Updates, commentary, training and advice on immigration and asylum law
Is the government website misleading visa applicants?
THANKS FOR READING
Older content is locked
A great deal of time and effort goes into producing the information on Free Movement, become a member of Free Movement to get unlimited access to all articles, and much, much more
TAKE FREE MOVEMENT FURTHER
By becoming a member of Free Movement, you not only support the hard-work that goes into maintaining the website, but get access to premium features;
- Single login for personal use
- FREE downloads of Free Movement ebooks
- Access to all Free Movement blog content
- Access to all our online training materials
- Access to our busy forums
- Downloadable CPD certificates
I am seeing more and more people who have filed their own visa application, relying on what they’ve read on the immigration pages of gov.uk. They often tell me that they followed the information on the website carefully when preparing their application and were surprised to receive a refusal citing rules they just weren’t aware of.
Similar cases have also hit the headlines in recent weeks — such as the doctor refused a Tier 2 visa, who told the Guardian: “I read the guidance carefully. This event arose from misleading and inaccurate application information on the Home Office webpage”.
Gov.uk on the cooling-off period
According to the Guardian’s article, the doctor had already been working in the UK under the Tier 2 (General) route and was offered a new position with a different hospital. He appears to have left the UK and made an application for a new Tier 2 visa from overseas. If that is the case, leaving the UK would have exposed him to a risk that the Tier 2 “cooling-off period” would have kicked in.
The cooling-off period is basically a short(ish)-term ban on re-entry. The Immigration Rules state that overseas applicants for a Tier 2 (General) visa cannot get one if they’ve been in the UK under that route at any time in the last 12 months. The only exceptions are where the salary for the new job will be more than £159,600, or where the time previously spent in the UK was under a Tier 2 (General) certificate of sponsorship of three months or less.
Crucially, the cooling-off period does not apply if the person is making their application from inside the UK.
I’ve had a look at the information on gov.uk about Tier 2 (General) applications. Nowhere is the cooling-off period even mentioned. The overview pages give the option of applying outside the UK plus options to extend or switch inside the UK, but make no mention of the risk of applying outside.
The “extend your visa” page says:
If you change your job
You may need to make a new Tier 2 (General) visa application if:
- you want to change your job and your new job is with a different employer
Again, there’s no mention here that if you file an application from outside the UK, the cooling-off period will bite.
What’s really frustrating about the “extend” page is the use of the word “visa”. Legally speaking, a visa (or an “entry visa” to give it its full name) is something that can only be obtained from outside the UK: section 3A of the Immigration Act 1971. It is the visa that has effect as leave to enter. If you apply from inside the UK, you cannot be granted a visa. You are granted “leave to remain”.
I appreciate that this is a nuanced point and many of us when writing use the phrase “visa” as a catch-all. But in this case, it does matter because it misleadingly indicates that you can simply extend your Tier 2 (General) leave via a visa application made abroad.
These basic pages do say that “You should read the full policy guidance before you apply”. But information about the cooling-off period in Tier 2 (General) applications is tucked away 22 pages into that 78-page document. Despite how critically important it is to know about and understand this rule — which can lead to an applicant being stranded outside the UK for a year — it is not highlighted in any way.
How is an intelligent non-lawyer supposed to know?
I know about the cooling-off period because, like pretty much any immigration lawyer in the country, I obsessively read and re-read the Immigration Rules, sponsor guidance and policy guidance numerous times each and every week, sometimes each and every day. In the case of Tier 2, I have done so since it became part of the Points Based System (the one that doesn’t exist) in 2008.
I can’t recall a holiday since then where I haven’t read at least a bit of the guidance to calm a niggle about a case. On Christmas Day last year I even managed a quick fix of the delayed start-dates section as I was waiting for the rest of the house to wake up. I have a feeling the home wifi will be switched off this Christmas — but I have a PDF collection hidden on my laptop! (You need help, Nichola — Ed.)
