BOC - online results?

[CatCityGal]

Dad is born in Penang therefore his children are eligible for BOC application. There's 3 kids in the family. The youngest is not qualified as he is born in 1984 so only the two eldest applied. Both of them got their BOC within a year and then proceed with the application for ILR and citizenship. One of the brothers got his citizenship (went through the ceremony and got his british passport) whereas the other one was rejected. Why is that? They are brothers.

Both has the same information and submitted together. The one who got rejected has appealed for it. According to the solicitor, he still has the chance for the ILR however he has been waiting for almost four years now. The solicitor keep insisting there's no news and has since put the case up to the tribunal for the rights. The case was submitted as a collection of BOCs. The case started in April and has been delayed till now Nov 2008. Anyone has any idea what's going on? Please advice.

[ben_scaro]

Dad is born in Penang therefore his children are eligible for BOC application. There's 3 kids in the family. The youngest is not qualified as he is born in 1984 so only the two eldest applied. Both of them got their BOC within a year and then proceed with the application for ILR and citizenship. One of the brothers got his citizenship (went through the ceremony and got his british passport) whereas the other one was rejected. Why is that? They are brothers.

Ben:

Quite possibly because ILR- the step towards citizenship- is a discretion and not a right. In these cases people applied for discretionary leave to remain.

You have not said whether either of the brothers renounced his Malaysian citizenship, or when they applied and were granted/rejected ILR. This would have a major effect on the issue.

There never was any clause in the immigration law that gave BOCs a right to ILR. The Home Office has always had the power to say yes or no, so far as I undertand it.

HO were in the habit of saying 'yes' up until mid 2004. Then, because they knew the Lee Thean Hock case was coming up in Malaysia - which might have clarified the situation on whether BOCs who have lost Malaysian citizenship can get it back, the HO started saying 'no'.

Quite possibly HO also took into account the 2002 advice to David Blunkett - their concern being a 'floodgates' issue, ie, the fear that many thousands of Straits Chinese would arrive in the UK if they continued to say yes.

Whatever one thinks of it, legally it is the UK's right to say no. BOC status does not confer a right of abode in the UK and never has, so far as I know.

****

Both has the same information and submitted together. The one who got rejected has appealed for it. According to the solicitor, he still has the chance for the ILR however he has been waiting for almost four years now.

Ben:

I guess there's always a 1% chance of getting ILR but the way things stand at the moment, I would not expect it any time soon. We are talking about years, not months. Realistically, I imagine down the track the 500 'limbo people' will either acquire ILR via another route, return to Malaysia or perhaps go somewhere else.

****

The solicitor keep insisting there's no news and has since put the case up to the tribunal for the rights. The case was submitted as a collection of BOCs. The case started in April and has been delayed till now Nov 2008. Anyone has any idea what's going on? Please advice.

Ben:

I have read what a number of solicitors say about this and they always talk about a 'right to ILR' for BOCs. I cannot see where in the law there is any right to ILR for BOCs, it is my view that there never was any right.

I assume you are talking about the case that came before the AIT for the main hearing in April. As I understand it, the issue is before the AIT awaiting the decison of Deputy President Ockleton on the three test cases. There are 120 other BOC cases relying on the outcome in those three.

I heard last week that he is asking the parties for another hearing. It has been sitting there since April 2008; people will have to make of that what they will.

On the HO side, with the huge upcoming changes to immigration law, it is most unlikely that HO has anyone senior looking at the BOC issue in order to resolve it. There is no pressure to solve it, and I do not think that will change any time soon.

Ben

[CatCityGal]

Dear Ben,

Many thanks for the respond. The brother (S) who got the British Citizenship never surrender the M'sian citizenship however the other one (B) who is appealing has done so because he is being advice by the solicitor to do so.

Another point to add. B married A before submitting the application for British Citizenship. Also this is being advice by the solicitor so that the wife can remain in the UK with him while waiting. The wife hold a 2 years working holiday visa (the visa is still 3 months valid) when they are married. According to the solicitor, by marriage, the wife is entitle to remain here legally as she is attached to a BOC. Is this the reason why S got his British passport approved whereby B was rejected. Is it because of A?

