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Doing the right thing?


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I’ve just been in court doing yet another case where a solicitor has advised a client to do the ‘right’ thing and go abroad to make an application for entry clearance. This is common in spouse cases and I have myself advised clients to do the same thing in the past. Unfortunately, these applications are often rejected by ECOs, often but not always using one of the general grounds for refusal, leaving the couple separated for the months and months it takes to rectify the position through an appeal which will almost inevitably succeed.

There are good reasons (in theory) to go abroad and make the application from there. It is legally the right thing to do: making a voluntary departure then joining the queue and paying all the right fees, going through the right process and so on. There is also an important practical benefit: a successful application for entry clearance as a spouse leads to a grant of two years of leave followed by ILR followed a year later by eligibility for citizenship.

In contrast, staying in the UK and making an application from here is fraught with difficulties. An overstayer would have to continue breaking the law to make the application. The in-country fee is higher than the out-of-country fee (£900 against £750). If successful, the application will normally lead to a grant of three years of Discretionary Leave. At the end of that three year period an application for a further three years must be made and then only at the end of six years in total can an application for ILR be made. If unsuccessful, the application may not generate a right of appeal, leaving the applicant in limbo (a subject to which I will return soon).

The problem with going abroad is that the quality of decision making in some entry clearance posts is so abysmal that it is bonkers to place oneself at the tender mercy of an ECO. Many immigration lawyers also suspect that ECOs look for reasons to refuse applications by previous overstayers. Today’s was a case in point. The letter from the sponsor’s employer was rejected as evidence of adequate maintenance because it did not bear the company’s VAT registration number (it doesn’t need to!), but the ECO makes no reference to the pay slips and bank statements showing payments in from that employer. The telephone cards submitted as evidence of subsisting relationship were rejected as not proving anything, but the photos and numerous letters between the couple were not referenced at all. The general grounds for refusal were not relied on. It genuinely looked like the ECO had been trying to refuse the application. ‘TJ’ in Dhaka, whoever you are, you should be ashamed of yourself. The Entry Clearance Manager barely even bothered to rubber-stamp the decision, simply maintaining it without looking at the original or further documents submitted.

With the evidence of racial discrimination recently unearthed by the Chief Inspector of UKBA, John Vine, it is not outlandish to suggest that there is racial discrimination going on here at some posts.

After seeing a few too many unhappily separated couples, I would now be very reluctant to advise a client to return to their country to apply from there, particularly for posts with a poor reputation for their quality of decision making, such as Albania, Bangladesh, Ghana, Ethiopia, Jamaica and Nigeria, Pakistan. Official statistics show (if you dig deep enough into the supplementary tables: table 1d is the relevant one) that in 2009 the refusal rates for these countries were as follows:

  • Albania: 29%
  • Bangladesh: 24%
  • Ethiopia: 31%
  • Ghana: 35%
  • Jamaica: 28%
  • Nigeria: 38%
  • Pakistan: 46%

The worldwide average is a refusal rate of 18%. Of course, the bare statistics do not tell the whole story, nor anything like it. There are other posts with very high refusal rates that I haven’t mentioned above: Somalia at 47%, Zimbabwe at 46% and DRC at 42%, for example. I don’t see that many ordinary entry clearance cases from those countries and can’t comment on the quality of decisions. By quality of decisions I mean ECOs actually looking at the evidence presented, not making up bogus evidential requirements, applying the right rules and not coming up with whacky reasons for refusal. My experience is just my experience, although I will say that the various reports of the Chief Inspector of UKBA do tend to confirm anecdotal experience.

There are possible alternatives to going back and applying from home, although they are not suitable for everyone and certainly aren’t cheap once all the fees and costs are paid.

It would be possible to pursue an in-country application and hope to obtain Discretionary Leave that way. Once it has been granted, there is nothing I can think of to stop a person then travelling abroad to apply for two years leave to enter as a spouse and in effect upgrading their leave that way. The DL seems very unlikely to be taken away as there is no basis at all for doing so and the person has the reassurance of being able to travel back to the UK if there are problems.

