"I have never welcomed the weakening of family ties by politics or pressure" - Nelson Mandela.
"He who travels for love finds a thousand miles no longer than one" - Japanese proverb.
"Everyone has the right to respect for his private and family life, his home and his correspondence." - Article 8 of the European Convention on Human Rights.
"When people's love is divided by law, it is the law that needs to change". -
David Cameron.

Monday 28 October 2013

Deliberate delays and withdrawals by the Home Office

Allegations the Home Office may be deliberately delaying asylum cases as a means of meeting a rejection target have raised concerns the practice is being used in other immigration appeals, including appeals against spouse visa refusals.

According to lawyers, the Home Office is withdrawing from asylum cases which have a high chance of succeeding at the appeal stage in what appears to be a common practice, as revealed in the Observer on Saturday.

The alleged practice, said to protect the “win rate”, or rejection target, of 60 per cent, is thought to be contributing to a backlog of unsettled cases and to be causing unnecessary suffering to applicants.

The scandal has raised concerns that appeals against spouse visa refusals are also being deliberately delayed or withdrawn, in some instances on the day of the hearing or even after the appeal should have taken place.

This trend supports the idea that the Home Office has a spouse visa rejection rate which is being partly maintained through this practice, at a cost to the taxpayer and the appellants caught up in the process.

BritCits spoke with a couple that has experienced delays and withdrawal by the Home Office first hand – a British man and his Taiwanese wife, a PhD holder who has lived legally in the UK for more than eight years.

At the time of their marriage, the British citizen’s wife had nearly a year left on her highly skilled Tier 1 migrant visa, obtained through the new points based system. The couple lived together for three years prior to their marriage.

After the wedding, the couple tried to make an appointment to submit their spouse visa application in person - a service which comes at a premium. No appointments were available on the system. They kept checking at different times of the day and night, even looking for appointments in other parts of the country. Always, nothing was available.

Reluctant to make the application by post due to processing times of more than five months at the time, the couple approached their MP for help. It took several letters from their MP to the UK Border Agency in order to get a response.

Lady Justice: blindfolded from Home Office tricks

The reply said the Border Agency was having problems with its system and that it only releases appointments when it has the manpower to do so – suggesting it may have turned its system off due to lack of manpower.

The couple gave the Border Agency their details but again, they were unable to secure an appointment, even after their MP followed up on the request. In the end, the couple was forced to make a postal application just before the non-British partner’s visa expired.

A week after the postal application was sent, they received confirmation of receipt and the fee was taken from the couple’s account. In the letter, it stated that if there was any problem with the application, such as missing documentation or omissions, a caseworker would write to advise what action would need to be taken to rectify the problem.

“The uncertainty of the process and the retaining of our passports and wedding certificate for a long period of time has impacted both on our work and our ability to travel for both projects and to give papers at international conferences,” said the British partner.

The couple then received a letter requesting the non-British applicant to go to a Biometric Enrolment Centre despite the fact the Border Agency already held the applicant’s biometric information - a requirement of her previous Tier 1 visa application.

After submitting the biometrics, the couple felt confident the visa would be issued soon after. But it was not. A refusal letter – ridden with errors and threatening and intimidating language - was received in April 2013, stating the couple had not provided evidence of a genuine and subsisting relationship, and that their savings were not held for the specified six months. At no time had the Border Agency requested further information before making a decision.

Among the letter’s errors were an incorrect reference number – which their MP later found belonged to a nurse in Shropshire – incorrect application dates and incorrect age. The letter outlined the time limit for appeal, leaving the couple with just four working days to appeal against the decision since the date on the letter was four days prior to its receipt. Even if the letter was received the day after it was dated, the couple would only have had just over a week to appeal.  

Having sought the help of an immigration solicitor, the couple sent the Home Office a notice of appeal. A date for the hearing was eventually set six months from the notice date – not the 12 weeks Theresa May proudly claimed in Parliament recently. Their MP’s efforts to get an earlier date were unsuccessful.  

On the day of the appeal, the Home Office representative arrived late. The judge started proceedings by asking the representative if she had read the appeal bundles for the couple’s case. She had not. The judge instructed her to go away and read the papers and to then seek guidance from her supervising officer.

An hour later, the representative came back and made presentation to the judge that the Home Office was withdrawing from the case. She said the Home Office was not permitted to give an undertaking on what the decision would be.

The couple’s barrister indicated the Home Office often withdraws in this manner, a practice which prevents the judge from awarding the costs of the appeal fees against the Home Office.

“We paid extra for an oral hearing, took the time to attend the hearing, paid for a barrister to represent us at the hearing and at the last minute, the Home Office withdrew, meaning we are still waiting for a decision as well as being out of pocket,” said the British partner.

“Why do we feel like we have just been mugged and our pockets picked?” he added. “This has been such a waste of the Courts time and of public money.”

The Home Office faces no repercussions if it loses at appeal. This practice involves wasting taxpayers’ money on cases which, in many instances, should not have made it to the appeal stage had the correct decision been made the first time around.

Three weeks on, the couple is still waiting for a decision. Until a decision is made, this couple – like many others – remains in limbo.

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