on identity fraud, for example, providing an incorrect name, date of birth or other information at the time of the initial citizenship application. It remains unclear as to why the Home Office opted for the nullification procedure rather than the deprivation procedure in these cases.

July 28, 2018

Tribunal overturned for ignoring public interest in deportation

In a deeply unsurprising turn of events (see posts passim), the Court of Appeal has overturned a favourable deportation decision in Secretary of State for the Home Department v MR (Pakistan) [2018] EWCA Civ 1598.

MR, a citizen of Pakistan, entered the UK in October 2002 as a student and when he became liable for removal in October 2011 had already encountered the criminal justice system. As Lord Justice Asplin notes:

At that point he had eight convictions: for use of a false instrument; driving whilst uninsured on three separate occasions; not having a driving test certificate; resisting or obstructing a constable; driving whilst under the influence of alcohol; and failing to surrender to custody within the appointed time. He also admitted that during his student leave he had worked in excess of the hours permitted to him and that he did not manage to complete the courses that he had been given leave to study.

It was MR’s conviction in July 2012 for fraud and a sentence of 15 months that finally prompted deportation action with the order finally issued in January 2013.

Although unsuccessful in an appeal and judicial review against the decision, MR was undeterred and applied to revoke the deportation order. He was finally successful in overturning the refusal to revoke his deportation on the basis of his (previously identified as tenuous) family life.

The Upper Tribunal upheld the determination overturning the deportation order, finding that the it had been flawed but “sufficiently well reasoned that the parties are able to understand the ratio of the decision.”

Displaying the same tenacity as MR, the Home Office appealed that decision on two grounds:

the First-tier Tribunal had failed to consider the Article 8 claim through the prism of the Immigration Rules, and
the First-tier Tribunal had failed to give proper weight to the public interest considering the history of MR’s offending.

The Court of Appeal found for the Secretary of State for a number of reasons.

The First-tier Tribunal had made no reference to the relevant Immigration Rules, instead completing a free-ranging Article 8 analysis under the Razgar principles, failing to give due weight to the public interest in the process:

In doing so, in my view, the FTT made a number of material errors. The first is that it failed to ensure that proper weight was given to the public interest and to the policy adopted by the Secretary of State… Although there is a reference to the “other side of the coin; the public interest” at [35] of the FTT Determination, removal being “presumed in the public interest” at [37] and the use of the phrase “maintenance of effective immigration control” at [39], they are not accompanied by any analysis or weighing of the relevant evidence.

When assessing “undue harshness” the tribunal, on the face of the determination, had failed to consider MR’s criminal and immigration history, instead concentrating only on the effect on his children and wife. This represented a failure to follow MM (Uganda) [2016] EWCA Civ 617.

No “very compelling features” were identified for the situation where the deportation was not considered unduly harsh (although given the First-tier Tribunal found it was unduly harsh why would it identify any?).
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Finally, no reference was made at all to sections 117A-D of the Nationality, Immigration and Asylum Act 2002 and therefore for the tribunal had not properly addressed the precariousness of MR’s immigration status while his relationship was formed.

The court concluded

that the FTT did not apply the correct test or ask the appropriate questions. These errors are quite clearly material and accordingly, it seems to me that the UT also erred in its approach. In my view, there is no foundation upon which to base the conclusions at [24] – [26] of the UT Determination that the FTT understood that the question of whether it would be unduly harsh for MR’s children to grow up without him was at the heart of its enquiry or that it understood the tests to be applied.

The matter has been remitted to the Upper Tribunal to try again.

Perhaps most surprising in this case was that MR, despite his criminal and immigration history, was successful before the First-tier Tribunal and that the Upper Tribunal upheld that decision, even with reservations about the determination.

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