I was at the Asylum and Immigration Tribunal (AIT) in London yesterday on an appeal case for an entry clearance refusal against an NVQ student visa applicant in Mumbai, India, which we won.
The case heard just before ours at Taylor House concerned an appeal against an in-country refusal for an application under Tier 2 skilled worker.
A Zimbabwean Nurse had been refused further leave to remain, or grant of leave under tier 2, because she had not demonstrated that she had £800 in her account for three months prior to her application.
Her legal representative argued that it was her employer who had completed her application and she was not aware that proof of funds needed to be submitted.
It was “natural to assume”, the Barrister said, “that because the employer was a points based sponsor under Tier 2, they should have been aware of the rules and requirements”.
The nurse had submitted bank statements for her current account, which did not have much in the way of surplus funds, but not the savings account, which had more than sufficient funds to satisfy the rules.
Although she should have checked the requirements herself before submitting her application, fortunately the Immigration Judge was sympathetic and allowed the appeal.
The case highlighted the common problem of employers effectively acting as unlicensed immigration advisers by advising their staff and completing immigration applications on their behalf.
It is a criminal offence to give immigration advice without being registered by the OISC or the Law Society or Bar Council.
Employers could argue that they are merely helping their employee complete forms and not offering immigration advice as such. After all, they are authorised to issue the Sponsorship Certificate of employment, so why shouldn’t they be allowed to help someone with a few forms?
There is a thin line between giving information and offering advice.
For instance, if your bank employee informs you that their latest savings account pays an interest of 1%, they are giving you factual information.
But when you ask if this is the best account for your needs to save for your retirement or a house, they must refer you to a financial adviser, for a full review, as this involves giving financial advice.
A few years ago, overseas recruitment agencies which routinely completed Work Permits forms, as part of a package, for nurses coming to work in the UK were forced to register with OISC as level 1 immigration advisers. The immigration regulator insisted that completing WP1 forms was deemed to be carrying out immigration work.
In the above case, where the employer had allegedly taken control of the forms on the workers behalf, it could be argued that they were acting as an unauthorised immigration adviser.
Regardless of who did what, fatal errors were made on the application, which almost cost the migrant her livelihood in the UK.
It should be remembered that whoever completes any immigration form, it is the applicant who signs the document declaration that the information in true and accurate.
Under Tier 2 of the Points Based System, employer sponsors now have the power to issue a Sponsorship Certificate (which replaced the old Work Permits last November), to an overseas migrant worker before the information is verified by a UK Border Agency case worker.
Immigration Adviser and Work Permit specialist Evelie Padadac of Bison UK, has seen a number of Sponsorship Certificates issued in error by employers, where the application clearly fails to meet the rules.
“Employers are not always aware of the rules when issuing a certificate of employment to their workers and the application for further leave is later refused leaving the migrant at risk.
“The employer may lose the certificate and the £170 fee, but the worker can lose their right to remain in the UK”, said Evelie, who has handled a number of botched applications.
Common mistakes include failing to advertise the position correctly or at all, incorrectly completed applications and applicants or positions not meeting the criteria.
Applications are even being rejected because the photograph does not meet the exact specification.
Errors are only picked up by UK Border staff at the point when the grant of leave application has been submitted, by which time the visa has often expired.
In the past, caseworkers had more discretion to make decisions and sort out minor issues without rejecting an application.
In one recent case, a Filipino Senior Care Worker and his employer had submitted two incorrect applications to the UK Border Agency, which were both rejected and then refused.
By the time they had pieced together a correct application, the Sponsorship Certificate had expired, by which time his existing visa had also expired.
The worker, together with his dependant Wife and two children were about to be sent home to the Philippines.
The entire family’s passports had already been forwarded to the local enforcement office to arrange removal when he consulted Bison UK.
Evelie and Jerry (a senior level 3 adviser) immediately contacted the UK Border Agency and then got the employer to issue a new Sponsorship Certificate, which was submitted with a correctly completed fresh application together with a professionally drafted letter of explanation.
After several exchanges between the caseworkers and enforcement officers, the new application was eventually approved a month later.
The family were spared the indignity of an official removal from the UK and a possible ban for over-staying.
These refusal cases are not uncommon and highlight the dilemma faced by vulnerable migrant workers who, not wishing to ‘rock the boat’ or upset their prospective employer, are often too scared to recommend using their immigration adviser to complete their applications.
Employers cannot be expected to keep up with the myriad of immigration rule changes and what effect they have on the status of migrant workers and their families.
At the end of the day it is usually the migrant’s neck which is on the line, so it makes sense to take professional advice.
For a list of immigration advisers in your area see the OISC website, listed in the ‘Links‘ section of Immigration Matters.
If you need any immigration advice or help with Studying in the UK, Settlement, Citizenship, Sponsorship, extending Work Permits, Visa or an appeal against a refusal please email: