Changes to the Immigration Directorate Instruction Family Migration

Saturday, April 18, 2015 @ 12:04 PM
Author: icslegal

Since 9 July 2012, the Immigration Rules have contained a financial requirement to be met by a person applying for entry clearance to, leave to remain in or indefinite leave to remain in the UK as the non-EEA national partner or dependent child of a person who is:

  • a British Citizen; or
  • present and settled in the UK; or
  • in the UK with refugee leave or humanitarian protection.

Since 1 December 2013, the Immigration Rules in Appendix Armed Forces have also contained a financial requirement to be met by a person applying for entry clearance to, leave to remain in or indefinite leave to remain in the UK as the non-EEA national partner or dependent child of a person (British or foreign or Commonwealth) who is a member of HM Forces (as defined in paragraph 2(d) of Appendix Armed Forces).

The lawfulness of the minimum income threshold under the financial requirement was upheld by the Court of Appeal in its 11 July 2014 judgment in MM & Others [2014] EWCA Civ 985. From 28 July 2014, section 19 of the Immigration Act 2014 reinforces the public interest under Article 8 of the European Convention on Human Rights (right to respect for private and family life) in the financial independence of migrants, to prevent burdens on the taxpayer and promote integration.

Decision-makers cannot exercise any discretion or flexibility with regard to the level of the financial requirement that must be met. It is a matter of public policy to operate a financial requirement based on a minimum income threshold for the sponsorship of partners and children. It must be clear and consistently applied in all cases. The applicant has to demonstrate and evidence the income/savings required to meet the level of the financial requirement relevant to their application. They do not need to provide information in the first instance about any income/savings which they and/or the partner may have beyond this.

The onus is on the applicant to demonstrate that the financial requirement is met in their case. Decision-makers will not generally be expected to make further enquiries or request further information in an effort to establish whether the financial requirement is met.

New changes have been applied to the policy guidance related to meeting the financial requirement. These are changes following April 2016 Statement of Changes. If you have questions related to meeting the financial requirement, please call us on 0207 237 3388 or e-mail us your query to: info@icslegal.com.

 

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Standard Note: SN/HA/5829

Last updated: 24 March 2015

Author: Melanie Gower

Section: Home Affairs Section

This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required.

This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public.

———-

David Cameron described the Government’s immigration policy objective as “good immigration, not mass immigration.” The Government wanted to attract the ‘brightest and best’ migrants who were deemed most beneficial to the UK. It also wanted to reduce overall net migration levels from the hundreds of thousands to tens of thousands by the end of the 2010 – 2015 parliament, by minimising opportunities for abuse and being more selective about the criteria for entry.

During 2010 – 2012, the Home Office reviewed the eligibility criteria and conditions attached to the main non-European immigration categories. This led to various changes, including:

• Limiting the number of visas available to skilled workers with a job offer, and introducing stricter criteria to determine who is eligible to stay permanently in the UK.

• Closing the visa allowing highly skilled workers to come to the UK without a job offer, but creating some more selective visa provisions for high skilled/’high value’ migrants (such as investors, entrepreneurs and those with ‘exceptional talent’).

• Amending student visa conditions in order to deter abuse, including by re-introducing visa interviews and limiting international students’ rights to work and bring family members to the UK, and subjecting education providers to more demanding requirements.

• Closing the post-study work visa and replacing it with more limited provisions.

• Introducing new family visa eligibility criteria, such as the £18,600 ‘minimum income’ requirement for partner visas, in order to encourage integration and protect public funds.

• Restricting new migrants’ entitlements to certain welfare benefits, in an attempt to address some of the perceived ‘pull factors’ for European immigration

• Legislating for the Immigration Act 2014, which was intended to make it easier to remove people refused permission to stay in the UK (by reducing the scope to appeal and simplifying the removal process) and to create a more ‘hostile environment’ for people living in the UK without a valid immigration status.

Net migration increased during the first year of the parliament, reaching 263,000 in the year ending June 2011. It then fell over the next five quarters, reaching 154,000 in the year ending September 2012. This was the lowest estimate of net migration in any twelve month period since the year ending December 1998. Compared with annual average net migration during the last parliament, net migration fell by around 93,000.

