Select Committee on Foreign Affairs Fourth Report

APPENDIX 10

Memorandum submitted by Fiona Mactaggart MP

I am writing to submit evidence to this sub-committee looking into entry clearance matters at Islamabad and New Delhi. I have been interested and concerned about entry clearance matters since I was the General Secretary of the Joint Council for the Welfare of Immigrants from 1982 to 1986 and I now have a strong constituency interest. The largest single matter on which constituents have sought my help has been immigration, and the majority of immigration problems have been visit visa refusals at Islamabad and New Delhi, followed by marriage cases, both abroad and in the UK.

I am concentrating on areas which are of particular concern to my constituents, but this does not mean that I believe nothing else needs changing. I am sure the sub-committee will look into entry clearance matters such as the use of the "intention to live together permanently as husband and wife" requirement of the marriage rules, the use of DNA testing and other evidence which is requested to show that applicants are related, the standard of proof required for obtaining British passports and certificates of entitlement. I hope that the report will recommend significant changes.

INTRODUCTION

This submission concentrates on three aspects of the entry clearance procedure and practice at Islamabad and New Delhi which should be reformed. These relate to dealing with applications for visit visas from people coming to visit family members in the UK, in particular elderly people, and in relation to the interpretation of the rules on support and accommodation. These cause distress disproportionate to any effect in maintaining a firm but fair immigration control, and are not in accordance with the immigration rules. I hope the sub-committee will recommend changes in the instructions to entry clearance officers and in their practice and also urge swift implementation of Labour's manifesto promise to reinstate an appeal system.

1.  FAMILY VISITS

1.1  At present, the instructions to entry clearance officers on visitors suggest that there are particular problems in dealing with those applying to visit relatives and that they should be treated with particular caution. Paragraph 12.3 states:

Some points for consideration

ECOs, especially those at Posts in countries where economic conditions are less favourable than in the UK, should treat with special care (my emphasis) applications from those wishing to visit relatives in the UK, especially if the relatives are themselves recent immigrants and/or the applicants have never previously left their own country.

1.2  The instructions as they continue demonstrate that to "treat with special care" means to have a high degree of suspicion of such applicants. At no point do they ever acknowledge that having family in the UK is an obvious genuine reason for wanting to visit. When relatives have recently emigrated, and are therefore well known to the family members remaining at home, there are particular reasons for remaining in touch. The people who have come here also want to remain in touch with family as well as becoming involved with society here and cannot feel themselves treated equally with others if their relatives are discriminated against. The instructions continue:

You should also take care with an application from a person who is known to have applied in the past for a work permit or for settlement as a dependent relative.

1.3  This is a proper caution as such an application is prima facie evidence that an applicant has in the past hoped for a more permanent stay in the UK. These two situations are not comparable. But the instructions treat them as if they are:

Such factors as those above would not alone lead to refusal but they warrant close consideration of the applicant's circumstances.

1.4  Refusal of genuine applications to visit family members is harmful to good race relations here. It also causes great offence to many long-settled UK residents, who feel angry that the UK government will accept neither their word, nor offers of a financial bond or guarantee.

The instructions on visits should be changed to reflect the positive nature of family visits and that, in a world of increasing international travel, economic circumstances are not the only, or indeed the main, reason for many people's travel.

2.  ELDERLY PARENTS AND OTHER RELATIVES

2.1  Elderly parents and their adult children settled in the UK naturally want to remain in contact. In most cases this contact is maintained through visits. When families are split between countries, extended visits to both countries, for example spending the winter in India and the summer in the UK, are often the preferred solution. The present system of immigration control makes this impossible, as there is no provision for visits for more than six months and frequent visitors are suspected of wanting to stay.

2.2  The immigration rules require that parents applying for entry clearance to join their adult children for settlement must show that one of the couple is over 65, that they are financially dependent on their children in the UK, that they have no close relatives to turn to at home and that they can be supported and accommodated without recourse to public funds. The Home Office has a general practice of allowing people over 65 who have come to the UK to visit their adult children to stay here if they apply for this, whether or not they fit into the requirements of the immigration rules.

