Update: asylum and immigration

Draft Immigration and Citizenship Bill

On 14 July the UK Border Agency (UKBA) introduced the draft Immigration and Citizenship Bill, the cornerstone of the simplification project which aims to replace all existing immigration and asylum laws with what it describes as a 'clear, consistent and coherent legal framework for the control of borders and managed migration'.

The intention is to replace the 10 acts passed since 1971 with one act, to reduce secondary legislation and to redraft the Immigration Rules. The draft bill covers about two-thirds of the final anticipated bill and is accompanied by an initial draft of new Immigration Rules. Comments can be sent to the UKBA (email immigrationsimplification@homeoffice.gsi.gov.uk).

Areas of law that are not in the current draft but will be in the final draft include: the development of juxtaposed controls in other countries, that is offshore border controls, mainly stained in France; amendment (as yet not identified) of movement within the Common Travel Area; comprehensive power to obtain and use biometric identification; amendment to the British Nationality Act 1981 to enable people born to British women prior to 1961 to register as British citizens; family visit sponsorship regime; changes to the current scheme for financial support for failed asylum seekers; nature of evidence that can be produced at appeals and changes to the current reconsideration process of first instance appeals; limiting access to services, for example benefits and health.

Significant elements in the draft bill as published include:

• Regulation of entry into and stay in the UK
• The intention is to provide for a single concept of permission to be in the UK rather than the current entry clearance, leave to enter and leave to remain. The permission will be either temporary or permanent and will cover all non-British or non-EEA nationals, including those transiting the UK. There will be a duty to apply for permission.
• Expulsion from the UK
• Expulsion will replace the current administrative removal, deportation and exclusion provisions and may be made against those outside the UK as well as within the UK. There will be new powers to assist EEA and Swiss nationals to leave the UK if they are the victims of trafficking.

Detention and bail

Consolidation of the various procedures for temporary admission, temporary release and bail variously exercised by immigration officers, officials on behalf of the SSHD and the Asylum and Immigration Tribunal; possibly enabling extended detention for those whose case is being considered or for whom preparations for departure are being made. Powers will be given to airline and ship captains to detain passengers for three hours pending police arrest.

Appeals

Appeal rights are redefined to take into account the concept of 'permission' to be in the UK and expulsion. Protection applications, and thus appeals from refusal, include refugee, humanitarian and human rights protection. Family life applications, and thus appeals against refusal, are to be defined in the rules. Appeal rights are either reduced or removed for some categories for example where there has been partial deception in obtaining permission. The current broad 'one-stop' appeal is retained. Attempts are made to define more closely in-country and out-of-country appeal rights. Certification of decisions is retained. It is intended that there should be a restriction on the evidence that can be adduced in a hearing to evidence that was submitted at the time the relevant application was made, unless it relates to an issue that arose subsequent to the decision. The summary of the bill refers to the UKBA considering further changes in relation to onward appeal rights from the AIT and the handling of judicial review cases. It is not clear what this means but it seems likely that at minimum a 'new' two-tier system of appeals will be (re)introduced.

Draft illustrative immigration rules

These have been produced, according to the UKBA, 'As a further illustration of the direction of change to the Rules. . . a draft of a new consolidated protection section, which would replace current asylum provisions which are spread across primary legislation, secondary legislation and the Rules'. It is not clear whether the UKBA intends to retain current (or amended) guidance and instructions to staff, for example Asylum Policy Instructions, border enforcement manuals, Enforcement Instructions and Guidance, and Immigration Directorate instructions. The emphasis on 'no discretion' that appears to underpin the drafting of rules and appeal processes fails to take into account the particular circumstances that individuals find themselves in. As Lord Scott in Chikwamba v SSHD [2008] UKHL 40 said: 'policies that involve people cannot be, and should not be allowed to become, rigid inflexible rules. The bureaucracy of which Kafka wrote cannot be allowed to take root in this country and the courts must see that it does not.'

