After my plea yesterday on Facebook for any advice or help regarding the recent devastating UKBA (UK Border Agency) decision to remove me from the UK based on what I see as a technicality, many people have requested more thorough details regarding my situation so they can offer further suggestions and pass along the details to others who may be able to help.
After posting these details online, I am going to respond to the UKBA “case worker” who sent the rejection letter (as I was advised by the UKBA) with these details and copies of everything I have. Unfortunately, because this should have been a simple case, I did not take thorough copies of everything. I am hoping against hope that what I do have will be enough.
I am also going to reach out to my MP (Rushanara Ali), the local Citizens Advice Bureau and the local Law Centre. Additionally, I’m going to try reaching out to Ben Hammersley to see if he is able to help – a long shot but one I have been urged to take. What I will not be able to do is hire a lawyer; sadly that is beyond my means. Any other suggestions or advice would be wonderful; this really feels like being the littlest guy having to take on the biggest, scariest guy in the room in a fight.
Thanks, everyone. For reading, for the support, for the help. You’ve been amazing and I will keep you informed on how things are going.
TL;DR version: I applied for the renewal before the expiration of a UK visa I am still absolutely eligible for, but due to UKBA not being able to process payment – I believe their errors, not mine – I have had to send in a total of four applications. The first three were ignored by the most recent case worker, and they are rejecting my renewal because the most recent application was submitted more than 28 days after the expiry of my visa. I’m being told to leave the UK with “no right to appeal”.
My application to stay in the UK, a process which began on 30 October 2012, has been rejected as invalid because I am being considered an “overstayer” and in violation of 189(iii) of UK Immigration Law. The letter outlining the reasons for the refusal clearly shows that the case worker completely disregarded any of the circumstances leading up to the most current application, as outlined in this reasoning in the letter:
“Your leave to remain expired on 1 November 2012. A valid application was received on the 1 February 2013, therefore your leave had expired for a period greater than 28 days and therefore your application falls for refusal under Paragraph 191 with reference to 189(iii) of the Immigration Rules as you did not have leave to remain at the time of your application.”
Here is the background story.
I arrived in the UK in November 2007 with a valid UK Ancestry Visa and have continuously resided in London since that time. For those who are not aware, there are essentially two criteria that need to be met (other than the obvious ones that you would expect) to be eligible for an Ancestry visa: You have to be a national of a Commonwealth country and you have to have a grandparent born in the UK. I am a Canadian with a paternal grandmother born in Scotland. As neither of those circumstances had changed, I expected the renewal process to be simple. I was wrong.
That visa was due to expire on 01 November 2012. Having been warned countless times that the UKBA punishes people for applying early, I waited until just before the expiration to submit my application by registered post on 30 October 2012. I received a letter dated 01 November 2012 confirming the receipt of my application. There is no doubt that it was submitted well within the 28 day window the UKBA affords applicants.
In December 2012 I received a package containing all my documentation and my application with a letter dated 18 December 2012 stating that my application was invalid as I had “not made any payment and have not completed the payment page of the application form”. It then stated that I should ensure “the payment page is completed before returning” the application. (emphasis mine)
I am absolutely certain that the payment page had been filled in both completely and correctly. Anyone who has been through a similar process will understand how meticulous you are to ensure there will be no issues whatsoever with such an important piece of paperwork. However, I did not take a copy of my completed application at the time before submitting it and the payment page was never returned to me so I am unable to prove beyond any doubt that this was indeed the situation.
I returned my application with a new payment page included on or around 20 December 2012 with a covering letter explaining why I was returning my application. Yes, this was beyond the 28 day window, but a) they had not notified me until beyond the 28 day period and b) because of the wording on the letter (to wit “returning your application”) I was lead to believe that I was still within the rights of my original visa as the application was still in progress.
I received notification on 31 December 2012 that my application had been received by UKBA. In a letter dated 12 January 2013, which was included with the return of all my documentation once again, I was informed that “the fee transaction accompanied with the application has been declined”. No such transaction is recorded against my bank account and no proof of such an attempt exists. Again, the payment page was not returned with my documentation.
I submitted my application – this time an entirely fresh copy as the form had changed since the previous resubmission – yet again which was received on 21 January 2013, confirmed in a letter of receipt dated 22 January 2013. This application was returned with a letter dated 29 January 2013, stating once again that I had “not made any payment and have not completed the payment page of the application form”. As with the first return letter, this also stated that I should ensure “the payment page is completed before returning” the application. (emphasis again mine)
So I returned the application yet again, which was received on 01 February 2013, as confirmed in a letter dated 02 February 2013. This time when I submitted the application, I took photos of myself including the payment page (I was getting very paranoid by this time) and included yet another cover letter referencing all the case and reference numbers I had been given as well as a full outline of the situation to date. On 18 February 2013 I sent a complaint email to firstname.lastname@example.org outlining the issues and poor service I had experienced. Other than the automated response stating that I would have a reply from them “within 20 working days”, I still have heard nothing from that department.
