Exclusive: Channel 4 News has obtained a Border Agency letter stating that Foreign & Commonwealth soldiers disciplined by the army without court martial, should not be considered for deportation.
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The news was today welcomed by L Cpl Isimeli "Bale" Baleiwai, who last month, Channel 4 News revealed, had been rejected British citizenship after risking his life for the British Army for 13 years during five operational tours in Northern Ireland, Bosnia, Iraq and Afghanistan.
He was rejected because of a disciplinary offence against his military record. Unbeknown to him, the offence equated to a criminal offence under an amendment last year to immigration law.
His commanding officer dealt with the issue in a summary hearing and fined him £1,000. There was no jury, no defence, no witnesses and vitally no court martial.
Bale Baleiwai told this programme: "I'd like to ask the immigration minister even he even knows his own policies and how they are being carried out. It seems like they don't even know what their policy is and their laws. They just take chunks that work and apply it. If it seems relevant, they just pick and choose which law and policy they use."
Wife Kim Baleiwai added: "I thought the letter was in our favour when we put the appeal together. We thought it meant our case should have been shown discretion and that Bale's military offence wouldn't be equated to a criminal conviction. That's why we're still shocked they are standing by this decision that it's a criminal offence.
"If the Home Office isn't sure of its own policy how are we supposed to know what it is? There was no court, there was no police, so even the statement they keep putting out makes no sense."
Reviewing migration routes
A Home Office spokesperson told Channel 4 News: "We are reviewing all migration routes including how criminal convictions affect immigration and nationality decisions.
"Those with convictions should not generally be granted settlement or citizenship, but military offences with no civilian equivalent should not generally prevent a successful application."
The UKBA has repeatedly said that "applications for citizenship from former members of our armed forces are considered in the same way as any other citizenship application, taking account of a range of factors, including unspent convictions".
But Channel 4 News has uncovered a letter dated 24 February 2012 addressed to the charity Veterans Aid, which states: "The UK Border Agency's guidance refers only to sentences imposed following a court martial. It is not intended to cover internal disciplinary proceedings considered outside of that process. We will amend that guidance to make that clear."
Channel 4 News has also seen a letter written by the former defence secretary Dr Liam Fox MP to the Immigration Minister Damian Green MP. In that letter, dated 3 August 2012, he calls on Mr Green to reassess this particular part of immigration law.
He states: "There is, undoubtedly, great public anxiety about how this part of immigration policy is operating. Although serving in the armed forces is not an automatic guarantee for settlement in the UK, I believe the vast majority of people in this country would want to see preference given to those who had been willing to put themselves in harm’s way for our national security."
He points out the fact that Bale Baleiwai has a British wife and two British children. In a somewhat stark manner, he then urges Mr Green to take action over the matter, stating: "When the public see some thoroughly unpleasant individuals allowed to remain in the UK, but those willing to fight in the British army being deported, they will justifiably begin to wonder where our priorities lie. I hope you will reconsider this decision."
No rights, no status
Following a Channel 4 News investigation into his case Bale Baleiwai was told he could appeal against the offence, but this time with the military equivalent of a jury and witnesses.
The UKBA has given him discretionary leave to remain (DLR) for six months while he appeals his conviction. But Bale Baleiwai still has no real rights or status. He is unable to work, unable to claim benefits, unable to get healthcare.
He said: "It's not the right way to treat somebody who has served in the armed forces, and as for the military covenant, if it was worth anything I wouldn't be in this situation, you know. The government wave it around like its the best thing since sliced bread. I shouldn't be left in this situation without any status."
Kim Baleiwai added: "Not only did they dishonour his service, they labelled him a criminal. Now we're meant to be grateful for six months discretional leave, which we are, but he has no status. So my family could end up destitute."
And today Channel 4 News has spoken to a serving Foreign & Commonwealth (F&C) soldier who wanted to take voluntary redundancy as part of the MoD cuts. He has a similar disciplinary black mark against his name as Bale Baleiwai, and is now reconsidering whether to discharge or not.
He claimed there are at least four other serving F&C soldiers he knows of who are concerned about this issue.
F&C soldiers who are dealt with summarily for minor charges while serving are finding that when they leave the armed forces those misdemeanours are being treated as civil crimes.
Having a criminal record then precludes them from getting citizenship or legal right to remain in the UK. Once identified as "illegals" they become subject to deportation.
On Friday Veterans Aid, the charity which has provided pro bono advocacy for these soldiers, told Channel 4 News there are many ongoing cases that have emerged since Baleiwai's case was revealed.
The charity's chief executive, Dr Hugh Milroy, said: "Veterans Aid has had over 70 cases of Foreign & Commonwealth soldiers approach them since the beginning of the year. It's all to do with leave to remain. This needs to be stopped."
He said he could not understand how the UKBA could ignore its own guidance on such an important issue. He said: "I'm completely mystified as to why the Borders Agency is acting as if this doesn't exist. It's quite clear internal disciplinary matters within the Armed Forces are simply that. They are not criminal convictions."
He added now is the time for the Prime Minister to intervene and for the Military Covenant to be reassessed: "I think the Bale case really points to the fact that the so called Covenant is virtually toothless. If it's not about protecting veterans, and he is a veteran who did 13 years service for this country, he came to this country legally, so if it's not about protecting him I'm really at a loss at Veterans Aid on the front line to understand what the Covenant is for."
The former head of the British Army General Sir Mike Jackson recently told Channel 4 News he thought the F&C soldiers were being dealt with "harshly" and said their service should be counted as "a big plus" when British citizenship is decided.
There are currently 8,505 F&C soldiers serving in the British forces, not including the 3,880 Gurkhas who previously won the right to residency.
Of these some 2,200 are Fijian, like L Cpl Baleiwai. His case is "just the tip of the iceberg", according to Veterans Aid. The charity claims it has seen at least 100 such cases over the last year.