Marriage and Civil Partnership – The UKBA Approach

During 2012, the Independent Chief Inspector of Borders and Immigration, John Vine CBE, conducted an inspection of UKBA procedures and protocols governing applications to enter, remain and settle in the United Kingdom on the grounds of marriage/civil partnership. His report was published last week.

The report concluded that, in the main, UKBA’s practices were reasonable. He did, however, raise concerns that the Agency had a backlog of some 14,000 cases which had been refused initially and for which a subsequent request for reconsideration was still outstanding and a further 2,100 applications for an initial grant of status which were still awaiting consideration. Mr Vine found that some cases dated back to 2003 – he considered this to be “completely unacceptable”.

The report’s most significant finding is one which immigration lawyers have long suspected – that the UKBA does not adopt a consistent approach to applications.  For example, it was found that a uniform policy concerning the requirement for applicants to maintain themselves adequately without recourse to public funds had not been instituted between UK caseworkers and Entry Clearance Officers at British diplomatic posts overseas. This resulted in “a risk that some individuals who are being granted further leave and settlement may be unable to support themselves adequately”.

He found further disparities between decisions made overseas and those in the UK, concerning the consideration given to Article 8 of the Human Rights Act 1998. He discovered that UKBA staff rarely considered Article 8 rights of applicants.

Children

The United Nations Convention on the Rights of the Child, adopted across the world in 1989, promotes the fundamental principle (under Article 3 (1)) that “the best interests of a child shall be the primary consideration”. The Inspector found that specific consideration of the child’s interests was given in only 1 out of 21 cases he examined. He also found that no regard was given to the Convention in the 39 overseas applications which he reviewed.

Appeals

Where an application for leave as the spouse or civil partner is rejected, a right of appeal is generated which allows the matter to be heard before an Immigration Judge. The Report found that 53% of appeals considered by an Immigration Judge were succesful. Mr Vine considered this figure to be too high. It appeared that cases were going to Judges which ought never to have been refused in the first place – the 1 in 2 ratio suggests that a rethink is required to ensure standardisation in the decision making process. The difficulty with the review process at present is that the UKBA does not have the available resources to deal adequately with review applications which are ultimately likely to succeed at appeal.

Mr Vine refers to the creation of “a new Appeals and Litigation Directorate within the Agency” with the objective of ensuring the current number of appeals is reduced. Time will tell whether this recommendation is accepted.

On a positive note, the report found several areas where the UKBA is performing well. These include;

1)    The majority of decisions in marriage applications were reasonable and in accordance with the Immigration Rules

2)    The Agency had carried out security checks against all applicants (in the file sample) in order to establish whether applicants had previous convictions or adverse immigration histories.

3)    The Agency made good use of information obtained overseas to detect people who should not be allowed to enter or remain in the UK;

4)    Effective processes were in place for managing the personal data of applicants and sponsors and there was adequate retention of evidence and notes to support decisions.

Conclusions

As far as the figures go, there was there was nothing startling in the report. From the practitioner’s perspective, it is refreshing and encouraging to read that the Independent Inspectorate has reached conclusions which reflect our experiences as Lawyers. It is also important to recognise that the UKBA is striving to improve practice and procedure when considering applications for entry clearance/leave to remain on the basis of marriage/civil partnership.  The Independent Inspector’s full report can be read in full by visiting www.independent.gov.uk/icinspector.

Clients who require any further information should not hesitate to contact a member of the Immigration team.