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Guidance on DP3/96 cases

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The Home Office has managed to change the online guidance on DP3/96 surprisingly rapidly and these are now available to read. See chapter 53, section 53.3 of the Enforcement Instructions and Guidance (formerly known as the Operating Enforcement Manual or OEM).

The EIG are addressed to immigration officers and other immigration officials, but are heavily used by lawyers as well as they contain all sorts of policies that are not published in the rules themselves. Is this a sensible way of organising a fair and transparent system of immigration control? I think not. To make it worse, there are sometimes top secret additional policies to that are so secret the Home Office doesn’t even tell its own staff about them properly, leading to findings in the courts of abuse of power.

Essentially, the guidance now says that DP3/96 and DP2/93 and associated policies have been withdrawn as of 24 April 2008, but that if consideration under one of the policies had already begun by that date then the policy will be applied. Finding out whether consideration had actually begun might be difficult, but if necessary a Subject Access Request under the Data Protection Act will enable access to the Home Office file, so it can be checked properly.

I’ve got a case coming up very soon where we argue that the Home Office had failed to apply the policy. Normally, we’d ask for the case to be sent back to the Home Office for them to apply their own policy, but that would be a fat lot of good now they’ve scrapped it. We might, though, be able to argue that they had started consideration or should have started consideration, therefore the policy should be applied and the court should put the client in the position in which he would otherwise have been. The recent line of abuse of power and legitimate expectation cases might well be helpful, but it is a tricky argument to run.

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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.

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