APPENDIX 7
Memorandum submitted by
the National Association of Citizens Advice Bureaux
Introduction
1. The conduct of entry clearance procedures
is an important area of concern for the CAB Service. In 1996/7,
the Service dealt with 51,191 enquiries relating to immigration,
nationality and asylum. A substantial number of these enquiries
arose from problems associated with entry clearance procedures
at overseas posts, particularly with spouse and other family member
settlement applications, and with visitor applications.
2. In recognition of the scale of these on-going
problems, NACAB published its report A Right to Family Life-CAB
clients' experience of immigration and asylum (NACAB, 1996).
In addition to evidence about the adverse effects of the Immigration
Rules themselves (which are outside the inquiry's remit), the
report also considered various aspects of the implementation of
the immigration control by overseas posts. This memorandum makes
reference to specific sections of the report where relevant.
Settlement applications
3. The problems reported by CABx in relation
to settlement applications can be grouped within two broad categories:
general administration; and the application of the Immigration
Rules.
4. In terms of general administration, the overall
impression is that High Commissions and Deputy High Commissions
in the Asian sub-continent are simply unable to cope with workload
that they are faced with. This is apparent in the severe delays
experienced by applicants, and by instances of wider bureaucratic
inefficiency. CAB report delays at every stage in the application
process-from initial interviews, through dealing with routine
correspondence and arranging further interviews, to the issuing
of visas once a positive decision has been reached. The following
cases are typical of the experiences of CAB clients and their
spouses.
A CAB reported a client who was a British citizen,
and had married his Indian wife two years previously. His wife's
original spouse application had been refused on primary purpose
grounds, so she re-applied following the abolition of the primary
purpose rule. The client had been informed that the application
would not even be processed for at least six months due to the
backlog of applications.
A CAB reported a client whose Pakistani wife had
originally been refused entry clearance, but whose appeal against
the decision was successful. However, her attempts to obtain the
visa to which she was now entitled had been hindered by administrative
failings at the British High Commission in Islamabad. The High
Commission's failure to respond to faxes from the Home Office,
and their poor record keeping, meant that the client's wife was
not informed when the visa was ready for collection-despite the
High Commission's assurance that they would write to her when
the visa was ready. When she did make the 100+ mile journey to
collect her visa, the High Commission denied that they had it,
and said they had no record of the woman's application. This caused
considerable distress to the couple, and to their young son. The
bureau contacted the High Commission, and were told that the woman
should phone in advance with a reference number. When she did
so, she was told there would be a delay.
5. The CAB Service recognises the progress that
has made in recent years towards addressing the excessive waiting
times experienced by spouse applicants in the Indian sub-continent.
It remains the case, however, that many applicants have to wait
for several months before their initial interview-which is frequently
just the first in a series of such delays. Paragraphs 2.46-2.49
of A Right to Family Life give further consideration to
the administration of spouse applications, concluding with the
recommendation that sufficient resources should be provided
to Foreign and Commonwealth overseas posts to ensure that the
welcome downward trend in waiting times for interview is maintained-with
the ultimate objective of dealing with applications in the Indian
sub-continent with the same promptness as in other parts of the
world (paragraph 2.49).
6. Delays experienced by spouses who are re-applying
following the abolition of the primary purpose rule raise particular
concerns. It is regrettable that families that have been kept
apart because of what the Government has recognised to be an arbitrary
and unfair test are now faced with a further period of enforced
separation due to administrative delays. The CAB Service recommends
that consideration should be given to 'fast-tracking' re-applications
from spouses who were previously refused under the primary purpose
rule. Any such measures should not, however, be at the expense
of increased waiting times for other applicants.
7. A Right to Family Life also considers
some of the problems which can arise from entry clearance officers'
interpretation of the requirements set out in the Immigration
Rules (paragraphs 2.21-2.43). The most problematic area (with
the demise of the primary purpose rule) is the maintenance and
accommodation requirement. The CAB evidence cited in A Right
to Family Life shows how the operation of this requirement
requires the exercise of subjective judgement by individual immigration
officials-and so creates the potential for applicants to be unfairly
refused entry clearance.
