Monday, March 31, 2008

Vox Populi

"Any sufficiently advanced incompetence is indistinguishable from malice." - Grey's Law

After I've finished my time in Korea, there'll be one aspect to my stay here which I'll always remember, but which was completely unexpected - namely, the way my Government tried to stop my wife and I from returning home to live there.

I've written what I could about this case as it has unfolded over the months, but now that it is over I'm able to reveal the details of it. There's too much to this story to do it justice in any summarised form, but I want to explain what has happened quickly and effectively, so I've taken the liberty of re-imagining my legal case as three conversations; it seems to be the best way of summarising it in a brief way. I'm told the result has a rather Kafka-esque feel to it, and if people see that in this then I truly have captured the essence of what we've been through. After the 'conversations', I've written a more conventional, and inevitably longer, explanation. But before we begin, the story so far...

Previously, on Busan Mike
A Summary

Pre Hearing
HMGovt: We're refusing your wife's spouse visa application.
Busan Mike: I don't understand. Why?
HMGovt: We don't believe you intend to return to live in the UK permanently.
Busan Mike: What do you mean by 'permanent'?
HMGovt: The Government has no standardised definition of the word 'permanent'.
Busan Mike: Then what does it mean in this case, exactly?
HMGovt: Whatever we want it to.
Busan Mike: Well, you can't make me promise to live in the UK for the rest of my life, that's an infringement of my civil liberties.
HMGovt: OK, bye.
Busan Mike: No, wait a minute, Britain's still my home.
HMGovt: Actually, we note that you're planning to sell your house.
Busan Mike: Yes - I want to move to a city centre apartment.
HMGovt: Well you haven't convinced us about that.
Busan Mike: So, are you calling me a liar?
HMGovt: Yes.
Busan Mike: Oh. Surely it's none of your business anyway?
HMGovt: Your entire private life is our business if we decide it is.
Busan Mike: But how can you decide what my intentions are?
HMGovt: We're the Government, we do that sort of thing all the time.
Busan Mike: You've absolutely no evidence to support your assertions.
HMGovt: We don't have to prove anything. As far as we're concerned, you're guilty until you can prove that you're not.
Busan Mike: Didn't that used to be the other way round?
HMGovt: Yes, but we're quietly moving over to the new system.
Busan Mike: But how can I prove something I haven't done yet, isn't that impossible?
HMGovt: Not our problem.
Busan Mike: Hmmm. Anyway, I'm still a British citizen.
HMGovt: And?
Busan Mike: Don't you have to let me live in my own country with my wife?
HMGovt: No.
Busan Mike: What about the European Convention on Human Rights?
HMGovt: [laughs]

At the Hearing
Govt Lawyer: This man admits he isn't going to promise to live in the UK permanently.
Busan Mike Lawyer: He doesn't have to make such a promise, it's against his Human Rights.
Govt Lawyer: That's irrelevant.
Judge: [laughs]

Post Hearing
Judge: The Government's decision is not in accordance with the law and the immigration rules.
Judge: You are of course, entitled to appeal.
Govt Lawyer: Er, no thanks.

The Longer Explanation

"The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." - Marcus Aurelius

The House

I've called this case 'my case', because more or less from the beginning, it was really all about me. My wife has no great desire to return to the UK, but I do need to return, and if she wasn't granted entry I would be the one living the rest of my life exiled to a foreign land, not her. But more than this, it transpired that my decision to sell my house before coming to Korea had probably set in motion this chain of events long before I'd even set foot in this country, let alone the British Embassy compound in Seoul. Yes, the big reveal is that, in the end, this case was all about a house.

My reasons for wanting to sell my house are numerous, personal and ultimately irrelevant to this case. Suffice it to say that I left my job and began suffering from Meniere's Disease in 2004, and these are two good reasons not to have a car, and a house in the suburbs with stairs to navigate on the bad days. So when I returned home from Korea, I intended to buy a city centre apartment. And that was still my plan, even though the agreed house sale fell through before leaving, which led to me ending up being stuck with it for reasons which in themselves are a long story.

The Policy Change

"Bureaucracy, the rule of no one, has become the modern form of despotism". - Mary McCarthy

Most people I've talked to in detail about what happened have been incredulous at what happened, and the reason put forward by the Government. So how could this happen? I can offer a possible explanation.

A number of immigration lawyers I have spoken to or heard from have said that during the latter part of last year they witnessed a sudden influx of cases where visa applicants had been rejected for reasons which the Government would never previously have tried to use. This seemed to be borne out by anecdotal accounts posted on Internet forums. A picture began to emerge which suggested there had been a policy change of some sort. My own research into the issue led me to the following conclusion: about a month before we arrived at the Embassy, someone in the British Home Office issued a directive to Entry Clearance Officers (ECOs) telling them to make life harder for visa applicants. In short, someone in the Government initiated a tightening up, or 'get-tough' policy.

