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A sign of things to come:

Following the UK general election on 6 May 2010, the UK Border Agency website has undergone some changes.

All news stories published before April 2010 have been removed from this website, as has information about our strategies and aims under the previous government. This content can be viewed on the UK government web archive.

Information and guidance for applicants and others is still available on this website.

What can we expect in the coming days, weeks and months? There will surely be changes to the Points Based System. Under the current UKBA approach it is very easy to make any changes, including introducing a cap. There is already a bizarre cap on Japanese entrants under Tier 5, which is not applied to the other Tier 5 countries – which are overwhelmingly white. Whether this legal mechanism remains viable beyond the upcoming Court of Appeal challenge remains to be seen. The claimants are arguing, amongst other things, that changing immigration rules through policy documents is an unlawful derogation from the requirements of the Immigration Act 1971.

That leads on to another BIG change . Civil servants have drafted a completely new immigration act to replace the mess that has been allowed to develop since 1971. It is difficult to explain to non lawyers, but the 1971 Act is still the main immigration law. It has been amended, though, and then those amendments have been amended and re-amended and so on. My favourite anomaly is that there are two different sections 88A of the 2002 Act both concurrently in force in respect of different types of application. The level of carelessness and negligence necessary to achieve that is breathtaking.

It can be expected that the new Act will reduce appeal rights, reduce safeguards and increase executive authority. The Con-‘Dem’ alliance may talk big (and will hopefully follow through) on repeals of appalling New Labour authoritarian laws with a US-styled Freedom Act or similar, but in immigration I somehow doubt that they will be rolling back the frontiers of the state.

Legal Aid in all areas is surely going to come under serious scrutiny, especially now that the previously independent Legal Services Commission has been brought into the government fold as an executive agency. Legal Aid in judicial review and immigration is likely to come under pressure, although one would hope that Dominic Grieve, the libertarian new Attorney General, would understand the importance of adequate funding of judicial review work. I once briefed David Davis and Dominic Grieve at the time of a new immigration bill. I expected to be laughed out of the room or worse, but they seemed genuinely receptive on civil liberty issues even in an immigration context. That reminds me – whatever has happened to DD?

Will the cap on economic migration, however defined, lead to a concomitant easing of enforcement actions against employers? The industrial and employer lobby is said to be strongly opposed to any migration cap so maybe that could be a quid pro quo. The prominence given to the demonisation of employers was certainly evident from the UKBA website in the past, which was all very embarrassing when Baroness Scotland came a cropper.

Any other suggestions or predictions? Leave a comment.

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Free Movement

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


22 Responses

  1. I think the 10 and 14 years criteria to obtain ILR will soon be scrapped since the conservatives aim is to reduce net migration.

    1. It’s common knowledge that fake documents were used in a huge number of the 14 year cases so the scrapping of this would be welcome.

      I’ve always found it bizarre that we reward people for remaining here illegally. The better you are at hiding the more likely you are to obtain ILR. Not so good and you’ll get caught and deported(assuming UKBA has the resources and the individual doesn’t appeal to the AIT, and then to Field House and then to the CofA……)

    2. I very much hope not, myself. I think the idea of trying to remove someone after 14 years residence is appalling. It is also completely impractical and takes no account of their family and private life and the effect on others. And besides, someone who is able to keep their nose clean, their head down and make a productive contribution to the economy is exactly the sort of person who should be allowed to stay.

      I would not be entirely surprised if the 10 and 14 year rules were withdrawn, however, and merely replaced with a vague assurance on human rights – assuming we still have human rights by then.

  2. The limits on the Youth Mobility Visa for Japanese Tier 5 applicants to the UK is not some sort of deliberately racist British imposition. It’s a matter of reciprocity. Under a parallel scheme, the Japanese have chosen to limit the number of UK beneficiaries of the same visa to 1,000 per year.


    Canada, Australia and New Zealand do not impose similar limits. Hence no limits by the UK on their nationals.

    So really, in this particular case, that conclusion was likely to be a bit unwarranted.

    1. I am truly glad to hear it – I had always wondered how on earth the quota could be justified.

  3. Sorry but this will not do:-

    “It’s common knowledge that fake documents were used in a huge number of the 14 year cases so the scrapping of this would be welcome.”

