IMMIGRATION MATTERS
SPECIAL REPORT
By Charles Kelly
Immigration Adviser & Director of Overseas Consultancy Services
and co-author of “How 2 Come to the UK to Live Work Study or Visit”.
www.how2cometotheuk.com

Danny’s Visa Appeal - The story of a man who just wanted a chance to work in the UK

When a Surrey Nursing Home owner arranged a Work Permit for Danny, an ‘in country’ Senior Care worker, in September 2004 he had no idea that it would take two years before he could start work. This is the story of one man's struggle to work in the UK and the remarkable determination of his employer, who just refused to give up.

The Nursing Home owner arranged a two year Senior Carer work permit for Danny, who was in the UK on a visitors visa. Their application for 'Further Leave to Remain' was denied by the Home Office following the tightening of the rules on 'switching' in October 2004. The employer contacted me for advice.

The Home Office were twice asked to review their decision during an eight month period. In both cases they refused to change the original decision leaving Danny no option but to return home in July 2005.

We successfully obtained a new 'out of Country' work permit and helped Danny submit an application for 'entry clearance' or a UK visa at his local British Consulate.

He was subjected to a gruelling interview by an Entry Clearance Office (ECO) who immediately picked up on the point that he had over-stayed his original visitor's visa and accused him of working whilst in the UK. Danny tried to explain that he had only remained in the UK whilst the Home Office were reviewing his case and holding his passport, but the ECO refused to listen and denied his visa application.

Danny also pointed out that he was supported by relatives during his time in the UK, but the ECO just fired one question after another until he had him tied up in knots. By the end of the interview Danny felt like he'd been 'on trial' for a criminal offence.

After reviewing the refusal decision I felt it was worth referring to an appeal specialist and contacted my good friend Mike, a specialist adviser with years of experience in handling entry clearance appeals. Mike agreed that the case was worth fighting and felt that Danny had a reasonable chance of overturning the decision.

Entry clearance appeal cases are heard in the UK

With the support of his family and employer Danny decided to go ahead with the appeal.
Dealing with an appeal is a long and complicated process and not just a matter of filling in the “appeal” section attached to the refusal decision. People make the mistake of thinking that all you have to do is ask for an appeal and then sit back and wait for a decision.

Appeals are heard in the UK, so the whole case gets sent back to the Asylum and Immigration Tribunal (AIT), something you should consider when appointing an adviser or dealing with an appeal from abroad. Before a hearing is set the AIT requests an 'appeal bundle', including arguments, statements and evidence, which can take several months of work. Many a late night was spent preparing Danny's case and going over all the statements and arguments, as well as researching case law and precedents.

Danny’s hearing was eventually set at Taylor House in London, one of ten centres around the UK. Eight months after the visa refusal Danny’s case would finally be heard by a judge.

On 6th April 2006, I met with our advisers and witnesses, which included Danny's relatives and his long suffering employer, at Taylor House. The waiting area was packed with clients, relatives and legal representatives. We searched the listings for Danny's name among the hundreds of cases being heard that day. The case was due to be heard at 10am, however, the Home Office representative requested more time to prepare her case and we were told to come back around 11.30.

Although not a formal court room setting with wigs and gowns, the experience of walking into a tribunal is still daunting and intimidating. The decisions made by the judge will affect the rest of the appellant's lives. I feel that holding the appeal in the UK gives the person a fair chance to have their case heard on neutral ground.

We saw many families turn up on behalf of relatives with no legal representation or any idea of the court’s procedures. As they nervously asked the clerks questions I could not help feeling that they were about to be ‘swallowed up’ in the system. I talked to one family from the Philippines. Their dependant children had been refused entry clearance and they had submitted an appeal after taking advice from a Lawyer in the Philippines. Unfortunately, the Lawyer could not provide any representation in the UK and the family were left to fight the case alone. I did not meet them again and wondered how they got on.

45 minutes to make or break your life

The judge dealing with Danny's case was businesslike but pleasant and sat behind a large desk with opposing legal representatives sitting on either side. The room was just large enough for the desks and six chairs for witnesses. He interviewed all the witnesses and took notes during the 45 minute hearing. Not a very long time to decide Danny's fate.

The hearing was held in a calm, typically British manner, with none of the dramatic interventions or badgering of witnesses you’d expect to see at the Old Bailey. The judge then thanked everybody and said he would inform all parties of his decision within four weeks. The hearing was over but the agonising wait for Danny was just starting.

Good news arrives, but the struggle goes on

A few weeks later, on 26th April, a letter arrived informing us that Danny's appeal had been successful. We sent a copy of the decision to the British Consulate asking them to issue the visa.

If Danny was expecting a call from the Embassy staff to say "congratulations on your appeal Danny, come on down and get your visa", he was about to be disappointed again.
In fact it took numerous faxes, emails and phone calls before the Embassy would even acknowledge the appeal decision. The Embassy still gave Danny a hard time and only issued the visa after insisting he obtained yet another work permit.

Danny arrived in the UK on 15th June 2006, over six weeks after receiving the appeal decision and two years after landing the job. Danny was lucky that he had the support of his employer as many would have given up on him.

The majority of the hundreds of thousands of people denied visas each year will inevitably give up or lose the job because the employer cannot afford to wait. The figures show that over 25% of refusals are successfully overturned on appeal, so take professional advice before throwing in the towel.

For regular immigration updates see http://www.immigrationmatters.co.uk