Net migration then rose again, reaching 298,000 in the year ending September 2014 (around 51,000 higher than annual average net migration during the last parliament). This is the highest estimate of net migration during the current parliament and the second highest estimate of net migration in any twelve month period, lower only than the estimate of 320,000 in the year ending June 2005.

This note focuses on action taken by the Home Office, although reforms led by other government departments, such as the changes to entitlements to civil legal aid and certain public services and benefits, have also directly affected people with immigration concerns.

Contents
1 The big picture: reducing net migration, focussing on the ‘brightest and best’
2 Actions taken: main immigration categories
2.1 Workers
2.2 Students
2.3 Family members
2.4 Visitors
2.5 Asylum seekers and refugees
2.6 EU immigration
3 Actions taken: cross-cutting issues
3.1 Restricting eligibility for permanent settlement and citizenship
3.2 Illegal immigration and enforcing removals
3.3 Immigration detention
3.4 Promoting migrants’ integration
3.5 Cooperation with EU policymaking
3.6 Reorganising the immigration agencies
4 Changes to net migration 2010 – 2015
5 Monitoring Government actions: some useful sources

1 The big picture: reducing net migration, focussing on the ‘brightest and best’

Establishing a more selective system

The May 2010 Coalition Agreement document gave the first indication of the Conservative – Liberal Democrat Coalition Government’s plans for immigration and asylum policy:

The Government believes that immigration has enriched our culture and strengthened our economy, but that it must be controlled so that people have confidence in the system. We also recognise that to ensure cohesion and protect our public services, we need to introduce a cap on immigration and reduce the number of non EU immigrants. [1]

The Coalition Agreement identified some specific actions the Government would take (discussed in the following sections). It did not include a commitment to reduce net migration levels to the “tens of thousands” a year (which had been in the Conservative Party’s 2010 General Election manifesto). [2]

Subsequent Ministerial speeches and statements set out the Government’s intentions in greater detail.

In a speech made in September 2010, Damian Green, then Minister for Immigration, highlighted his desire to develop measures which were “smart” rather than simply “tough”, and influenced by evidence rather than “emotion and prejudice.” [3] Drawing on Home Office research findings, he pointed to a need to apply “steady downward pressure on many routes to long-term immigration.” [4]

That message was reiterated in the Home Secretary’s first speech on immigration, in November 2010. Arguing that immigration under Labour had been “out of control”, Theresa May set out why the Government wanted to reduce net migration levels:

Between 1997 and 2009, net migration to Britain totalled more than 2.2 million people. That is more than twice the population of Birmingham. (…)

And public confidence has been undermined further by the individual stories of abuse of the system. (…)

While the right type of immigration can stimulate growth, badly managed migration has led to serious social impacts in some areas, with pressure being placed on key public services such as schools, the health service, transport, housing and welfare.

And it also led to many more difficult to quantify social impacts, like the segregation we see in too many of our communities. This created community tensions and helped contribute to a society that is not as integrated as we would like. [5]

Theresa May argued that it was possible to “attract more of the brightest and the best at the same time as we reduce the overall number”, by being more selective about the criteria for entry. In her concluding remarks she pledged that the Government would reduce net migration from the hundreds of thousands to the tens of thousands. [6]

One of the points made by the Prime Minister in a high-profile speech on immigration in April 2011 was that the scale of demand for migrant labour in recent years underlined the need for welfare reform:

The real issue is this: migrants are filling gaps in the labour market left wide open by a welfare system that for years has paid British people not to work.

That’s where the blame lies – at the door of our woeful welfare system, and the last government who comprehensively failed to reform it.

So immigration and welfare reform are two sides of the same coin. [7]

In a February 2012 speech on ‘Making immigration work for Britain’, the then Immigration Minister emphasised the broader objective behind the net migration target; namely, establishing a ‘selective immigration system’:

The main point I make today is that everyone who comes here must be selected to make a positive contribution. That is at the heart of our commitment to reduce net migration. We have talked in the past about a Points Based System. In the future it will be more accurate to talk about a contribution-based system. Whether you come here to work, study, or get married, we as a country are entitled to check that you will add to the quality of life in Britain. There are people who think that all immigrants are bad for Britain. There are also people who think that all immigrants are good for Britain. To move the immigration debate on to a higher level let’s take it as read that they are both wrong, and that the legitimate question in today’s world is how can we benefit from immigration. [8]

A December 2012 speech by the Home Secretary on ‘An immigration system that works in the national interest’ identified the range of measures that the Government had introduced in pursuit of this objective.