    Is this symptomatic of a culture of disbelief? Is the poster saying that detecting fake phone bills or whatever was beyond the HO? If they were detected they would be rejected. If not, how do we know they were fake?

    FM you said recently that the HO seems to lose track of the impact of HO decisions on human beings. This post is typical of that. Given the difficulty of surviving without papers these days if you get to 14 years and qualify under “the 14 year concession” as it is now in the Rules you deserve a medal and instant ILR as the sort of resourceful person the country badly needs.

    1. tbf, I think he was saying that a fake docs were used in 14 yr rule cases – how do we know this? because a whole host of us defended the decisions at appeal with such blatant forgery that it didn’t take much digging. As there is a right of appeal against such decisions, lets not get precious about the fact that applications are made using false docs. The frustration is, and I must say th at I do not subsribe to scrapping the 10 and 14yr rules myself, that it takes up a large amount of resources and public money on decisions and appeals when people take the mickey with various ‘original’ docs.

      As I say I actually like the 2 rules, and personally feel that there are enough checks and balances in the 14 yr rule to accomodate those who have ‘hidden’ for 14 years and those who have been granted visas intermittently over the years totting up the 14 yrs as was envisaged when brought into force – see the wording of the rule.

    2. It is not at all symptomatic of a culture of disbelief. Indeed, I wonder if Alex is aware of the number of LRC cases which are granted in the first instance and therefore do not reach the appeal court? Perhaps Alex would like to make an FOI request to find out.

      I can assure Alex that if such a culture did exist there would be a considerably larger number of cases going through the appeal system.

      Detecting fake phone bills is not ‘beyond’ the HO. But it can be when you receive huge numbers of applications and resources to check such phone bills (not to mention all the other documents) simlpy do not exist. let us not forget, this is all done at taxpayers expense and I for one would rather that money was spent on schools, hospitals etc

      With regards to losing track of the impact such decisions have I am not entirely sure how one can respond. The message seems to be that the impact is so great we should grant status. Applying that logic we should grant ANYONE from a war torn/ poverty stricken country with status. In a utopia world we would. Indeed, in a utopia world there should be no need for any individual to have to travel half way across the world for safety. However, in the real world we have strife and in the real world some form of immigration control is a necessary evil so please Alex, don’t insinuate that I (or my former colleagues) do not have any sympathy for the plight of those seeking to live in the UK.

      As to the suggestion that those living here without papers (illegally) deserve a medal, I wonder where Alex would draw the line in terms of rewarding illegal actions?

      Those that do wrong often are resourceful- are we to reward them all? Surely we shouldn’t encourage such behaviour by rewarding it. It’s a slippery slope and sends out the wrong message.

    3. I am not suggesting that fake doc’s should be accepted. But if the Rules require you to give evidence then the HO must devote the resources to check it. If they don’t then they must just accept that people might get through with fake ones and not complain. In particular it is not fair to tar everyone with the same brush. This situation (created by the HO) is no justification for scrapping the 14 year rule. If you really feel it is reasonable to remove people after 14 years then you have not given enough thought to the human impact of immigration decisions.

      Resources – immigrants now pay outrageous fees but the quality of the decisions does not seem to improve. If the HO employ a lot of people with a few GCSEs to make decisions when there is new legislation every year, then they are not using the resources they have very well. And that is not the fault of the applicants.

      Immigrants are of immense benefit to the UK. Ask anyone running a private school what they think of recent policy on student visas. It is good news for educational institutions in the USA and Australia. The bad decisions (and high fees) (eg stupid requirements about bank statements) made by ECOs is losing the country money and jobs.

      With our crap weather and sense of entitlement to things without lifting a finger we are very lucky that so many people choose to bring their energy and hard work to the UK. We should fund an efficient and humane system of dealing with their applications. It is to our benefit.