You can imagine my relief when I saw that £561 had been charged to my MasterCard by “The Home Office UK” on 07 February 2013. As payment had been the only obstacle in obtaining my visa renewal, I expected I was finally reaching the end of this ordeal. When I received a letter dated 05 March 2013 instructing me to have my biometrics taken, I was certain that the next correspondence from the UKBA would be my passport with my renewed visa.
Instead, on 22 March 2013 I received a letter dated 15 March 2013 which outlined why I was refused leave to remain, the reason stated referred to Paragraph 191 with reference to 189(iii) of HC 395 (as amended) which reads, “189.(iii) he is not in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded.” In brief, because my first three applications had not been considered one continuous process dragged on because of internal payment issues, the letter stated that I had now “overstayed”, a violation of the UK Immigration Law.
But have I “overstayed”?
Paragraph 6 of the Immigration Rules defines “Overstayed” and “Overstaying”. It reads:
6. In these Rules the following interpretations apply:
“Overstayed” or “Overstaying” means the applicant has stayed in the UK beyond the latest of:
(i) the time limit attached to the last period of leave granted, or
(ii) beyond the period that his leave was extended under sections 3C or 3D of the Immigration Act 1971, or
(iii) the date that an applicant receives the notice of invalidity declaring that an application for leave to remain is not a valid application, provided the application was submitted before the time limit attached to the last period of leave expired.
Emphasis is mine to illustrate that the 28 days in this situation should be calculated from the date of the notice of invalidity; in my case the three notices of invalidity. In each case, I responded as requested immediately and with all the details requested. At no point have I had an application submitted for processing beyond 28 days from the receipt of most recent notice of invalidity, and my original application was submitted before the visa expired. Further, paragraph 6 does not state that should there be multiple re-applications and notices of invalidity that the date considered as the start of the 28 day period will be reverted to the expiry of the visa.
Additionally, it should be clear that there are exceptional circumstances surrounding my application process. That there were issues with the payment process three times before I sent a covering letter stating that I had flagged the payment page and took pictures of its submission on the fourth application suggests that there are internal processing errors. That the “incomplete” payment page was never returned for review also suggests that the UKBA may have marked the page as “incomplete” in error. Especially telling is the return of the second application for a declined payment of which there is no record; a story that you can find told again and again online. My research has uncovered that legal advisors are telling applicants to send in cheques or bank orders, despite the larger costs, because of the high volume of applications returned due to UKBA payment retrieval errors.
I feel I am a victim of a broken process. To illustrate, I have received three barcode numbers, four case IDs and six reference numbers. Despite being told to “return” applications, each reapplication was treated by the UKBA as though we were starting again. It is clear that not one person referenced early barcode numbers, case IDs or reference numbers, even though I had included these each and every time I had corresponded with the UKBA.
That twice my application, containing my passport, birth certificate, banking information and other personal details was pushed through a shared letterbox into an unsecured hallway is also indicative that the UK immigration process is not functioning to a standard that one should be able to expect from the Home Office.
And finally, the lack of clarity around the visa renewal process and the extreme difficulty in trying to reach anyone within the UKBA also hinders the process; and I am an educated, native English speaker. I can only imagine the difficulty others must face in trying to effectively navigate their way through this jargon-ladened and frightening process. There is no help to be had directly from the UKBA; I never received a “case worker” name until my application had been already been rejected each time and even then there was no direct contact details offered. My email to the complaints department has gone unanswered.
I understand why there is a need to maintain a firm yet fair immigration system to deter and prohibit those who would try to enter and remain in the United Kingdom under false pretences or without entry clearance. However, there is no question in my case that I came to this country entire legally and with entry clearance. I have been in the UK for more than five years and at this point the only reason why my continued presence here is being deemed ‘not lawful’ is the fact that the UKBA was incapable of processing payment. It is one thing to have a firm immigration system, it is another thing entirely to have an immigration policy that is utterly inflexible and does not take into the slightest consideration the particular circumstances of the individual situation.
What has happened here is sadly a classic example of a thoroughly unreasonable, disproportionate, and inflexible application of policy without the slightest regard for the facts burdened by a system which encourages a lack of any common sense or humanity. We have case workers “just doing their jobs”; forced into making decisions which have immeasurable impact on people’s lives without being allowed the space for compassion or intelligence to fully consider the circumstances; driven instead by the policy makers, managers and others who expect them to reach and/or maintain specific numbers.
I believe I am due to be given a discretion based on the circumstances of my application, and that this decision be reviewed and a discretion granted on the basis that it will be exercised with a modicum of intelligence, common sense and humanity. We must ask what possible reason there could have been for not already exercising discretion in my favour by the case worker who reviewed my file. Certainly it is apparent from the letter of 15 March 2013 that no consideration whatsoever was given to the impact of forcing me to leave a country in which I have made my home for more than five years now.
Because my application was simply not logically regarded as one continuous process and because the UKBA returns applications as invalid instead of more reasonably requesting the submission of just the allegedly “incomplete” payment details, I am the one now looking to pay the ultimate price if this cannot be rectified: I am being asked to forfeit my life in the UK.