Government Ministers were also keen to emphasise that the UK remained ‘open for business’ to the ‘brightest and best’ migrants, as demonstrated, for example, in a speech made by the Home Secretary in September 2014. [9]

Disagreement over the net migration ‘target’

Throughout the parliament, the Prime Minister and Home Secretary regularly referred to an aim (and expectation) to reduce net migration levels from the hundreds of thousands to the tens of thousands by May 2015. [10]

However, the Coalition Agreement did not include such a commitment. Some Liberal Democrat Ministers repeatedly sought to distance their party from the objective, which they argued was not a Government policy. [11]

There were regular calls on the Government to drop the net migration ‘target’. [12] However the Prime Minister and Home Office Ministers maintained that net migration was an appropriate indicator of Government performance in managing immigration and of the impacts of immigration, including after recognising that they would not meet the target by May 2015. [13]

Creating a hostile environment for irregular immigrants

In March 2013 the Deputy Prime Minister described the vision underpinning the Coalition’s immigration policies as “Tolerant Britain, zero-tolerant of abuse.” [14] This was closely followed by a speech by the Prime Minister, in which he set out a range of planned measures to ensure that migrants come to the UK “because they want to contribute to our country, not because they’re drawn by the attractiveness of our benefit system or by the opportunity to use our public services”. [15] Some of these ideas were included in what became the Immigration Act 2014.

Calling for changes to EU free movement rights

During the second half of its term in office, Conservative and Liberal Democrat members of the Government set out some ideas for future changes to EU ‘free movement’ rights. [16] There was a particular focus on the need to establish different arrangements for granting new Member States access to labour markets in the event of future EU enlargement, in order to prevent disruptive migration flows to wealthier existing Member States. [17]

2 Actions taken: main immigration categories

2.1 Workers

Limiting numbers of workers; applying more selective criteria for visas

The Coalition Agreement committed the Government to introducing an annual limit on the number of non-EU economic migrants admitted into the UK to live and work. [18] Annual limits on certain visa categories came into effect on 6 April 2011, after a public consultation and interim limits introduced in July 2010. [19] Annual limits currently apply to three categories: [20]

• New skilled workers with a job offer from a licensed employer, subject to exemptions for workers already in the UK, and the most highly-paid workers (Tier 2 General category): 20,700 visas. [21]

• Migrants with ‘exceptional talent’ in the fields of science, academia, the arts, or digital technology (Tier 1 Exceptional Talent category, launched August 2011): 1,000 visas. [22]

• ‘Graduate entrepreneurs’, who graduated in the UK or overseas and have been identified as having “world class” innovative ideas or entrepreneurial skills (Tier 1 Graduate entrepreneur category, launched April 2012): 2,000 visas. [23]

Various other changes were made to work visas (which mostly come under the points-based system for immigration), including: [24]

• Closing the visa category which enabled highly skilled migrants to enter the UK without a job offer (Tier 1 General) to new applicants in December 2010. The Government considered that it had not been effective in attracting highly skilled workers. Home Office sampling indicated that “a sizeable proportion” (29%) were working in unskilled employment. [25]

• ‘Rolling out the red carpet’ for high net worth individuals, to encourage more to come to the UK, such as by providing for faster eligibility for permanent settlement and allowing more days’ absence from the UK during the qualifying residence period (Tier 1 Investor and Entrepreneur).

• Restricting eligibility for skilled worker visas (Tier 2 General) to ‘graduate level’ jobs and updating the minimum salary requirement (£20,800 as of 6 April 2015), subject to some exceptions. [26]

• Introducing a new minimum salary requirement for most Tier 2 migrants applying for permanent settlement after April 2016 (£35,000 per annum), with exceptions for scientists and researchers doing PhD level jobs, and workers filling vacancies on the shortage occupation list. [27]

• Updating the Tier 2 ‘shortage occupation list’, in line with advice from the Migration Advisory Committee.

• Amending the eligibility criteria and conditions for Tier 2 (Intra-company Transfer) visas, such as by raising the minimum qualifying salary threshold and allowing for leave to remain to be granted for longer periods – up to nine years for the most highly-paid workers).

