Gone are the days when the Home Office presenting officers’ brightest ideas on fudging their appeal statistics were to deliberately misrecord the results on CID as “allowed on human rights grounds” instead of “allowed under the immigration rules”, so that it will look like Home Office was never wrong in the first place (appeals allowed on human rights grounds are not counted in their internal statistics as failures). But imagine winning in the Tribunal, but then waiting MORE THAN A YEAR with UKVI simply stonewalling requests to implement the decision – to later find out that HO had NEVER RECORDED AT ALL that they lost? This has been happening recently, as something they now resort to in addition to other well-weathered delay and sabotage tactics.

My client whose appeal was allowed following a hearing on 2 March 2017 at Hatton Cross — well over a year ago! – is still waiting for his residence card, and the best I can, HO is just having a laugh, as they have had when they illegally hounded and persecuted this particular family, I must add, for almost 5 years prior.  Not only have they found it fit to file for permission to appeal on this purely factual case, and not only was that PTA pending for a stunning 7 months, but after their PTA was refused, they simply ignored that fact.

This would seem particularly stupid, especially considering that application for permission to appeal, whether granted or refused, is only an application for PERMISSION to appeal, eg it is useless either way if you do not, hm, appeal. They did not. I made numerous enquiries with my personal contacts at the Upper Tribunal to make sure they have received no filings either way in this case (for either second PTA or an appeal they may have filed if they were somehow mistaken as to results o the first PTA). Nothing.   Since 13 October 2017 when their PTA1 was refused, they (Special Appeals Team at Fleetbank House, I presume)  filed nothing further. And why would they, if they have discovered a much cheaper way to circumvent justice – simply entirely ignore the process and refuse to implement appeals? No, not refuse. Pretend none of this ever happened. Not record results on CID at all.

After that, it enters an endless loop of idiocy HO is so good at. Suppose we call, write, email, then client goes to an MP and the MP writes, we send pre-action protocols — accompanied, obviously, by actual printed copies of allowed appeal determination and their PTA refusal — but we get nothing, except laughs and “your client just has to be patient”.

Any HO employee that opens the CID sees that the appeal is pending, or PTA is pending — in fact, later reading the notes on SAR records I saw one genius stating that “PTA was successful”, obviously they don’t have brains to figure out that PTA cannot be pending for a year, or that it being successful (which it wasn’t) it itself wouldn’t have been a reason not to implement the decision 6 more months later, if you failed to actually file the appeal you were seeking permission for!

So when you send a pre-action protocol, which are now triaged initially by witless Capita morons with not enough GCSEs to go to 6th form, they do not really even send it to “EU litigation team” or anywhere, they send us a letter “your client has to wait”, same for MP enquiries. HOPO unites themselves, when we write to them, obviously do not open or read correspondence at all — or maybe they DO, and have the same laugh. Post-decision casework obv has not heard of the guy (I must say, he did receive a fee award but I assume it’s been processed by the same HOPO that then decided to not record the result, so it never got to PDC).

I have recently filed a COMPLAINT — because all of this seems to me   to be part of systemic misconduct – but I must say, the tactic is brilliant. If you pretend something never happened, this instantly flips the table on the losing party – we, the winning party, start looking crazy, after a year of letters and calls, and they just continue to look cool in the mirror! There is surprisingly little you can do after ONE PERSON fails to do their job.

A few months back I was elated to hear a Conservative MP Rehman Chishti challenge the extraordinarily inept  then- immigration minister Brandon Lewis and other Home Office officials on presenting officer delay tactics, and specifically meritless PTA applications designed to only obstruct successful appellants. One thing he clearly didn’t know, is that it takes AGES for SSHD PTA to be refused, when the only effect of it being pending is that it sabotages appeal implementation, and then if a failed Appellant files a PTA, it is refused almost immediately! All around the same period of time — how can this be an accident then, as well? Seems like the Tribunal, consciously or not, is in fact complicit in HO delay tactics as well.

Not sure how Mr Chishti feels now about pursuing this further, that he’d been apparently made vice-chair of the Tory party with Mr Lewis himself being chair, but in desperation I have recently send him the below email:

****

Dear Mr Chishti

I am an OISC Level 3 immigration adviser, and, occasionally, as everyone else, I deal with Immigration Tribunal appeals. I write in respect of your work on Home Affairs Select Committee.

I am sure I will speak for all the practitioners in this field when I thank you (belatedly) for your comments on the Brexit and Immigration hearings at the Home Affairs Select Committee 21 November 2017.

More specifically, you rightly challenged [the now irrelevant to the field] Mr Lewis on competency of Home Office presenting officers, and a number of unfounded applications for permission to appeal to Upper Tribunal, that they file.
You cited Justice McCloskey’s comments on that.

I also know that you have, in the past, pursued the topic of HOPO competence and performance.

In case you plan to further pursue specifically the issue of applications for permission to appeal to the Upper Tribunal filed by the Home Offfice, I thought you might be interested, in that context, in some further observations  on the same subject that I have made.

