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22 June 2010. 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 assista
nce 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 founds the Tier points based system unfair and difficult to satisfy for many Applicants.
Many Applicants have founds themselves “caught out” by their not abiding by a certain paragraph in the guidance notes-many guidance notes in fact resembling 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 table below summarises common problems encountered by Applicants and the consequences when refused a visa when making a Tier visa application:
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 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.
Guide dated: 22 June 2010
By Raheela Hussain
Principal Solicitor
Greenfields Solicitors
For any questions regarding the subject covered in this guide, please register in our forum and post your question under the appropriate category.
Disclaimer: The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. Information is offered for general information purposes only, based on the current law when the information was first displayed on this website.
You should always seek advice from an appropriately qualified solicitor on any specific legal enquiry. For legal advice regarding your case, please contact Greenfields Solicitors for a Consultation with a Solicitor on 020 8884 1l66.
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