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Dereliction of duty


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There has been a noticeable trend recently for the Home Office to refuse applications but not to take enforcement action. Several lawyers have commented on this elsewhere, I’ve just come across a couple of cases and so has a colleague in chambers.

Where a person’s leave has already expired, if he or she makes a new immigration application there is no right of appeal to the Asylum and Immigration Tribunal if the application is refused. This is because a refusal of leave to remain where there is no existing leave is not an appeal-able immigration decision.

In two recent examples, applications were made in time that would have generated a right of appeal. In one, too much money was paid for the fee, so the whole thing was rejected. I know. Bonkers. By the time the rejection was received, leave had expired and when the application was resubmitted it was refused with no right of appeal. In the other case it was a domestic violence application. The applicant claimed to be destitute and therefore exempt from the fee, but the Home Office rejected this assertion and therefore rejected the application purely on the basis of no fee being paid. Again, by the time the rejection was received, leave had expired and so when the re-submitted application was rejected there was no right of appeal.

Short of introducing some sensible rules on re-submitted applications and rights of appeal, what the Home Office should be doing in such cases is issuing removal directions to take enforcement action. The decision to make removal directions would generate a right of appeal, and the tribunal could then look at the merits of the case. As it is, UKBA is instead writing a letter saying (I paraphrase) ‘if you wouldn’t mind awfully, it would be nice if you left the country’.

Whichever way you look at it, this is woeful behaviour. It is a failure to take enforcement action against those who have no right to remain and it is also denying them a right of appeal to seek to prove their case. It’s bad for everyone.

Instead, privately paying clients and the Legal Services Commission end up paying immigration lawyers lots of money to bring judicial review applications that are almost certain to succeed. The Home Office must really love us.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


9 Responses

  1. Recent trend?
    This one I hear has been going on for a number of years.

    Previously the approach was to put the application in a two queue, and ask you to approach your MP or write in and complain when nearing the end of that period.

    This tactic, while it is a dereliction of duty, is in a similar vein to the way other European countries/courts treat some of the “silly” EU laws (eg. shape of bananas, imperial or metric).

    While annoying, this delaying tactic is slighty sensible when one considers the facts, the resources available, and the notional targets the HO faces. I hope its not the one they usually take when it invovles criminals.

    However, one blogger on another site may have information about the 14 year rule being scrapped by the HO in 2011/12. If this turn out to be true, then a different complection could be put on this.

  2. Most application for residency card for EU spouse are being refuse by HO in large volume/number,their reason for refusal are not tenable,the application is free when made but once one is refused you then need a solicitor to assist you in your appeal whic cost anything above £1100,on the hearing day the HOPO will not turn up for hearing and it makes the whole situation very distressing.A friend applied last year march after 5yrs in the UK, a refusal letter came a year and 2month thereafter and currently going through appeal.

    1. Laulau

      Are the UKBA using the “Sham marriage” clause in the EU Regs as a blunt instrument for refusal?

      What is stopping applicants just making another application.
      What is stopping applicants reporting this to SOLVIT, particularly the non-compliance with the six month part.

      I am guessing this is a hard-line response to the Metock outcome. I think this may rebound as removing the EU National and the non-EU spouse isn’t easy.

  3. This is something that is due to the way that those higher up in the UKBA and Home Office set targets and priorities based on what is seen as the political need rather than ensuring that everything is done effectively.

    Resources are not properly targeted at the right places and to be honest the quality of people recruitied by some parts of the UKBA seemingly has taken a nosedive (as anyone who has dealings with the criminal casework team can probably attest).

    I have heard it suggested that there is currently a retention problem amongst immigration officers, in particular, and other staff with around 10 to 15 years experience who have seen what is now the UKBA change significantly for the worse since they joined and who don’t have so much service that they feel tied to the organsiation becase of their pension. Whilst in the real world this would be seen as a bad sign it probably hasn’t even been noticed by the higher ups in the civil service.

  4. Domestic violence cases- fees

    • endorsement in spouse passport states ‘no recourse to public funds.’
    • The Immigration and Nationality (Fees) Regulations 2007 contained in the Statutory Instrument 2007 No. 1158 at regulation 8 states as follows:

    Exceptions in respect of fees for leave to remain applications
    8. No fee is payable in connection with an application referred to in regulation 6, where the application is for indefinite leave to remain in the United Kingdom as a victim of domestic violence under the immigration rules, where at the time of making the application, the applicant appears to the Secretary of State to be destitute.

    • Further, or alternatively, there is nothing in the Immigration, Asylum and Nationality Act 2006 or in the Immigration and Nationality (Fees) Regulations 2007 requiring the Secretary of State to reject an application in circumstances where the applicant is simply unable to pay the fee. This is in direct contrast to the situation under the 1999 Act and relevant regulations where the statute precluded the Secretary of State from considering any application for which a fee was prescribed which had not been paid.

    • Secretary of State retains a residual discretion to waive the fee for an application in an appropriate case.

    • inability to make the application may result in victim becoming an overstayer and liable for prosecution for criminal offences. The imposition of the fee would be disproportionate and irrational (very interesting arguments on Article 14, Art.8 and JR of course). If application not properly rejected then applicant has made an in time application and should have a right of appeal under immigration rules as well as art.8.

    My favourite

    a failure to comply with any of the requirements of the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2005 will only invalidate an application if the Secretary of State notifies the applicant, or the person who appears to the Secretary of State to represent the applicant, of the failure within 21 days of the date on which the application was made (Regulation 14 refers).

    HOW MANY TIMES HAVE WE BEEN TOLD SOMETHING IS WRONG WITH THE FORM AFTER 21 DAYS?!! When I have told the Home Office this the caseworkers didn’t seem to know about it. The fact that they have a statutorily imposed time limit seemed to be laughable. Good grief….