ARTICLE OF THE MONTH JANUARY 2017
ARTICLE OF THE MONTH
Rigidity of Home Office Decision-Making
It is a commonplace reality that the Home Office tends to be rigid in its immigration decision-making. The Home Office always has discretion to act more generously then the rules provide but they do not use it very often. And whilst there are provisions in the rules about “evidential flexibility”, experience shows that they are not used very often. Many migrants have fallen foul of Home Office decision-making because of minor or technical errors in their immigration application.
A subject that often arises in this respect is the timing of applications. There are rules which cover the timing of leave to remain applications, ie applications made in the UK by migrants who already hold leave and who wish to extend it, either in the same visa category or to a different one. Migrants are best advised to make their new application before their previous visa expires. But, if they do not, they may be able to make their applications “out of time”, ie late. Until recently the maximum period for out of time applications was 28 calendar days, but this has now been shortened to 14 calendar days (and only in some situations).
If a leave to remain application is made too far out of time it will be automatically refused by the Home Office, and of course this is something that applicants need to be well aware of.
But the situation is not quite that simple, because for an application to be “made” within the legal meaning it must be validly made. There are various situations in which an application may be deemed not to be validly made. For example if the Home Office cannot, for whatever reason, take the visa application fee successfully, or if the applicant has not filled in a “mandatory” section of the form, or perhaps even if they have omitted to provide passport photos or the passport photographs provided have been used in a previous application. In such cases an application may be rejected – as opposed to refused, ie the application is rejected without even reaching the consideration stage.
And in some cases in this kind of situation the applicant runs out of time to make another application. If they make an application just before or just after their leave has expired and they then wait a while and receive a rejection letter, it may too late for them to make a new application within the relevant time limit.
In such cases a desperate migrant might have no right of appeal to the Immigration Tribunal and might have to make an application for Judicial Review, a fraught process at the best of times.
And there are other areas in which Home Office decision-making is rather ruthless. For example, if one document is missing from a large and complex application they may simply refuse the application rather than write to the applicant and ask for it. And if there is a right to “administrative review” (a kind of appeal-lite remedy) there is no right to submit any additional documents with the administrative review application, so the administrative review application might in any case be pointless.
There are, in short, a lot of things that can go wrong. The various Home Office rules published on their website are – how shall we put it nicely? – a bit on the complicated side, and there are other laws which may be applicable to the application as well. So migrants are well advised to obtain good legal advice before embarking on an immigration application.