Charities and internal investigations
The media has widely reported today that the UKBA has a backlog of around 16,000 cases, some of which date back a decade, as uncovered by John Vine, the Independent Chief Inspector of Borders and Immigration. For those of us representing clients in this arena, this news is hardly surprising. The UKBA is racked with delays across many of its areas of operation and these are bound to increase as limited resources are spread ever thinner across the agency.
John Vine’s inspection of the processing of applications for leave to remain or entry clearance to the UK based on marriage or civil partnerships found that 14,000 such cases were awaiting a final UKBA decision at the end of September 2012 and this figure was rising by 700 cases a month. There were another 2,100 cases where the UKBA had made no initial decision at all, some of which had been submitted around ten years ago. These delays place applicants in limbo-land, being unable to travel and in many cases unable to live with their family members while their cases are assessed by the UKBA.
This finding echoes our experience with applications submitted by post within the UK and with complex applications in particular. It is not unusual for an application submitted by an individual in a complex factual situation or against a complicated legal background to sit with the UKBA for many months, if not years. Indeed, our advice to clients in this situation would be to expect to be kept waiting for the medium-term and certainly not to make any commitments outside the UK until word is received from the UKBA. The quantity of cases subject to these delays is astounding, but the fact that these delays exist is not in itself surprising.
Delays in UKBA processing exist widely in other parts of the UKBA. See our blog from September 2012 on delays in processing of sponsor licence applications and on the issue of the delays in removals that have now been handed to Capita. The UKBA now also has on its plate for the first time applications from UK businesses to renew their Tier 2 sponsor licences (see also PLC article “Immigration update: Managing compliance and sponsor renewal”) and initial indications are that these renewal requests are entering another black hole as sponsors are not being informed of a decision on their applications months after they are made. Sponsor licences do continue in effect until a decision is made on the renewal, but the uncertainty of not knowing when to expect a decision is the last thing that British businesses need in these worrying economic times.
In other areas, largely as a result of pressure from global businesses struggling with the UK’s immigration administration, improvements have been made in recent months. Tier 2 sponsor licence applications are now dealt with much more quickly in many cases and the pilot Tier 2 priority postal application route is a roaring success. It allows Tier 2 applicants to have their leave to remain applications dealt with within a week or so without having to attend one of the Public Enquiry Offices and pay the premium service fee – attendance being at one of three London Post Offices instead. The dedicated UKBA phone line set up for businesses has also been welcomed. But these improvements demonstrate the somewhat erratic approach taken by the UKBA. There is an inconsistency in service levels that renders dealing with immigration matters confusing at best for those unaccustomed to the system.
One reason behind the delays in the family based applications is that the system itself is now so complex. Since the spouse rules were amended in July 2012, applications are so complicated to deal with that Entry Clearance Officers at UK embassies are referring cases back to the UKBA in the UK for guidance as they cannot interpret their own rules with any certainty.
Perversely, when applicants rely on a human rights based claim, a delay in the processing of their applications can actually be to their advantage if they are already in the UK. As long as they maintain suitably regular contact with the UKBA, the extra years spent here with their family members or spent building their business in the UK, can add weight to their claim that to remove them from the UK would be a disproportionate interference with their human rights.
Immigration practitioners can feel some sympathy for UKBA officials trying to do battle with this volume of applications across such a wide range of matters. Their staffing and resources are being cut at a time when media attention to their activities is high and the UK economy needs them to do their jobs effectively and efficiently. The politicians set their priorities, moving these limited resources from one crisis point within the UKBA to another according to the political agenda prevailing at the time. In summer 2012, the priority was border control to smooth the way for the Olympic visitors to enter the UK without hitch. The focus will now be shifted to this latest backlog of family based applications. But this just means some other UKBA unit will most likely suffer staff cuts and another class of applicants will bear the brunt. Will it be the UK businesses awaiting decisions on their Tier 2 licence renewals? Perhaps those UK employers awaiting advice from the UKBA via their Employer Checking Service on whether applicants for their jobs have the right to work in the UK (delays of around six months are now common)? Or Tier 2 licence holders awaiting action on their change requests made via the UKBA’s online Sponsor Management System? Whoever loses out, there is likely to be an impact on the UK economy as businesses and highly skilled individuals lose faith in the ability of the UK to properly administer our immigration system.
The government needs to re-examine its pledge to reduce net migration to the tens of thousands and concentrate on developing a comprehensive immigration policy and operations function that is capable of dealing with the applications it receives within reasonable time frames. These latest delays are an embarrassment to the UK and cannot help our economic recovery.
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