UK visa "6 in 12" rule. Have the goalposts moved ?

[Seekingasylum]

If she had, and it pre-dated her subsequent visit visa issues, then it would be immaterial. If she had submitted an unsuccessful settlement application between her last visit visa and the current refused application, then you can rest assured it would have formed a significant part of the latter's refusal formula. It didn't and therefore we know she has not.

[Waterloo]

Surely the simple route is to just submit another application?

A Judicial Review would be long winded and expensive and would face problems with the applicant not being UK resident.

You appear to have a tendency to make assertions which simply aren't true. This, in the context of internet boards generally, is of little relevance in the scheme of things but it does have a significance in this particular site where folk do hope to gain some knowledge in their own applications. Therefore, when you spout nonsense it can be quite misleading to those foolish enough to attribute some importance to your comments which are seemingly based on your ignorance rather then anything founded upon the truth.

A judicial review is not a long winded process at all. From the submission of a pre-action letter to the point when papers are submitted before a judge it can be accomplished within two months, a period significantly shorter than a typical immigration appeal currently taking 5 to 8 months to be heard.

However, more often than not, the Home Office will concede a case when it appears to the government lawyers, or to the UKVI's own senior management, there is is little chance of winning or, even worse, a definitive judgement inconvenient to the UKVI might be reached. Thus, challenges are often conceded at the pre-action protocol stage.

Anyone concerned in the adverse decision can lodge an application for a judicial review. In this case that would be the British sponsor. Therefore, there are no " problems" to be faced by virtue of one party to the action being located outside of the UK.

JR applications are not necessarily expensive and most actions, whereby the Home Office concede at an early stage, i.e. the majority, involve costs in the order of £1,000 but if the HO concede at the PAP stage ( a significant number ) the costs are much less and between £300 - £500.

Being largely ignorant on JR's I found this most informative, Cheers

[Tony M]

Update on this. My friend apparently went down the Pre-Action Protocol route, and sent the letter to the UKBA Judicial Review Unit. It seems that UKBA have 14 days to respond to a PAP letter. Coincidentally, on the 13th day, the Embassy in Bangkok wrote to the applicant, saying that they had reviewed the decision, and decided to overturn the refusal. No mention at all of any Pre-Action Protocol for Judicial Review letter having been received by them. Coincidence, or the Embassy in Bangkok trying to "preempt" any legal action by making it look like they had made the decision to reverse the refusal before learning about the JR PAP ?

The UKV&I in Bangkok now say this about the applicant's previous visits to UK, and the "6 in 12", and have kind of skirted around the "frequent or successive visits" side of it :

"She has now made a series of visa applications in order to spend lengthy periods in the UK. However, I do accept that her actions hitherto do not constitute her residing in the UK by way of visit visas, although this is of course open to some interpretation. "

I'm sure they will try this again with some future applicant, and I hope that applicant has access to this forum for advice ! But, a good result for common sense on this.

[Waterloo]

Update on this. My friend apparently went down the Pre-Action Protocol route, and sent the letter to the UKBA Judicial Review Unit. It seems that UKBA have 14 days to respond to a PAP letter. Coincidentally, on the 13th day, the Embassy in Bangkok wrote to the applicant, saying that they had reviewed the decision, and decided to overturn the refusal. No mention at all of any Pre-Action Protocol for Judicial Review letter having been received by them. Coincidence, or the Embassy in Bangkok trying to "preempt" any legal action by making it look like they had made the decision to reverse the refusal before learning about the JR PAP ?

The UKV&I in Bangkok now say this about the applicant's previous visits to UK, and the "6 in 12", and have kind of skirted around the "frequent or successive visits" side of it :

"She has now made a series of visa applications in order to spend lengthy periods in the UK. However, I do accept that her actions hitherto do not constitute her residing in the UK by way of visit visas, although this is of course open to some interpretation. "

I'm sure they will try this again with some future applicant, and I hope that applicant has access to this forum for advice ! But, a good result for common sense on this.

Out of interest Tony do you know what this has cost your friend?

[Tony M]

Update on this. My friend apparently went down the Pre-Action Protocol route, and sent the letter to the UKBA Judicial Review Unit. It seems that UKBA have 14 days to respond to a PAP letter. Coincidentally, on the 13th day, the Embassy in Bangkok wrote to the applicant, saying that they had reviewed the decision, and decided to overturn the refusal. No mention at all of any Pre-Action Protocol for Judicial Review letter having been received by them. Coincidence, or the Embassy in Bangkok trying to "preempt" any legal action by making it look like they had made the decision to reverse the refusal before learning about the JR PAP ?