      In the last few years a Ghanaian woman with terminal cancer was taken out of hospital in Cardiff and removed back to Ghana. She was an overstaying student. She became ill in the UK. Despite assurances that she would not be left without care she was left in a hospital where she would not get care. Instead of dying with some dignity with the friends she had in the UK she was removed to a place where she knew no one. In this internet age the story went round the world. Absolutely shameful. Lin Homer said that she had been rejected by the independent court system but in fact (as Homer knew well) she had no right of appeal to it. If you really think that encourages respect for the UK round the world you are mistaken. We are the first to complain about failings abroad – you have suggested that 14 year applicants are frauds – but what does that decision make the UK look like in humane terms? We all know very well it is the tip of a large iceberg. If the HO had any sympathy for the likes of that woman and others they would make different decisions and would not indulge in the abuse revealed by the Cardiff whistle blower.

      As for overstaying or illegal entry being a criminal offence. That is ridiculous. If a HO person makes an unlawful decision to refuse an application and in so doing infringes their human rights why not make that a criminal offence too? Or is it one rule for the immigrants and another for the HO?

    4. Justification for scrapping the 14 year rule wasn’t purely from a workload perspective. Indeed it wasn’t event he core reason. The core reason is the 14 year rule which fuels the demand for fake documents. One would have to be incredibly naive or incredibly stubborn to not know that a worrying number of 14 year rule applciations to involve fake documents.

      Alex, for the seoncd time you have raised the issue that the HO do not fully appreciate the human impact of decisions. What about the human impact of not interfering with the disgraceful HR violations in China and Zimbabwe and across many toher countries across the world? I repeat my question; where does one draw the line? Having in place the HRA and the refugee convention as well as a set of immigration rules which provide for hundreds of ways of obtaining leave I feel is fair.

      Alex, you say immigrants are of huge benefit to the UK. Agreed, but you need to look at the flip side. Whta about the strain on housing and the transport system not to mention other services. I worked closely with a Housing association in NW London not long ago and the council could not house large families who had been waiting for accommodation for several years due to the influx of refugees and economic migrants. Before you scream ‘racist’ I would encourage you to talk to those that work in housing to learn that many British citizens on low income are deprived of adequate housing as policies often benefit migrants due to their family sizes.

      I also agree that many do bring their energy and skills to the UK. But again you fail to acknowledge the flip side. Many also contribute nothing in the economic or social sense but rely heavily on the state.

      In response to your last point; I’m yet to meet a caseworker who knowingly made an unlawful decision. There is no benefit be derived by making a decision one way or the other. Or is the suggestion that there are spiteful AND raicst caseworkers within the UKBA?

    5. The situations in China and Zimbabwe are not affected by the decisions of people in the HO. People in the UK are. We are supposed to be a civilised country that is respected throughout the world for its fairness and respect for human rights. Dragging a terminally ill woman out of hospital, dawn raids on families who are then split up in detention. This is the sort of behaviour – and much more besides – that loses the UK respect, and rightly so, around the world.

      A recent case ZN [2010] UKSC 21 decided that if a refugee became a Brit Cit that did not affect his/her entitlement to family reunion without the need to comply with maintenance and accommodation requirements. Is that not nastiness on the part of the HO? And taking it to the SC a big waste of money?

      A civil servant clearly made the decision that although we are signatories to the Refugee Convention which recommends that refugees have rights to family reunion the HO should increase the wait and separation for the spouse and children of this refugee by trying to wriggle out of its responsibilities. We are also as our politicians say supposed to be in favour of the family and a Christian country so in that context how can that decision be justified if not for the reason to just make the immigrants suffer as much as possible?

      The shortage of public housing is down to the selling of council houses by the Thatcher gov’t and failure of local and other authorities to build enough since then. This is a typical case of blaming immigrants for something which is not their fault.

    6. When you have out of country applications made decisions are made by the HO, or the FCO ni any case. However, the point I make is where does the state draw the line. Anon, it seems to be your argument that those that are able bodied and financially able to make it to the UK should have their circumstances taken into account. However, those that are the most vulnerable, the elderly, the poor to give two examples should not be helped.