• Introducing new maximum lengths of stay for some skilled and temporary workers (i.e. Tiers 2 and 5).

• Closing the low-skilled Seasonal Agricultural Workers and Sectors Based Scheme visa categories (which had previously only been open to Bulgarian and Romanian nationals), at the end of 2013. The Government considered that the UK and EU labour markets should be able to meet the need for workers in those sectors. [28]

• Introducing more limited conditions attached to migrant domestic worker visas in April 2012. In particular, domestic workers lost their entitlement to change employer whilst in the UK and to settle permanently in the UK.

On the other hand, in early 2015 the Government commissioned an independent review of the conditions attached to migrant domestic worker visas, in response to concerns about exploitation, and included provisions for exploited migrant domestic workers in the Modern Slavery Bill 2014-15. [29]

2.2 Students

Deterring abuse of student visas

Following a public consultation, the Home Secretary announced a comprehensive set of reforms to student visas (Tier 4 of the points-based system) in March 2011. [30]

The reforms were in response to concerns about abuses of student visa provisions by disreputable education institutions and people who primarily wanted to live and work in the UK rather than study here. The Government considered that private educational establishments and people studying below degree-level courses posed the greatest risk of abuse.

The changes (which generally built on measures introduced by the previous government) were implemented between April 2011 and the end of 2012. [31] In particular, the Home Office limited international students’ entitlements to work and bring dependent family members to the UK, extend their stay in the UK, and ‘switch’ into a work visa category. Also, education providers were required to satisfy more demanding criteria in order to be allowed to sponsor international students.

In 2014 a Panorama programme uncovered evidence of fraud in some student visa English language tests. This led to a broader investigation into some students’ and licensed sponsors’ compliance with the immigration requirements. [32]

Reintroducing visa interviews

In July 2012 the Government announced that, following a successful pilot, it was introducing a ‘targeted interview system’ for up to 14,000 student visa applicants, in order to assess whether they are ‘genuine’ students. [33] Plans to significantly extend the scheme, to cover many more students and other visa categories, were announced in December 2012. [34] On the other hand, the documentary requirements for certain nationalities of applicant were relaxed.

Limiting post-study work rights

The Government closed the post-study work visa, which had enabled international students to do any kind of work in the UK for up to two years after graduation (with the possibility of switching to a skilled work visa), in April 2012. [35] It argued that the visa undermined the idea that student visas are for temporary migration rather than permanent settlement, that many non-EEA graduates were not using it as a stepping stone into skilled occupations in the UK, and questioned whether giving foreign graduates open access to the UK labour market was appropriate at a time of high graduate unemployment.

It replaced it with more selective post-study work rights:

• International graduates remained eligible to apply to switch to a skilled work visa, if they secured a graduate level job or training offer from an approved employer before the end of their student visa.

• Graduates who had a strong business proposition could potentially apply for a new visa category for ‘graduate entrepreneurs’.

• The ‘Doctorate Extension Scheme’ was introduced in April 2013. It enables PhD to stay to work in the UK for up to twelve months after completing their studies. [36]

2.3 Family members

Introducing more restrictive conditions for joining family in the UK

Since November 2010 non-EEA nationals applying for leave to enter or remain as the spouse or partner of a British citizen/permanent UK resident have been required to demonstrate a basic command of English. [37] The Government said that that this measure (which had also been proposed by the previous Labour government) would “protect the economic well-being of the UK, for example by encouraging integration and protecting public services.” [38]

Since July 2012, only British citizens/permanent residents who have a gross annual income of £18,600 or above have been able to sponsor a visa for their non-EEA national partner to join them in the UK (subject to limited exceptions). [39] New foreign spouses/partners must wait longer before they become eligible to apply for permanent settlement in the UK (five years rather than two as previously), and a new approach to assessing the ‘genuineness’ of the relationship was introduced.

The eligibility criteria for adult dependent relative visas, which allows family members of British citizens or permanent residents to settle in the UK, were narrowed in July 2012. The visa is now only available to those who require long-term personal care, which can only be provided by their relative in the UK. [40]

The Government changed the Immigration Rules in July 2012, in order to reflect the Government’s and Parliament’s view of how the balance should be struck in immigration decision-making between the right to respect private and family life (as provided by Article 8 of the European Convention on Human Rights), and the public interest. Previous versions of the Immigration Rules had referred to the need to respect the ECHR, but did not codify the factors that should be considered when assessing whether removal/deportation was proportionate under Article 8.