8. Common problems include the apparently routine
refusal of applications where the UK-resident spouse is in receipt
of any public funds, and the rejection of evidence that employment
has been arranged for the applicant on his or her arrival in the
UK. One particularly frustrating problem in the context of recourse
to public funds is the failure of entry clearance officers to
follow Home Office policy on the question of additional
recourse. Even where it is clear that the arrival of the applicant
spouse will actually reduce the reliance on public funds,
applications are still rejected on public funds grounds. The following
case (in this instance concerning an application to the British
High Commission in Dhaka) provides a recent illustration of these
problems:
A CAB reported a client who was the mother of four
children, and who was in receipt of housing benefit and various
disability benefits. Her husband, who was the father of two of
the children, had applied for entry clearance to join her in the
UK. A legitimate job had been arranged for her husband, which
would have been sufficiently well paid to take the family off
benefit altogether. Moreover, the welfare benefits adviser at
the bureau had identified significant unclaimed benefit entitlement
on the part of the mother-so that even without the job offer,
there would be sufficient income to support the husband on his
arrival. Despite this evidence, and a series of representations
by the bureau, the application was refused and requests for a
review were rejected. The bureau took the case to appeal, where
the entry clearance officer's decision was overturned.
9. A concern which has been raised recently by
a number of CAB advisers is the tendency for entry clearance officers
to require excessive documentary proof of sponsors' ability to
satisfy the maintenance and accommodation requirement. Typical
examples include written confirmation of a sponsor's employment
and pay from the Inland Revenue, and reports from surveyors or
Environmental Health Officers to demonstrate that the arrival
of the applicant spouse will not lead to statutory overcrowding.
10. There is, of course, no dispute about applicants'
obligation to demonstrate that they can satisfy this condition.
The point is rather that some entry clearance officers are setting
an unreasonably high standard of proof, which means that applicants
and their sponsors incur significant costs and/or experience further
delays in obtaining the official documentation which is required.
As one adviser commented, the approach to requiring proof that
the spouse's arrival will not lead to statutory overcrowding is
in stark contrast to CAB clients' difficulties in being re-housed
on grounds of overcrowding.
11. A Right to Family Life also considers
the problems faced by other family members applying to join relatives
in the UK (Chapters Three and Six). The main concerns here are
more in relation to the highly restrictive requirements set out
in the Immigration Rules than with the implementation of those
requirements. CAB evidence does, nevertheless, indicate the reluctance
of entry clearance officers to exercise their considerable discretion
in such cases in favour of applicants. One particular concern
is the extremely narrow interpretation which is given to the requirement
to demonstrate "exceptional compassionate circumstances"
in many categories of family settlement application. The report
recommends that the Home Office and the Foreign and Commonwealth
Office review their policy regarding "exceptional compassionate
circumstances", and more generally towards family members
who are shown to be living in distressing personal circumstances
(paragraph 6.9).
Visitor applications
12. One of the most prominent themes in CAB Service
immigration work is the problems experienced by prospective visitors
to the UK. CAB clients and their relations abroad are prevented
from maintaining even the limited contact of occasional visits
to the UK, frequently in circumstances where there is substantial
evidence that the applicant satisfies the requirements set out
in the Immigration Rules.
13. A Right to Family Life includes a
detailed analysis of problems experienced by CAB clients and advisers
in this area (Chapter Four). One of the fundamental issues is
the ease with which entry clearance officers refuse applications
on the basis that they are not satisfied that the applicant will
return at the end of their visit-despite the provision of objective
reasons which demonstrate close ties in the current country of
residence. Another common feature is the failure of entry clearance
officers to give due consideration to the distressing circumstances
in which many applications are made. The following cases provide
typical examples:
A CAB reported a 60 year old Indian woman who lived
in India with her two sons and grandchild. The woman, who was
widowed, also had three married daughters living near her in Delhi.
Her mother and two brothers lived in the UK. The older brother's
son was getting married, so she applied for visitor's entry clearance
to attend the wedding. The application was sponsored by her older
brother, who was in work, owned his own house, and who provided
proof of maintenance and accommodation. Her application was refused
on the grounds that "you have not seen the groom since he
was small, and you do not know what he does; I am therefore not
satisfied that there is a close relationship between you".
A CAB reported a client whose elderly Pakistani mother
had been refused entry clearance to visit her in the UK. The mother
and daughter had not seen each other for ten years, and the mother
had never seen her five grandchildren. She had many ties in Pakistan,
and had no desire to come and live in the UK. The client told
the adviser that her mother had been very confused and intimidated
by the many questions asked at each of her interviews-a problem
which was exacerbated by the fact that she had not been allowed
to have anyone accompany her in the interview. On the basis of
the interviews, the entry clearance officer judged that she had
"done little to assist your credibility", and refused
her application.
