ANNEX A
Legal powers which the FCO Minister has
to overturn decisions made by entry clearance officers at Posts.
The Memorandum submitted to the Sub-Committee
in advance of the evidence session contains the following statement
on legal powers:
"Entry into, stay in and departure from
the United Kingdom is regulated in law by the Immigration Act
1971 (`the Act'). The Act is a comprehensive code intended to
govern any right of entry into the country. Persons without a
right of abode in the United Kingdom require leave to enter and
remain in the country. The power to give or refuse leave to enter
is vested in immigration officers but the power to give leave
to remain can only be exercised by the Secretary of State.
The practice to be followed in the administration
of the Act for regulating entry into and stay in the United Kingdom
for those who do not have the right of abode is contained in statements
of the rules (the Immigration Rules) laid by the Secretary of
State before Parliament. The Secretary of State may, and sometimes
does, depart from the Rules or authorise an immigration officer
to do so.
Although the office of Secretary of State is
indivisible, the Secretary of State who exercises powers under
the Immigration Act (including laying the Immigration Rules before
Parliament) is the Home Secretary. This has been reflected in
immigration case law.
The Rules require some persons who need leave
to enter the United Kingdom (for example visa nationals) to obtain
entry clearance from outside the United Kingdom at the nearest
High Commission, Embassy or Consulate. Immigration officers are
instructed to refuse leave to enter to those persons who do not
possess a valid visa if they require one. Others who wish to ascertain
in advance if they are eligible for admission may also apply for
entry clearance. Entry clearance means a visa, entry certificate
or other document which is to be taken as evidence of a person's
eligibility for entry into the United Kingdom.
Entry Clearance Officers (ECOs) who administer
the control of immigration overseas, including the issue or refusal
of entry clearance, are members of the British Diplomatic Mission
and thus fall under the operational responsibility of the Foreign
and Commonwealth Office. However, unlike immigration officers,
entry clearance officers have no statutory existence of their
own. This means that their functions (and those of Ministers reviewing
their decisions) are limited to considering entry clearance applications
in accordance with the Rules.
As entry clearance is a condition precedent
to the grant of leave to enter in many cases, and as it is the
Secretary of State for Home Affairs who exercises the discretion
under the Act to authorise leave to enter outside the Rules, entry
clearance has been granted outside the Rules only on instruction
from his department."
COMMENT
The final paragraphs make clear that under current
practice, the role of assessing entry clearance applications under
the rules is delegated to entry clearance officers under the operational
responsibility of the FCO. Review of cases by other FCO officials
(entry clearance managers, other officers at Post or in the UK),
or FCO ministers is, again under current practice, limited to
applications in accordance with the Rules.
In all cases where the Minister asks for a review,
the first step is to ask the overseas post concerned to look afresh
at their original decision in the light of reservations expressed
by London. Some refusal decisions are reversed at this stage.
When they are not, if the Minister is nevertheless satisfied that,
contrary to the original judgment of the ECO, the requirements
of the Rules are met, she can direct that entry clearance be granted.
It may be that she takes a different view from that taken by the
ECO because of additional material not available at the time of
the original decision, but this is not always the case.
There are naturally some cases which do not
meet the requirements of the Rules, but where for instance there
are exceptionally compelling compassionate circumstances which
make it desirable to consider the applications outside the Rules.
In these exceptional cases, ECOs may refer to the Home Office
for a decision outside the Rules.
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