RESPONSE
TO
REPRESENTATIONS
22. One of the factors behind our inquiry is the
substantial increase in the number of representations made by
Members. A wide range of reasons may lead a Member to raise a
particular case with the Minister, but the more common ones include:[36]
- requests for information on the progress of an
application
- expressions of support for applications made
or in prospect
- representations in respect of refusals, particularly
of applications for visit visas and other categories where there
is presently no right of appeal.[37]
23. Baroness Symons was not expecting a return to
pre-election levels.[38]
She attributed the increase in part to people who had been refused
under the previous Administration trying again,[39]
although there had been no changes of substance in the Immigration
Rules other than the abolition of the "primary purpose"
rule and the concession for certain unmarried partners.[40]
24. The power of the Minister to alter decisions
in response to representations from Members is limited to decisions
within the Immigration Rules and the delegation of authority which
the FCO holds.[41] So,
if the Minister takes the view that the ECO has made a poor judgement,
it can be changed.[42]
In such circumstances, the first step is for the Post to be asked
to look afresh at the original decision. Otherwise, if the Minister
is satisfied that the requirement of the Rules are met, she can
direct that entry clearance be granted.[43]
Since 1 May 1997, FCO has put in place arrangements to identify
cases referred by Members where there is prima facie evidence
of poor decision making. These are reviewed by the Migration and
Visa Department (MVD) Policy Unit and the finding referred to
senior officials or Ministers.[44]
Decisions on cases falling outside the Rules are a matter for
the Home Secretary.[45]
25. The bulk of Members' representations are handled
by MVCU. In 1996, the Unit handled 7,572 letters from Members'.
MVCU aims to reply to Members within 15 working days.[46]
Baroness Symons indicated that the Unit had been strengthened
to reduce delays in responding to enquiries.[47]
When she gave evidence, Baroness Symons told[48]
the Sub-Committee that this target was being met in 78% of cases.
The latest available figure, for June 1998, is 57%. We are
disappointed that, despite the strengthening of the Unit, its
performance appears to be deteriorating. We recommend that FCO
give urgent attention to this.
26. There was criticism of the responses which MVCU
made to Members' representations and of the time it took to send
a response. Mike Gapes MP commented[49]
that Members frequently received standardised replies indicating
that the application had been reconsidered in Post, but the Entry
Clearance Manager was satisfied that the refusal was correct.
Janet Anderson MP made a similar point.[50]
27. Both in New Delhi and Islamabad, entry clearance
staff commented that Members' representations were taken seriously
in Post. They were normally expected to send full reports to MVCU,
which took time to prepare. There was a feeling that sometimes
there were delays in notifying Posts of letters, and Posts were
then required to respond very quickly, sometimes within 24 hours,
to fit in with MVCU's need to meet its own target deadlines. Both
New Delhi and Islamabad indicated that responding to enquiries
by fax from MVCU could have a highly disruptive effect on their
other work, particularly where tight deadlines were set for the
response. ECOs were disappointed to see that material in their
reports was frequently not incorporated into replies sent by MVCU.
They believed that there would be a better understanding by Members
of the reasoning behind particular decisions if fuller responses
were sent. We agree. We recommend that there should be a presumption
in responding to Members' representations about refusal of visas
that the fullest possible explanation of the reasoning behind
the decision is given.
28. In both Posts, it was said that it was not uncommon
for Members and their staff to contact ECOs directly about specific
cases, sometimes at home. The IAS memorandum comments that some
of the correspondence received in New Delhi was described to them
as "vitriolic". A particular problem in New Delhi was
that ECOs living on the compound were liable to be telephoned
by Members or their representatives about cases in the middle
of the night.[51] ECOs
were divided as to whether direct dealing with Members was a good
idea; some saw it as a means of building a relationship and as
a means of remedying deficiencies in MVCU replies to Members,
while others considered that there were risks that they might
be felt to be unduly influenced. Without exception, they objected
to late night calls when they were off-duty.
