A Law Centre (NI) Response - January 2010

About Law Centre (NI)

Law Centre (NI) is a public interest 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.  The Law Centre provides advice, casework, training, information and policy services to over 450 member organisations in Northern Ireland. We are the main advisers on immigration law in Northern Ireland and facilitate the Immigration Practitioners’ Group consisting of lawyers and voluntary sector organisations.

Introduction

In this response we first set out some general thoughts about the proposals and then respond to specific questions where appropriate.

Discretion

We welcome the proposal to retain the discretion that enables UKBA to make positive decisions outside the Immigration Rules in exceptional circumstances.¹ It is important that UKBA continues to acknowledge that discretion is an essential part of immigration law:

[...] it is not possible to anticipate every eventuality that may arise, so there remains scope to grant Discretionary Leave where individual circumstances, although not meeting the of any of the other categories, are so compelling that it is considered appropriate to grant some form of leave.²

The retention of discretion should continue to apply to a broad range of immigration decisions.

Terminology

We are uncomfortable with the use of the term ‘product’ to describe immigration services and in particular when applied to services availed of by protection applicants. The term ‘product’ suggests choice, which simply does not capture the reality of the majority of protection applicants who arrive in the UK.³  Further, if an immigration service is to be deemed a ‘product’ then it follows that the user is viewed as a ‘consumer’ or ‘purchaser’. Again, it is inaccurate to view a person fleeing persecution in these terms and it is certainly unhelpful in terms of public perception.

Retrospectivity

The consultation states that changes to the Immigration Rules do not retrospectively affect applications.⁴ However, this is in fact a reoccurring issue that needs to be addressed in order to improve clarity for applicants.⁵ In addition, UKBA delay in processing applications can compound this problem.

Consultation Questions

1. Should we modernise and simplify the Immigration Rules?

Yes. However, unfortunately, this consultation document provides little information about how the Rules are to be simplified. While we support the general proposal to simplify the Immigration Rules and make them more user-friendly, we are aware that ‘streamlining’ is likely to result in a reduction of content. We hope that UKBA will consult before such changes are made.

2. Should we make Rules changes more predictable and transparent e.g. scheduling routine Rules changes and listing potential Rules changes?

Yes. It would be useful to have one central source that lists potential changes. However, this should extend to all changes as the consultation states that changes will be listed ‘whenever possible’.⁶  It would also be helpful if the governing Act or the Rules sets out the process of making changes.

3. Should we reduce the amount of guidance, ensure any remaining guidance is better quality, and refocus our energy and effort from creating and maintaining guidance into ensuring the Immigration Rules are simple and clear in the first place?

Yes. In general, we support the proposal to reduce the amount of guidance. In particular, we think it would be helpful to review the different types of information currently listed under the ‘Guidance and Instructions’ section of the UKBA website. Among the different types of guidance included on the web page are: Asylum Policy Instructions; Asylum Process Guidance; Immigration Directorate Instructions; Enforcement Instructions and Guidance; European Casework Instructions, etc. It is not always clear how these different categories differ from each other. Certainly, there is a considerable amount of duplication that can be reduced.

However, clear, comprehensive and easily accessible guidance is an important part of the immigration system and should not be removed entirely. Guidance is particularly important for applicants who cannot access legal advice.

We are somewhat wary of the proposal to use only ‘simple, everyday English’.⁷ It cannot be ignored that some immigration situations are complex and it is necessary that the governing legislation is sufficiently detailed and accurate to reflect this. Consequently it may be appropriate at times to use technical language that has precise meaning rather than use broader, simpler language that could give rise to confusion.

4. Is our suggested future Immigration Product and Rules structure clear and simple?

The structure set out on pages 11 – 12 of the consultation document is simpler than the current form.

However, we strongly oppose the suggestion of implementing a points based Rules system that could allocate points for all types of immigration applications.⁸ Quite simply, the UK’s protection system should be premised on need and not on points. Therefore protection applicants should be exempted from any points system.

With reference to the rules changes, we ask UKBA to review the current process outlined at paragraph 3.6 whereby Rules that have been subject to disapproval by parliamentary resolution take effect and remain valid until fresh Rules are created. In terms of simplification, it makes little sense for disapproved Rules to take temporary effect only to be replaced shortly afterwards.

5. We are planning to modernise and simplify UK Ancestry and Representatives of Overseas Business and create new Rules and any guidance that reflects this framework. Have you got any specific suggestions on how we could modernise and simplify these areas?

No comment.