Visitors consultation

A Law Centre (NI) response

March 2008

1. General Comments

It is unclear from the document why the Government feels it is necessary to introduce this complex set of proposals.  The consultation document does not seem to be clear about what the problems are with the current system that require remedy.  The Government has argued that there is a need for a simpler and more transparent immigration system generally but it appears that the main consequence of the introduction of these proposals will be to further complicate an already overly complex and bureaucratic system.  We are concerned that the proposed imposition of several rigid categories that visitors must choose from prior to entry will not only have the potential to be confusing but also disregards the fact that individuals travel to the UK for more than one reason.  The proposals will create unnecessary administrative burdens for both the Home Office and individuals seeking to come to the UK.

Specific Questions

2. Tourist visitors

2.1  Do you think the current maximum leave for tourist visitors should be reduced? If no; why not? If yes, do you think the maximum leave for tourist visitors should be reduced to one month, two months or three months?

We would prefer the limit to remain as it is currently and see nothing in the consultation document to suggest why such a reduction is actually needed.  Indeed, as the document points out, 1.1% of all visitors (approximately 65000 individuals) do stay longer than 3 months.  In our experience there are numerous reasons for individuals wishing to stay beyond 3 months, including those wishing to take extended holidays or those visiting unwell relatives or settling dependants at school or higher education within the UK and we can see no reason given for making it more difficult for them to do so.  We would also be concerned that a reduction would lead to an increased number of renewal applications which could increase administration costs and lead to backlogs in processing applications.

2.2  Do you think we should introduce a group tourist travel visa? If yes, for which groups should the group tourist travel visa be made available?

A group visa would be beneficial to those groups wishing to come to the UK and would also benefit the tourist industry in the UK.  We are unable to comment on which specific groups should be eligible for a group travel visa but would recommend that such a visa should be widely available to groups wishing to enter the UK.

2.3  Do you think the group Tourist travel VISA should be time limited? If no, why not? If yes, how long do you think the visa should be valid for?

Whilst we anticipate that it is unlikely that group tours will wish to remain in the UK for a prolonged period, we see no reason per se for establishing a shorter timeframe for this type of visa.

2.4  Do you think a specific category of events visitor, included under the tourist category, should be created for major sporting and cultural events? If no, why not? If yes, what type of events do you think should qualify for inclusion in an events visitor subcategory?

2.5  Do you think the events visit visa should be time limited? If no, why not? If yes, how long do you think the visa should be valid for?

Our concern with this visa is that it could be used to restrict access to the UK. The main consequence of this proposal may be to make the visa system more complex and difficult to navigate.  It would be preferable to use the current tourist visa or the existing visitor visa to meet the requirements of this group rather than introducing a new category of visitor within the immigration system.  We are also concerned that this proposal could put more people at risk of violating immigration law.  For example, a visitor to the UK who entered the UK on an events or Olympic visa and who decided instead to tour the UK as a tourist may then be in contravention of the immigration laws, and hence be an illegal immigrant and potentially subject to removal, even though both visits could be categorised as vacations.  It is the similarity between these two categories that we would argue is substantively different from the current situation where an individual carrying out business on a visitor visa could be liable of an immigration offence. Determining whether this category of visa has been breached could be extremely onerous on the immigration services.

3. Business and special visitors

3.1 Do you think a specific category of business and special visitors should be created? If no, why not?

As with our comments above, we would argue that such a move is unnecessary and will result in a system that is unnecessarily complex to the detriment of the business visitor, the UK economy and the resources of the UK immigration service.

3.2  If we have a business and special visitor category, what do you think the maximum length of time a business visitor should be allowed to stay in the UK should be?

As we noted in our responses above on this matter, there seems to be no evidence given as to why such a move would benefit the UK.  The government needs to produce firm evidence for the need of such a change.  It seems incongruous with the aim of promoting business in the UK that those coming into the UK on business should be allowed to stay in the UK for a more limited time.

3.3  What activities do you think business visitors should be able to undertake whilst in the UK?

3.4  What options should be available to make travel more flexible for business visitors?

3.5  Please indicate which of the following activities, if any, should be included in the list of activities permitted by business visitors.

We have no specific comments in relation to 4.3-4.5.

3.6  Do you think that within the business/special visitor category there should be a specific subcategory of special visitors to bring together the current special visitor routes? If no, why not?

3.7  If yes, do you think that we should include academic visitors under the special visitor route? If no, please explain why.

No.  We consider that this would further and unnecessarily complicate the immigration system.

4. Sponsored family visitors

4.1  Do you think a separate category for those wishing to visit family in the UK should be created? If no, why not?

No. We consider it to be too simplistic to suggest that the reasons for an individual’s travel will match neatly the outlined choices.  The necessity for these proposals is not made by the document, nor do the documents set out why it is a good thing that individuals are forced to make such decisions.  How would a person visiting a sibling to discuss the family business and spend a day in London and a day at the Olympics be helped by these confusing proposals?

Similarly, we do not support the proposal to reduce the length of time a visa can be issued for a family visit.  These visits are of importance to individuals for numerous reasons, including providing support in difficult times and celebrating happy events and while often the period of the visit may be just a short period, it may be necessary to stay for longer. The document appears to not recognise this or give any evidence as to why a more prolonged visit is, in principle, undesirable.

