A summary of common problems encountered by Applicants and the consequences when refused a visa
The Home Office receive thousands of applications every week and often have to deal with applications submitted by individuals who have chosen not to use lawyers to help them with their case.
There is no requirement for an individual to instruct a lawyer to help them apply for a visa, but generally it is a good idea to obtain legal assistance so as to ensure the visa application is correctly completed and the immigration rules have been properly complied. This ultimately increases the chances of obtaining the required visa.
For even the most experienced of lawyers, the ever-evolving immigration rules and laws can cause complexities when representing clients. The points based system introduced in 2008 has seen frequent re-drafting of Home Office guidance notes and polices and challenges made by lawyers who have found the Tier points based system unfair and difficult to satisfy for many Applicants.
Many Applicants have found themselves “caught out” by their not abiding by a certain paragraph in the guidance notes-many guidance notes in fact resemble more a text book in their own right as they can be up to 50 pages in length!
Unfortunately, the points based system has shown many pitfalls for Applicants and refusals have been quick to come and plenty. The following is a summary of common problems encountered by Applicants and the consequences when refused a visa, when making a Tier visa application.
1. Maintenance- An Applicant falls below £800.00 during the last 3 months from the date of application (even by a few pence)
Refusal of Tier application under the basis that the Applicant has failed to maintain the required amount throughout the three month relevant period. However, if the decision is appealed it may be successfully argued that an individual can maintain themselves if they can show that in any other accounts they had funds throughout the relevant three month period before the time of the application. Legal advice should be sought in such an instance.
2. A Tier application submitted out of time i.e.: after a person’s visa has expired.
Generally the application will be refused as the Tier system requires Applicants to have valid leave at the time of applying for a Tier visa. Also, where an application is submitted out of time, there will be NO right of appeal against the refusal decision. The Applicant must consider returning to their home country to re-apply for entry clearance as a Tier migrant since overstaying a refusal decision for more than 28 days would cause them to be banned from returning or unsuccessfully making an application to remain in the UK for a minimum 1 year period.
3. Incomplete or incorrectly drafted applications.
Likely to be returned by the Home Office to the Applicant requesting that the Applicant correctly complete the application with any additional supporting documents. However, if the application is returned by the Home Office to the Applicant AFTER their visa has expired, then the Applicant should not re-apply as they will fall into 2) above. The Home Office do not take responsibility for delay and lateness in notifying Applicants of their decision.
4. Failure to provide supporting documents for the Tier application in strict adherence of the guidelines i.e.: Example: Internet bank statements not showing stamp of the bank.
Refusal of Tier application on the basis that the Applicant has failed to comply with the Tier guidance requirements.
5. Applicant has failed to include or erroneously provided information which is correct (even if this was a genuine error by the Applicant).
Paragraph 320 on refusal: the Applicant may be banned for up to 10 years from applying successfully for a visa or re-entering the UK on the basis of the Home Office alleging that the Applicant sought to use deception in an application. If an Applicant has a right of appeal, they can seek to appeal on the basis of making an “innocent mistake”.
The Green Paper which introduced the system, A points-based system: making migration work for Britain, stated: “Applicants will find the system simpler to understand and the rules for entry clearer and more consistently applied. It will be quicker and simpler for employers and educational institutions to bring in the migrants they need, and there will be more certainty about whether prospective migrants will be able to come to the UK. The public will better be able to understand who we are allowing into the UK and why, and have confidence that the system is not being abused. It will also be more straightforward for entry clearance officers and caseworkers to administer”.
In reality, however, the points based system can be criticised as being a “fall down system”.
Immigration lawyers have noted that the design of the points based system effectively seeks to prohibit individuals from accumulating 10 years continuous lawful residence to apply for indefinite leave to remain.
There are arguably too many clauses in the guidance notes that make it difficult for individuals to follow and abide by.
A recent challenge has been made by a leading Barrister by the name of Michael Fordham QC, who led the assault on the entire points based scheme (for all points based system applications) as being unlawful or “ultra vires”, on the basis that the policy ‘guidance’ is unlawful, or at least cannot be law as it is not contained within the immigration rules.
It has been argued that the Home Office should use discretion in applying guidance and Immigration Officials must consider the underlying purpose of the guidance, not merely mindlessly apply its strict terms. It is expected that a decision will be released in the next few weeks on the matter. This could have a severe impact on the points based system overall.
To the untrained or unfamiliar eye, it may be best for individuals to obtain the advice of an experienced immigration solicitor in advance of making an application under the points based system so as to ensure that the lengthy Tier application form has been properly and thoroughly completed and so as to ensure that the documents the Applicant provides sufficiently and correctly support the Tier application, thereby giving the Applicant the highest chance of success.
By Raheela Hussain, Principal Solicitor of Greenfields Solicitors
Please note that the above article does not relate to nationals of the European Union. The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. For legal advice regarding your case, please contact Greenfields Solicitors for a Consultation with a Solicitor on 020 8884 1l66.