New visitor visa guidance: genuineness and credibility of visitors from the war affected zones

On 2 December 2015 the Home Office issued a new guidance for decision makers in relation to visitor visa applications. This document confirms the policy of differential treatment of applications on the basis of the applicant’s country of residence or nationality (visitors from the war affected zones are not to be admitted) and visitors with family ties in the UK will find it more difficult to visit if they have no “anchor” in the country of origin.

In addition to the standard information on mandatory and desirable documents expected in support of the application, the guidance gives insight on the official practice of assessing the applicants personal circumstances and “genuineness of intentions”.

Personal circumstances of the applicant are to be assessed with reference to the following:

• Previous immigration history, including travel history to other countries;
• Checks on consistency between proposed duration of the previous visits and actual duration;
• Financial circumstances and social and economic background;
• Social and family ties in the country of residence;
• Time spent in the UK in the 12 months preceding the application: the applicant should not be “de facto” resident in the UK;
• Credibility of the reasons for visiting the UK;
• Other information, such as political and economic situation in the Applicant’s country of residence and/or country of nationality;
• “Where publicly available information indicates that the political and/or economic and/or security situation in the country (or part of the country) in which the applicant has the right to reside permanently is unstable or is a conflict zone because it has significant political or social unrest – this will form an important part of the assessment of whether the applicant is a genuine visitor who has the intention and ability to leave the UK at the end of their visit”

Grounds for doubting the applicant’s intentions to visit the UK are given in a non exhaustive list, which includes:

• Few or no family ties in the country of residence, and several family members in the UK;
• Political, economic and security situation in the applicant’s country of residence, including where it is politically unstable, a conflict zone or at risk of becoming one;
• Attempts to deceive the Home Office on previous occasions by either the applicant, or his sponsor or other family members;
• Impossibility to verify information provided by the applicant;
• A search of the applicant’s baggage at the border reveals items which suggest the applicant’s intention “to work or live” in the UK

The guidance further states that if the applicant meets all the visitor rules but there are residual doubts about their intentions to return home, the decision maker should consider granting a “short duration visa”.

Frequent or successive visits may also have negative impact: the border control officer or the Entry Clearance officer is expected to take into account not only duration of the previous trips to the UK, but also their frequency and the time elapsed since the last visit. The guidance confirms that there is no specified maximum period which an individual can spend in the UK in any period, such as commonly known principle of “not more than 6 months in any 12 month period”. However, the decision makers are alerted to situations where the visitor spends more time in the UK than in the normal country of residence, which makes the UK their “de facto” place of residence and is not to be allowed.

How this new Guidance lies with the provisions of the Race Discrimination Act is probably a matter to be tested.

Back in 2010 the report of the Independent Chief Inspector on entry clearance applications in Abu Dhabi and Islamabad noted that higher evidential requirements were applied to Pakistani nationals as compared to nationals of Dubai, Abu Dhabi or Bahrain and found this unequal  treatment to be unlawful discrimination under the Race Relations Act 1976. Although section 19D of the Act (as amended in 2000) permits discrimination in relation to particular nationalities for the purposes of carrying out immigration functions, this exemption is subject to appropriate authorisation which was not given at the time of the report. It is not clear now if the new guidance amounts to such authorisation or is in itself a proclamation of an unlawful discriminatory policy.

As the Human Rights Act has lamentably not taken to the British soil, the guidance shows the inhuman consequences of the growing lacuna in its place: a widow from a country outside the EU will not be able to visit her only child in the UK for lack of anchor in the country of origin; families originating from the countries now affected by war will be split or will have to meet in third countries outside the UK. This is not much different from the current practices we know, but so far we have attributed it to abuse of power. The new guidance openly confirms this approach as the government policy.