Further to your very apt comments that HOPOs file gratuitous and unfounded applications for  permission to appeal  (PTA) to Upper Tribunal in cases they have lost (I must add, that a number of those are filed challenging factual findings of the first tier tribunal, not legal questions as would be appropriate), two further worrysome issues have emerged, that seem to both point to consistent subversion of implementation of allowed appeals:

(a) a bizzare and worrying disparity in processing times by the FTT of PTA applications filed by SSHD, versus those filed by dismissed Appellants.

I had an allowed appeal in a K**** case ( EA/02242/2016), hearing took place at Hatton Cross 2 March 2017, decision promulgated 29 /3/17. SSHD filed a completely gratuitous PTA application which was held for SIX MONTHS, with her application refused 13/10/2017. This having obviously an effect of the implementation of a decision favourable to the migrant gratuitously postponed for months.
Yet even then I’d not have thought this to be any sort of orchestrated sabotage, but for what occurred afterwards (see “b” below).

Were FTT PTA processing times just so long that they all took 6 months last year  to decide, across the board? Oh, no.

Around the same time, I was approached by client S**** (EA/0523/2016) whose appeal was dismissed at Taylor House on 11 October 2017 (I did not represent her then).
She filed a PTA application to the UT on 22/10/17, which was very promptly refused less than 3 weeks later, on 13/11/2017 (they were notified on 29/11/17) .

So how exactly is it, that when the (usually hopeless) PTA application is filed by SSHD then it is pending for 6 months, with effect of indefinitely postponing implementation of the allowed appeal;

and yet, when the same application is filed in the same period of time by a dismissed Appellant (let’s be honest, often with a view to prolonging their stay in the UK or permission to work), it is promptly dismissed in less than a  month?
Clearly FTT uses two completely different processes here?

(b)  One could somehow put all of the above to a terrible maladiministration, rather than a sinister plot.
Yet, it would be instructive to see what happened to the above K*** appeal, which was – now –  allowed more than a year ago, afterwards after the SSHD PTA application was refused. Nothing.
The SSHD made no further applications (something I verified relligiously multiple times with both tribunals).

However, the Appeal was still not implemented and all attempts to communicate to relevant UKVI units were met with silence or, puzzlingly, assertions as recently as this February that the appeal was “pending”.
A recent disclosure of CID case notes shows that HOPO unit simply failed to make a note on CID that the PTA application was refused.
As far as any stakeholders that were supposed to act to implement it were aware, it was still pending.
I surmise that HOPOs get penalised for losing appeals.
Yet there appears to be no mechanism to assure that HOPOs record results appeals in which they failed on CID, correctly, in timely manner, or at all, or that they are in any way penalised for failure to do so – which, you would think, were accidental, unless it were a steady pattern.
They clearly deal with avoiding being penalised for lost appeals, by failing to record on CID that they have lost.
This causes months of anxiety, loss of earnings, etc to an Appellant who had been told that they won a year prior, and still got nothing.
I hope you find these to be interesting venues for further enquiry.
Last but not least, I have previously highlighted on my blog what I also believe to be a malicious pattern of HOPO behaviour in respect of misrecording of lost appeal resuls on CID.
The Home office appears to maintain a separate statistic of Appeals allowed under the EEA Regulations and Immigration Rules (eg those cases that should have been granted by the SSHD in the first place, so called reversed decisions), versus appeals allowed “On Human rights grounds only” (a phase used in HOPO internal reporting), in other words, meaning appeals allowed in consideration of rights arising under Article 8 ECHR  notwithstanding the Appellant’s failure under the Immigration rules.
The Home office, by and large, appears to consider the former category as some sort of failure rate, yet ignores the latter as being inevitable and nothing much they could have done anything about.
So, to brush up on their statistics, they misrecord the allowed Appeals on CID (and in their internal stats) as being allowed on “HR grounds only”, even when in fact they were allowed under the Immigration Rules.
I have now seen more than one instance of this — and this , of course, is virtually impossible to detectfor many migrants, because their Appeal is then implemented and they receive documentation sought.
Yet, this becomes very relevant when suddenly later their naturalisation applications are refused.
I had a client two years ago, who had previously won an appeal following an ILR application based on long residence. Appeal determination clearly said he won under the Immigration Rules (the effect of which in that particular case would have been, that he was in the UK legally throughout).
Yet, his naturalisation application was refused on character grounds, claiming that he had been in the UK illegally until leave was granted to him “on human rights grounds”.
We made a SAR for disclosure of CID notes and discovered that Appeal result was recorded as “HR only” even though tribunal determination very clearly stated otherwise. After publicising this on my blog at the time, I was approached by a number of other people who had discovered similarly misrecorded appeal results in their own files.
.
In other words, the work of HOPO units is a shady area of UKVI practice, where questionably qualified people act with little to not accountability, and with an absolutely concerted effort to continuously undermine implementation of Tribunal decisions favourable to the Appellants.
I hope you will continue your good work on this and other issues, and please continue to challenge our Immigration ministers on this.
Sincerely,
Olga Childs, LLB,MBA
World Without Borders LLP

 

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