      With regards to the UK being a civilsed country i think you’ll find that the UK is perceievd as being more then a civilised country abroad. This is backed up by my own personal experiences in my home country as well as numerous first hand interviews with large numbers of migrants (See the Dispatches programme on Channel Four a few months ago, read the views of large numbers of Afghan asylum seekers in france whow ere desperate to come to the UK). Indeed the perception of the UK isn’t that of not commanding respect- it is a view of the UK being a ‘soft touch’. An expression used by many migrants themselves. If you look at what asylum seekers from Afghanistan, Iran, Iraq, Somalia, Eritrea etc say, it’s always the same lines ie that the UK respects HR and is easier to get into than any other country. These are not my views, nor indeed are they HO viwes. These are the views of aspiring asylum seekers the world over.

      Your final comment is typical of those that, for whatever reason, have some sort of grudge against the HO and the government more generally ie where a problem is identified be that immigration or something else, find a way of blaming the state. There are many ordinary, working class law abiding citizens who wer able to purchase their council houses and were grateful for that opportunity, I doubt they would agree with your sentiments.

      it’s not a case of ‘blame’ as you put it. If thatw ere the case, who do you ‘blame’ in the international community for not standing up against the regime in China and Zimbabwe?

    7. I find it extremely worrying that you ever have or continue to work at the Home Office, as you seem to claim. I am sorry that you cannot see that your views are troubling. I suggest you stop leaving comments here or elsewhere on the internet in public places because you risk tarring your ex or current colleagues with the same brush. I will delete this and your other comments if you continue in the same vein.

    8. FM, I apologise if I have posted anything that is offensive to anyone, that is certainly not my intention. I would be disappointed if my posts were not permitted.

      I have looked at what I have posted and whilst controversial, I believe the points I make are fair ones. Indeed, many of the points I make aren’t simply an expression of my opinions, there is very little of that- they are assertions backed by evidence which any reader can go away and check.

      I acknowledge that they may upset some but surely one of the aims of this blog is to have an open and frank discussion about various issues or else risk playing into the hands of the BNP and its like? Clearly that is something that neither of us wants.

      What I hope my posts do is provide your readership with the other side of the story- after all there are two sides to everything and simply shutting me off is to not face the challenge head on.
      I would just end by saying that if this is to be my last post, I am not anti-immigration or racist in any way shape or form. Indeed, there are cases which I presented where I simply relied on the RFRL and as you’ll well know, that is a euphemism for inviting an IJ to allow an appeal.

  4. FM, thank you for this useful preliminary assessment of the new status quo. Your views are always enlightening and thank you in general for taking the time out of an undoubtedly busy work schedule to inform the interested public – and with good humour!

  5. Ad: PO dawn sarf

    Re: “The frustration is … that it takes up a large amount of resources and public money on decisions and appeals when people take the mickey with various ‘original’ docs.”

    No doubt forged documents can and would have been used to support some cases in this category.

    However, has it ever occurred to you how difficult it can be for an illegal resident who has indeed been surviving for umpteen years in this society without documentation to obtain evidence which would prove that he or she has been in the country for x amount of years? Try to obtain a letter from your GP for example of 14 years ago that he or she has seen you. Or try bank statements if you don’t have an account. Often the only way to provide the evidence is if people who have known you for that long swear an affidavit that they have and that you’re of good character and so forth. Who will do this for you? Who will want to get their name down with the HO in support of you, the illegal immigrant?

    That’s one point.

    My second point is about your complaint that public money being spent to deal with these cases.

    From what I hear there is quite a bit of private money being made on the back of such cases. As in bribe.

    Five years ago I took pity on someone and paid a – qualified, as in not immigration adviser, and reputable – immigration lawyer to file their application under the 14 year rule. (Btw, two of their brave friends did actually swear an affidavit.) I thought surely this will help and will grant their well deserved ILR as they have been working hard all the time (of course always been taken advantage of as wages not enforceable), never relied on public funds and stayed away from trouble.

    Far from. Two years ago the person in question withdraw their file from the lawyer saying they’d chase the HO themselves. They were embarrassed that I was still paying £500 a year for one reminder per year being sent to the HO.

    We are not in regular touch but ever so often I ring up to enquire how the case is proceeding. On one of the last occasions I heard that via friends they met someone who works in the HO and this PO was offering to “move their file from down the pile to up the pile”. Costs: £300. The other option, if they had the funds, was to pay around £3,000 and get their passport including ILR back swiftly.