The amended Rules affected people seeking to remain in the UK on account of their family ties or long residence, as well as foreign nationals liable to deportation due to criminal behaviour. They include detailed reference to the factors to be considered to weigh in favour or against an application to remain in the UK (including safeguarding the economic well-being of the UK, enforcing immigration controls and protecting the public from foreign criminals). Generally speaking, the eligibility criteria and conditions attached to permission to stay in the UK on Article 8 grounds became more limited.

The Immigration Act 2014 gave the principles reflected by the July 2012 changes the force of primary legislation. [41] Courts and tribunals are required to have regard to the public interest considerations specified in the Act when determining whether an immigration decision is in breach of Article 8.

Abolishing family visitors’ appeal rights

Family visitor visa appeal rights were restricted to a smaller range of applicants, with effect from July 2012. The full right of appeal in family visitor visa cases was abolished in June 2013, through the Crime and Courts Act 2013. [42]

Deterring ‘sham’ marriages

The Immigration Act 2014 gave new powers to deal with ‘sham marriages’, in effect from March 2015. In particular, all proposed marriages and civil partnerships involving a non-EEA national without permanent permission to stay in the UK will now be referred to the Home Office for consideration. The notice period in England and Wales has been extended, to give the Home Office more time to identify and investigate suspected sham marriages and civil partnerships and take enforcement action where appropriate.

The Government repealed the legislation underpinning the ‘certificate of approval’ scheme. This had been introduced by the Labour Government in a bid to deter ‘sham marriages’ but was found by the courts to be unlawful. [43]

2.4 Visitors

An ‘electronic visa waiver’ scheme for nationals of certain Gulf countries was implemented in 2014. [44] It was intended to make it cheaper and easier for business travellers and tourists from Qatar, Oman, the United Arab Emirates and Kuwait to visit the UK.

Emphasis was also given to improving the visa service available in ‘priority markets’ in China and India, such as by seeking to align the UK and Schengen visa application processes. [45] A ‘British-Irish’ visa scheme, which enables Chinese and Indian nationals to visit the UK and Ireland using a single visa issued by either country, was launched in 2014. [46]

A range of further measures to improve the visa application process, and to simplify transit visa requirements, were outlined in a speech by the Home Secretary in September 2014. [47]

A visa requirement for Venezuelan nationals was introduced in March 2014. [48]

The 15 different categories of visitor visa were replaced by four broader categories, with effect from April 2015. [49] However, the main eligibility criteria and associated conditions remained unchanged.

2.5 Asylum seekers and refugees

Ending child immigration detention

The Government introduced a new process for enforcing the removal of families refused permission to stay in the UK, further to a Coalition Agreement commitment to end the detention of children for immigration purposes. In the event of an unsuccessful application, families are encouraged to make a voluntary departure from the UK. Those who do not leave have their removal arranged by the Home Office, but are able to continue to live in the community whilst preparing for removal and make a self-check-in at the airport. As a last resort, non-compliant families may be held in a new style of family friendly secure “pre-departure accommodation”, usually for a maximum of 72 hours prior to departure. [50]

Improving the asylum application and decision-making process

The Coalition Agreement stated that the Government would explore ways to new improve the asylum system to speed up the handling of cases. [51] An ‘Asylum Improvement Project’ was launched in summer 2010, to test a range of pilot schemes for improving the speed, quality, efficiency and cost-effectiveness of the asylum determination process. [52] A new process for handling asylum applications, called the ‘Asylum Operating Model’, was launched in April 2013 with the intention of improving the consistency and speed of decision-making by using triage and routing techniques. [53]

The Government replaced the previous target to conclude new asylum applications within six months of their submission with “a new set of performance indicators designed to show the overall health of the asylum system”. [54] These include information on intake, decisions taken within 30 days, quality of decision, grant rate, percentage of decisions overturned at appeal, conclusions at 6, 12, 18 and 36 months, number and age profile of outstanding caseload, asylum support costs, productivity, and unit cost.

