Chapter 04 (pp. 77- 106)
Chapter 4: Coming to the United Kingdom
Pages 86-87
ENTRY CLEARANCES OPERATING AS LEAVE TO ENTER
How do these entry clearances work ?
TA (Pakistan) [2007] UKAIT 00011
This case highlights the problem that may arise from entry clearance operating as leave to enter in spouse cases. In order to apply for indefinite leave after the probationary period, the applicant is required to have completed a period of two years as the spouse of a person present and settled in the UK.
If the 'effective date' on the clearance is given close to the date of issue, unless applicants enter the UK as soon as the entry clearance is issued, they , will fall short of the 'two year' requirement when they come to apply for indefinite leave after the probationary period. The Tribunal concluded that even where a person arrived in the UK within a few days of the issue of entry clearance and waited until the last possible day for his application for indefinite leave to remain, it would still be an application outside of the rules.
In that situation, the Tribunal approach was that the course for the applicant to take was to make a further application for leave extending the period up to two years. Of course this solution requires applicants to lay out for the additional (and increasing) expense of making two in-country applications in order to obtain indefinite leave, rather than one.
Page 89
APPLYING FOR ENTRY CLEARANCE
Which post ? The Foreign and Commonwealth Office list of designated posts has been updated.
Page 89
'Problems at particular posts' The British High Commission announced new visa procedures to be introduced in several Nigerian designated posts from 31 March 2006. From 16 April 2007, UK visa application centres, 'VFS' and 'UPS' will accept applications on behalf of the Commission and will forward those applications onto the Deputy High Commission. Only those requiring a visa as a matter of genuine emergency should contact the Commission direct.
SM and others (Entry Clearance - proportionality) Afghanistan CG [2007] UKAIT 00010
Where there are no facilities to obtain entry clearance but yet the appellant meets all the relevant requirements under the Immigration Rules and, but for the absence of entry clearance, s/he would qualify and the respondent cannot show that it is reasonable practicable for him to obtain entry clearance, the claim may succeed under Article 8.
Page 91
Fingerprinting
By the end of 2007 all applicants, with few exceptions (Heads of State), are required to supply 10 digit finger-scans and a digital photograph when applying for an entry clearance .
Page 92
Time taken to process applications
UK Visas presently states that over 90% of straightforward, non-settlement applications were resolved within 24 hours. If an interview is required, the aim is to process non-settlement applications within 15 working days. The aim is to process most settlement applications within 12 weeks.
Pages 97-99
General grounds of refusal
JC (Part 9 HC 395-burden of proof) China [2007] UKAIT 00027
In relation to all the general grounds contained in Part 9, Immigration Rules, the burden of proof rests on the decision maker to demonstrate the underlying facts necessary to exclude the applicant. However, once the decision maker has established the underlying facts, the burden shifts to the appellant.
RM (Kwok On Tong: HC395 para 320) India [2006] UKAIT 00039
An Immigration Judge is not limited to the issues set out in the refusal notice, and therefore can consider matters arising under para 320 HC 395.