The good news is that as the months progressed, these previously trivial cases clogged up the appeals process, possibly annoying all those concerned with them. Eventually this led to someone in Government realising that the policy was counter-productive, and the situation returned to the status quo ante by some method.

Like many directives and policies within the corridors of power, the Government never admitted to a changing any 'policy', 'guideline', 'directive' or rule, and certainly will never now that it looks like it had unfortunate results. By their nature Governments tend to manipulate facts to suit them, and it would be easy to say that their denials in this matter are lies, but to be fair I honestly don't think it's as simple as that. I believe an effective policy change happened, but I'm not convinced the Government as a whole had any idea that it had, or if it did know, had no idea what the consequences of that policy was in reality. It's a rather depressing picture, and personally, I'd prefer to think that my case was an aberration, but the evidence of other cases does not bear this out.

Indeed, my Member of Parliament (MP), who also happens to be a Government Minister, supported my case and I am grateful for the help I had from his office, but I think it safe to say they were not happy when I put it to them my effective exile was the result of Government policy, and suggested this might be a line I would develop in the media, where I had some options to take my story public.

But as much as I can blame what's happened to myself and others in the last few months on the ignorance or incompetence of Government, at an individual level there were clearly people who knew they were doing the wrong thing, and breaking the rules. Were they powerless to prevent it? I think not, and they did not raise their voices in opposition to bad policy, but instead went along with its implementation, quite possibly in their need to chase internal targets for rejections.

The Balance of Probabilities or Possibilities?

There's a lot I could write about the outrageous decisions I've read about being applied to other people, but what it comes down to is this - ECOs are directed to make decisions on 'the balance of probabilities', and I have no doubt that what they started doing was making decisions on 'the balance of possibilities'. This of course is a huge difference, because what we all ended up with was a group of unelected and largely unaccountable people indulging in any kind of baseless speculation about applicants' personal circumstances on the grounds that 'anything is possible'.

In our case my wife's interview was hostile from the beginning, and despite the British Diplomatic Services Procedures stipulations on how interviews should be conducted - for example by not steering answers - this is exactly what our ECO did as far as I'm concerned - when she wasn't sighing as my wife was trying to answer questions. I say 'trying', because it's a bit difficult to give any kind of account of yourself when you are constantly being interrupted.

Along the way of course, my wife mentioned that I wanted to sell my house when I returned home, and while that statement seemed innocuous enough at the time, it later transpired that the ECO had seized on this as 'proof' that I wasn't intending to remain in the UK. I always thought this to be an intellectual leap of epic proportions - there was no evidence to support this at all - and fortunately so did the judge, though his opinion would take several more months to arrive on the scene. In the meantime, the ECOs judgement was law, and she was judge, jury and executioner to our fate.

But perhaps mindful of the tenuousness of the case, there was originally not just one but three dubious reasons put forward for the rejection, although the two below were never cited to us again after the original letter - but I raise them here for completeness.

The Wedding Dates

One of the most curious aspects to this entire affair - that of the date of my marriage, was also raised in our rejection decision - or maybe it wasn't. Confused? Well I certainly was.

Asked when our wedding was my wife replied in the interview that it was in January 2007. The ECO seized upon the marriage certificate and wanted to know why that said December 2006. Because that's when we signed the papers and became legally married in Korea - the actual wedding ceremony was in January though this has no legal status in this country.

You'd think that would have cleared up the issue, but apparently it didn't; the point about the inconsistent dates was later raised in the rejection decision, though it didn't elaborate further on exactly what point the ECO was trying to make, and seemed to be little more than an underhand attempt to cast doubt on the veracity of the rest of my wife's testimony.

But where this particular point takes an even more surreal turn, is that when we obtained a copy of the Interview Record (a tip to anyone else in such a dispute - you are entitled to it, always get a copy), it clearly showed the relevant documents had been seen, the question about dates asked, and the explanation of my wife given, surely to the satisfaction of the ECO. But the issue was detailed in the rejection decision as though no documents had been seen, and no answer had been given. It raises a lot of questions in my mind about what is entered into the official record, and how one person can enter contradictory statements and documents into it. I can look at a lot of what happened in our case, and see it as ignorance and incompetence run amok, but when it comes to the issue raised over marriage and wedding dates, I can't help seeing it as more than this.

It's also difficult to understand because an ECO in Korea should surely be aware of a basic fact of Korean marriage - namely that civil paperwork and wedding ceremonies are not normally done on the same day. Why was this raised, when it was - by any standard - a complete non-issue which only served to make the Embassy look foolish and vindictive?