2.3  The Home Office practice is known to entry clearance staff and to some advisers though it is not published. This has two consequences which have a bad effect on the administration of immigration control. Firstly, when entry clearance officers abroad know that visitors admitted to the UK may be able to stay on, they are less likely to give them the benefit of any doubt or to allow them to come as visitors, as their judgement may be questioned should the people apply to the Home Office to stay. Secondly, some people, aware of the concession, may be tempted to use it as a route to settlement: the settlement entry clearance fee is £240 per person; a visit visa is £33.

2.4  It is a natural human desire to want to care for parents in their old age and to keep in contact with them. People settled in the UK are often deeply distressed when their relatives are unable to come to visit them, when they know that only a visit is intended, especially when there are particular reasons for a visit at that time, such as a funeral or a wedding. If they apply to settle from abroad, and do not meet the requirements of the rules, they will be refused and will be unlikely ever to succeed as visitors again. The family may then be permanently split, particularly when there are many members in the UK and travel for them all would be prohibitively expensive.

2.5  The present system cannot be operated fairly or sensibly. Immigration policy must be open and known, in published immigration rules and laws, not in internal Home Office policy documents. If elderly people are likely to be allowed to stay here when they arrive, they should also be allowed to enter the country, thus avoiding creating an unofficial two-tier system. The solution would be to extend the model used in EC law, which gives European Economic Area national workers the right to be joined by "relatives in the ascending line", that is, parents, grandparents and great-grandparents, when there is accommodation for them here.

2.6  There is no doubt that the effect of the treatment of elderly parents is significant in its impact on the settled immigrant communities. But it is perturbing that the number of people who may be affected by such a change has been exaggerated (see Annex).

The immigration rules should be changed to permit people to look after their elderly parents here, provided there is adequate support and accommodation for them. Visa officers must be given instructions reminding them not to treat elderly family visit applicants more harshly than others.

3.  CONTESTING REFUSALS

3.1  At present there is no way to contest a visit visa refusal speedily and effectively. The Migration and Visa Correspondence Unit is ineffective and slow and does not have the power to enforce a changed decision. One of the safeguards announced when the right of appeal was withdrawn in 1993 was that each refusal would be reviewed by an Entry Clearance Manager. In the 12 months to December 1997, 38 decisions at Islamabad and 20 at New Delhi were reversed in this way (copy of FCO letter and statistics attached [not printed]). I accept that there will have been prior discussion in many cases but the low figures, and the standard of refusals which are maintained, does not suggest the procedure is effective.

3.2  Dame Elizabeth Anson's monitor role is an inadequate substitute for a proper judicial appeal, as Opposition MPs made clear in debate on the 1993 Act. Her terms of reference are to review the system, not to seek redress in any individual cases. She reviews a tiny proportion of refusals from all over the world (1,939 cases out of 69,791 refusals, 2.7%). Her reports repeat criticism of details such as illegible handwritten refusal notices but do not help to overturn wrong and unjust refusals. A proper appeals system must be instituted quickly, so that there is no need to renew hers, or anyone else's, contract as a monitor.

It is vital that the government proceeds quickly with the manifesto commitment to introduce a "streamlined right of appeal" for refused visitors.

4.  SUPPORT AND ACCOMMODATION

4.1  In marriage cases, I am frequently told by sponsors here that their husbands/wives have been told that the person here must be working full-time and must be able to support the spouse. This wrong interpretation of the immigration rules has come from both visa officers and the Migration and Visa Correspondence Unit. What the rules actually say (para 281), is:

(vi) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds.

4.2  This support might be from the spouse here working, or having savings, or the spouse overseas having a job offer in the UK (or relevant qualifications and experience making employment likely) or through third-party support. In relation to public funds, benefits regulations now preclude almost all non-settled people from claiming. Home Office policy for many years has been that the settled or British spouse may claim or continue to claim any benefits to which s/he is entitled, but that the spouse from abroad must show other means of support, so that no additional public funds are required. The Immigration Appeal Tribunal, in the case of Clevon Scott (13389) confirmed:

it is quite clear that, from at least 28 September 1989, it has been the stated policy and practice of the UK government that, where reliance upon public funds is in issue, only additional reliance upon such funds is objectionable.

