Supplementary Memorandum submitted by
the Joint Council for the Welfare of Immigrants
Having attended to give oral evidence before
the Entry Clearance Sub-Committee on 12 February, I wrote on 13
February to apologise for delay while this further submission
was prepared. I hope this delay will not have caused any inconvenience.
JCWI is a small organisation (less than 20 staff),
now 30 years old. It does not receive or seek any government funding,
although as a legal practice we receive some assistance from the
Legal Aid fund on behalf of certain clients. In addition to casework
we provide an advice service, both on a drop-in basis to personal
callers, and by phone, letter, fax and e-mail, to individuals
and to other organisations, we produce fact sheets and briefing
notes, a periodic Bulletin and a Handbook on immigration, nationality
and refugee law which is the foremost practical guide to this
area of law for advisers. We also seek to campaign on behalf of
those affected by immigration controls, for a more just system,
and specifically, in accordance with our constitution, against
racially discriminatory aspects of the laws.
In line with these principles, our caseworkers
will try to take on work which is identified by our members as
of general or strategic importance, in order to highlight areas
of concern, and perhaps encourage better practice. Our small staff
nonetheless means that it is rarely appropriate for us to measure
the significance of a particular concern on a statistical basis.
We are aware that our casework experience need not by any means
be typical of the generality of immigration casework, in this
country or overseas, and that it may deliberately focus on the
worst cases.
That said, it is certainly possible to provide
further information, as follows, concerning some of the specific
instances raised in our earlier memorandum and oral evidence.
Some of these have been taken up at some stage by a Member of
Parliament, including case 1 (Fiona McTaggart), case 3 (Frank
Dobson), case 5 (Sir Archibald Hamilton).
Case 1
This case example refers to numbered paragraph
1 of first memorandum. It was a case from Islamabad, refused on
7 November 1996, and appealed. The explanatory statement suggests
a deeply sceptical attitude on the part of the ECO, predisposed
to hold non-reply as evidence of having "something to hide",
although rural muslim women are likely to respond in this manner,
rather than "answer back". The decision went against
her on primary purpose, and the statement then goes on to hold
that "accordingly" she failed on the ground of intention
to live together. Given these grounds she "therefore"
also failed on maintenance, as although the sponsor was working,
if they could not prove to the ECO's satisfaction that they would
live together, nor could he be satisfied that the sponsor would
support her. "Furthermore" he was "accordingly
left unsatisfied" that he would accommodate her either, and
she was refused on all these grounds. The primary purpose rule
was abolished before the hearing date, and the case reviewed in
line with the procedures then put in place. That ground was removed
from the decision, but the others allowed to stand. At the hearing
the Presenting Officer conceded on the additional grounds also
(subject to one minor and unrelated practical point). Our point
is that the quality of the reasoning was poor, that the various
requirements of the rules are to be considered separately, and
that it will not do to build up all the elements of refusal on
the back of doubts about one element unless they are genuinely
and logically dependent on the same facts. A copy of the explanatory
statement is enclosed, marked "Case 1" [not
reported].
Case 2
This is another Islamabad case, and is the one
referred to in paragraph 3 of our memorandum. The applicant, was
refused a settlement entry clearance on 3 April 1996. The ground
of refusal was lack of satisfaction concerning recourse to public
funds. At that time the relevant officer in the Immigration and
Nationality Directorate dealing with family policy in the B2 Policy
Division was Mr B. He informed the sponsor's representative that
he had on two occasions written to the entry clearance officer
with regard to this specific case, to put the point that it was
the view of the Home Office that the points made by the representative
concerning public funds met the Secretary of State's policy. Nonetheless,
as the case had not formally been referred to Croydon by the ECO,
the decision was, in law, one for the post overseas, and not for
Croydon, and he had no power to overrule the decision. For your
assistance a copy of a letter from Mr B, marked "Case
2", is enclosed [not reported].
Case 3
Paragraph 4 of our memo referred to tensions
between the two branches of the entry clearance staff, from the
Immigration Service and from the Diplomatic Service. In addition
to the comments under case 2 above, this may be illustrated by
the case of Altab-ur Rahman, husband of Ruma Khanom. This case
featured in the press, and a copy of an article from the Observer
is enclosed [not printed], marked "Case 3".