The Visa

Somewhere amidst the chaos of the last few years, my then girlfriend's education visa expiry date went unnoticed. This was clearly a mistake, but when life seems to be going from one crisis to the next, and you have doctors mentioning the possibility that you could have a brain tumour, it does distract you away from other things. Precedent said this shouldn't be grounds for refusing a spousal visa, but it's no excuse, and if the Government had told us that my wife's visa had been rejected on this basis, I doubt I would have fought the decision.

They didn't and of course the issue wasn't even raised in the legal hearing, but I accept it may have provided further motivation to build a case around my house. I have wondered whether our application would have originally been rejected without this factor, but without knowing the specific details and motivations of what lay behind the policy shift last year, I can't know. My suspicion is, based on other cases which emerged in the latter half of last year, that we would still have been rejected because the Government evidently thought it had a reasonable case on the house alone, even if no-one else did.

The Ignored Appeal

There was an appeal, allegedly, to the ECO's manager, predictably entitled the Entry Clearance Manager (ECM). To this day, I'm not entirely clear on the process. Suffice it to say that I wrote a letter taking issue with the rejection decision and stipulating that I intended to return to reside in the UK, and that even though I was not regarded as 'present and settled' by virtue of having been out of the country for more than six months by this point in time, their own Diplomatic Service Procedures stipulated that if I made this assertion I should be treated as 'present and settled' in the UK for the purposes of visa applications. I thought that was pretty clear cut - but it was probably completely rejected. I say probably, because we never received a reply to our appeal from the ECM, and we only realised the initial appeal had been rejected when we received papers for an Asylums & Immigration Tribual (AIT) Hearing in the UK - a final appeal in front of a judge. Later, my MP's office phoned the ECM and confirmed that they had actually looked at our case.

Beyond this, to this day I have no idea what the ECM's justification for apparently ignoring pre-written Home Office rules and siding with their junior's decision was, but I think it quite telling. You see, one person can make a mistake, but when a superior endorses it, it suggests it is not error but policy. The Government wants to say that there was no change in policy but it simply doesn't square with what we experienced. When you have established rules governing ECO decisions which are available for anyone to read on a Government website, and not one person but two or more up the chain of command make decisions contrary to those rules, then it seems to me that someone has quietly changed the rules and not told the public. The alternative explanation is a lack of awareness of the rules, and tempting as it is, I simply don't believe they are that ignorant.

The Definition of 'Permanent'

The Government's lawyers later argued that my assertions were not strong enough and that I'd left open the possibility of returning to Korea. I had indeed questioned the whole meaning of what 'permanent' meant in relation to a requirement to promise I was intending to return to live in the UK on a permanent basis, because the British Government seemed to lack a definition but a dictionary would tell you that 'forever' would be a literal interpretation of this, which would clearly be unreasonable.

I never intended to enter into a semantic debate with them about it, but I'd questioned their definition in a letter to my MP, which I'd written after receiving the original visa rejection. Unfortunately it appeared that the letter was subsequently sent to the Embassy with a letter of support from my MP's office, which I hadn't foreseen happening, and everything in that letter became part of the official case. By the time I wrote the official appeal letter, my arguments were more honed and concentrated on the failures of fact and procedure which I felt the ECO had made. But that letter to the MP left me open to the semantic issues. That was unfortunate, and unbeknown to me over the months that followed, the Government were building part of their case around that.

The Lawyers

I had approached lawyers and was quoted figures of around £2,000 for submitting a visa appeal, so I wrote my own. It's easy to call it a mistake in retrospect, but it's a lot of money to spend when you think you have justice and the facts on your side.

Losing the appeal to the ECM was a bit of a shock, to say the least. After this, I certainly wasn't going to turn up at the AIT Hearing without legal support and I contacted respected London law firms specialising in immigration cases, along with local lawyers back home who were approved for immigration work. The only ones who replied to my emails were the London lawyers and I was quoted minimum figures (i.e. excluding 'disbursements') of between £3,000 and £8,000, and if we lost at the AIT Hearing and needed to appeal further, those costs could easily escalate well into five figures.

I agonised about these potential costs because they would have put me in a difficult financial position. In the end, I found a lawyer who's total costs were around £1,000, and while I found the process frustrating, she got the job done. The practice's web site has since disappeared, so in principle there's something to be said for employing the expensive lawyers, but maybe you get what you pay for and run the risks accordingly.

The Reason For Fighting

In fact, I have to admit now that given the potential costs in money, time and stress, I wasn't sure whether I could commit myself to the fight at all, but in the end I told myself I needed to, and that even if it were not for myself I should fight for principle and precedent so that others after me would not be treated in the same way.