4.3  This policy is reflected in the instructions to entry clearance officers:

Sponsors in the UK may themselves be in receipt of public funds. However, as long as a sponsor can show that the applicant is to be maintained without claiming additional public funds, the requirement of the Rules will have been met. (para 7.3)

If the applicant and/or sponsor has skills or qualifications which offer a reasonable chance of obtaining employment or already has employment arranged, that will usually be sufficient to meet the maintenance requirement without your having to make further inquiries. (para 7.7)

You should make a common-sense judgement based on the evidence from the applicant as to whether the accommodation available is adequate. If possible, and especially in doubtful cases, you should ask to see a letter from the owner of the property (which may be a housing authority, housing association, landlord or a building society) confirming particulars of tenure and occupation of the dwelling, together with a description of the accommodation and, if the accommodation is rented, a copy of the lease. (para 7.11)

4.4  It is also Home Office policy that third-party support may be acceptable for a short period, for example parents-in-law showing that they are able and willing to support a son-in-law when he initially arrives here until he finds his feet and gets a job. This policy however does not appear to be known to some entry clearance officers. A constituent of mine who is doing a business administration degree and working part-time was told that she should give up her studies and get a full- time job if she wants her husband to come. She has over £3000 in savings, her husband has a job offer; these facts have been ignored.

4.5  British High Commissions also may ask for very much more detailed evidence than can be justified under the immigration rules. Dame Elizabeth Anson points out, without comment, that "more detailed documents are still required in the Asian subcontinent and Lagos than elsewhere" (para 3.16). This should not be permissible. Islamabad in particular asks for unreasonable amounts of documentation. The standard letter sent out asks for "all passports ever held by the sponsor" as well as bank statements for six months, the most recent P60, an employer's letter, six months recent pay slips and a letter from the Inland Revenue confirming employment and pay, and a letter from the DSS "detailing all benefits your sponsor has ever received". This is even more than belt and braces, asking for very much more than can be justified in the terms of the rules. When all these documents are not provided, the High Commission warns that the application is likely to be refused. This is unreasonable as in most cases one of them should be adequate.

4.6  Details of the tenure of the accommodation are also requested. People in privately-rented accommodation may also be asked for details of their landlord's house ownership, which can be difficult when the landlord does not see why his or her personal financial affairs should be shared with the immigration authorities. Evidence of the size of the accommodation and the room(s) available for the applicants, and that they have a legal tenancy, should suffice.

4.7  A constituent whose wife is applying to join him came to my constituency advice session last week. Islamabad had told him to send "a letter from the Inland Revenue confirming you are registered as being employed by [name], your date of commencement in this employment and the date on which the Inland Revenue were notified of this employment", his P60 and itemised bank statements for the past six months. He was told "it will assist this application if the bank statements show your salary being paid directly into your account by your employers". When he found that his employers were defrauding the Inland Revenue and not paying his tax and insurance, he left that job and found another, and sent pay slips of the new job, with bank statements showing his salary being paid direct to the bank, and an explanation of the past. The High Commission refused to accept them and requested all the documents again, although it had been told why they were not available and had evidence of adequate financial support.

4.8  The same constituent, who lives in privately rented accommodation, was told that he needed to provide the land registry certificate for the house, a letter from his landlord's mortgage company "confirming that the loan on the above-named's property is in order and up-to- date", an "independent property assessment of the above property written by a solicitor, estate agent or other similarly qualified person following a personal visit " and a letter from the local authority confirming the council tax was paid up to date. It is wholly unreasonable to expect that a landlord should wish to provide such information about his personal finances to a tenant.

4.9  The refusal rate for spouses at Islamabad on grounds of support and accommodation is the highest in the subcontinent. In 1995 819 husbands and wives were refused solely for these reasons and 723 partly (a total of 1,542 people). The New Delhi figures are 24 and 26 (60), Dhaka 879 and 221 (1100). It is likely that one of the reasons for this is that inappropriate standards of evidence are requested, and applications made elsewhere would be successful.

Posts, in particular Islamabad, should be reminded of their instructions on the correct interpretation of the rule on maintenance and accommodation and should follow them. Excessive amounts of documentation must not be requested. The use of this ground of refusal must be monitored to ensure that it follows government policy.

January 1998

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Prepared 7 August 1998