A CAB reported a client whose Indian aunt had applied
to come to the UK for one month, in order to visit her (the aunt's)
seriously ill brother-who was resident in the UK. The entry clearance
officer in India refused the application on the grounds that the
woman came from a poor financial background in India, and had
not previously visited her brother. The entry clearance officer
ignored the following facts: the woman did not want to leave India
permanently, since she had ten descendants still living in India;
her British-based brother was willing to buy her return ticket;
and previous contact had been maintained by the brother visiting
her in India-an arrangement which was no longer possible because
of his medically-certified inability to travel.
A CAB reported a Pakistani woman who had applied
for entry clearance in order to visit her daughter, grandson and
son-in-law in the UK. She was particularly anxious to see her
three- year-old grandson, who had just had major surgery. Her
daughter had been advised that the boy should not travel, so he
could not come to Pakistan to visit his grandmother. The application
was refused because the entry clearance officer suspected that
the grandmother would not return to Pakistan, but would instead
try to stay as a dependent relative. The family in the UK had
requested a review of this initial decision, but to no avail.
Subsequently the grandson became critically ill, so his grandmother
tried to make another application-this time providing medical
evidence of the young boy's condition. On this occasion she was
dissuaded from formally making an application under the 'pre-sift'
procedures, on the grounds that her application would definitely
be refused and so she would be wasting her money. At this point
the CAB contacted the High Commission in Islamabad, but the official
was unable to locate the records relating to the grandmother's
application.
14. The last of these cases raises the issue
of the 'pre-sift' procedure whereby some applicants are advised
that their application is unlikely to succeed, and so discouraged
from applying. This issue was considered in A Right to Family
Life (paragraphs 4.35-4.37). The CAB Service recognises the
potential advantages of this approach, but cases such as the one
described above show how it can, in fact, work to the considerable
disadvantage of applicants. A Right to Family Life recommended
that the 'pre-sift' procedure be reviewed to ensure that applicants
are given constructive advice about making applications, and are
not prevented from pursuing applications. The review should consider
whether such a procedure is compatible with the right of applicants
to submit an application whenever they choose (paragraph 4.37).
15. As stated above, A Right to Family Life
contains a detailed analysis of the problems associated with visitor
applications. The CAB Service firmly believes that the solution
to these problems must include the restoration of appeal rights
for visitors. The Service therefore welcomes the Government's
commitment to taking action on this issue. Whatever the outcome
of the Government's considerations on appeal rights, however,
there will remain substantial scope for improvements in the administration
of visitor applications. In addition to the issues already specified,
A Right to Family Life makes the following recommendations
for improving this element in the implementation of immigration
control:
Guidance should be issued to all overseas posts
stating that applicants should have the opportunity to provide
further information before applications are officially refused;
and that applicants should be told exactly what further information
is required. (paragraph 4.33)
Guidance should be issued to all overseas posts
stating that applicants should be allowed to be accompanied by
friends or relatives when being interviewed. (paragraph 4.34)
Steps should be taken to ensure that applicants
from non-visa countries are given full information about the advantages
and disadvantages of applying for entry clearance before travelling.
(paragraph 4.38)
Conclusion
16. It is important not to underestimate the
overall impact of the difficulties experienced by applicants,
sponsors, and their advisers. CAB advisers often comment, on the
basis of their experience in assisting applicants and their families,
that aspects of the system of immigration control seem to operate
in a routinely obstructive way, giving the impression that the
ultimate objective is to make it as difficult as possible to gain
entry to the UK. A Right to Family Life argued that the
problems experienced by CAB clients cast doubt on the compatibility
between the prevailing approach to immigration control and the
promotion of good race relations. The report also concluded that
UK immigration control policy runs counter to our international
obligations to respect the right to family life.
17. In the context of entry control procedures,
particularly in the Asian sub- continent, the experience of CAB
clients and their families demonstrates that there are serious
shortcomings in the current performance of overseas posts. The
CAB Service believes that the recommendations put forward in this
memorandum are consistent with the Government's objective of a
"fair, fast and firm" system of immigration control,
and that, if implemented, could contribute to a genuine improvement
in the conduct of entry clearance procedures.
January 1998
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