[ben_scaro]

As to the marriage side of things, I don't know. I'd be interested to hear the solicitor's reasoning but in any event I suggest paying £10 and doing a Subject Access Request (SAR).

If you do this the Home Office has to send you copies of everything on the person's file within 40 days. This may reveal their reasoning. It really is worth getting, especially if you want to do something like a long residence claim (provided they do not abolish long residence in 2009- not sure what the chances of it staying are).

In our case I ordered the SAR and among the documents, there is even a refusal notice which Home Office never sent.

This tells me that Home Office know they are on shaky legal grounds, which is why they will not issue a decision and prefer to delay matters instead.

I don't like to be absolutely negative but I think having renounced citizenship after 4 July 2002, is seen as little other than a cynical ploy to circumvent the immigration rules. I think that on its own is enough for HO to reject, if they apply their Immigration Directorate Instructions to the matter.

I do not see the Home Office view changing. As to making a decision, the same paralysis that has afflicted them has been transferred to the AIT, who seem unable to decide as well.

Ben

[CatCityGal]

Dear Ben,

B's friend advice to submit the case as individual case to AIT. It will have better chance of approval. According to the friend, the collective BOC case does not seems very likely to achieve positive result due to the fact on the recent issue on the restriction of foreigners to remain in the UK.

Any advice?

[ben_scaro]

I suppose I wonder . . . if the AIT cannot decide complex and difficult cases, then what precisely is it there for ?

But that's another issue.

If AIT upholds the HO appeal on a poor argument and it gets into the courts (a 100% certainty), the judges will not be impressed.

On the other hand, if AIT rejects the HO appeal and favours the BOCs, this will annoy the government considerably.

And with good reason- this is the floodgates scenario David Blunkett was warned of back in 2002. Britain will, quite rightly IMHO, act to close that loophole if it reopens.

Whether submitting individually would make a difference, I don't know. It sounds like B has already been rejected by HO ? What is the time limit for him to appeal to the AIT ? 28 days ?

Ben

[Wanderer]

Don't the HO reject anyway if one has made oneself stateless?

[ben_scaro]

They reject citizenship claims where one has caused oneself to become stateless after 4 July 2002. That’s clear under s.4B, British Nationality Act 1981.

On ILR, it’s more complex. There’s no provision allowing BOCs to apply for ILR; they applied outside the Rules for discretionary leave to remain, and this was often granted after 4 July 2002, until late 2004.

However, in November 2004, presumably after an increase in applications, IDI Ch22 was drafted to deal with the matter. Cl 9 says that caseworkers have to draw a distinction:

. . . between those who genuinely find themselves with nowhere to go and those seeking to circumvent the Immigration Rules.

The test laid out in the IDI, while not actually saying one is to be rejected if one makes oneself stateless, has that effect when read with the Cl 9 distinction in mind.

The first limb of the test is clear evidence of compassionate circumstances, the second is the applicant has the onus to prove evidence of non-returnability, ie, a letter refusing a re-rentry visa to the country in question.

Further down, they say that what is meant by a re-entry visa is a ‘returning resident’ or ‘settlement visa’.

The trouble ex-Malaysian BOCs have is that the Malaysian government won't supply such a letter, but will not issue settlement visas to returned BOCs.

I do not think anyone wants to go to KL, be refused settlement, then find they are denied a letter proving it, and have to return to Heathrow. What would be their chance of getting back into the UK ?

However, in reality, HO has not rejected ILR claims by so-called stateless BOCs. Since the IDI came in, Nov 2004, they have held onto a vast number of cases (and BOC passports) and done nothing with them.

This leads me to think that either the IDI or some other provision is flawed and HO know a rejection will not stand up in the AIT.

Via a convoluted arrangement, these cases are now the subject of some agreement which envisages the unresolved cases being treated akin to three BOC test cases currently before the AIT.

