Embassies Ignore
Immigration Judges’ Rulings

by Charles Kelly

26 January 2007

Rulings laid down by Immigration Judges at appeal tribunals are being flouted by Entry Clearance Officers (ECO’s) in British High Commission posts.

Would be migrants who win entry clearance appeal at the Asylum and Immigration Tribunal (AIT) are routinely refused visas, or kept waiting for months while bureaucrats push pieces of paper back and forth.

Take the case of Luzminda (not her real name), a Filipino Work Permit holder who was unfairly refused a visa in January 2006. We appealed against the decision and represented her before an Immigration Judge at the AIT in London in August 2006.

Our appeal specialist successfully argued that the decision to refuse Luzminda’s visa to enter the UK to take up employment as a Senior Care Worker was unfair and unlawful.

On 22^nd August 2006 Judge Witts “allowed” the appeal and “directed” the British High Commission to grant her entry clearance. In plain English this means she not only won the appeal but also that the Judge has gone one step further by actually ordering the ECO at British High Commission to issue Luzminda with a visa.

The Direction wording on the appeal determination document states:

“I direct that entry clearance be granted forthwith”

Judge Witts, AIT

The family, her sister, and British brother in law, celebrated the “victory” outside Taylor House in London and immediately called Luzminda to tell her the good news.

That was over six months ago. Her family and the long suffering employer are still waiting for Luzminda to arrive. Luzminda is still in the Philippines, still has no visa and has lost thousands of pounds in earnings.

When Luzminda won the appeal in August, she expected that her visa would be issued and she’d be on a plane to London within a few weeks. After all, how long does it take for a letter sent in a diplomatic bag to be dealt with in Manila? The answer is that Judges determinations seem to take forever to arrive at British High Commission postings and some never arrive at all.

If a Judge orders the British Embassy to give Luzminda the visa in August 2006, why is she still sitting in the Philippines?

The answer is simple – because she hasn’t been given a visa.

In my experience, winning the appeal is only half the battle – even when you are holding a UK Work Permit and a Direction from a Judge ordering the Embassy to give you a visa.

The attitude of the British Embassies and the Home Office calls to mind Winston Churchill’s famous wartime speech. Churchill rallied the British people against a Nazi invasion by saying:

“We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender…”

Churchill’s bulldog spirit is alive and kicking in some quarters albeit for misguided reasons.

The first problem is getting the ECO’s to acknowledge receipt of an appeal decision.  One Judge openly commented last year that many officers “ignore” the AIT rulings.

Just when the successful candidate thinks they are on the home straight with the winning post in sight, more hurdles are put in their way.

Hurdle 1 – The ECO refuses to comply with the judges order and says: “Your Work Permit is no longer valid”

When Luzminda contacted the British Embassy the ECO did not comply with the Judge’s direction and told her to get the Work Permit reissued, as it had not been taken up within six months of issue.

This is not uncommon. ECO’s will argue that the Work Permit is no longer valid, as it has not been taken up within six months, despite the fact that the permit still has over a year to run and has not been cancelled. The ECO knows perfectly well that the Work Permit holder would have been unable to take up their employment within six months, as they have had to wait eight months for an appeal hearing following a refusal to grant entry clearance.

Back we go to Home Office to reprint the Work Permit, which should be a formality, shouldn’t it?

Hurdle 2 – The Reprint

The Home Office will not reprint a Work Permit without written notice from the Embassy. The Home Office asked for the original Work Permit and the request, in writing, from the ECO. The British Embassy took almost four weeks to put the request in writing.

Hurdle 3 – The Home Office Quietly Changes the Rules

By the time we got the ECO’s letter to the Home Office they had changed the rules (in October 2006 without notice or publicity) and refused to reprint the Work Permit.

The Home Office asked for a copy of the Judges determination and the covering letter from the AIT. Under the new rules (implemented six weeks after this appeal determination) the Home Office said they would only reprint Work Permits if they received a copy of the determination and AIT letter within 28 days of the decision. They said we’d have to start all over again and apply for a new Work Permit.

In order to satisfy requirements brought in 6 weeks after you receive a Determination, we need to invent a ‘time machine’ and go “back to the future”.

How could Luzminda comply with the new ‘28 day’ rule when she received the Determination six weeks before the rule even existed?

We explained our dilemma to the case worker at the Home Office who said there was nothing she could do and that they had a “backlog” of reprints, which begs the question - why don’t they just reprint them?

Hurdle 4 – Asking the Home Office to reconsider

I have written to various senior Home Office officials in Sheffield, including the policy team hoping for some flexibility, as it would seem to be easier to just reprint the Work Permits and save everyone a lot of unnecessary work.

If we accept the Home Office backdated rule and apply for another Work Permit it will not only cause further delays, but will break the link with the original entry clearance application.

In order to reapply, the employer will have to re-advertise the post for 28 days, complete a new application form, pay a further £153.00 fee to the Home Office and supply staff lists and other information. The new application could even be refused by a different case worker.

The story continues and I will let you know the outcome of Luzminda’s on going struggle to work in the UK.

Unfortunately, this is just one of hundreds of cases where various government departments are playing “pass the parcel” with people’s lives. People who thought they had won the right to enter the UK.

I personally receive letters every day, sent to Immigration Matters from overseas nationals who have won their appeal and are wondering “what to do next”.

In another recent case, the British Embassy claim that they have had no notice of an appeal decision from the AIT since the appeal was allowed in October 2006. The Home Office refuses to reissue the Work Permit and the Embassy refuses to issue the visa.

In 2005 The British Embassy in Manila refused over 2000 entry clearance applications, 22% of cases received.

If you should have any questions or views or need help please email Charles Kelly info@immigrationmatters.co.uk.

I will be speaking at the Plymouth "Care Fair" 30^th January on: “Employing Overseas Staff?”