    Did this surprise me? No. Before the case was taken over by the reputable lawyer it was with another lawyer who did not submit the application but who, in my presence, suggested exactly the same thing! But then the price was £5,000. Probably commission included. The latter is speculation on my side. That lawyer was saying if my friend could pay £5,000 the case would be solved very quickly. Not sure if that contained an offer to submit the money on my friend’s behalf. Needless to say I was shocked back then in 2005. That’s when I decided to sponsor a ‘proper’ lawyer (the other person was a qualified lawyer as well, sadly).

    I know I could have reported that lawyer to the SRA. But what evidence did I have? It was a conversation and the only witness was my friend who wasn’t keen on messing with any authority.

    This story never left me and if I ever get my hands on evidence of this sort of corruption in the HO or find someone who is brave enough to attest, I will drop anything else I would be doing at such time to make public the UK’s biggest immigration scandal in decades!

    1. That’s one of the strangest justifications for using false documents I think i’ve ever heard, just because one doesn’t have evidence then you should obtain false documentation, nice one.

      As to your other point my point is that it is amazingly frustrating that the public purse is shelling out for the cost of a decision, appeal, court staff, IJ, administration etc etc on the back of completely bogus documents. That is the public expense, I hazard a guess that if anyone is making a profit from this, then it won’t reach the appeal stage anyway.

      Of course you should report anything that could be deemed as corruption from either the HO or solicitor, however please lets not tarnish us all who work just as hard and in just as difficult times in the public service with that brush, as it is simply unjustifiable.

    2. I was not suggesting in any way a justification but pleading for understanding that people who do use false evidence are not all crooks instead can be hard working people so desperate for status and to prove the truth, namely that they’ve been here all this time, while having no way to prove this and therefore turn to unacceptable measures!

  6. Former PO

    My point is that the people who told you they thought that the UK respected human rights had just arrived. Or they were asked why they came to the UK rather than another country. If you ask someone whose case has been refused/or is outstanding after many years and is one of the many surviving with no papers and without the right to work you might get a different answer. And what I am saying is that the reality is different. But people who flee for their lives will still believe that the the UK is a good place to go. Putting people in detention in UK or stopping them working will not change that. Such policies are sending a message to voters in the UK not people in Iran or wherever.

    If the gov’t wants to sell council houses that is fine but if you do not build more there will be a shortage. That is the fault of a lack of building – and UK citizens who do not want to pay taxes – not immigration.

    What I find most disturbing is your lack of appreciation of due process. It would be a start in my view if all applications were properly decided taking into account relevant issues and disregarding irrelevant ones with the applicant getting such professional help as is reasonably required. As in so many areas these days we have people dealing with a “process” with insufficient care for the quality of the end product.

    There are also HO “policies” e.g. “compelling compassionate circumstances” – in practice they are never quite compelling enough are they? The existence of the policy kids is that we are a christian civilised country when the reality is different.

    1. Anon

      I would strongly challenge your assertion that those who thought the UK respected HR had ‘just arrived’ here. One only needs to walk into a random asylum hearing to find appellants who have been here for considerable time still saying in cross examination, even after months and even years, that they opted to come to the UK because it did in fact respect HR more than any other country.

      To cement this point you will also find numerous individuals saying they have heard it from friends and family who have already qualified for asylum in the UK. Anyone who has appeared at asylum hearings on a regular basis (be it PO, IJ or appellant’s advocate) would know this.

      I totally agree with you on the point of UK citizens not wanting to pay more in tax. But that is the problem really isn’t it? If we do not want to pay more taxes, which we clearly don’t, and thereby increase supply we clearly have to reduce or at least control demand. Controlled immigration is one way of addressing this though I’m not sure I agree with the cap.

      It’s interesting that in the last few days several Labour MPs have come out and echoed these sentiments, particularly as they were reflecting the views of the wider public.

      Had the Labour party addressed the concerns of the public in relation to immigration I doubt very much we would have a Con-Lib coalition today as between them they wouldn’t have been able to get a majority.

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