Updates, commentary, training and advice on immigration and asylum law

DP3/96 revoked II


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In terms of scraping the bottom of the barrel, this is beaten only by the withdrawal of the non-removal policy for over 65s. Why oh why would they bother? Since at least 1993, there has been a policy that where a British citizen marries a foreign national who is here illegally but who is not actively being removed, an application under the normal spouse rules will be permitted once the marriage has been going on for at least two years. Normally, it would be necessary for the foreign national to go home and apply for a visa, which is expensive, a Right Royal Pain In The Arse and risks refusal at the hands of some jobsworth entry clearance officer.

As I described in a very recent post, there was actually an equivalent policy for unmarried partners. Not any more, I imagine.

It was a confusing area and the various bits of Home Office guidance and policy documents were a real mess. The courts have said it would be a Good Idea to clean it all up a bit and rationalise the guidance. Well, you can’t get more streamlined than abolition, which is what happened on 24 April 2008, in a Ministerial Statement by Liam Byrne MP.

This would be bad enough at the best of times, but it is particularly awful gven the new ‘no return’ immigration rule 320(7B). This bans from re-entering the UK anyone who previously broke UK immigration laws. There’s a sort of tariff system of different terms of exclusion, which I’ve covered in previous posts on this.

So, not only have many couples lost the benefit of DP3/96 and the equivalents, meaning that the foreign national partner must go abroad and apply for a visa, they will also find that the foreign national spouse or partner cannot even apply for a visa for at least a year.

It is definitely time to start putting in human rights applications on behalf of British citizens who find themselves separated from partners or forced to emigrate. The rights of ‘third parties’ like spouses or children cannot normally be considered by the Asylum and Immigration Tribunal (unless the House of Lords decides otherwise in the awaited judgment in a case called Betts) but they can put in their own applications under section 7 of the Human Rights Act 1998.

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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.


10 Responses

  1. Dammed interesting point about Article 7; though I guess the act of overstaying is a continous one, or does the ‘criminal’ aspect of it start from when it was first identified?

    So could you argue that if someone was part of an ongoing process to determine leave to remain (in or outside the rules) that the infliction of a higher ‘punishment’ is therefore contrary to Art. 7?

    When does it look like Betts will be completed :-) ?

  2. DP, I was referring to section 7 of the HRA 98 itself, the facility for a freestanding challenge to a breach of one’s rights, not Article 7 ECHR on retrospective punishment. The latter is an interesting thought, but I don’t think helps with DP3/96 as it isn’t a criminal sanction as such.

    I’ve no idea about Betts, sadly. I think it was heard a few weeks ago now, I’ve lost track. I’ll be posting about it as soon as it crops up, though!

  3. Does this mean current applications under dp3/96 are now scrapped? Or does it just affect new ones? Myself and my wife have been waiting 30 months for a response from BIA. Wondered why solicitor wants to see us!

  4. It’s not at all clear what will happen to cases like yours, I’m afraid. Waits like that are sadly routine at the Home Office, and then they will try and turn around and say that the law has changed in the meantime. There have been some very helpful cases recently on legitimate expectation and also abuse of process, but on the other hand there was another case called Odelola which might allow them to get away with this. I’ve posted a couple of things recently about this. Given the amount of time you’ve been kept waiting, the courts are unlikely to be impressed with Home Office behaviour in your case, which will hopefully give you an edge.

  5. Thanks for that. We have been married for 5 years now. Our lawyer is good, so hopefully we can find some solution. Our lives have beeen on hold for 5 years. We are worried that if we went back to her country and applied for a visa what may happen and how long it will take. Guess thats what the lawyer will suggest. The contempt in which i hold the Border Agency cannot be described in words!

  6. The home office claim for for a just society is baseless& full of crap. I have been waiting for a decision based on dp 96 for over 13 years to no avail. This waiting game is ridiculous at best and inhuman at worst.

    1. 13 years is a very long time indeed. You should make sure you’ve chased them up for an answer, they have your address and your lawyer is still in business. I’ve come across people who THOUGHT they were waiting for a decision but it was actually sent to their lawyers years previously.

  7. Hello to all:

    In my limited experience, the U.K. rules are designed to benefit the U.K. financially, and apply to cash only, not to human rights. The people making these rules are Overtly crude, arrogant in the extreme. All decisions, mostly bad ones are STINGY, and downwardly degenerate, in the extreme.

    They are taking large sums of money, from desperate people all over the world, with only thoughts of creating profits, and making profits for the U.K., no human rights considerations are made, unless it benefits the Image of the U.K.

    There is a deliberate and systematic attempt to create Jobsworth, stingy positions, that everyone coming wants something for nothing, and are here to live FREE off the Gov.

    Nothing could be farther from the truth – the truth is that gov. in the U.K., has created an extremely lucreative market of Immigration to ROB unsuspecting, poor, ignorant, desperate people, world wide, from all walks of life, out of every cent they possess, and they are doing this with a Jobsworth additude, calous, and remarkable defiant of good will.

    The Immigration rules are rules of appeasement to keep stingly politicians in cushy gov. jobs. These rules are designed to stimilate gov, and rob most everyone else, without question, are a profit win, for the U.K., and create a wind fall of Raison Deitre.

    David Grierson

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