Simplifying immigration law

A Law Centre (NI) response

August 2007

1.  About Law Centre (NI)

1.1 Law Centre (NI) is a public interest law non-governmental organisation. The Law Centre works to promote social justice and provides specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland.  Five specialist lawyers carry out our immigration and asylum work and we represent in a substantial number of all immigration appeals in Northern Ireland.  We are the main advisers on immigration law in Northern Ireland.  We operate an advice line five days a week and answer queries in relation to all aspects of immigration law.  We also facilitate the Immigration Practitioners’ Group which consists of lawyers and voluntary sector organisations. It meets regularly to discuss all aspects of immigration law and practice in Northern Ireland.  This submission has been informed by the work of our immigration practitioners.   

2.  General Comments            

2.1  Law Centre (NI) welcomes the recognition from Government that the current immigration arrangements are overly complex and extremely difficult for applicants to understand as they attempt to enter and remain within the UK.  Law Centre (NI) would also agree with the Home Office assertion that the system as it currently is, is in need of significant reform.  To this end we welcome the stated aim of consolidation and rationalisation as set out in paragraph 2.7 and the acceptance by the Government that the current system lacks the confidence of applicants, those involved in providing legal advice and assistance and the general public.  However, we would caution that the introduction of yet another review of the immigration system while potentially beneficial also has the potential to lead to further confusion and could result in an increasingly unbalanced and an enhanced, restrictive approach to immigration legislation.  We would suggest, to avoid this outcome, that considerable time is taken in approaching this review and that steps are taken to consolidate the existing immigration legislation before an attempt is made to simplify the system. 

2.2 We would also suggest that if the purpose of this radical review of the immigration system is simply to embed a more restrictive and punitive approach to managing the immigration system it will not resolve the issues that this document brings to light. In contrast, it will exacerbate many of the problems facing those wishing to enter or remain in the UK, and compound problems faced by immigration officials, employers, and other relevant stakeholders in the wider community.  Instead we would argue that this paper should offer the Home Office a chance to review and consolidate the current legislation, which would provide greater clarity about current arrangements.  This would provide a starting point for an immigration system to be developed that is more just and equitable and that recognises the rights of migrants and the benefits they bring to the UK not just their obligations and economic worth.

2.3  We would also argue that in reviewing the immigration system with a view to simplifying it the Home Office needs to review the impact of the proposed tiers approach to immigration.  It is our belief that such an approach is disadvantageous to those who come to the UK to fill vital lower skill jobs and disproportionately adversely affect women trying to enter or remain in the UK.

2.4 In line with numerous other organisations including the Institute for Public Policy Research we would suggest that one factor of an attempt to rationalise and simplify the immigation system would be to incorporate within any review an amnesty for all irregular migrants currently within the UK.  We would argue that any attempt to simplify immigration system must be based around the principle of starting from a ‘point zero’ with cases from before this covered by an amnesty.  This would ensure that the Home Office does not have to make discretionary decisions on outstanding applications.  This would also free up much needed resources for the Home Office to operate the rationalised immigration system and also have the economic benefit of bringing several hundred thousand workers within the tax system and the social advantage of expressly demonstrating the benefit and desirability of integrating migrants into UK society.[1]

2.5 As we set out in our response below one of our key concerns with the consultation is the proposal to reduce and even remove the option for discretion to be applied in making decisions.  Law Centre (NI), as the leading provider of independent legal advice on immigration matters in Northern Ireland, takes forward a considerable number of cases every year where the complexity of the case leads to discretionary applications or appeals.  It is the case that a significant proportion of these discretionary cases are successful and the fact that we have to adopt this approach and that it is often successful leads us to conclude that such an option is vital for an immigration system to be fair and meet the needs of those wishing to enter the UK.

3. Specific Questions

Q1  Are the simplification principles which are set out in the previous section the right ones?

