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Section 19 rumours


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On Tuesday I speculated on whether section 19 of the UK Borders Act 2007 might be brought into force. This was entirely speculative at the time, but today I’ve heard rumours that this is indeed what is going to happen, and soon. However, I can find no relevant Commencement Order and have checked both Hansard and the statute database.

The information seems to be coming from the tribunal, which might make sense. The main saving for effectively scrapping appeals in Points Based System cases would be for the tribunal. The Home Office rarely seem to attend these appeals.

Introducing section 19 is a very effective way for the Home Office to sidestep Pankina. Decisions will not be any more lawful than they are now, but they will be much less easy to challenge. Rather than complying with the law, the Home Office would rather prevent itself from being challenged. There is a risk of increasing the number of judicial reviews, but most applicants would probably prefer to re-apply. This will cause them to commit the criminal offence of overstaying and will substantially increase UKBA income from the huge application fees. Fees income is likely to be reduced with the planned reduction in immigration, scrapping of the Post Study Work route, reductions in the numbers of students and so on, and this income stream has become very important to the UK Border Agency. No doubt the increased income from fees is a reason for making this change.

Given that 54% of these appeals seem to be successful and so very many of these appeals are only necessary because the Home Office refuse to follow Pankina despite electing not to appeal it, the move seems particularly disgraceful. I have heard speculation about the potential for a contempt of court challenge on refusal to follow a judgment of a court, so maybe that is something that will be explored further. I can see a few hurdles to establishing contempt in a non-specific judgment, though.

For information, section 19 does not remove the right of appeal as such, rather it renders an appeal largely pointless. The only evidence that could be submitted to the tribunal would be evidence that was submitted to the Home Office, unless an allegation of fraud is made by the Home Office or certain other limited exceptions apply.

If the Points Based System was as simple as it was supposed to be and was genuinely transparent and comprehensible to the layperson, section 19 might be more acceptable. The PBS rules are so incredibly complex, though, that intelligent applicants very often make mistakes.

As an aside, this is probably neutral news for immigration solicitors, as the PBS will continue to force immigrants to require lawyers to help them understand it, but bad news for immigration barristers, as there will be fewer appeals.

More to follow if I hear anything.

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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.


13 Responses

  1. Gloves are off. There is now a full frontal assault on Immigrants in the UK and Immigration policy generally.

    It is noticeable in enforcement too. Most of our time is now taken up as a result of persons being detained with no right of appeal being argued. The High Court will soon be sinking under a mass of JR applications.

  2. Have us skilled immigrants committed a crime by legally moving to the UK?

    Unfair, dishonest, out-of-order, NOT British values at all and even more so for those to whom these rules will be applied retrospectively. A broken promise for sure.

    I am starting to think, if this is what we as immigrants chose for ourselves then we didn’t really choose a better life for ourselves at all. Modern day slavery as some I have heard calling it. Take all that immigrants have, give them nothing back and threaten to throw them out at tiniest of things.

    Skilled immigrants are committing the crime of contributing to the UK economy. I hope the government does know, UK is not the only country in the world people can move to for a better life.

    For the record, Mr Cameron; it’s English being typed up there!

    1. That’s a bit strong.

      I’m confident that immigrants will continue to see the UK as a number one destination. I recall 2 years ago people saying immigrants won’t want to come to the UK following a so called clampdown on immigrants.

      The fact remains that relative to other destinations the UK is still miles ahead in terms of the benefits it provides to immigrants.

    2. Strong because these rules directly affect me and my loved ones (and many others like me) and we really don’t know what the future holds for us.

      Despite fulfilling all requirements laid down, every traffic signal I drive though these days; every speed camera I go by; I am constantly thinking; that camera or signal can determine the coarse my future takes. That’s not the type of tension I want to live each day by. No forgiveness, no leeway. It feels as if immigrant is a synonym for criminal given these new policies.

      UK is definitely an attractive place for immigrants, no doubt. That’s mainly because of the values of the British people as opposed to the current government’s gobbledygook on immigration and oppressing those that intend to embrace the UK as their home.

    3. I’m sure you don’t skip red lights or break the speed limits so why do you feel ‘tension’?

      Surely you’re not suggesting you should be able to skip a red light/ break a speed limit without the risk of beign removed/ deported?

      The values of the British Goverment are a reflection of the values of the British people. The fact that the ignorant BNP only get a tiny proportion of the vote is a reflection that this country is tolerant. Equally, the fact that the Conservative party won more votes than the Labour party is a sign that the British public are concerned by the levels of immigration.

      Polls/ surveys have showed that people are generally happier with the curernt Governemtn than the previous one with regards to immigration policy.

