Can students who break visa rules stay in UK by appealing Asylum and Immigration Tribunal (AIT) and getting decisions overturned by immigration judges?
The Daily Telegraph reports that Home Office efforts to prevent foreign students from extending their visas have been overturned by the Asylum and Immigration Tribunal even when the immigrants have broken the rules by setting up businesses on the side or working for more hours than they are permitted.
In one case, a female student from Uganda was allowed to carry on studying in Britain even though she had repeatedly failed her examinations with scores as low as 31 per cent, after she told a judge that her poor marks were due in part to her suffering from scabies, the skin condition.
Phil Woolas, the immigration minister, said he was “disappointed” by the tribunal’s rulings.
The Conservatives have pledged wide-ranging reform if they win the next general election, including forcing some students to pay a bond of up to £2,000 a year which would only be handed back when they complete their course and leave the country.
It comes after revalations about how the AIT allowed Iraqi killer Laith Alani, who has served 19 years in secure hospitals after he stabbed two NHS consultants to death, to remain in the country after his release because he might pose a danger to people in his homeland if deported.
Other dangerous foreign criminals have been allowed to stay in Britain on human rights grounds.
In a new visa case uncovered by this newspaper, a 29-year-old Ghanaian student at the University of Sunderland was caught working as a security guard for more than the permitted 20 hours a week and the Home Office refused his application to remain in Britain.
But he appealed to the AIT, which ruled last September that deporting him would breach his human rights.
Peter Lane, a senior immigration judge, said in his ruling: “The public interest in maintaining an effective immigration control, whilst important, is not a fixity.
“It could well be said that respect for such a system is diminished by permitting the (Home Office’s) decision in the present case to stand.”
Damian Green, the shadow immigration minister, said: “It is alarming to find that individual judges do not see it as part of their role to enforce immigration controls.
“The all-pervading lack of confidence in the enforcement of immigration rules is only encouraged by this kind of decision.
“The key is to set immigration rules as clearly as possible so that they cannot be weakened by individual court judgements.”
In another case a 32-year-old Turkish man who came to Britain as a student was found by the Home Office to have set up a business, and officials refused his application for further leave to remain in the country as a self-employed person.
The appeal hearing, which also took place last September, was told: “One of the conditions of the appellant’s leave to remain as a student was that he must not engage in business and he was therefore in breach of the conditions of his leave.”
Yet the AIT overruled the Home Office’s decision and ordered that the Turkish café owner should be allowed to remain here.
Another case, heard in November, concerned an Indian student who arrived in Britain in 2007 and applied to extend his visa so he could complete his accounting examinations.
He admitted that he had worked more than 20 hours a week during the summer of 2008 and in February 2009.
Peter Moulden, a senior immigration judge, ruled: “Having worked in breach of conditions is a factor which needs to be taken into account in judging an appellant’s future intentions but it is not of itself conclusive against him.”
The student’s appeal was granted by the AIT, and the Home Office was ordered to reconsider its decision.
The Ugandan student, 30, was refused permission to extend her student visa because she had failed to prove she was making satisfactory progress in her course, as required by the Home Office.
The accounting student had switched colleges and had failed three modules of her course three times each. Two other modules had both been failed twice.
A Home Office lawyer argued that her academic progress had been “painfully slow”.
The student, who was not named, showed the AIT a letter from the NHS confirming an appointment with a dermatology clinic and said suffering scabies had affected her studies.
Kate Eshun, a senior immigration judge, said: “I am prepared to accept that the combination of the scabies and her unsettled immigration status could have affected her progress.
“The appellant is due to take exams in December 2009. She ought to be given a chance to at least prove that she has the ability to pass her exams. It is on that basis that I allow the appellant’s appeal.”
Sir Andrew Green, chairman of Migrationwatch UK, the pressure group, said: “There is a growing understanding, except among the judges, that immigration control is now essential to the future development of our society.
“Decisions of this kind seriously undermine it and render the student route a conveyor belt to permanent residency in Britain.
“With 250,000 students admitted every year from outside the European Union we simply cannot afford to have conditions which have been voluntarily accepted by the students undermined in this extraordinary way.”
Mr Woolas said: “The UK Border Agency vigorously opposes any appeal against our decision to revoke a visa. We are disappointed with the court decisions in these cases.
“We expect all those who come to work or study in the UK to comply with the conditions of their visas. Where we find that they are in breach of these conditions we will take action.”
A spokeswoman for the Tribunals Service said: “AIT judges are independent members of the judiciary who make their decisions based on the evidence provided to them, applying the current law to the facts as they find them.
“If either party believes the tribunals has made an error in its decision, they can apply initially to have the decision reconsidered by the tribunal, or apply to the Administrative Court, and onwards to the Court of Appeal.” Source: Daily Telegraph
Immigration Matters Comment
Has the Telegraph and right wing press got a valid point, or this kind of reporting another example of anti-immigration scaremongering?
What do you think? Should students or migrants who break the rules be allowed to stay in the UK, or should it really be ‘one strike and you’re out’?
Contrary to the views of the popular press, appeal decisions made by independent judges at the AIT are based on the relevant Law and not all decisions go against the Home Office.
Where the Home Office believes the decision to be wrong in Law, they can, and frequently do, ask for a ‘reconsideration’.
Students and other migrants who break the rules are deported at the rate of one every 8 minutes, according to the Home Office, in many cases after they have appealed to the AIT.
The idea that rule breaking migrants and students can have every Home Office decision overturned by an immigration judge is just not true.