If ever there was a more striking tale of good intentions paving a road to hell! And it all started to nice. Before 2012 we had discretionary leave that tended to be granted to spouses of British citizens who did not meet the requirements, usually because they were in the UK as visitors or unlawfully – but had a very small British child. Some women who gave birth to a British child of a man they had not been married to got it as well. In 2012, it had been brought into the Immigration Rules as a “10-year leave” – one that is available to those who fall short of ever more complicated spouse or parent requirements, including financial, English etc.
The “10-year route” was generally lauded as a predictable, universal shield for applicants who – crucially – would otherwise be left without status and, as such, vulnerable to interference with their parental rights – and in response to EU jurisprudence that states that British citizen children cannot be expected to leave the EU. It was also a key feature in the government’s drive to minimise immigration appeals, all but phased out in 2014. They are now available only on human rights grounds, and that means – to people otherwise without leave to remain. The 10-year route solved this problem.
Those who knew they did not qualify for a regular spouse or parent leave, because either English, or financial/maintenance requirement was out of their grasp, could and did apply to it directly – and in fact this became one of the most popular applications for overstayers – and, very importantly, an internal policy direction was issued for caseworkers to consider every applicant for leave to remain on a 5-year route, who, in their view, fell for refusal for failure to meet one of the requirements (usually the financial requirement), for 10-year route instead. So if a person applied for a leave to remain as a spouse or parent on a regular 5-year route but CW was going to refuse the application, a leave on a 10-year route would be granted instead. That way the applicant is not left without status and is not appealing on human rights grounds, or at all.
Sounds great, doesn’t it? It would, unless it were to be executed by the most hateful, disorganised, mismanaged and least qualified civil service force on the planet. Since this is what we have in the UKVI right now, however, the toxic, immigrant-hating Home office immediately found a way to use this well-intentioned policy to wreak lives, instead of helping people. When confronted, as usual, most of its low-level employees are too stupid to even understand what you are talking about, and the higher-up people just deal with it by never engaging with cases any longer unless The Guardian featured them.
The problem is very simple. They told low-level employees about the 10-year concession policy, but seemingly forgot to emphasize that this is designed for people who would be OTHERWISE LEFT WITHOUT LEAVE TO REMAIN. Obvious, right? So if you have a well to do family, for instance, where wife entered as a spouse on a 5-year route, and then made an application for LTR- well ahead of time while she still had extant leave — that falls for refusal on a technicality (in my extant case, she had an application date misunderstanding as described here) – one should NOT be giving her a leave on a 10-year route, because it unlawfully cancels her existing leave!! This is a concession designed to catch those who would otherwise fall out of status, not to take status away forever from people who have it!! What happened to applicants with extant leave at least being contacted to ask if they WANT a different status? what happened to her absolute right to keep the status she still has?!
Under the docs in extant case it was 100% clear that the family has funds and in fact would be successful in LTR on a 5-year rote if they reapplied immediately. Which they did, and did so on a date their original leave under 5-year route would have still been valid. All we want now, is to get rid of the 2 weeks of interim wrong leave that was given to them in error and they never asked for, so as not to break continuity of their 5-year route leave. You think it’s be easy to turn a grant into a refusal, right? What can govt possibly have against it? Wrong.
The fact that 10-year concession is designed for those who would otherwise be without leave, is should be an obvious qualifier to anyone with a baseline IQ, but unfortunately, with low pay and high turnover, baseline IQ is no longer a requirement for caseworking work at the Home Office. Since I hate stupidity more than I hate anything in the world, this is what largely drove me to quit the field in the UK. We constantly try to operate the system that was designed to assume a certain baseline capability level, staffed by temps or other individuals who fall so short of that capability, that procedures we design are simply incapable of dealing with the kaqkaesque outcomes.
Now, you would be surprised to hear that there is no recourse at all for these families. In fact most lower level HO employees lack IQ level necessary to even comprehend what is the problem with their actions is. In funny ways, while there are some ways to dispute refusal, there are virtually no way to dispute an arbitrary grant of leave you never asked for, even if that unlawfully cancels you extant leave of a different type. You literally need to file for Judicial Review, and even then you’d have to fight though a thick forest of incompetence, where your initial paperwork would medical malpractice solicitors who sit as judges, or New Zealand lawyers for whatever reason hired by government legal services. None of them would have the slightest idea what you are talking about.
Appeals are now on human rights grounds and so are only for those without leave to remain — you can’t file one, if you have leave to remain. Admin review, suitable for a wrong type of grant, is unavailable under Appendix FM, for whatever stupid reason. There is literally nothing you can do, and certainly not once you quickly reapplied and got correct leave again. No one understands that you need the 2 weeks of wrong leave canceled. After two dozen of letters etc I suggested to wait until ILR under 5 year route would be due and fight in in JR afterwards. But levels of stupidity and irrelevance of response we got to this absolutely harmless and obvious request, are soul crushing. This one case is a grand finale, everything that is wrong with the Home Office today in one.
True injury is of course also ongoing. Normally, when leave to remain is applied for in quick succession for overlapping periods, IHS is refunded. This is a rule. It is not in any sort of debate or dispute. If you apply for LTR and are granted 2.5 years and you paid IHS, and then a week later you apply for LTR for 2.5 years again and paid IHS again, the caseworker granting the second application refunds the excess IHS. It’s a rule. Why have this family also had £2000 STOLEN from them? why am I suddenly finding myself writing letters and PAPs on this and reading incredibly illiterate answers stating that not a cent is due to them, from the robot Capita PAP response team? When have we become United Kingdom of Idiocy? This is not in any sort of dispute, of course refund is due! it’s in all the operating procedures. why the bull***t? why can’t they just give back the money?!
Ironically I think I know the answer, but – even more ironically – I also know there are maybe a total of 3 to 5 people in the whole UKVI capable of understanding this answer. It goes something like this. Pay attention. Application No 1 IHS was paid and leave granted. Application number 2 in two weeks – IHS paid again and leave granted again, for the same period. Overlapping IHS should be refunded by CW 2 from IHS paid with application 2. But the CW that was considering the second application had the benefit of my very expressive covering letter explaining that we seek cancellation of leave granted as a result of application 1; and such a cancellation would of course automatically refund IHS paid with application one. He figured, it seems (from my back and forth email with SCW referral team for that unit) that he did not think he could cancel the previous leave and that he maybe (waiting to see it that was true) referred this request to PDC (post-decision casework), as generally would be appropriate. But clearly that uncertainty led him not to refund the second IHS, because, if the first leave were to cancel and also refund, then no IHS will have been paid at all.
Now the whole thing stalled – no word from PDC, no money, and the two weeks of leave no one asked for that has been forced on to these people absolutely unlawfully, and equally unlawfully removed the leave they were happy to keep. The sh**t show goes on. I will post updates here, if any.