As another alternative, I recently came across the case of R (on the application of Abdelghani) v Secretary of State for the Home Department [2010] EWHC 1227 (Admin) (26 May 2010), for which I have to thank Mark Symes. See paragraph 56:

I take the view that it probably would be unlawful to apply the six-year policy period, as a matter of routine, and quite possibly in any event, to a case of an applicant who at the relevant time of entry met all the substantive criteria under paragraph 281 of the Immigration Rules, and who had been granted discretionary leave to enter outside the Rules on the basis of the marriage or civil partnership because it was accepted by the Secretary of State that it would be a disproportionate interference with his Article 8 rights to require him to go through the procedural formality of applying for entry clearance from abroad. In such a case, the very reason that the Defendant had acknowledged as a good and sufficient reason for allowing that applicant into the country without a “spouse” visa would be used as a ground for denying him the same rights as someone who has been able to fulfil that procedural requirement. That cannot be right.

It is at least in theory possible to challenge the grant of three years of DL rather than two years of leave as a spouse, although as the outcome of Abdelghani shows, such challenges are not exactly guaranteed to succeed.

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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.


19 Responses

  1. Funnily the lowest refusal rates come from Europe, Canada, USA, South Africa, Kuwait & Saudi Arabia.

    Australia and New Zealand don’t do too badly either.

    I can’t imagine why that might be!

  2. For spousal cases how about
    -the Surrinder Singh route?
    -having a baby (S.55)?

    In country fees used to be free until about 10 years ago. FLR (form O) applications for 3 years DLR are £500.

    As a sponsor, with a refusal rate of 75% at the BHC in Ghana, I can confirm the appalling standards there. For me with all the other parts of the UK immigration system, including UKBA, it is 0%.

    With phone evidence it is better to use 0844 access numbers so they appear on your BT bill.

    Canada, USA, S.Africa, Australia, New Zealand – White, Rich, English speaking nations ?

    Companies with Turnover figures below £70,000 pa don’t have to register for VAT. The only time the VAT number MUST be disclosed is on a sales invoice.

  3. If you read refusal letter from some embassy like Abu Dhabi you would jumped with surprise..oh my God
    what on earth I am reading.

    I did recentlt when I read one refusal quoting 246(iv) I am not satisfied you intend to leave at expiry of yours leave.There was a detail explanation for this,like education,English ability,previos expreeince,property bala bala..

    Not to suprise this 246(iv) is not in immigration rules.

    The correct requirement is 246(iv):you would take an active part in child life.

    Eco took 10 month to decide this case and after that he made such a wonderful decision.

    Now someone tell me where on earth this poor soul go.He is made an appeal and it would take upto 10 months and at an expense of £1000.Is this a joke?

    Abu Dubai Embassy is a disgrace for uk and a shame in the name of public service.

  4. It may be that the right of appeal precludes this action, but in cases as bare faced as this maladministration would seem clear. I wonder whether an MP would consider a referral to the Ombudsman?

    Another route might be the AJTC (Administrative Justice and Tribunals Council). I was told a couple of years ago by a member of the Council that although primarily intended to have oversight of the courts “the administrative justice system” means the overall system by which decisions of an administrative or executive nature are made in relation to particular persons …
    Tribunals, Courts and Enforcement Act 2007, Schedule 7. An ECO’s decision is “a decision of an administrative nature”

    1. Nice to see you on the blog, David! I hope all is well. This case did get my goat but I’ve come across far, far worse. As have you, I know. I’ve tried complaining a few times to UKBA and it isn’t worth the effort, when it comes down to it. I know it is defeatist but I can’t see why I should waste my time or encourage my client to waste their time. Neither the idea of putting the time into an ombudsman complaint via an MP or being the first to take an ECO case to the AJTC are particularly appealing as ways of spending my time either, I have to say. I’d rather just have a little rant about it here or in chambers. Or at the pub if you are in town soon!

