Updates, commentary, training and advice on immigration and asylum law
What does the government’s new plan for legal migration and border control mean for the future?
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What’s better than a plan for immigration? A new plan for immigration.
July saw the publication of the Government’s New Plan for Immigration: Legal Migration and Border Control policy paper. Not much of the content can really be described as new. Unlike last March’s asylum-focused New Plan for Immigration however, this New Plan focuses on digitisation and the regulation of entry and exit from the UK.
The ministerial foreword boldly opens
Since this Government ended freedom of movement, we have implemented a global points-based system which has gone from strength to strength, with visa application numbers above those of pre-pandemic levels.page 7
The points-based system of course predates this government and is not new. Nor is it really points-based. By its very nature it has always been global. Some might question whether it is really a ‘system’ as such. But it is true that visa applications are logically going to be up compared with pre-pandemic numbers because of the end of free movement. If an increase in visa application numbers and red tape is a demonstration of strength, then we are indeed mighty.
The government subscribes to a “digital by default” vision for immigration, which includes slapping a lower case ‘e’ in front of capitalised words to denote digitisation. Wet ink stamps are out, eVisas are in. Also featuring heavily are expanded use of eGates and the roll-out of Electronic Travel Authorisations (acronymised as ETA and not to be confused with the homonymous Basque separatists).
eVisas are already used by EEA citizens, BNOs, and certain cohorts of Skilled Workers. They are digitally accessible entries on a government database detailing a person’s immigration status, issued in lieu of a physical document. The 3million have done a lot of work on the potential problems of a digital-only immigration status, but so far the government seems set on its course to phase out physical visa documents by the end of 2024.
The capping of all Biometric Residence Permit cards’ validity at 31 December 2024 has been signalling this change for some time now. Originally all Biometric Residence Permit cards were going to be swapped out for a higher security standard of card. Now, cards are being dispensed with entirely. Holders will be transitioned on to eVisas instead of new cards. The detail on how this will actually happen is fuzzy. The plan says
For customers with existing immigration status, we will provide guidance and support to help them convert to an eVisa which will give them access to the full range of online account features and services. By the end of 2024 they will be able to interact with a digital immigration system removing the need to obtain a replacement physical document.paragraph 44, page 21
I would feel much happier if the plan said
For customers with existing immigration status, we will
provide guidance and support to help themautomatically convert to an eVisa…
No automatic transition means that card-holders with valid immigration permission extending beyond 31 December 2024 will have to take active steps to transition to an eVisa. If they don’t take steps to do this they will be unable to evidence their status. Sound familiar? Fear not, for Windrush is at the forefront of minds
We are conscious of the lessons learnt from Windrush and are committed to ensuring that all customers, including the most vulnerable, are properly supported as we transform our immigration system. Nobody should be left behind as a result of our digital transformation. Should customers have difficulty accessing their eVisa online or experience any technical issues, our dedicated Resolution Centre will be on hand to support them. Customers will also continue to receive written notification of immigration status alongside an eVisa, which they can retain for their own records.paragraph 46, page 21
Comforted? Good. On to the good stuff.
Digitisation and eVisas go hand-in-hand with app-based biometric enrolment using the Government’s ID Check smartphone app. When the app works, it works well. It’s quick, it’s fast, it can be done from your own home. The roll-out of the ID Check app has already reduced the number of people having to booking visa application centre appointments.
The ID Check app has also begun to be deployed across some visa and citizenship categories for those who have already enrolled biometrics in the past. Biometric reuse is due to be extended to further visa categories through 2022 and 2023.
Whilst the increasing utilisation of the app in lieu of visa application centre-based biometric enrolment will reduce reliance on third-party contractors such as TLScontact, VFS Global, and Sopra Steria, I don’t think we are quite at the stage where we will wave goodbye to them completely.
Electronic Travel Authorisations
Electronic Travel Authorisations are digital approval to travel to the UK, nothing more. They are not a visa and they are absolutely not to be mistaken for a pre-determined grant of entry clearance to the UK. They are only really relevant to non-visa national visitors who can currently just get on a plane and land in the UK without obtaining a visa in advance, and seek entry at the border.
The power to require visitors to hold an ETA was created by the Nationality and Borders Act 2022. Anyone who has been to the USA will be familiar with the equivalent “ESTA”. One aspect of ETAs I am struggling with is the biometric part. The plan says
Customers applying for an ETA will provide their biographic, biometric and contact details, and answer a short set of suitability questions.paragraph 58, page 25
This is immediately different to the American system which involves a short online form and payment with no biometric enrolment until the border, at which point there is fingerprinting and scanning on entry.