    4. Sorry to butt in, but

      Surely you’re not suggesting you should be able to skip a red light/ break a speed limit without the risk of beign removed/ deported?

      Why would this be an unreasonable expectation? Surely you expect not to be jailed for life if you happen to mess up your tax return?
      (Hint: proportionality)

    5. The law says you should be allowed to skip red lights and break speed limits without being deported. Particularly if you have a spouse, perhaps themselves a British citizen, who will then have to live apart or follow you to another country. Particularly if you have children who will then have to grow up without you.

      You really are a bit of a nutter, Onlyme, only you obviously don’t realise it. I’ve said it before: you do the Home Office no favours by leaving comments here.

  3. Let us be very clear about what I said above.

    Immigrants – and certainly myself included are not against change in immigration policy. It needs to change for the better and for the betterment of the country that’s your home and that I have chosen as my new home! We are all for change, that is why we decided to move from our existing homes in search of a better future and many others didn’t!

    Existing process need rationalising and rightly so however this rationalisation shouldn’t happen at the expense of dishonesty, unfairness and broken promises towards existing immigrants. This is not what we were told when our visas were stamped and us allowed to enter the country. Goal posts have been moved without any transitional arrangements. I am against unfair change and that is what retrospective changes are given unspent convictions (also no appeals if they also apply to immigrants retrospectively)

    And no, I haven’t skipped a red light ever since I got my UK licence and do not intend to. I also do not have any points on my licence (not as yet). I am also that guy who gets honked by those intolerant ones behind because I do 29 in a 30 zone! Having said that, one day, a little lapse in concentration and I get snapped, does that mean I should lose my right to live in the UK despite having paid taxes, been a good citizen and abided by all the laws?
    That is very very harsh and if you think I should be deported for running a signal or being snapped by a camera then my friend, with all due respect you not understand the pains of leaving all you have behind, moving to a new country, starting a new life, work so hard to avail that make-or-break change and then be told one day! all of it was in vain.

    As far as the polls and happiness of the British public re immigration is concerned, I think that will be short lived because of how the cap is being implemented. If you don’t believe an immigrant, try Mr Google. I am sure it will tell you the fallacy of it.

    1. Yes, the bar is set too high and the lack of discredtion defys common sense.

      Sure many have no criminal record, myself included, but minor motoring offences seem to be disproportionately punished. Its almost a double jeopardy situation, where you get repunished more severely than for the original crime.

      In my minimal experience, the right of appeal is over rated. It is a double edged sword. The embassies often say “then appeal” when they know they are making bad decisions. In the future they will be forced to take a different approach, and not turn away people who they previously would have turned because they were in the process of appealling.

    2. I take your point- explained in a more intelligent manner than one or two others here.

      The skipping red light point was a bit of a red herring; applying that logic street robbers in Peckham have a right to feel disgruntled if they get caught because there’s a disproportionately high number of police officers on the street there. I thought you might have been arguing that they should be able to rob in Peckham as freely as a street robber in any other part of London!

      My view has always been that the best measure of how tolerant/ generous/ lax/ lenient/ fair a countries immigration policy is can be measured by the numbers wanting to come to the country in question. As I’ve said previously, the UK remains the number one choice of virtually every country across the globe.

      Surely this wouldn’t be the case if things are as bad as some make out?

    3. I didn’t realise you were stuck in your Peckham world OnlyMe since robbing and skipping red light/speed camera are indeed very different things, not sure how you ended up comparing the two. Your point of deporting skilled immigrants for skipping red lights/speed camera is for sure the most intelligent one, us unintelligent folks forgot to realise that! People like you fail to realise, immigrants are also human beings (not machines that they won’t make any mistakes) at the end of the day and have a right to a normal life like every one else. They do the country they immigrate to, a favour by choosing it and offering their skills (also up skilling locals in most cases) rather than the other way around. I don’t think I need to tell you about resulting economic (and various other) benefits.

      It’s plain and simple. Rule changes should be honest and fair with promises kept. It’s all good and well to call the UK number one destination for immigrants, however that statement is empty and vague if there are no policies to back it. UK will for sure never be short of immigrants but these will be those that get here through routes other than the skilled route. Skilled folks will have plenty of opportunities elsewhere and their focus will shift towards those countries that offer them most flexibility and security. It’s a loss for immigrants only in the short term – however a loss for the UK from those skills on a long term. Policy makers need to think that before putting their pen down.

      Being an immigrant, I mix in immigrant circles. I tell you what I have seen (not something I have heard from a distant source or second hand) – a friend of mine on TIER 1 general just immigrated to Canada in the last year before his ILR. His reasons weren’t different from the ones I mention above, and he chose to alleviate himself of the current happenings. A food for thought for all!