As a direct access immigration barrister working closely with many victims of the 322(5) scandal I have commented on glimmers of hope announced by the government, firstly by Caroline Nokes MP who referred to a policy and a review and second Sajid Javaid who announced a review.
Firstly, I have still not seen any policy. I an forcefully arguing that any such public policy should be disclosed,
Secondly for those who have outstanding applications both under the Rules 345 or Set O or Set LR I have said that until a decision is made further representations can and should be made. This is for two main reasons.
The first that it gives a better chance of getting Indefinite Leave to Remain (“ILR”) and
Secondly that if you put in all the relevant factors relating to your life then you set up a judicial review with much better chances of success.
The reason for this is that the Secretary of State is using 322(5) which is a discretionary basis for refusal. The law states that the Secretary of State has a wide discretion and all factors should be considered.
Unfortunately, I have had a couple of clients approach me in the last few week, where I have seen the representations submitted. Some of them have not been up to my standard. For example, there is no mention of the relevant legal issues. There is no mention of whether or not the Migrant has a family. There is no mention of any health or other problems, all of which are either stand alone and help or maybe explain the discrepancy.
I have also heard that some lawyers send what is in effect half the case waiting for the Secretary of State to respond so they can put forward an excuse. This is madness in my view. All the relevant evidence and law should go in first.
I have had clients who have adopted the suggestion and I have drafted representations that would otherwise be overlooked, such as children, health problems (some that have probably caused the mistake in the first place.
Other clients, as is there right, take the view that they will “wait and see”. While every client has the right to decide their own application and their families fate, I can only say that this is optimistic thinking at best, Especially in JR cases where you cannot adduce new evidence,
I would urge anyone pending a decision to submit as much information as possible. If you have a lawyer and you are happy with them then get them to do it, if not I am happy to help. It is vital. The Secretary of State cannot be criticised for not considering something she did not know about, This is a fundamental error lawyers make and allows the Secretary of State to make submissions that the Judge has no choice to follow. If the issue is cost, then given how much has already been spent a small extra expenditure cannot harm your case. A refusal will stand a better chance of being overturned and it may well lead to a positive decision.
Please feel free to contact me or another reputable lawyer as soon as possible. Further representations given the reviews and hidden policy and promotion done by the Highly Skilled Group can be relied upon.
I cannot stress this enough. Please do not leave anything to chance. It is your life. You have invested time money and often brought children into the world, please do everything you can to win.
In short, I would say “Hope for the best but plan for the worst”