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UKBA refuse to remove overstayers

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In asylum cases it is still referred to as The Legacy, as if it were a second rate Spagetti Western. In immigration cases it has the more prosaic title of the ‘migration refusal pool’. The UK Border Agency’s inspectorate has today [update: link to report here] unveiled yet more cases abandoned by immigration officials, this time of complex spouse and marriage cases dating back as far as 2003. The files were sitting unopened in boxes until the inspectors asked what was in them. How has this well publicised backlog arisen?

Well, even if you ASK the UK Border Agency to remove you they STILL won’t do it. The relevant instruction to immigration officials for a lot of these backlog cases reads as follows:

You must not make a removal decision at the same time as refusing leave to remain in these cases, other than in asylum cases. The applicant is expected to leave the UK voluntarily when the application is refused.

The instruction goes on to tell officials that it is only in exceptional cases that a request to be removed should lead to a removal decision. The criteria for making one of these rare removal decisions is said to be:

  • the refused application for leave to remain included a dependant child under 18 who has been resident in the UK for three years or more
  • the applicant has a dependant child under the age of 18 who is a British citizen
  • the applicant is being supported by the UK Border Agency or has provided evidence of being supported by a local authority (under section 21 of the National Assistance Act 1948 or section 17 of the Children Act 1989), or
  • there are other exceptional and compelling reasons to make a removal decision at this time.

For immigration lawyers trying to help clients understand the topsy turvy world of the UK immigration ‘control’, this perhaps explains why some applications for judicial review intended to secure a removal decision do so and others do not. It is a topic that the blog has covered several times previously and which has repeatedly troubled the higher courts. The reluctance of the UK Border Agency is perhaps partially explicable by the fact that a removal decision would trigger a right of appeal. If the appeal was unfounded or raised repeat points it can be certified, though, and avoiding conferring an ability to challenge a decision through the tribunal system hardly seems like a sound reason for failing to take action against those the Agency purportedly would rather were somehow, miraculously, gone from these shores.

It would seem that the government quietly abandoned attempts to enforce immigration control some time ago. Instead a private company, Capita, using nothing more than the faulty data held on UK Border Agency systems, have now been contracted as bounty hunters to do what immigration officials could or would not do.

Thanks to ILPA (again) for highlighting the policy.

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Comments

5 responses

  1. The first 2 reasons to make a removal decision seem odd. They would breach s55 in most cases, and the 2nd reason may well breach Zambrano.

    As Mutly has previously commented, they compare poorly to the German system that would never separate a parent from their German child, let alone deport them.

    The 14,000 spousal applications backlog that were complaints that asked for an internal review, date back 10 years. This has to be the most astonishing example of procrastination I have ever seen.

    With Mrs May and her new laws, the UKBA work load will approx. double over the next decade. It would appear that meltdown is nearer than I first thought, as it can’t cope with current levels.

  2. I’m absolutely furious with the comments made by Harper on the Today programme this morning. He has stated that people asking for reconsideration do so because they are trying to ‘bypass’ or ‘circumvent’ the appeals process…conveniently forgetting that these people don’t have a right of appeal, as engineered by his department!

    This system and the people trying to run it just get worse and worse. Seriusly considering another area of law right now, my stress levels are just too high for this.

  3. Just one question for Mr Harper can you include a right to appeal automatically in a refusal letter so that the immigrants with that right of appeal will exercise it. I cannot believe Harper does not know what the instructions are as outlined above.

  4. This situation is completely unacceptable and an absolute disgrace. It’s only purpose could be to strongly discourage future applicants, thus reducing migration because migrants know they won’t get a speedy or fair decision. This needs action from the Home Sec down to UKBA management. Given that most fees are now double the unit cost they are paid for, the money should be there. Because there’s certainly no indication that it has ben put to good use elsewhere.

    http://www.bbc.co.uk/news/uk-21170495

    More details and finidings there, as well as experiences in the readers comments.
    It’s bad enough with the new NHS PLC, but if standards in the NHS or with the royal mail or the train franchises or any other area lots of voters use, there would be an uprising.

    It needs people with the patience and resources to go to Strasbourg to have minimal standards enforced.

    Imagine a rule saying any application/reconsideration not dealt with within six months is autmatically granted. Then the government would see to it that these scales were met.

    The idea that people could be in the UK for years, up to ten years it seems, and not know their status, in some cases not being able to work legally, could suddenly have their life as they know it taken away by removal is not acceptable. If someone has a human rights case, process it fast and grant leave and stop finding ways to force them out anyway. If not, fast removal. If the HO hasn’t removed after several years, in my opinion the person should get ILR. HO incompetence/inaction is not their fault.

    Victoria, immigration needs you, you would be a great loss. So please stay in the field for the sake of all the UKBA victims out there.

  5. I was a part of one of those cases. I applied in 2007 for permanent residence, told my case was in the legacy department in Croydon and would be concluded in February 2009 and August 2010 but nothing happened. Then we got a letter in august 2012, this time from Sheffield, saying our application will be concluded under an application of ECHR article 8 for a fee of £395 and we got a decision in late November, but only limited leave to remain. Glad it’s over, but annoyed as I missed out on my place at Imperial. Least the Sheffield team seem to have their act together.