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Journal of Immigration, Asylum and Nationality Law

Edited by:
Alan Desmond
Publisher:
Bloomsbury Professional
Publication Date:
February 2024

pp.344–348

Refugees welcome here?

The Common European Asylum System has not proven equal to the challenge of refugees coming to the European Union. The relatively sedate pace of individual refugee status determination is taking a back seat to the imperatives of keeping borders open, registration and distributions of essential supplies, but these basics are not being achieved. The scenes from Hungary and from parts of Greece such as the Isle of Lesvos recall refugee crises much further afield.

The idea of 90,000 people marching through London shouting ‘Refugees welcome here’ would have seemed preposterous at the time of writing news for the last volume. But in a development that attests to the power of the media, the penny dropped: refugees flee because they have to. It is not inhuman and greedy beyond belief for a person to risk the life of their child on a tiny boat; they do it because the sea is safer than the land. The cynics watched the public mood change and said ‘it won’t last’; but a person cannot un-understand something. Although a person can forget.

The change of public mood led the Government to agree that it would accept 20,000 Syrian refugees for resettlement over five years. The response from many quarters was that it needed to act more quickly, take greater numbers and indeed take more nationalities. There were also calls for changes to existing policies such as legal aid for refugee family reunion and changes to the poverty levels of asylum support. Many organisations recognised a need to be vigilant to ensure that a ‘refugee good: migrant bad’ narrative is not allowed to develop, a temptation hard to resist when ‘refugee good’ is such an advance on previous positions.

The Home Secretary was not caught up in the public mood. On 6 October 2015 she made a speech to the Conservative party conference that warned of movement of European nationals and immigration by refugees, students and, to the anger of the business community, used the term ‘economic migrant’ as one of abuse.

Against the background of public sympathy for refugees the Home Secretary raised the spectre of the ‘bogus asylum-seeker.’ The implication from her speech was that a good refugee is a resettled refugee. For ‘immigration campaigners and human rights lawyers’ there was a stark warning:

‘ ...the fewer people there are who wrongly claim asylum in Britain, the more generous we can be in helping the most vulnerable people in the world’s most dangerous places... you can play your part in making this happen or you can try to frustrate it. But if you choose to frustrate it, you will have to live with the knowledge that you are depriving people in genuine need of the sanctuary our country can offer.’

At the Conservative Party conference, as in the speech, the talk was that instead of assisting refugees in Europe, the UK should be establishing safe areas in Syria. The question of the response of Europe to refugees was being redrafted as a debate on the UK’s membership of the European Union.

Immigration lawyers were surprised to hear the Home Secretary state that we should not have a common European asylum system, ‘not in a thousand years,’ when the UK has been signed up to such a system since Tampere in 1999. Indeed Home Office Minister, Karen Bradley MP, was arguably off the Home Secretary’s message when she contended at one of the fringe meetings at the Conservative Party conference that the ‘Dublin’ system, a pillar of the common European asylum policy, must be strengthened. This too, however, drew criticism: Dublin pushes refugees back to countries such as Italy, already dealing with the largest numbers.

The Home Secretary lauded as successes reducing student numbers, skilled immigration and family immigration. The net migration target was still very much in evidence in her speech.

The speech did not receive a rapturous reception and the debate at meetings at the Conservative party conference was much more nuanced, with several calls, in particular, for the need to revisit the question of student immigration and with it the post study work visa.

Leading lawyers and academics signed a statement published in The Times and The Guardian on 12 October 2015. It stated that, as a matter of urgency:

  1. The UK should take a fair and proportionate share of refugees, both those already within the EU and those still outside it.
  2. Safe and legal routes to the UK, as well as to the EU, need to be established.
  3. Safe and legal routes within the EU, including the UK, should be established.
  4. There should be access to fair and thorough procedures to determine eligibility for international protection wherever it is sought.

Individual organisations have amplified these calls, for example ILPA has called for free movement of recognised refugees within the EU and respect for the rights and dignity of those seeking asylum, as well as specifically highlighting refugee family reunion.

The Home Office is meeting with non-governmental organisations and local authorities about its resettlement scheme. There is a desire to see this happen quickly, but this makes demands of local authorities, not least that they have the spare capacity to coordinate this work. There are questions about whether an exclusive focus on those ‘most vulnerable’ without bringing more resilient members of their communities at the same time will produce the best prospects of a successful resettlement. Towns up and down the country continue to offer to host resettled refugees and away from the spotlight, the spirit of welcome and understanding is still flourishing.

