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Doing the right thing?

Doing the right thing?

I’ve just been in court doing yet another case where a solicitor has advised a client to do the ‘right’ thing and go abroad to make an application for entry clearance. This is common in spouse cases and I have myself advised clients to do the same thing in the past. Unfortunately, these applications are often rejected by ECOs, often but not always using one of the general grounds for refusal, leaving the couple separated for the months and months it takes to rectify the position through an appeal which will almost inevitably succeed.

There are good reasons (in theory) to go abroad and make the application from there. It is legally the right thing to do: making a voluntary departure then joining the queue and paying all the right fees, going through the right process and so on. There is also an important practical benefit: a successful application for entry clearance as a spouse leads to a grant of two years of leave followed by ILR followed a year later by eligibility for citizenship.

In contrast, staying in the UK and making an application from here is fraught with difficulties. An overstayer would have to continue breaking the law to make the application. The in-country fee is higher than the out-of-country fee (£900 against £750). If successful, the application will normally lead to a grant of three years of Discretionary Leave. At the end of that three year period an application for a further three years must be made and then only at the end of six years in total can an application for ILR be made. If unsuccessful, the application may not generate a right of appeal, leaving the applicant in limbo (a subject to which I will return soon).

The problem with going abroad is that the quality of decision making in some entry clearance posts is so abysmal that it is bonkers to place oneself at the tender mercy of an ECO. Many immigration lawyers also suspect that ECOs look for reasons to refuse applications by previous overstayers. Today’s was a case in point. The letter from the sponsor’s employer was rejected as evidence of adequate maintenance because it did not bear the company’s VAT registration number (it doesn’t need to!), but the ECO makes no reference to the pay slips and bank statements showing payments in from that employer. The telephone cards submitted as evidence of subsisting relationship were rejected as not proving anything, but the photos and numerous letters between the couple were not referenced at all. The general grounds for refusal were not relied on. It genuinely looked like the ECO had been trying to refuse the application. ‘TJ’ in Dhaka, whoever you are, you should be ashamed of yourself. The Entry Clearance Manager barely even bothered to rubber-stamp the decision, simply maintaining it without looking at the original or further documents submitted.

With the evidence of racial discrimination recently unearthed by the Chief Inspector of UKBA, John Vine, it is not outlandish to suggest that there is racial discrimination going on here at some posts.

After seeing a few too many unhappily separated couples, I would now be very reluctant to advise a client to return to their country to apply from there, particularly for posts with a poor reputation for their quality of decision making, such as Albania, Bangladesh, Ghana, Ethiopia, Jamaica and Nigeria, Pakistan. Official statistics show (if you dig deep enough into the supplementary tables: table 1d is the relevant one) that in 2009 the refusal rates for these countries were as follows:

  • Albania: 29%
  • Bangladesh: 24%
  • Ethiopia: 31%
  • Ghana: 35%
  • Jamaica: 28%
  • Nigeria: 38%
  • Pakistan: 46%

The worldwide average is a refusal rate of 18%. Of course, the bare statistics do not tell the whole story, nor anything like it. There are other posts with very high refusal rates that I haven’t mentioned above: Somalia at 47%, Zimbabwe at 46% and DRC at 42%, for example. I don’t see that many ordinary entry clearance cases from those countries and can’t comment on the quality of decisions. By quality of decisions I mean ECOs actually looking at the evidence presented, not making up bogus evidential requirements, applying the right rules and not coming up with whacky reasons for refusal. My experience is just my experience, although I will say that the various reports of the Chief Inspector of UKBA do tend to confirm anecdotal experience.

There are possible alternatives to going back and applying from home, although they are not suitable for everyone and certainly aren’t cheap once all the fees and costs are paid.

It would be possible to pursue an in-country application and hope to obtain Discretionary Leave that way. Once it has been granted, there is nothing I can think of to stop a person then travelling abroad to apply for two years leave to enter as a spouse and in effect upgrading their leave that way. The DL seems very unlikely to be taken away as there is no basis at all for doing so and the person has the reassurance of being able to travel back to the UK if there are problems.

As another alternative, I recently came across the case of R (on the application of Abdelghani) v Secretary of State for the Home Department [2010] EWHC 1227 (Admin) (26 May 2010), for which I have to thank Mark Symes. See paragraph 56:

I take the view that it probably would be unlawful to apply the six-year policy period, as a matter of routine, and quite possibly in any event, to a case of an applicant who at the relevant time of entry met all the substantive criteria under paragraph 281 of the Immigration Rules, and who had been granted discretionary leave to enter outside the Rules on the basis of the marriage or civil partnership because it was accepted by the Secretary of State that it would be a disproportionate interference with his Article 8 rights to require him to go through the procedural formality of applying for entry clearance from abroad. In such a case, the very reason that the Defendant had acknowledged as a good and sufficient reason for allowing that applicant into the country without a “spouse” visa would be used as a ground for denying him the same rights as someone who has been able to fulfil that procedural requirement. That cannot be right.

It is at least in theory possible to challenge the grant of three years of DL rather than two years of leave as a spouse, although as the outcome of Abdelghani shows, such challenges are not exactly guaranteed to succeed.

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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