3.1 Law Centre (NI) would argue strongly that any immigration system should have at its core Human Rights, fairness, access to justice and appeal, accountability and adaptability to meet the personal circumstances of individual lives.  It is an indicator of the state of the current immigration system that after six pieces of major legislation in eight years that transparency is still being sought.  Moreover, the number of serious problems in the processing of applications  including serious backlogs and a high volume of decisions overturned means that decision making quality at first instance remains a problem.  We would also raise concerns that predictability could lead to arbitrariness in decisions, particularly as the document states it wants to reduce the use of advisers in helping individuals from without the UK who on occasion are not lawyers in negotiating the complexities of immigration law.  We would agree that the goal of reducing duplication and inconsistencies is right but that the power of discretion must remain within the system to allow intervention in exceptional cases.

Q2  What specific problems would you hope that the Simplification Project can resolve?

3.2 We would hope that the simplification exercise would initially consolidate current immigration law. Once this has been done there should be a fundamental overhaul of immigration law after a suitable period of consultation and debate.  This would deliver a system that is fairer to those trying to enter or remain in the UK and that has the capacity to react to the individual circumstances of individuals cases.  We would also hope that any simplification of the immigration system would look again at some of the inequalities the current system perpetuates, such as the difficulties faced by some minorities in accessing that system. 

Q3 What particular issues need to be addressed in reducing reliance on concessions and the exercise of discretion?

3.3  We believe there are inherent dangers in reducing reliance on concessions and the exercise of discretion.  While a more equitable system established on the criteria we set out above would have the effect of reducing recourse to concessions and the use of discretion for the immigration system to respect human rights it must preserve a full right to seek concessions and discretion for complex cases with particularly justifiable circumstances.

Q4  Do you agree with the proposed three tier structure of primary legislation, immigration rules and operational guidance?

3.4 In order for immigration legislation to be subject to sufficient levels of scrutiny we would argue that primary legislation should be the main vehicle for the introduction of the new simplified immigration system.  One of the current issues facing independent immigration advisers is the increasing use of regulations and statutory instruments to force through punitive measures and grant officials unjustifiably wide and unregulated powers.  The further use of this route would be unhelpful and would reduce transparency in the process.

Q5  Are there particular models for simplification, internationally or in other regulatory areas, which have been successful and could provide a model?

3.5 We believe the best model for simplification would incorporate a period of consolidation of existing law followed by an extensive period of consultation and discussion which allows for a measured, equitable system to emerge that fully recognises and protects the rights of those trying to enter or remain in the UK.   We would, though, feel that any new Immigration System must incorporate and comply with EEA legislation on the rights and regulations applicable to migrants.

Q6  Nationality law is largely separate from immigration law. The gateway from migration processes to citizenship is clearly part of this project. But should the technical details of nationality law be included in the present simplification process, or left alone? Or would it be better to consolidate nationality law separately?

3.6 We believe that nationality law should be consolidated separately from immigration law.

Q7  Can we use the simplification process to help make clearer the distinction between temporary residents in the UK, those seeking settlement, those settled here with no time limit on their stay and those who go on to become British citizens? Can we make clearer their respective obligations and rights, and how these different statuses need to be earned?

3.7 As we state in our opening comments, we feel the drive to create a tiered society through the use of punitive immigration powers is flawed.  Ultimately, this approach will adversely affect the UK economically and socially by reducing the clear benefits of migration, burden the taxpayer with an unjustifiably expensive immigration system and unnecessarily penalise individuals, employees and employers.  We are also concerned at the language employed and the objective raised in this question.  We do not think it is desirable for the UK Government to be highlighting the distinctions between groups of migrants and residents with full rights; indeed, we believe such an approach is counter productive and may give succour to those who seek to exploit immigration as a divisive issue.  Finally, we regret the Home Office focus on the obligations of migrants without discussing the counterbalance of how society’s responsibilities to migrants will be fostered and developed.

Q8 Do you have any other comments on, or suggestions for, the process?

3.8  In addition to the general comments we set out in our introductory paragraphs we would want to raise the following specific points.