The UKV&I in Bangkok now say this about the applicant's previous visits to UK, and the "6 in 12", and have kind of skirted around the "frequent or successive visits" side of it :

"She has now made a series of visa applications in order to spend lengthy periods in the UK. However, I do accept that her actions hitherto do not constitute her residing in the UK by way of visit visas, although this is of course open to some interpretation. "

I'm sure they will try this again with some future applicant, and I hope that applicant has access to this forum for advice ! But, a good result for common sense on this.

Out of interest Tony do you know what this has cost your friend?

No cost at all so far. The Pre-Action Protocol letter is sent by the applicant, or her sponsor, or a representative. It is free to do this stage of the process as no solictors are involved ( unless youchoose to use one at this stage). The idea is, apparently, to set out the arguments as to why the decision should be, or can be, challenged at judicial review. The respondent, in this case the UKV&I then have to decide whether they want to actually go to a JR hearing. They take into account such things as having to pay the applicant's costs if the applicant wins, etc. JR seems to a complicated undertaking, and decisions can only be challenged on certain grounds - illegality, unreasonableness, expectation, etc.

If the UKV&I want to maintain their decision, then the applicant, sponsor, etc, must decide whether they really want to go to the expense of a legal challenge, and the cost if they lose. In this case, I feel pretty sure the UKV&I would have backed down as the decision seems certainly unreasonable, and possibly even illegal.

If you want to use the Pre-Action Protocol there are certain formats to follow, and I'm certainly no expert. Others here have made useful contributions on the subject. You might want to consult an OISC registered immigration advisor, such as the forum sponsor here, who can advise you on the PAP process, but would not be able to represent you at any JR hearing. Only qualified lawyers ( I think ) are able to do that. I stand to be corrected on that, of course.

Edited December 16, 2013 by Tony M

[Waterloo]

Update on this. My friend apparently went down the Pre-Action Protocol route, and sent the letter to the UKBA Judicial Review Unit. It seems that UKBA have 14 days to respond to a PAP letter. Coincidentally, on the 13th day, the Embassy in Bangkok wrote to the applicant, saying that they had reviewed the decision, and decided to overturn the refusal. No mention at all of any Pre-Action Protocol for Judicial Review letter having been received by them. Coincidence, or the Embassy in Bangkok trying to "preempt" any legal action by making it look like they had made the decision to reverse the refusal before learning about the JR PAP ?

The UKV&I in Bangkok now say this about the applicant's previous visits to UK, and the "6 in 12", and have kind of skirted around the "frequent or successive visits" side of it :

"She has now made a series of visa applications in order to spend lengthy periods in the UK. However, I do accept that her actions hitherto do not constitute her residing in the UK by way of visit visas, although this is of course open to some interpretation. "

I'm sure they will try this again with some future applicant, and I hope that applicant has access to this forum for advice ! But, a good result for common sense on this.

Out of interest Tony do you know what this has cost your friend?

No cost at all so far. The Pre-Action Protocol letter is sent by the applicant, or her sponsor, or a representative. It is free to do this stage of the process as no solictors are involved ( unless youchoose to use one at this stage). The idea is, apparently, to set out the arguments as to why the decision should be, or can be, challenged at judicial review. The respondent, in this case the UKV&I then have to decide whether they want to actually go to a JR hearing. They take into account such things as having to pay the applicant's costs if the applicant wins, etc. JR seems to a complicated undertaking, and decisions can only be challenged on certain grounds - illegality, unreasonableness, expectation, etc.

If the UKV&I want to maintain their decision, then the applicant, sponsor, etc, must decide whether they really want to go to the expense of a legal challenge, and the cost if they lose. In this case, I feel pretty sure the UKV&I would have backed down as the decision seems certainly unreasonable, and possibly even illegal.

If you want to use the Pre-Action Protocol there are certain formats to follow, and I'm certainly no expert. Others here have made useful contributions on the subject. You might want to consult an OISC registered immigration advisor, such as the forum sponsor here, who can advise you on the PAP process, but would not be able to represent you at any JR hearing. Only qualified lawyers ( I think ) are able to do that. I stand to be corrected on that, of course.

Thanks for the follow up Tony, glad to hear your friend got a sensible decision without further expense.

