- BY Colin Yeo
Refusal but with no removal or appeal
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There are many illegal immigrants who have come forward to the Home Office, made themselves known, made an application to remain in the UK and then been refused and politely asked to leave the country.
Nothing wrong with that, you might think.
There are in fact two very serious problems, though. The first is that the quality of initial decision making at the Home Office is so poor that even people with very strong cases are refused. I dealt with one case recently where the gentleman entered as a child, had been resident for 19 years, had done a difficult degree at a prestigious university, was employed in a very good job and had a child with whom he did not live but had regular contact and for whom he paid significant maintenance. I can all but guarantee that he will eventually be allowed to remain, but of course he was refused by the Home Office when he did the right thing and came forward to make an application.
Where there is a right of appeal, the success rate in 2009 for this category of appeal was 48%. The Home Office might as well save time and resources by sacking all the caseworkers and randomly sorting applications into two piles, one of which is then refused and the other allowed.
The second problem, though, is that there is often no right of appeal in order to put things right. Where an illegal immigrant comes forward, applies and is refused, for technical legal reasons many will not receive an ‘immigration decision’ as defined by section 82 of the Nationality, Immigration and Asylum Act 2002 and will therefore not be able to appeal the decision to the immigration tribunal. Instead, they are merely asked to leave, and no enforcement action is pursued against them. To put it another way, the Home Office refuses them but then does not remove them. They are left in limbo.
This odd behaviour by the Home Office has been going on for some time now and has been the subject of considerable litigation. The immigrant wants to get a final result and find out whether he or she can stay or has to leave. In cases such as Daley-Murdock and Mirza lawyers have attempted to argue that there is an obligation not to leave the applicant in legal limbo and to make joined up decisions. After all, it makes no sense to refuse someone and then not even try to remove them. What would The Daily Mail say if they found out? This is the test senior UKBA officials and Ministers seem to apply in their day-to-day decision making. Sense and the law are somewhat distant relatives, though (extended family members, perhaps? –ed.) and while the litigation continues up to the Court of Appeal in both those cases there is no guarantee it will succeed.
As an aside, I have to say that it is a funny old world where immigration lawyers are arguing in court on behalf of their clients against the Home Office for the Home Office to remove them. But there we go.
The impasse was sort-of broken in a case in which I acted last year, along with five other barristers: R (on the application of Bharadva) v Secretary of State for the Home Department [2010] EWHC 3030 (Admin) (27 October 2010). The outcome was not due to fancy legal arguments, alas, but rather due to common sense on the part of the judge, Treasury Counsel, the Treasury Solicitor (an old colleague, I was astonished to see) and whoever at UKBA was giving instructions. UKBA agreed to make a decision to remove within three months and on that basis we were adjourned for three months. This now seems to be happening in other cases, at least under threat of litigation. I have had one other case where a similar agreement has been reached and have heard of other such cases.
However, it is unclear whether an application for judicial review actually has to be lodged before the Home Office will see sense in a particular case. One would hope that strongly worded pre action letters and threats of costs would be sufficient, but past experience suggests perhaps not.
If you have had experience of such cases, do share them through comments.
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15 responses
Its also worth pointing out that, in a great many cases where an applicant has decided to wait in limbo, the SSHD goes on to issue removal directions without a notice of a decision to remove, thus denying an applicant an appeal right for the second time. This forces reps to put in emergency JRs, sometimes within a matter of hours due to a disproportionately high number of removal directions being served on friday afternoon (for removal the following tuesday!!)
I get the impression that UK immigration has becoming too legal and tactical on the HO’s side.
Having said that, the case mentioned appears to be missing some vital data for us to get a full picture on which to concur with the conclusions. In particular whether the 19 years residence was continuous for a 14 year rule claim which does have a right of appeal; & whether he was working legally or illegally?
I have been told being in limbo is very unpleasant, by those in the situation even though there was not much risk of ever being deported in both cases.
Is the limbo tactic far more common in asylum than in normal immigration?
Unfortunately my experience is that HO will not grant a right of appeal or issue removal directions simply on lodging grounds or a LBC. They have recently become emboldened by cases like Daley Murdock as well as the criticism of such applications by Collins J in R (Suphachaikosol) v SSHD [2010] EWHC 1817 (Admin).
The withdrawal of DP5/96 hasn’t helped but I have tried to argue on a the odd occasion with success that a decision should be made in cases involving children.
Unfortunately immigrants are sometimes advised to seek JR when they would have little chance of success and at best can only achieve a decision/right of appeal on a hopeless case- no doubt costing them a small fortune.
The limbo thing normally arises in immigration cases rather than asylum ones – probably because UKBA has targets for removal of failed asylum seekers and prioritises them over overstayers and straightforward illegal entrants.
I have had quite a fair number of JRs “settled” on this basis prior to hearing recently, as well a few where the HO have rolled over completely and granted leave to remain. As you say, a sufficiently well-drafted Grounds for JR covering every potential argument seems to do the trick.
I had been with my partner since 2005, in 2008 we decided to get married and we had a church wedding in our church. At the time, we both did not have leave to remain, I was an overstayer and my partner had sought asylum in 2005. My wife and step-daughter have been living together since our church wedding in 2008. Due to our irregular status, we did not qualify for the COA. In 2009, my partner was granted ILR as a Legacy case after waiting for 4 years. After getting her ILR, we began to think of how I could regularise my own status. In May 2010, with the help of a solicitor, two applications, one for further leave to remain and another for the approval of a COA were submitted to the UKBA. In July 2010, the UKBA granted the COA but refused the further leave to remain application. In September 2010 we civilly registered our marriage even though we had been married in our church since 2008 with over 200 guests in attendance. In the UKBA’s decision letter, they asked that I voluntarily leave the UK and argued that because of the family right that I have established, they would not interfere with it. They refused to give me the right of appeal, practically leaving me and my family in a limbo.