3.81    We would question the stated aim of “denying the privileges of Britain to those here illegally”.  At present the system renders many people illegal, including those who are not protected by the laws of political asylum because they are victims of indiscriminate war, ecological disaster or rape.  Specifically we are concerned that in many cases what is meant by the Government as privileges of Britain do not even meet most of the basic essential needs to avoid extreme hardship such as the right to shelter, health care, and the right to engage in economic activity to avoid destitution[2]. Denying the basic needs of irregular migrants within the UK has had the consequence of creating a tiered society with  ‘sub-class citizens’ who have difficulty accessing basic or emergency healthcare, housing, basic benefits and who are legally forbidden to work.  It is unhelpful that the consultation paper categorises such vulnerable people as ‘the most harmful’ in one sentence, unfairly giving succour for more draconian measures by suggesting that all those who are illegal are a threat.  Creating ‘sub-class citizens’, of foreign nationals who do not possess British citizen’s rights, is an unneessary trend which should not be continued.  Besides moral objections it is also short-sighted, costing the taxpayer heavily while not allowing migrants to contribute to the economy legally.  Moreover, it could have the consequence of increasing tensions and resentment within society with all the attendant costs associated with such polarisation.  Increasing public confidence is one of the main principles listed in section 3 and this is not compatible with the creation of a tiered society with levels of inequality that can cause social disintegration, community dissolution and resentment.

3.82 We welcome the planned ‘race equality’ impact assessment, set out in paragraph 1.5, given the repercussions of the dispersal system introduced by the ‘Fairer, Faster and firmer – a Modern Approach to Immigration and Asylum Act [1998] which placed asylum-seekers in areas of great social deprivation where they became victims of racial attack and social isolation.

3.83 Law Centre (NI) is concerned to ensure that the tougher checks abroad as described in section 2.1 should never prevent those seeking refuge from entering the UK.  Carrier’s liability measures and the increasing criminalisation of asylum-seekers for ‘illegally’ entering the UK or using false documentation to enter the UK have already eroded the right to seek asylum here (as enshrined in Article 14 of the Universal Declaration of Human Rights).  We would oppose an approach to  severely limit the access to the UK and would argue that a system based on respecting the human rights of applicants would be far more suitable.

3.84 The fast-tracking of asylum decisions is not appropriate in most cases. There may be late disclosure of rape/torture or time needed to obtain documentary, medical or expert evidence.  Studies of the detained fast-track regime in England have shown that it seriously undermines fairness, as inappropriate meritorious cases remain in the fast-track system where they are bound to fail.  There is a real risk of the UK government breaching its obligations of non-refoulement in international law.[3]  Any move to further fast-track decision-making should therefore be rejected.

3.85 We are very pleased to see the Government recognise that migrants ‘boost Britain’s economy.’  Given this we can see no rationale for preventing asylum seekers from having the right to work to contribute to and integrate into society.  Indeed preventing asylum seekers from so doing actually adversely affects Britain’s economy.

3.86 We welcome the commitment to improve the transparency of the immigration system.  However to become a reality there needs to be greater dissemination of information about key changes.  For instance, in Northern Ireland, the New Asylum Model (NAM) was introduced without prelude by the IND/BIA so that advisers and relevant organisations only knew about it once it started and they lacked information about its personnel and processes.

3.87 As already outlined Law Centre (NI) has very serious concerns about the move to ‘minimise the need for concessions outside the normal rules/ the need for decision makers to exercise discretion’.  The core principle of the Secretary of State for the Home Department being able to exercise her discretion should not be sacrificed in achieving simplification.  The Law Centre submits many applications which do not fit within the Immigration Rules but which may be allowed on a discretionary basis:  these are compelling, compassionate cases which should not be rejected simply because there is not a legal box in which they fit.  It is our sincere belief that if the ability of the Secretary of State for the Home Department to exercise discretion was removed, in practice this would lead to costly judicial reviews challenging unfair decisions.

Notes