[Seekingasylum]

The decison under debate is quite unsustainable. The victims of this stupidity should waste no time in submitting a pre-action letter to the UKVI's Judicial Review Unit and pursue a JR challenge if these idiots dig their heels in. I would bet my pension on the action not not even seeing the Divisional Court door such would be the speed at which the UKVI would concede.

............

Quite simply, the visa section are just having a punt and should be put in their place without further ado.

Seems my pension is safe and my recommended approach has been vindicated.

The UKVI would have sent a copy of the PAP letter to Bangkok upon receipt although one would expect in most cases the author of the PAP letter to also copy the offending post into the process.

Frankly, despite the fact that anyone could in theory draft a PAP letter, it is not something a lay person would be able to do competently or, indeed, an OISC practitioner under Level 2.

A barrister would charge in the order of £600 but a reasonable solicitor, or a minority of OISC chaps, would probably ask for £250 - £450.

[Tony K]

Sorry Tony M but the forum sponsor would be committing a criminal offence if he took any such PAP action or gave any advice on making an immigration appeal.

This work is prohibited to level 1 OISC adviser.

[Tony M]

Sorry Tony M but the forum sponsor would be committing a criminal offence if he took any such PAP action or gave any advice on making an immigration appeal.

This work is prohibited to level 1 OISC adviser.

That's interesting to know. I wonder why that should be ? And why is it a criminal offence ? Do you know where it is covered in law ?

[ThaiVisaExpress]

Anyone who wants professional advice should seek the advice of a level 3 adviser in this instance. I will happily sign post anybody in the direction of a competent immigration consultant.

[Tony K]

Tony M it is a criminal offence under paragraph 3 of Schedule 5 to the Immigration and Asylum Act 1999 that carries a potential sentence of imprisonment or a fine for an OISC adviser to act beyond his level of competence as registered with the OISC. As far as I am aware there is only one OISC level 3 firm that has on office in Bangkok or anywhere else in Thailand and also has an active office in the UK as required by the OISC. They also previously sponsored this forum.

[Tony M]

Tony M it is a criminal offence under paragraph 3 of Schedule 5 to the Immigration and Asylum Act 1999 that carries a potential sentence of imprisonment or a fine for an OISC adviser to act beyond his level of competence as registered with the OISC. As far as I am aware there is only one OISC level 3 firm that has on office in Bangkok or anywhere else in Thailand and also has an active office in the UK as required by the OISC. They also previously sponsored this forum.

Thanks, Tony K, for the clarification. I'm still not 100% convinced, as the PAP process doesn't seem to require any competence at all ( I agree, though, that some competence would be useful ). A PAP doesn't seem to form part of any legal procedure, any appeal procedure, or court procedure, and not even part of the JR procedure ( all of which are "out of bounds" to a Level 1 OISC advisor). A PAP seems to be a Pre-Action letter that anyone can use to try to get an equitable solution to a decision, without resorting to any legal JR proceedings or costs. Looking at the OISC guidance, an advisor of any level, 1, 2 or 3, cannot do any JR work, which seems to indicate that even a Level 3 advisor is not considered competent in such matters, whether in the UK or outside. But, any Tom, Dick or Harry is allowed to write and submit a PAP letter, and I believe that might be because the PAP process is actually completely outside of the JR process itself, and therefore, logically, not beyond the competence of an OISC advisor of any level. Once you get into the actual JR process - actually applying to the court for leave - then it is a different matter altogether, and even OISC advisors of all levels are considered to be "not competent".

Or is the whole process designed to attract fees ? If it is illegal to give immigration advice in the UK (without being registered with OISC, or being a lawyer), and OISC aren't allowed to give advice on how to write a PAP letter, then how can it be done ? Is it only lawyers that know how to write these letters ? Only lawyers are capable of doing it ? And lawyers won't do it for free, as we know. As I say, I'm still not convinced, although I accept that I know very little about the process whatsoever. I'm still happy to be corrected on all, or any, of this as it is a learning process for when appeals are no longer possible ( possibly from next year). I guess there will be lots of PAPs flying around then ! I guess not knowing where the full OISC competencies can be found means that I don't actually know what each level can and cannot do (apart from the information published on the OISC website, of course, and that published information doesn't seem to preclude writing PAP letters). That information, as previously stated, does preclude all JR work by all OISC levels but, if I read you correctly, you are saying that Level 3 advisors can do PAP letters ? That must surely indicate that PAP letters are not considered to be part of the actual JR process if Level 3 advisors are precluded from JR work but are allowed to do PAP letters ? It also seems strange ( to me) that an “incompetent” lay-person like me would be allowed write a PAP letter, but an OISC advisor who has immigration advisory experience isn’t allowed to ? Illogical ? That’s for sure.