29. We believe it is better for all Members' representations
to go through Ministers, both to preserve the constitutional proprieties
and so that there is a degree of external reassessment of the
original decision. We also believe that routing enquiries in this
way protects ECOs from any suggestions that they may have favoured
any particular Member. We urge our colleagues to act accordingly.
We also urge them to couch their correspondence in moderate terms
and to respect the professionalism of ECOs. Baroness Symons made
clear in her evidence the attention she gives to Members' representations.
We are satisfied from what Members of the Sub-Committee saw in
Islamabad and New Delhi that Members' representations are considered
thoroughly and conscientiously by staff.[52]
Telephoning ECOs at home at unreasonable hours places an unfair
burden on them and their families and we draw the attention of
colleagues to this.
30. One problem which seems to be particularly acute
in Islamabad arises from Members making representations in respect
of applications including applications not yet lodged, typically
at the instigation of sponsors. A view seems to have developed
in some quarters that a Member's support is an essential prerequisite
to a successful application. This is not the case, as it is the
applicant and nobody else whom the ECO has to assess against the
standard criteria. Entry clearance staff made clear that neither
the presence or absence of such letters in a particular case had
any effect on their consideration of the application. Such letters
of recommendation are often very difficult for Posts to tie up
with subsequent applications and clog up the work of the MVCU.
We urge colleagues to exercise considerable restraint in making
representations in support of applications yet to be made, or
decided, so that Ministers' and Posts' efforts can be concentrated
on disputed decisions.
Students
31. In a joint memorandum, the British Council, the
Committee of Vice-Chancellors and Principals (CVCP), the Council
for International Education (UKCOSA) and the Association of Recognised
English Language Services,[53]
asserted that students wishing to study in the United Kingdom
faced "three main problems:
(i) good students
are refused visas on the grounds that the entry clearance officer
is not satisfied that they intend to leave the United Kingdom
at the end of their studies;
(ii) there are delays after the visa application
has been submitted; and
(iii) there is a widespread view among student
applicants that entry clearance officers are insensitive and rude."
The first problem was described as applying to "both
Delhi and Islamabad, and to many other entry clearance posts".[54]
The second and third related to Islamabad in particular. The memorandum
suggested that policy on issuing visas to students might have
both short-term and long-term implications, the former in terms
of loss of income to the United Kingdom and the latter in terms
of developing negative attitudes to the United Kingdom. A contrast
was drawn with the positive marketing strategy of competitors
in the international student market such as Australia.[55]
32. The criticisms were expanded in oral evidence.
Professor Scott (CVCP) commented[56]
that some ECOs would remark to applicants that a course was inappropriate.
Helen Powell, of the British Council stated[57]
that students were on occasion discouraged from taking English
courses in the United Kingdom (typically to bring their standard
of English up to that required for entry to a university course).
Asked whether there was active discouragement of students taking
English courses in this country, Ms Powell said[58]
"Absolutely, yes, from my experiences in Islamabad".
There could also be difficulties also over other short courses.[59]
On ECO's attitudes, Ms Powell commented that at an education festival
in Karachi, Islamabad and Lahore "there were constant complaints
about the ECOs, their manner and interview techniques".[60]
33. The Members who travelled to the Sub-Continent
met the senior British Council representatives in both New Delhi
and Islamabad. They discussed both the general issues raised by
students applying for visas and the specific allegations that
had been made about ECOs in Islamabad with Ms Clare Newton, the
Acting Director of the British Council office there. She drew
attention to the fact that for the 1995-96 academic year, a significantly
higher proportion of British Council sponsored student visa applications
had been refused in Islamabad then in Karachi, although she added
that there was anecdotal evidence that the position in Islamabad
had now improved. A fast-track scheme, for British Council sponsored
student visa applications had been initiated in 1997 but had not
worked well, partly because it had been affected by the computer
breakdowns that summer.[61]
Mr Lockhart (British Council) commented that the fast-track approach
worked well in Delhi.[62]
34. In the course of the visit to the Indian Sub-Continent,
the participants discussed some of the problems raised by student
visa applications. The Rev. Tom Bruch (UKCOSA) had already commented
that there was some evidence that ECOs set too high a standard
of proof regarding the requirement for students to leave the United
Kingdom at the end of their studies. ECOs pointed out that the
Immigration Rules required them to assess whether, at the time
of the application, the student had the intention to leave. They
would take into account a range of factors, not least the applicant's
estimate of the salary enhancement likely to arise from completing
successfully the proposed academic course of study. In some cases,
this was very small when compared with the apparent investment
to be made (in travel, fees and maintenance). In these circumstances,
the ECO may doubt whether the intention of the applicant is to
complete the proposed course of study and consequently probe quite
deeply in this area. Another factor which ECOs take into account
in assessing the genuineness of the application is the competence
of the prospective student in the English language measured against
the requirements for the course.