Deportation

The third commencement order for the UK Borders Act 2007 was made on 8 July 2008. This brings into force, with effect from

1 August 2008, the automatic deportation provisions relating to foreign national prisoners sentenced to 12 months or more imprisonment. For the purposes of s 3(5) of the Immigration Act 1971, deportation of a foreign criminal is conducive to the public good and the SSHD must make a deportation order unless the individual falls within the exceptions listed in s 33 of the UK Borders Act 2007. This includes where removal would breach an individual's rights under the ECHR or the Refugee Convention or Community Treaties, where the SSHD thinks the individual was under the age of 18 on the date of conviction, where the individual is subject to a hospital or guardianship order under s 37 of the Mental Health Act 1983. The case of EO [2007] UKAIT 00062 sets out the approach to be taken by an immigration judge in hearing deportation (and s 10 removal) appeals. This decision must now be seen in the context of the UK Borders Act 2007, recent House of Lords opinions on Art. 8 (Chikwamba [2008] UKHL40, Beoku Betts [2008] UKHL 39, EB(Kosovo) [2008]UKHL 41) and para.320(7B) of HC395, which all post-date EO.

Lady Hale in Beoku Betts said 'the central point about family life . . . is that the whole is greater than the sum of its individual parts. The right of respect for the family life of one necessarily encompasses the right to respect for the family life of others . . . with whom that family life is enjoyed.' Lord Brown reiterated however: 'relationships between adults do not necessarily benefit from protection under Art.8 of the Convention unless the existence of additional elements of dependence, other than normal emotional ties, can be proven (Mokrani v France [2003] 40 EHRR 123). This opinion emphasises the importance of all the family's rights being looked at holistically and at the same time in the same proceedings.

Delay (EB Kosovo) by the UKBA in dealing with an application may increase an applicant's ability to demonstrate family or private life. The House of Lords identified three means by which administrative delays in decision making may be relevant:

 It may strengthen the private/family life ties of the person to the UK by the effluxion of time.

 It may undermine an argument by the SSHD to the effect that the applicant entered into private family life at a time when his/her immigration position was 'precarious'. By inference the position will only be 'precarious' if the system is working effectively and if an asylum seeker has a good strong claim at the time it is made, it is hard to see how their position can be said to be precarious and of course, life goes on.

 Delays (Lord Brown dissenting) may go to undermine the strength of the SSHD's reliance on the pursuit of firm/fair immigration control.

In Chikwamba the House of Lords held that it would be comparatively rare, particularly where there are children, that the availability of return to the country of origin and a subsequent application for entry clearance would be sufficient or adequate to displace the proportionality of removal, in effect overturning the presumption of removal unless there are insurmountable obstacles to family life continuing (Mahmood [2001] WLR 840). Obviously other factors play an important role, for example the stronger the claim under the rules, the less appropriate to remove; the applicant's immigration history; the prospective length and degree of family disruption involved in applying for entry clearance; the amendment to the Immigration Rules (para.320(7B)).

Paragraph 320(7B) introduced mandatory bans on re-entry for periods up to 10 years to those who had breached immigration law in specified ways (including overstay for more than 28 days), breached a condition attached to leave, entered the UK illegally, used deception in a previous entry clearance application, or been deported.

Since that rule change was announced there have been a number of concessions to the categories who will not face a mandatory re-entry ban (see para.26 of the Entry Clearance Guidance for an up-to-date list) including:

 anyone who was in the UK on 17 March 2008 and leaves before 1 October 2008;

 anyone applying to join a family member (includes spouse, civil partner, unmarried or same-sex partner, fiancées, parents, grandparents, dependent relatives, those seeking comply with a contact order);

 breaches of immigration rules committed as a child under 18; and

 victims of trafficking.

Although exempt from a re-entry ban, individuals may still be refused re-entry if they do not satisfy any other requirement of the Immigration Rules or has 'contrived in a significant way to frustrate' the Immigration Rules. Guidance to Entry Clearance Officers (para.26.18.1)as to what amounts to frustrating immigration control includes overstay, illegal entry, breached conditions but only where there are aggravating circumstances for example absconding, failing to comply with reporting restrictions, using an assumed identity, sham marriage, harbouring an immigration offender.

The future for visitors to the UK

According to Glyn Williams, director of Visa Services of the Foreign and Commonwealth Office on 25 June 2008, there will be three categories of visit visas phased in over the next 18 months. Tourist visas will continue to be six months; business and special visitors visas will be for business, sportspeople and entertainers to enter for specific events (although those coming to festivals will remain permit free) and sponsored family visitors will license sponsors who will undergo a check and be liable to a ban, fine or jail if their family visitor does not leave. There has been no information how these checks will operate, what would be required or what appeal rights there would be for the sponsor in any enforcement proceedings.