Advance biometric enrolment adds a whole other dimension to the process. The ID Check app will undoubtedly serve the majority of people well, but we know from experience that not everyone’s passport scans, not everyone has the necessary tech-confidence, and not everyone has a good enough smartphone. Does that mean these travellers will need to visit a visa application centre even if they are non-visa nationals who are not making a visa application? The answer is not in the plan. I suppose one upside to advance biometric enrolment will be reduced queuing time at the border, but it just front-loads the hassle at an earlier stage of the process.
Integrated Carrier Data-Sharing
Improved data-sharing means that security, immigration, and potentially health checks will be undertaken pre-departure, based on existing Advance Passenger Information (API) systems operated by carriers
Carriers will receive a single message from the Home Office confirming whether an individual has permission to travel when they submit API data. This will help carriers discharge their statutory obligations under the UK ‘carriers’ liability’ scheme, to ensure passengers are properly documented for travel to the UK without the need to check additional immigration documents. This scheme will be amended to reflect the introduction of ETAs and the wider permission to travel requirements.paragraph 59, page 26
Carriers will no doubt be very relieved not to have to assess for themselves the almost infinite range of available travel documents. They usually delegate this task to service companies at airports, who sometimes get this wrong both in refusing permission to board to a person who should be allowed to travel and allowing a person to board who should not be allowed to travel. It will potentially save them a small fortune as they are currently fined £2,000 per passenger they permit to travel who is refused entry and lacks the required travel documents. 562 such penalties were issued in the first quarter of 2022, for example, totalling some £1.6 million.
There are some lofty aspirations for the customer experience in store for us:
To ensure our new system is simple to understand and operate, we are putting the customer at its heart, ensuring it is easier to navigate and digital by default.paragraph 6, page 10
It looks like this is to be done with improved customer service functionality, though there seems to be quite a bit of emphasis on encouraging or empowering people to work out the answers to their questions themselves.
For those planning to come to the UK, we are making it simpler and more intuitive for people to understand if they are eligible for a visa, what steps they need to take to apply and, if granted, the conditions of their stay in the UK. This will be achieved through clearer guidance and content on gov.uk, including new customer support tools.paragraph 33, page 18
This basically sounds like the old UKBA website which used to helpfully link to application form, application form guidance, immigration rules, relevant caseworking instructions/policy guidance. It would be nice to finally be able to easily access all relevant information and law without having to Google it. It also sounds a lot like the aspirations the Home Office had for the original Points Based System 1.0 back in the 2006 white paper, and we all know how that turned out.
There’s still no mention of any kind of application progress checker/queueing system/live timescale estimator. I expect a tool like this is wishful thinking. I can imagine the fear of repercussions if timescales are not met, but at least some kind of basic progress checking tool would be welcome. Maybe next year.
Sponsor licensing and business migration
A revamped sponsor system is still anticipated in early 2023. This is already long overdue and has been in the works for quite some time now. Our current sponsor licence application and management system is a laughing stock. Anyone who has had the joy of showing it to any IT-literate company will share in the collective sighing. The new system aspires to
streamline the process for sponsors, applicants and enable more efficient caseworking, existing sponsors will have the ability to invite a worker to make their visa application once role details have been approved with the role information pre-populated.page 24
To be fair, the revamped sponsor system sounds really good. It should speed up the application process and cut down on form-filling errors. It will likely also reduce the importance of lawyers in the application process. But that would be a good thing for everyone else, and I’m sure we’ll find some other way to make ourselves useful.
Is all this good news or bad news?
It is difficult to say. It depends who you are and what you want. And it depends on whether the Home Office successfully follows through on what at the moment looks like a vague set of directions rather than a detailed roadmap.
For now we’re left speculating on how it will all work in practice. On the business migration side of things, anything that makes the sponsorship process simpler and more accessible will certainly be welcomed by businesses. But without seeing what the actual changes are or what the new system actually looks like it is impossible to say.
As with any change, there will be positives and negatives. Digitisation is the way the world is moving so there is probably no point fighting against that as such. That does not mean there is no scope to campaign and work with the Home Office to identify, address and mitigate problems that will arise. Whether any of this really leads to substantive changes for most people seems questionable.
The changes to the passenger-carrier visa checking system might be a case in point. This could save airlines some money and it could ensure that people who qualify for entry are allowed boarding, whereas those who don’t are not. But a whole new set of mistakes and problems are likely to arise. Home Office data quality is notoriously poor, new security and privacy issues may well arise and any downtime for Home Office systems will be disastrous for anyone travelling at that time. It may well prove to be the case that some people who are entitled to enter still end up being refused boarding, but for different reasons than in the past.