In the small hours of the morning, when I was tired and ill, and could no longer research and write what I needed to for myself, I pushed myself on for those I perceived to be in a less fortunate position - people with stories like mine who didn't have my campaigning background and didn't have the money to get legal help.

I was somewhat shocked to discover that by living outside the UK for more than six months I was regarded as non-resident and that this designation meant my wife's case was judged weaker - in other words I'd become a second-class citizen. I was infuriated by the material inconsistencies in the original visa rejection judgement and the interview notes, both of which were written by the same person within a few hours of each other, and am still perplexed at how such contradictory statements were entered into the official record and seemingly not queried by the ECM before the case went in front of a judge.

I'm amazed at what I can only conclude to be the wilful disregard for the European Convention on Human Rights within the system in the UK - which seems to operate on the principle that human rights are not in fact universal but rather something to be applied to individual cases when directed to do so by the European Court. In fact, I'm not at all clear on what basis the British Government can effectively exile its citizens to non-European countries and claim that this does not breach their European Human Rights, when they clearly can not guarantee that said non-European countries operate legal systems which protect a British Citizen's Human Rights as enshrined within the EU. I can tell you that Korea does not - I have fewer rights here and not just because I'm a foreigner.

But my hope on making this a principled stand all began to go wrong, and as our legal case dragged on it morphed from a highly principled legal battle into a personal campaign that I decided had to be won at all costs because the Government's increasing intransigence had to be defeated at all costs. The details became personal and my father's deteriorating Alzheimer's, the health of my mother and my own issues with Meniere's began to become significant 'human rights' factors.

The result is that I can not cite my case as a clear cut precedent when it comes to the issue of proving an intention to 'permanently reside', because I fear the personal circumstances are too entangled as supporting evidence in the judgement, which in the end covered just about every angle of the affair imaginable, which in fairness I expect it had to do to deter further appeals by the Government.

The Conclusion

I say that we won this case, but when I look back at everything we went through, I'd have to say that really we lost. There's the cost in time, money, and emotional distress, and I've come out of this with a different view of my country than when I went into it. I'm fairly certain that nothing is going to bring that back. My Government made it fairly clear, despite a considerable history of being a significant net contributor to society, that it doesn't want me in it, nor my wife, and that knowledge - and the methods they employed to try and realise their goal, has left me deeply unhappy about the place I am supposed to call home, and I am no longer sure if I have a long term future in it. Perhaps then, this is not really the end of this story, but merely the end of the beginning.

But after all the stress, the financial costs, and the legal ruling that they acted 'contrary to law' or 'broke it' to put it plainly, at least the British Government apologised to me. Oh no, wait, they didn't. It tells you a lot about the society we live in that when a citizen is found guilty of acting 'contrary to law' they can expect a financial or custodial penalty, but when the Government is found guilty of acting 'contrary to law', it's the citizen that still bears the financial penalty, and the Government walks away unpunished.

"Results are what you expect - but consequences are what you really get." - Anon


Anonymous said...

You never were one to back away from a fight! I for one are glad you have the basic right to live and come and go as you please. I also am becoming more disallusioned with this country for many other reasons, and see it as not being a place I want to grow old and die in.
Anyway congratulations richly deserved.

Mike said...

Thanks Dale.

Ever thought about Canada? I think that was my top choice when I thought I might have to re-flag (sorry New Zealand and Ireland).

Unknown said...

Congratulations on your victory! I, too, am married to a Korean and have recently run afoul of the American immigration system. I provided the Government with everything they asked for, in the pursuance of my wife's permanent residence in America. They make a mistake, terminate my application, then tell me the decision cannot be appealed. They did, however, afford the opportunity to reopen the case with another $600 out of my pocket, with no guarantee they will continue processing the case. The only state they will review my evidence. The fee is non-refundable. I was faced with spending the money, with no guarantee of success or hiring an attorney. I have retained legal counsel and I am presently trying to get my government to reopen the case. They make a mistake (by law they cannot be held accountable) and we suffer because of their incompetence. I could prattle on about how broken the system is, but I think it would be repetitive and boring. Good on you for your success!

Michael in America

Mike said...

Michael - thanks, and I'm very sorry to hear about your problems with your Government, which sound eerily similar to my own. These people certainly like their non-refundable fees don't they? Sometimes it seems little more than an extortion racket.

I think it's good that you've retained legal counsel - if I have a regret with my experience it's that I didn't get the lawyers involved sooner, and instead trusted that the obvious errors which had occured in my case would result in a quick overturning of the original decision by line-management within the Government. Now I think that covering each others' backs is more important to these people than following the rules and not acting outside the law.

I shouldn't be surprised because we read about the dubious things Government officials get up to all the time on the news, but I guess that most ordinary citizens like ourselves don't expect to be on the receiving end of such behaviour.

Good luck with your case.

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