I can almost recite some parts of the guidance verbatim (I am genuinely proud of that). But I also find that, as with the Mona Lisa, there are new ways to interpret it with each read. Oh, and the Home Office updates it regularly — there have been precisely 38 versions of the Tier 2 policy guidance (for applicants to follow) since it was first published in 2008, and 50 versions of the sponsor guidance.
So it’s not surprising in the least that a person filing an application without assistance from an immigration law obsessive may be oblivious to the existence of the cooling-off period. Especially if that person has more important priorities like, er, treating seriously ill NHS patients.
Gov.uk on the sole responsibility rule
Now let’s take a look at what gov.uk says about the sole responsibility rule. (This is one of the most hideous parts of the immigration regime. Fact.)
When the story of Amber Murrey, the Oxford academic whose children’s visas had been refused, hit the headlines recently, Nath reiterated just how complex the sole responsibility rule is. To simplify radically, it prevents a parent bringing a child to the UK if their other parent lives outside the UK and still shares parental responsibility for the child, compelling exceptions aside.[application]
But if we take a look at the gov.uk page relevant to Ms Murrey’s situation, there is no mention at all that this rule exists.
If you click on the “child” link on that page, it takes you through to another page which includes sections on “Before you start”, “What you need to know” and “How to apply”. Again, there is no mention in any of those pages of the sole responsibility rule.
The ‘What you need to know’ page actually says:
As a PBS or Appendix W dependant child, you can:
- stay in the UK for the same length of time as your parent
“Parent” is singular. But the sole responsibility rule means that you cannot stay in the UK with your parent if your other parent is still in your life but is not coming to the UK.
The gov.uk pages do refer to the guidance (a mere 23 pages in this case). It says:
For any dependant child applying;
- both of the applicant’s parents must either be lawfully present (other than as a visitor) in the UK, or being granted entry clearance or leave to remain (other than as a visitor) at the same time as the applicant; or
- one parent must be lawfully present (other than as a visitor) in the UK and the other is being granted entry clearance or leave to remain (other than as a visitor) at the same time as the applicant, unless:
- The Main Applicant is the applicant’s sole surviving parent, or
- The Main Applicant is the parent that has and has had sole responsibility for the applicant’s upbringing; or
- there are serious or compelling family or other considerations which would make it desirable not to refuse the application and suitable arrangements have been made in the UK for the applicant’s care.
This is all that’s said about this vastly complex requirement. No wonder an Oxford academic, and separately a GP, both failed to appreciate that they were at risk of failing to meet it.
Health warnings needed
I can fully appreciate why so many solo visa applicants are falling foul of what immigration lawyers may see as obvious requirements or very real risks.
Surely, when even doctors and academics are making errors, it’s time for the Home Office to overhaul the basic information on the website.
As an urgent and immediate fix, the Home Office could, for example, add some text along these lines to the basic gov.uk pages:
You should read the full policy guidance before you apply. This may be over 70 pages long in some cases (and we may update it at any time), and as it tends not to be structured very well, you need to read the whole document to have any chance of figuring out all the traps that have been set for you.
You may also wish to read the Immigration Rules. We’ve made these so fiendishly convoluted that a judge has described them as having “achieved a degree of complexity which even the Byzantine emperors would have envied”.
Where we use certain phrases, rely on an ordinary person’s interpretation of them at your peril.
For example, where we say the applicant must have “sole responsibility” for a child, what we actually mean is the other parent must have completely abdicated or abandoned parental responsibility and, crucially, you must be able to prove this to us (although we do not provide a list of acceptable evidence).
Where we mention a “cooling-off” period, what we mean is that if you try and renew your Tier 2 visa (we use the word “visa” when we mean a visa and also when we don’t mean a visa) overseas, you will be stuck outside the UK with no access to your new job, home or belongings for 12 months. This does not happen if you apply inside the UK, but we do not make that very clear in the 78-page guidance document we suggest you read.
We are not of the opinion that you need an immigration expert for your application.
Certainly, anyone who does find themselves challenging a refusal because information was not obvious or clear should consider presenting that fact along with the other grounds being relied on. The Home Office is providing a service — which often costs a significant amount in application fees — and applicants surely have a legal right to clear and transparent information.