35. ECOs also take into account the documentary material
supplied to prospective overseas students by academic institutions
in the United Kingdom. Dame Elizabeth Anson, the Independent Monitor,
commented in her 1996 Report that some institutions were failing
to provide the necessary information to the student on matters
such as language proficiency requirements, duration and cost of
courses and the cost of living in the area, thus impeding the
entry clearance process as the ECO has no basis on which to judge
the adequacy of the proposed financial support. Mr Bruch confirmed[63]
that this could be a problem and added that UKCOSA had prepared
a special briefing on helping international students obtain entry
clearance.[64] The British
Council is also preparing a pre-departure guide for students,
which is designed amongst other things to help students to prepare
for entry clearance.[65]
36. We recognise that it is the Government's policy
to welcome genuine students who wish to come to the United Kingdom.
Their presence is a substantial asset to the United Kingdom and,
according to evidence we received, contributes at least £2
billion annually to the national economy.[66]
However, it is undoubtedly the case that claiming to be a student
has been abused as a means of entering the United Kingdom. The
fast-track arrangements in New Delhi for student applications
under arrangements involving the British Council appear to work
well and may have wider application. We understand that the High
Commission in Islamabad has put in place new liaison arrangements
with the British Council. We believe that the British Council
may be able to provide information that will help ECOs to reach
more soundly-based decisions on student visa applications and
we hope that the High Commission will make the maximum use possible
of this source of expertise. We recommend that the Government
review the guidance given to ECOs to try and reduce the risk of
students wishing to study in the United Kingdom and who genuinely
intend to return being refused visas.
24 Ev. p.60. Back
25
Ev. p.60. Back
26
Q165. Mr Gapes also commented (Q186) that some representations
that had been made to him in particular cases had subsequently
proved to be false. Back
27
Appendix 5, p.79. Back
28
Appendix 6, p.79. Back
29
Appendix 19, p.100. Back
30
Q72-3. See also Q89, 94. Back
31
Q137-9, 145. Back
32
Appendix 12, p.93. Back
33
Appendix 8, p.85. Back
34
Appendix 17, p.98. Back
35
Appendix 8, p.87. Back
36
See also Q6, 12. Back
37
The Government proposes to introduce such a right - see Ev. p.5
, Q16 and Cm. 4018, paras. 5.7 to 5.10. Back
38
Q25. Back
39
Q15. Back
40
Q1. Back
41
Q3. Back
42
Q5. Back
43
Ev. p.34. Back
44
Ev. p.6, Q7. Back
45
Q18. Back
46
Ev. p.6. Back
47
Q15. Back
48
Q26. Back
49
Ev. p.58. Back
50
Appendix 19, p.100. Back
51
Appendix 8, p.86. Back
52
MVCU requires specific assurance that any reconsideration of a
case requested by a Member includes reconsideration by the ECM
(see the Report by the Independent Monitor (Dame Elizabeth Anson),
July 1997, para. 3.29). Back
53
Ev. p.46-7. Back
54
Ev. p.46. Back
55
Ev. p.46. See also Q156. Back
56
Q121. Back
57
Q134. Back
58
Q135. Back
59
Q136. Back
60
Q140-1. See also Ev. p.47. Back
61
Q162. Back
62
Q161. See also Q159. Back
63
Q129. See also Q133. Back
64
Q129, 131. Back
65
Q130. Back
66
See Ev. p.46, and Q126, 134. Back