My wife has a 13 year old daughter who has lived in the UK for 10 years, and since I met her mother in 2005, I have been playing a fatherly role in her life. She lost her biological father when she was 8 months old and never knew him. It is is pathetic that the UKBA would refuse one leave to remain but refused to set removal directions which we hope would trigger the right of appeal even though there is a child involved in this matter, contrary to Section 55 which requires them to uphold the best interest of children.
Not a new thing at all (see my article here http://www.guardian.co.uk/commentisfree/2009/oct/15/home-office-undocumented-workers from 2009).
In my experience, this happens a lot, and I have at least 5 similar cases on my books at the moment. I haven’t had to yet go to JR, as I have found that a well worded request for reconsideration usually does the trick. I think that the main problem is that, in the first instance, a caseworker sees that the applicant has no leave and automatically refuses, but on a reconsideration request the application goes to someone with some sense who knows that the applicant is a shoe-in on Chikwamba and that they just cannot win in the end.
With the case I wrote about in the Guardian, it turned out that the caseworker had gone on maternity leave without handing the case over. A contunous fax campaign, which screwed up the Old Street machine, got the file on the desk of a senior manager who granted my client leave within a week of seeing the file.
Another case I handled recently resulted in a refusal *with* removal directions, again due to (I think) my being as annoying as possible and clogging up a fax machine. The appeal was then won.
Moral of the story – don’t always jump to JR, and don’t give up after the first refusal. Do all you can to get as much evidence as possible in the hands of a senior caseworker.
There is some good news though; I had a case last month where the applicant had no leave, and DLR was granted to him within 23 days! A few years ago this would be unimaginable. It makes me think that they are slowly getting their house in order where children are involved.
Managed Migration (who process most of these types of applications) are happy to take the cheque (in fact they wont take the case any further until the payment is cleared), but refuse to accept that where human rights arguments are raised (explicitly or implicitly) that they must grant, certify or serve a decision which attracts a right of appeal.
MM’s approach is for two reasons, firstly management within UKBA believe that many irregular applicants faced with this approach will leave without any further bother (and this does happen), it is also due to a lack of training by those who make the decisions.
This approach does not assist PO’s or enforcement teams, in that when the spot light turns on an applicant for removal, they have built up stronger private and family life arguments and any case for certification is weakened and are unlikely to withstand JR.
The PAP/JR approach may ultimately succeed, but it will seldom be quick (given the case load of the Administrative Court and given that these cases are not detained), ‘immigration lawyers’ also tend to over use aggressive and condescending language when they adopt this approach which tends to (rightly or wrongly) get peoples back up and leads to foot dragging.
Instead a formal request for re-consideration, should move the case up the food chain, and on to the desk of a SCW/SPO or manager, who will be much more likely to progress the case meaningfully, which could also mean an attempt at certification, detention and removal, so be careful what you wish for ….
PO
This is incredibly helpful, thank you, and explains Victoria’s experiences. I have to say I wasn’t aware of any such internal escalation process – at the barrister end of things we only usually get involved once court action is considered necessary, and tend to be focussed on that as a solution. I’ll certainly be factoring this into future advice and opinions.
…the UKBA also use ‘agressive and condescending language’ – in these types of refusal letters. As well as throwing in a lot of meaningless nonsense into the mix. All of which gets back up, so to speak. And in turns makes me want to reach for the PAP template letter straight away.
But in future I won’t. Thank you PO.
Yes indeed, the language (and contents) of the refusals are often very irritating. I’ve just this minute stopped looking at another of these where it is said the children ‘aged 5, 6 and 7 born in the United Kingdom are of an age that will be able to adapt to life in x’. The children are all British, in fact, as well as having been born here. It does make one wonder about the people who write these things, I have to say.
Dear FM, I believe the problem is communication between the decision maker and the Local Enforcement Team. The teams responsible for enforcing the removal will not always know that the applicant has applied for and been refused leave. The easiest and quickest way to resolve this loophole at present is for the applicant to write to the office where they report or request an appealable decision when they report. I am aware that work is being done to rectify this situation as it doesn’t currently make sense it jsut involves a bit of improvement in communication and training within UKBA….
I think you are probably right, as the current situation makes no sense. Why not remove those who come forward but whose applications are refused? But senior policy people — or perhaps more accurately Treasury Solicitors and individual Treasury Counsel, seeking to defend UKBA decisions without proper instructions from UKBA and just doing the best they can to invent a rationale — seem very keen to defend the principle of not removing in these circumstances. Bizarre, really.
I am one of the people in limbo. I applied for leave to remain outside immigration rules and 2 years later was denied. This despite the fact I an HIV+ and my 5 year old son has learning difficulties. Apparently i didnt probide enough proof that he had a problem even though i sent them every piece of paper work i had.My solicitor did ask for reconsideration 8 months ago just after they replied but we still haven’t heard anything. 3 months ago I went to my MP hoping he’d help but the UKBA basically told him I should hear from them by the end of december.I’m now 4 months pregnant and my partner(who i met last year)will be going off to Afghanistan in 3 months time. So not only am I worried about him coming back safely but I’m praying he’ll find us here when he gets back after 6 months.