4.2  Do you think family visits should be sponsored? If no, why not?

No.  There is a risk that this proposal would most adversely affect those least well off, who through their economic status already find it most difficult to maintain family links.  It should be noted that often these people fill vital, if undesirable, jobs within the UK economy in key sectors such as in the health service and it seems to us punitive to put excessively expensive barriers in the way of individuals seeing their family members. In cases where several members of a family seek to meet up for a special anniversary or event, it seems unreasonable of the Government to require a bond that leaked reports suggest could be up to £1000 for each individual sponsored. Further, if the Government proceeds with this proposal then it should be applied in a non-discriminatory fashion to all third country nationals visiting family in the UK. Finally, we envisage that such a proposal would significantly impact on the resources of immigration services and create undue burdens on an already stretched service.

4.3  Do you think that the documents required for a family visitor visa should be clarified?  If no, why not?

Any such approach should only be undertaken if it simplifies the current system instead of complicating it.  We would argue that guidance as to documentation required be flexible and not rigidly prescriptive. Equally, if this proposal was not applicable to all visa nationals visiting family, we would argue it would be discriminatory.

4.4  What documents do you think should be submitted in support of a family visitor application?

Any such list should be as short as possible and should not place any extra burden on visitors and sponsors. If such a list was developed, we would agree with ILPA’s recommendation that evidence of finances to support the visit should be acceptable from either the visitor or the sponsor for a recent period, but not both.  There should also be a clear and uniform procedure for checking that documents are genuine and the reasons for visa officers suspecting forgeries must be made known to applicants. Finally, in line with others, we would argue that the Government set out clearly in such a list that third party witnessing of a sponsorship declaration by a solicitor is not required.

4.5  Who do you think should be defined as a family member, and, if sponsorship is introduced, do you think they should be able to sponsor a family visitor? All sponsoring family members will be required to be aged 18 and over.

‘Family member’ should be construed with regard to the complexity and diversity of real family relationships, and with reference to domestic and European law, rather than in any rigidly prescriptive way.  We would lengthen the current list to include in-law relatives and would argue that it should be possible for close friends to sponsor visits.  While agreeing that sponsorship should be only possible for adults, we would suggest the situation of visa nationals under the age of 18 in education in the UK, wanting close relatives to visit, highlights that such a system at most should be optional.

4.6  Sponsors will be limited to those aged 18 years and over. Do you think sponsors should also be limited to those with a particular immigration status? If no, why not? If yes, what immigration status do you think a person should hold in order to sponsor a family member?

No.  As we have stated before, such an approach creates artificial barriers for individuals.  There are countless possible scenarios why a visa national in the UK may wish to sponsor a visit of a close relative to the UK.  Arbitrary decisions over who can and for what reasons will only lead to individual detriment for a benefit that is not specified or quantified in this consultation document. We are also concerned that the proposals as set out to limit applications to those with particular immigration status would be open to legal challenge on grounds of human rights law or under European principles of proportionality.  This would most likely result in increased costs to the public purse and extra burden upon the immigration services.

4.7  How do you think a sponsor should ensure that their sponsored family member complies with the conditions of their visa?

We would argue that the Government needs to demonstrate that failure to comply with the visitor visa conditions is a significant problem before proceeding with such a proposal.  It would be useful if the Government could quantify how many individuals visiting family do not comply with conditions of their visa.  Visitors to the UK have every incentive to comply with the conditions of their visa, because of the increasingly draconian penalties for non-compliance, such as, for example, the changes to immigration law set out in the Statement of Changes of 6 Februrary 2008 meaning that those are outside the UK and have breached UK immigration law will have to wait for at least a year (potentially much longer) before their application to return to the UK will be successful.

We have further concerns about the press speculation that the preferred method would be to require a financial bond in the region of £1000 and consider that such an amount is excessive.  A bond of this nature may prevent visitors attending important family events such as births, marriages and funerals and would attract legal challenges based on the right to family and private life enshrined in the Human Rights Act 1998, with reference to European law on proportionality, and we would seek reassurance from the Government that they have no intention of pursuing this approach.

4.8  Do you think a sponsor should face a penalty if their family member fails to comply with the conditions of their visa? If no, why not?  If yes, what do you think these penalties should be?

No.  The assumption that the sponsor should face penalty is best summed up as guilt by association.  Sponsors and visitors are normally adults who make their own decisions. A sponsor cannot force their visitor to leave, and no fault should attach to a sponsor where a visitor does not comply with the terms of their visa.  It would be unfair to refuse any other family visitor the chance to come to the UK through sponsorship because of a violation of visa conditions by one family member.

4.9  Do you think that the current appeal rights for family visitors should be revised? If no, why not?

No, the current appeal rights should not be revised and should be retained. The right of appeal is an important safeguard against erroneous, arbitrary and biased decision-making and appeals can correct errors of law and of practice made by entry clearance officers. The existence of the appeal, to an independent immigration judge, is an important check on the decision-makers and in the interests of justice, should continue. The independent monitor of entry clearance refusals without the right of appeal, while an important post, is no substitute as the monitor cannot alter individual wrong decisions and secure justice for individuals. It is right that some family visits are for a time-limited reason, but many are not; and even if an appeal is successful after the original event, its success may enable the visitor to come in the future. We support ILPA’s view that the continuation of the current structure of appeals, being heard in the UK and with the choice of the case being decided at an oral hearing or on the basis of a written case, at the choice of the appellant. Family visits will never be so cut and dried that an administrative review will adequately cover the issues, as the Home Office expects.

4.10  If yes, how do you think rights of appeal should be revised?

We would argue that given that that the current system provides the necessary safeguards for individuals it would be inadvisable to replace it at the same time as introducing a raft of new immigration legislation.  It would seem to be preferable to see how the new legislation works before removing any rights of appeal.

© Law Centre (NI) 2008