Seeking clarification !

[Seekingasylum]

An OISC registered practitioner at Level 1 is not permitted to make representations to an officer of the Crown but at Level 2 and above they can. A PAP letter is simply another form of representation and is essentially a restatement of the case inviting the reversal of an adverse decision which sets out the facts and arguments as to why they should but if they are not minded to concede then the threat of a further challenge by way of JR is implicit. After that point, no OISC practitioner can continue to accept instructions but, by law, must advise his client to either instruct solicitors to lodge an application through counsel or to instruct a direct access barrister himself.

Anyone can offer advice and write a letter but only OISC registered practitioners, or lawyers as recognised by the Law Society etc, can provide immigration advice and services for gain. Once registered, an immigration adviser is bound by the OISC regulations.

I hope that makes it clearer for you.

[Tony M]

An OISC registered practitioner at Level 1 is not permitted to make representations to an officer of the Crown but at Level 2 and above they can. A PAP letter is simply another form of representation and is essentially a restatement of the case inviting the reversal of an adverse decision which sets out the facts and arguments as to why they should but if they are not minded to concede then the threat of a further challenge by way of JR is implicit. After that point, no OISC practitioner can continue to accept instructions but, by law, must advise his client to either instruct solicitors to lodge an application through counsel or to instruct a direct access barrister himself.

Anyone can offer advice and write a letter but only OISC registered practitioners, or lawyers as recognised by the Law Society etc, can provide immigration advice and services for gain. Once registered, an immigration adviser is bound by the OISC regulations.

I hope that makes it clearer for you.

Yes, and no. Forgive my ignorance, but what constitutes "an officer of the Crown" ? Is that someone who works for the government, or is it a Law Officer of the Crown ? If it is a "government officer", does that mean that an OISC Level 1 advisor cannot question any decision made by , for instance, an immigration officer, a UKV&I caseworker, or an ECO ?

[Seekingasylum]

Essentially, once it goes tits up then the Level 1 should refer the case to a Level 2. Officer of the Crown is any civil servant.

[Tony M]

Essentially, once it goes tits up then the Level 1 should refer the case to a Level 2. Officer of the Crown is any civil servant.

Thanks for the clarification. It does seem somewhat illogical, though, if an idiot like me would be allowed to do it, but someone with experience and a "qualification" isn't ?

[Seekingasylum]

In truth, Level 1 is not challenging and requires little in the way of expert knowledge or experience to attain. Most Level 1 practitioners of any note operate in the UK under the close supervision of a Level 2, or 3, mentor.

[bobrussell]

There is a guide to writing the initial Pre-Action letter:

http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_jrv#IDAGJKCC

Clearly at this level there is no requirement for any particular legal expertise. If the UKV&I fail to back down at this stage legal experience beyond the ability to formulate a clear and concise letter outlining the issues will be required!

Interesting how easy it is to get the first stage taken. I bet the UKV&I are going to get a lot of these!

Edited December 17, 2013 by bobrussell

[Tony M]

There is a guide to writing the initial Pre-Action letter:

http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_jrv#IDAGJKCC

Clearly at this level there is no requirement for any particular legal expertise. If the UKV&I fail to back down at this stage legal experience beyond the ability to formulate a clear and concise letter outlining the issues will be required!

Interesting how easy it is to get the first stage taken. I bet the UKV&I are going to get a lot of these!

That's exactly how I saw it too. It looks like there might be some "no win, no fee" work next year for anyone who has the time, knowledge and experience to write these letters ( and who is not in the UK, of course) ?

[Tony K]

The OISC confirms that advisers at levels 1 and 2 are not permitted to write pre action protocols but level 3 may do so.

Edited December 19, 2013 by Tony K

[Tony M]

The OISC confirms that advisers at levels 1 and 2 are not permitted to write pre action protocols but level 3 may do so.

As I said, Tony K, that is illogical. All OISC advisors are barred from doing any JR work, yet Level 3 advisors can do PAP letters. Ergo, PAP letters are not JR work. No ?