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Dereliction of duty

Dereliction of duty

There has been a noticeable trend recently for the Home Office to refuse applications but not to take enforcement action. Several lawyers have commented on this elsewhere, I’ve just come across a couple of cases and so has a colleague in chambers.

Where a person’s leave has already expired, if he or she makes a new immigration application there is no right of appeal to the Asylum and Immigration Tribunal if the application is refused. This is because a refusal of leave to remain where there is no existing leave is not an appeal-able immigration decision.

In two recent examples, applications were made in time that would have generated a right of appeal. In one, too much money was paid for the fee, so the whole thing was rejected. I know. Bonkers. By the time the rejection was received, leave had expired and when the application was resubmitted it was refused with no right of appeal. In the other case it was a domestic violence application. The applicant claimed to be destitute and therefore exempt from the fee, but the Home Office rejected this assertion and therefore rejected the application purely on the basis of no fee being paid. Again, by the time the rejection was received, leave had expired and so when the re-submitted application was rejected there was no right of appeal.

Short of introducing some sensible rules on re-submitted applications and rights of appeal, what the Home Office should be doing in such cases is issuing removal directions to take enforcement action. The decision to make removal directions would generate a right of appeal, and the tribunal could then look at the merits of the case. As it is, UKBA is instead writing a letter saying (I paraphrase) ‘if you wouldn’t mind awfully, it would be nice if you left the country’.

Whichever way you look at it, this is woeful behaviour. It is a failure to take enforcement action against those who have no right to remain and it is also denying them a right of appeal to seek to prove their case. It’s bad for everyone.

Instead, privately paying clients and the Legal Services Commission end up paying immigration lawyers lots of money to bring judicial review applications that are almost certain to succeed. The Home Office must really love us.

Free Movement

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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