Interestingly, I have a Refusal Notice obtained via SAR, drafted sometime in 2007, which was never sent. It says nothing about making oneself stateless or non returnability, though it mentions lack of compassionate circumstances. But the bulk of the notice is an attempt to say that the applicant’s period of s.3C ‘in time’ was not lawful and so the applicant had not accumulated five years lawful residence.

Ben

[CatCityGal]

So that means B can't do anything at present. If he travel to M'sia n being sent back to UK, he needs a letter from M'sia airport saying that he can't enter M'sia otherwise UK will not accept him.

He has been here for 5 years plus now. He is not entitle to apply for residency if he wanted to?

[Wanderer]

So that means B can't do anything at present. If he travel to M'sia n being sent back to UK, he needs a letter from M'sia airport saying that he can't enter M'sia otherwise UK will not accept him.

He has been here for 5 years plus now. He is not entitle to apply for residency if he wanted to?

Rules are 10 years legal stay, 14 year any stay for ILR. Assuming not by marriage or on Work visa (haven't read the whole thread).

[CatCityGal]

Still a little vague about the status for B coz his brother A got the British Citizen within a few months after he got his BOC. If BOC doesn't mean that a person can stay in the UK, does that mean it's illegal to be here at all. According to the solicitor, B can still stay here as that is his birth right. He can't leave UK though coz the application of ILR still pending ie the case at the AIT still on going.

[ben_scaro]

Still a little vague about the status for B coz his brother A got the British Citizen within a few months after he got his BOC. If BOC doesn't mean that a person can stay in the UK, does that mean it's illegal to be here at all. According to the solicitor, B can still stay here as that is his birth right. He can't leave UK though coz the application of ILR still pending ie the case at the AIT still on going.

I would like to see what section of the law gives BOCs a 'birthright' to stay in the UK. Sounds like mere posturing to me.

Let's be brutally frank. BOCs who have renounced live in the UK purely and simply because it is not possible to deport them anywhere. Nothing to do with any birthright at all.

The bigger picture is that Britain is moving towards Europe and a very different immigration system with a system of 'permissions' that if anything, will make the lives of the limbo BOCs even tougher.

So much for his 'birthright'.

Ben

[CatCityGal]

He is in this kind of situation due to ill advice ie not knowing the consequences (renounciation) therefore if he report the case to the law society and go back Malaysia, will the HO emphatize and be a little compassionate towards his case? He has been here for 8 years plus now. Initially a student and then granted the BOC. With the solicitor advice, has remain where he is till date.

Also, the wife in this case, what is the situation then? Should she go back M'sia and wait there or remain with her husband in the UK till there is a result from AIT? She loves her husband very much and does not wish to be apart. A very confusing situation. Also there is a fear of returning because they do not wish to have black record in UK. There will restriction of 5 years or more before they can return to the UK. At the same time, once they reach M'sia, the M'sia gov may refrain them from travelling to anywhere in the world for 3 years. This is totally unfair as they are misguided in the first place by the solicitor.

[rose1]

Hi, Could you let me know further what is SAR and where to obtain one, please?

As to the marriage side of things, I don't know. I'd be interested to hear the solicitor's reasoning but in any event I suggest paying £10 and doing a Subject Access Request (SAR).

If you do this the Home Office has to send you copies of everything on the person's file within 40 days. This may reveal their reasoning. It really is worth getting, especially if you want to do something like a long residence claim (provided they do not abolish long residence in 2009- not sure what the chances of it staying are).

In our case I ordered the SAR and among the documents, there is even a refusal notice which Home Office never sent.

This tells me that Home Office know they are on shaky legal grounds, which is why they will not issue a decision and prefer to delay matters instead.

I don't like to be absolutely negative but I think having renounced citizenship after 4 July 2002, is seen as little other than a cynical ploy to circumvent the immigration rules. I think that on its own is enough for HO to reject, if they apply their Immigration Directorate Instructions to the matter.

I do not see the Home Office view changing. As to making a decision, the same paralysis that has afflicted them has been transferred to the AIT, who seem unable to decide as well.

Ben

[global gypsy]

Hi, Could you let me know further what is SAR and where to obtain one, please?

See here -
http://immigrationboards.com/viewtopic. ... 237#227237