The Queen’s speech on 8 May 2013 contained some controversial proposals to tackle immigration abuse. In her speech, the Queen said that the new immigration bill would aim to “ensure that this country attracts people who will contribute, and deter those who will not”. We examine the current difficulties with UK immigration.
The bill has introduced controversial proposals such as private landlords having to check their tenants’ immigration status, bigger fines for businesses caught employing illegal foreign labour and illegal migrants not being able to obtain driving licences.
The UKBA has suggested that they will give the full force of legislation to the policy they have already adopted in the Immigration Rules. The courts would therefore be required to properly reflect the balance given to the public interest when ruling on immigration cases.
From 1 April 2013 the UK Border Agency was split into 2 separate units within the Home Office: an immigration and visa service and an immigration law enforcement division.
Changes to the Tier 1, Tier 2 and Tier 4 routes
The government are in the process of implementing further changes to UK Immigration rules which include the following:
- For Tier 1 (exceptional talent) route the application process will be split so applicants will no longer have to pay full fees up front. This will mean applicants will not have to submit their passport while their application for endorsement by a designated competent body is being considered.
- For Tier 2, to improve the flexibility for intra-company transferees and for employers carrying out the resident labour market test.
- The shortage occupation list and the codes of practice for skilled workers.
- For Tier 4, to allow completing PhD students to stay in the UK for one year beyond the end of their course to find skilled work or to set up as an entrepreneur; and
- For family and private life, minor changes are being introduced to reflect feedback from legal practitioners and UKBA caseworkers.
Article 8, Human Rights & UK Immigration policy
The general culture at the Home Office is a concern for some practitioners. There is anecdotal evidence among immigration lawyers to suggest that it has become increasingly anti-immigrant. A former Home Office insider has described the culture as completely “wrong” and not one which seeks to uphold people’s rights. Pressures on decision makers include the fact that a grant of asylum requires the approval of a superior whereas a refusal does not. The huge backlog mentioned above means that there is the temptation to quickly sign off cases. However, many of these decisions ultimately find their way to an immigration judge. Apart from the delay for all concerned, this is a costly waste of public resources.
A perceived lack of respect for Human Rights and the non-application of the Human Rights Act to Home Office decisions is a further cause for concern among practitioners. In a political climate where the reduction of net immigration is a top Government priority, Human Rights must inevitably be seen as a low priority. This political objective is also seen by many to be behind the constant flow of changes to the law and policy guidance, all of which make consistency and fairness more difficult to achieve.
Finally, there is the attempt by the Home Secretary in 2012 to codify Article 8 rights within the immigration rules. The aim seems to have been to establish a kind of one stop shop for such rights. Nevertheless, the rules have been consistently interpreted by the courts as statements of executive policy which do not take the place of court and tribunal decisions. The courts have started to chip away at the rules. This may, in time, lead to an even greater number of reversals on appeal. This will not help to reduce the shocking backlog of cases mentioned above and lead to further systemic difficulties in the future.
Problems with the UKBA; ‘fit for purpose’?
With an immigration backlog of 310,000 cases and frequent revisions in policy guidelines, immigration advisers are currently face a multiplicity of problems in dealing with an immigration system once famously described as “not fit for purpose”. That remark was by former Home Secretary John Reid, but many legal practitioners would still agree with that statement today. The problems faced by advisers range from a drop in the quality of decision making to what many perceive as an anti-immigration culture at the Home Office to blatant disregard for Human Rights Law in making immigration decisions.
For many practitioners, decision making is often seen as poor. The UKBA, for example, places great emphasis on correct documentation in processing cases. However, important originals are sometimes returned and decisions made on retained copies. Moreover, entry officers have a history of alleging documents are fraudulent when there is little evidence to suggest it. Frequently, such difficulties have to be resolved at the appeal stage, in court. The quality of decision making is also revealed in the number of asylum appeals allowed. This currently stands at a quarter of all appeals; a higher number than for any other Government department.