From: HSMP Forum
To: UKBA

Date: 18th August 2011

To,

 

Rob Whiteman,

Chief Executive,

UK Border Agency

 

This is in reference to the reply I received from Jane Whitehead on 21 July 2011 in response to my email dated 7^th July 2011.

 

We believe the response fails to take into consideration the fact that those who returned under the HSMP Forum Judicial Review Policy Document (hereinafter referred to as ‘these applicants’) were applicants under the HSMP scheme and were required to leave the UK as a direct result of the Home Secretary’s illegal retrospective changes in the extension criteria in November 2006. These applicants were re-instated to the original terms of the Scheme as per the HSMP Forum Judicial Review court judgment and returned to the UK under the terms of the Policy introduced by the Home Office. These applicants were subsequently granted Indefinite Leave to Remain and now they have applied/are applying for Naturalization to become British citizens.

 

The purpose of residence requirement for Citizenship:

 

To be considered for naturalization as a British citizen an applicant should have built up a close and continuing connection with the UK, through a period of continuous residence. We refer to the following introduction of chapter 18 of Nationality Instructions:

 

“The main purposes of the residence requirements are to allow an applicant to demonstrate close links with, and commitment to, the United Kingdom, and to enable the Home Secretary to assess the strength of that commitment and the applicant's suitability on other grounds (e.g. character).”

 

We urge you to note that the Naturalization applicants of the category in question were not voluntarily ‘absent’ from the UK but were forced to be absent from the UK due to the unlawful actions of the Home Secretary. These applicants returned to the UK after the successful judicial review challenge by the HSMP Forum.

 

In accordance with the court judgment which held that the Home Secretary acted unlawfully and abused her powers, the UK Border Agency undertook to permit the time outside UK to be counted towards these applicants ILR application. There is no reason for the Home Secretary to yet again abuse her powers and deprive these applicants their eligibility for naturalization. The right thing to do for the Home Secretary is to ensure these applicants time outside the UK which was considered for their Indefinite Leave to Remain is also counted towards naturalization.

 

Close links and commitment of these applicants to the United Kingdom:

 

The links and commitment to the UK of the applicants of this category is in a way stronger than applicants of many other categories. They left the UK in obedience of then law which was enforced by the Home Office. As soon as the Home Office introduced the new policy after the successful HSMP Forum Judicial Review they returned to the UK.

 

Most of these applicants left the UK in 2007 upon Home Office's written directions. The Judicial Review took effect in April 2008 and the Implementation Policy took place in July 2008; however, it was not until September 2008 that those forced out of the UK could apply for re-instatement under the ‘HSMP Forum Ltd Judicial Review: Policy Document’ that aimed at ensuring benefits to these applicants originally offered to them. They finally got re-instated and returned to the UK by the end of 2009.

 

The terms 21 to 24b of the Home Secretary's Policy Document set out that any time spent outside the UK is deemed as spent in the UK and treated as contributing towards the continuous leave requirement. In light of the same terms these applicants were first re-instated to their original status in the UK with time spent outside the UK deemed as spent in the UK and then granted Indefinite Leave to Remain. Hence the Home Office has itself made it unequivocal that the absence in question is to be viewed as time spent in the UK and practiced its policy on two occasions.

 

We assert that in view of the Home Office Judicial Review Policy and practice these applicants have legally completed 5 years of continuous residence in the UK. Moreover, they have built, maintained and continued their ties and connections with the UK during the last 5 years. UKBA cannot practice two different policies for Indefinite Leave to Remain and Naturalization which in effect will be a contradiction of the policies.

 

Exercise of Discretion and potential discrimination:

 

If the time spent overseas by these applicants cannot be treated as residence period by the Home Office for statutory or other reasons, the Naturalization applicants from this category merit the exercise of discretion in their favour to obtain their naturalization. Their excess absences were an unavoidable consequence of exceptional/compelling reason (unlawful action of the Home Office) and have already been deemed as spent in the UK by the Home Office and treated as contributing toward the continuous leave requirement.

 

We appreciate that UKBA after our demands during the Judicial Review Policy Implementation has committed itself to take into account time overseas when considering settlement applications of these applicants. However we consider that the point in question, as discussed above, is the one previously settled by the Home Office in light of the Judicial Review therefore ought not to be viewed in isolation but with proper regard to the relevant factors, causes and reasons. Furthermore, your suggestion that those affected make representations about the cause of any excess absences when applying for Naturalization, we hope and assert that you would agree that the cause of excess absence in this case is admittedly the Home Office itself and that this is a settled aspect of the matter.

 

Furthermore, as I mentioned in my earlier email there seems to be existence of discrimination when it comes to exercising discretion by the Home Secretary. We were approached by these applicants whose naturalization was refused and discretion was not exercised by the Home Secretary even though others in similar situation were given naturalization. Alarmingly, the cases where discretion was not exercised seems to be either because of their religion / nationality i.e. Muslims or those who come from countries such as Pakistan, Bangladesh etc. Some of these applicants whose time outside the UK was considered for naturalization were non-Muslims and were from India, Australia etc. This practice seems to be applicable when it comes to the time line of the application outcome as well as mentioned in my earlier email. 

 

There is no reason for the Home Secretary to exercise discretion arbitrarily. The Home Secretary should exercise discretion without prejudice and uniformly and should consider these applicants time outside the UK towards naturalization.

 

We hope that you would take a firm and consistent line and ensure these applicants’ interests are taken into consideration.

 

I look forward to hearing from you soon.

 

Yours Sincerely,

 

Amit Kapadia

Executive Director (Chairman)

HSMP Forum