Immigration Bill

The promised Immigration Bill was published and had its first reading on 17 September and its second reading on Tuesday 13 October. The Labour Party, the Scottish National Party and the Liberal Democrats all tabled ‘reasoned amendments’: proposals that the Bill should be rejected and not pass to a committee stage. The Labour amendment was selected and voted on, but the Government carried the vote.

Much of what the Bill contains has been trailed since the Prime Minister’s speech in May. The Bill will press ahead with extending the ‘remove first: appeal later’ provisions of the 2014 Act to all removals. Asylum support provisions will be implemented broadly in line with the proposals set out in the government consultation but with a new Home Office ‘safety net’ to replace s 4 of the Immigration and Asylum Act 1999, but one limited to ‘failed asylum-seekers’, rather than all irremovable persons, who will thus turn, as respondents to the consultation pointed out, to local authorities. Subsequent Government amendments to the Bill at Committee stage purport to exclude care leavers under immigration control from local authority support and direct families to Home Office support services in the first instance.

It is proposed to repeal s 3D of the Immigration Act 1971 which extends a person’s leave on the same terms and conditions for the period during which an appeal could be brought and while an appeal is pending and to repeal parallel provisions that protect those refused entry at port at a time when they have entry clearance which functions as leave to enter. There is a confusing schedule (Sch 5) on immigration bail following the decision of the Court of Appeal in R(B) v SSHD [2015] EWCA 445. This creates a new ‘immigration bail’ category for those ‘liable to detention’, including (confusingly) those who cannot be detained, who previously might have been given temporary admission or release. The Secretary of State has wide-ranging powers to impose conditions on immigration bail regardless of those the Tribunal saw fit to impose in granting bail. There is power to provide accommodation to those released on bail but this does not appear to address concerns expressed, for example by ILPA, in response to the Home Office consultation on asylum support about the repeal of s 4(1)(c) of the Immigration and Asylum Act 1999, which concerns provision of an address being needed to secure release on bail.

A new joined up approach to labour exploitation recalls suggestions ILPA put to the TUC commission on vulnerable employment as far back as 2008, 1 but we wait to see whether the proposed Director of Labour Market Enforcement will have a primarily protective, or primarily enforcement role. Powers of immigration officers, including to search and seize property, are vastly extended by the Bill which also creates a panoply of new criminal offences, including an offence of illegal working. Four new offences are created in connection with renting property to persons with no ‘right to rent.’ Landlords and landladies will have new powers to evict those without a right to rent. Immigration officers will be given powers on ships that previously they had only on land. The Bill also builds on the ‘hostile environment’ powers in the 2014 Act in connection with bank accounts and driving licences.

The provisions of the Bill will allow passport fees to rise beyond the costs of providing the service and will also allow charges to be levied in connection with the register of births, marriages and deaths. These matters have nothing to do with immigration.

Matters not in the Bill raised on second reading were the possibility of introducing defences to the illegal working offences for survivors of trafficking and enslaved persons; a time limit on immigration detention, a proposal which has the support of the Scottish National Party and which has been tabled for Committee stage by the Conservative back-bencher Richard Fuller; a prohibition on the detention of pregnant women; provision to protect domestic workers and, by the Scottish National Party, amendments to the financial thresholds for families.

As to the Bill itself, the Labour Party and the Scottish National Party support proposals for a Director of Labour Market enforcement. Labour’s front bench spokesperson expressed ‘major reservations’ about the offence for employees of illegal working and the Scottish National Party indicated that it had ‘significant concerns’ about this. The Labour Party has opposed criminal offences for landlords and landladies. The Scottish National Party opposes the right to rent scheme. Little was said at second reading about the provisions pertaining to bank account and driving licences.

Both parties are opposed to the Home Office usurping the position of the Tribunal in setting the conditions of immigration bail.

Both Labour and the Scottish National Party oppose the ‘remove first appeal later’ provisions. Both parties are opposed to depriving families with children whose claims for asylum have failed of support. The Labour Party supports the provisions pertaining to maritime enforcement and there was little opposition to Pt 6 Border Security. The Labour Party expressed support for the requirements that workers in public sector jobs speak fluent English while recognising that there were dangers with this. There was little debate at second reading on the skills levy and none on fees.

HC 497

Statement of changes in immigration rules HC 497 was published on 17 September. Without waiting for James Ewins’ review it brings into force provisions that give effect to the provisions of s 53 of the Modern Slavery Act 2014 making, it is fair to say, the minimum provision for domestic workers in response to so many expressions of concern. Henceforth, domestic workers in receipt of a ‘conclusive grounds’ decision that they are victims of slavery or trafficking will be able to apply, within 28 days, for a period of leave of up to six months, with no recourse to public funds. This will allow them to work as a domestic worker.