  5. Whilst I take your general point, there are other factors that can militate against advising a client to remain in the UK for such a process. Primarily, even if an in-country application is decided in the applicant’s favour, it is likely to take a prolonged period of time, during which the person is unable to travel. Frequently, such people may not have seen family or friends for a number of years, and many are quite content to return to the indigenous country simply for that opportunity. Additionally, should a subsequent entry clearance application be successful, the individual will be able to return to the UK with a lawful status, obtained in a far shorter timeframe than if battling the UKBA from within.

    My firm has prepared a number of settlement entry clearance applications for those who have an adverse immigration history of differing levels of severity and, touch wood, they’ve all been successful on first application. However, these have not involved the posts that you mention, which as you comment, seem to contrive reasons for refusal.

    1. David – Good points

      There are of course occasions where an in-country DLR application could be referable.

      1. DLR applications are currently taking 6 weeks to 6 months only to be processed.
      2. DLR visas don’t always have the “no recourse to public funds” stamp, where-as spousals visas do.
      3. For applicants who have already been in the UK 11 years, the 14 year rule occurs within the 3 years DLR. For spouses of British citizens, they will still be eligable for a UK passport after 3 years.
      4. Airfares aren’t cheap, and single fares can be more expensive than returns.
      5. DLR applications don’t risk separation.
      6. If refused, there is always the S.Singh route.

  6. the IDIs used to specifically preclude a switch from DLR to 2 years spouse leave…i presume they still do…i don’t know whether it would be worth trying anyway.

  7. These types of cases certainly create a dilemma for overstayer applicants, however if strong representations are made at the outset and the SSHD does not consider the favourable points then there is merit in threatening JR (to the UKBA JR Unit and not to the caseworker who will probably ignore a post-decision letter from a legal rep. complaining about the refusal).

    This should all be discussed at the outset. If it is concluded that strong representations can’t be made then the corollary is that doing the ‘right thing’ must be applicable to that case.

    In light of the Daley-Murdock case the SSHD will simply separate a decision to remove from a decision to refuse therefore leaving the applicant in limbo.

  8. I’m actually surprised Addis issues any visas at all. If it was Somalis then the success rate would be zero, which I think supports the notion of discrimination. Somali refusals are truly mean-spirited and ugly.

    By the way I would say the in-country fee is £500 for a FLR (O) x 2 + the settlement fee of £900 versus £750 for entry clearance and then £900 for the settlement fee.

  9. I m thinking hard to go back in my country to apply for a spouse visa. It would be hard to leave my wife but much harder to leave my child who doesn t speak yet.

    Don t know what to do.

    I stand in the shadows

    1. DONT LEAVE. You and your family will go through hell. You will spend more money on telephone calls to UKBA than you spent on your air ticket. In addition to this most of them do not have the first drop of manners. Short of being an Arch Angel, (sent directly from heaven) they will make you want to reach down the phone, if that were possible and thump their light out.
      If you don’t believe me you go and see. Look forward to your reply if you return … God help you.

  10. I am not surprised, many of our nationals (who may not have overstayed – but want to ‘do the right thing’) have told us that their application has been refused. So much so our general guidance is – the rule is x, UKBA will expect you to leave to make your application. Although we do not recommend that you leave you should seek specialist immigration advice. If you do leave to make your application expect it to be refused, you should then submit your appeal at the earliest opportunity.

  11. My husband has returned to his country of birth to apply for Discretion Leave to Enter. This gives the ECO and the UKBA the opportunity to take the living p**s with people’s lives.
    You will never really understand exactly how racist this country is until you find yourself
    having to deal with the UKBA and their cronies.
    They make me sick. I have no doubt that all of them will have a “best friend who is black”, that doesn’t help or influence there
    blatantly racist, half soaked and lack of analytical decision making skills.
    Don’t get me started!!!

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