The applicant succeeded on appeal.
Case 4
This case example comes from Dhaka, and is one
I mentioned in oral evidence. It relates to the points in paragraph
5 of the memo. The explanatory statement in the case contained
the same question—or rather assertion—put many times
with slight variations: "You only married your wife because
she was Londoni, didn't you?" After many flat refusals the
applicant was recorded as having given a single equivocal response,
at which point the interview was immediately terminated. Referred
back from appeal with a strong expression of concern from the
adjudicator, it was the subject of an enquiry by the First Secretary,
who nonetheless decided no action should be taken simply because
the officer in question had moved on. As an example of an applicant's
experience of interview, which may serve to illustrate paragraph
6 of our memo, I enclose a copy of an affidavit prepared by him
for his appeal, marked "Case 4" [not reported].
He subsequently won his case, and remains living here with his
wife.
Case 5
Another case from Dhaka, this was a settlement
application refused on accommodation and maintenance grounds.
These were conceded before the adjudicator, but before that time
the couple had had a child, Syed. The sponsor had been living
with the applicant in Bangladesh for much of the time, awaiting
the result, the validity of their marriage was not in question,
and the matter of the pregnancy had been made known throughout
the appeal process. We fail to see why the ECO, have conceded
the case, then felt unable to issue to the child without DNA testing.
We also fail to see the logic in declining to provide DNA testing
at state expense where what is in issue is a British passport
(Syed being a citizen by descent) rather than a certificate of
entitlement. It is said that entry clearance fees are calculated
to take account of the cost of DNA testing, while passport fees
are not (see the letter from the High Commission, enclosed, marked
"Case 5" [not reported]), but in our view this
is to discriminate against those who have a stronger claim,
by virtue of their citizenship.
Case 6
This is a case from Bombay, Mr Patel succeeded
in his student appeal, and an application to the Tribunal by the
entry clearance officer was unsuccessful. At the request of his
representative, the Presenting Officer then graciously confirmed
to the Deputy High Commission, late in September last year, that
a visa should be issued. Representatives sent the entry clearance
officer a copy of the decision of the Tribunal under cover of
a letter requesting them to issue. Subsequently the Presenting
Officer confirmed that he had repeated his advice to the post
(this was confirmed from Croydon), and representatives sent a
further set of papers to the post. No action was taken by the
post until, following an enquiry addressed to the Migration and
Visa Directorate of the Foreign Office, they agreed at the end
of January to call the applicant for further interview. It may
be that what is in issue here is a failure of communication between
the Home Office and the post overseas, but it is unfortunate that
they would not take action on the letter and copy of the determination
sent by the representatives. A copy of a letter from the post
is enclosed, marked "Case 6" [not reported].
Case 7
Paragraph 10 of our memo refers to the raising
of the standard of proof in accommodation and maintenance issues.
In this connection I enclose a copy of correspondence with Islamabad
[not reported], dealing mainly with their demands over
housing, and a copy of a form now apparently included as standard
procedure by the post in Dhaka, indicating routine enquiries—or
at least arrangements for them—of social security and national
insurance records of sponsors in Britain. Each of these is marked
"Case 7".
Case 8
Complaint was made in our memo, at paragraph
11, of additional forms in use in Dhaka. An example of one, with
correspondence concerning it, is enclosed, marked "Case
8" [not reported]. In oral evidence I also cited
the vast disparity between Commonwealth nationalities being issued
with clearance or leave to remain as working holidaymakers. I
regret that I have not had time to collate the figures to show
this, but they indicate that in excess of 95 per cent of permits
were issued to just three nationalities, the so-called "old
Commonwealth", or white dominions, of Australia, New Zealand
and Canada. Equally, refusal rates to these nationalities were
minuscule, while for the much smaller numbers of black Commonwealth
nationals applying (most, if they know of the legal possibility,
also no doubt know it is not "intended for them") it
at times approaches 100 per cent. Lately this picture has been
slightly changed by an increase in permit to South Africans, with
no way of knowing what proportion of this nationality are white
and how many black.
I hope this information will be of use to the
Sub-Committee in its deliberations.
NOTE: To preserve the confidentiality of the individuals
concerned, names and reference numbers have been removed from
this memorandum.
February 1998
|