Meanwhile changes are made to the allocation of Tier 2 certificates of sponsorship following the cap’s being reached. These create smaller salary bands and also allow the Secretary of State to reclaim unused certificates of sponsorship and return them to the limit. Both reflect suggestions ILPA had made to the Minister. There are minor changes to the visitor rules affecting applicants from Vietnam and Zimbabwe.

HC 535

Statement of Changes in the Immigration Rules HC 535 was published on 29 October 2015. On asylum, significant changes are made to the revocation of, or refusal to, renew refugee status or Humanitarian Protection that will be applicable to decisions on cases made from 19 November 2015. Asylum claims from EU nationals are to be considered invalid unless exceptional circumstances apply.

The definition of a case working error for the purpose of administrative review is expanded to include where the original decision-maker's decision not to request specified documents under para 245AA of the Rules (to correct minor omissions) was incorrect. The rules allow applicants to submit evidence that was not before the original decision-maker to demonstrate this case-working error and enable reviewers to request such documents. This is likely to be a response to the judgment in Mandalia v SSHD [2015] UKSC 59.

Changes to the Rules on family and private life will require an EEA national to hold a valid document confirming their right of permanent residence to meet the requirement of ‘present and settled in the UK’ for applications under the family immigration rules.

Amendments are made to the evidential requirements for applications under the various categories of Tier 1 of the Points Based System. There are also changes affecting sportspersons in Tiers 2 and 5 and charity workers in Tier 5.

Among changes relating to Tier 2 of the Points Based System, nurses are being added to the Shortage Occupation List on an interim basis pending a more detailed examination by the Migration Advisory Committee as to whether there is a national shortage of nurses or specific nursing job titles. The Migration Advisory Committee has issued a call for evidence on nursing shortages with a deadline of 31 December 2015.

There is clarification of the visitor rules allowing visitors to undertake a maximum of 30 days study and 30 days volunteering with a registered charity (each) provided that these are not the main purpose of their visit.

Judicial review

The Administrative Court Office issued a new form N463 for applications for urgent consideration in Judicial Review on 4 September 2015.

The Upper Tribunal (Immigration and Asylum Chamber) has updated forms T480, T481 and T485 for Judicial Reviews lodged with the Upper Tribunal. The forms now direct that failure to provide form T485 to the Upper Tribunal within nine days of lodging the application for judicial review will lead to proceedings being struck out automatically.

ILPA has expressed concerns that automatic strike out of an application is a disproportionate measure, particularly in the case of litigants in person.

Appeals and listing

The President of the First-tier Tribunal has written about delays in listing appeals and how the Tribunal will prioritise the cases it can hear. Cases before the Immigration and Asylum Chamber of the First-tier Tribunal are currently being listed for June 2016, in some instances July. This is before onward appeals are considered. ILPA understands that delays are likely to increase in the foreseeable future. ILPA understands that volumes of appeals, and of judicial reviews, have exceeded those predicted at the time of the passage of the Immigration Act 2014. It is unclear what steps are being taken to ensure that the Tribunal is in a position to deal with the volume of work before it and whether payments are being made from the Home Office to Her Majesty’s Courts and Tribunals Service to mitigate the effect of Home Office legislation on courts and tribunals.

Permits Foundation Survey

The Permits Foundation, which works around the world for the rights of spouses and partners of migrants to be allowed to work, has pulled together a large-scale survey for its response to that part of the Migration Advisory Committee consultation on Tier 2 which deals with dependants’ rights to work. The findings of the survey are very striking. The majority of dependent spouses and partners in the survey are women, providing evidence for claims that denying spouses and partners of migrant workers permission to work constitutes indirect sex discrimination. They also identify that the majority of dependent spouses and partners surveyed are aged 25–34, raising concerns that the proposals could also give rise to indirect discrimination on the grounds of age. The majority are in graduate level jobs, suggesting that fears that spouses and partners displace members of the resident labour market from low skilled paid jobs are not well-founded. The Permits Foundation has also amassed a wealth of qualitative evidence about the effects on individuals and couples of the dependent spouse/partner not being allowed to work, which it intends to make available through its website.

Alison Harvey

Footnotes

  • 1

    Hard Work; Hidden lives, the full report of the TUC Commission on vulnerable employment, 7 May 2008.