Substantive work on the ‘case resolution exercise’, which was launched under the previous government to review and conclude all unresolved pre-2007 asylum claims, was concluded. [55]

Other initiatives for particular types of claims

• The Coalition Agreement included a commitment not to enforce the removal of asylum seekers who would be at risk of persecution on account of their sexual orientation. The Home Office published guidance for its caseowners on how to assess asylum claims based on the applicants’ sexual orientation. [56]

• The Immigration Rules were amended in order to fill a gap in the provisions for recognising statelessness. [57]

• In October 2013 the Immigration Rules were changed in order to enable approximately 600 staff eligible under the Ministry of Defence’s Redundancy Scheme for locally engaged staff in Afghanistan to relocate to the UK for up to five years. [58]

• A new scheme for assisting vulnerable Syrian refugees, the Vulnerable Persons Relocation Scheme, was launched in early 2014. [59] The Government said that it expected several hundred refugees to arrive under the scheme over the following three years. The scheme prioritises victims of sexual violence, the elderly, victims of torture, and the disabled. It gives resettled refugees permission to stay in the UK for five years, with access to public funds and the labour market. 143 Syrians were resettled in the UK under the scheme in 2014. [60]

2.6 EU immigration

The Government had limited scope to restrict EU migrants’ rights to enter and live in the UK, since those rights are based on European law rather than the UK’s Immigration Rules.

The Government applied transitional restrictions to Croatian workers’ free movement rights, following Croatia’s accession to the EU in July 2013, and kept restrictions on Bulgarian and Romanian workers’ free movement rights for the maximum period allowed. [61] The Coalition Agreement stated that the Government would seek to impose transitional controls on new Member States’ freedom of movement rights as a matter of course, in the event of future EU enlargement. [62]

The Government took a range of measures in order to address perceived ‘pull factors’ for EU migration to the UK, such as by introducing new restrictions on access to welfare benefits. [63] It also conducted reviews of EU free movement and asylum and immigration laws, as part of its Balance of Competences Review. [64]

3 Actions taken: cross-cutting issues

3.1 Restricting eligibility for permanent settlement and citizenship

‘Permanent settlement’ (‘Indefinite Leave to Remain’ status) entitles a person to live and work in the UK with no time restriction. The Government believed that it had been “too easy” for migrants to move from temporary residence to permanent settlement in the past.

Some initial changes to the eligibility criteria for settlement were made in April 2011. [65] These introduced a requirement for applicants to be free from any unspent criminal convictions at the time of applying. Additional requirements on salary level and proof of English language ability were also introduced for highly skilled and skilled workers.

In April 2012 further restrictions on some non-EEA skilled workers’ eligibility for permanent settlement were introduced (discussed in section 2.1 above). Non-EEA spouses of British/settled persons who entered the UK since July 2012 will only become eligible for permanent settlement after five years’ residence, rather than two years as previously.

A faster route to permanent settlement was introduced for Investors and Entrepreneurs, subject to conditions.

From 13 December 2012, the criteria for assessing ‘good character’ in applications to naturalise as a British citizen changed, so that criminal convictions are considered against a new set of sentencing limits, rather than with reference to the Rehabilitation of Offenders Act 1974, as previously. [66] Further changes to the ‘good character’ policy were made in December 2014. [67] As a result, applicants who had previously entered the UK illegally or evaded immigration control will usually be prevented from being granted naturalisation for 10 years.

3.2 Illegal immigration and enforcing removals

A joint UK-France declaration on cooperation in measures against illegal migration and human trafficking was agreed in November 2010. A further Anglo-French Ministerial declaration made in September 2014 outlined plans for further measures to deal with problems at the port of Calais, including UK funding for measures to strengthen security. [68]

The Coalition Agreement confirmed the Government’s support for e-Borders and the reintroduction of exit checks by the end of the parliament. [69] Exit checks are due to be fully in force from 8 April 2015. [70]

In October 2012 the private contractor Capita was contracted on behalf of the Home Office to contact foreign nationals who records indicate may be living in the UK without valid immigration status, to inform them of the requirement to leave the UK. [71]

A national ‘Allegations Management System’ was launched to track allegations of immigration crime made by members of the public better. [72]

High-profile enforcement operations included ‘Operation Mayapple’ to remove visa overstayers during summer 2012, and ‘Operation Nexus’, which posts immigration officers in police custody suites in order to identify foreign national offenders liable for removal from the UK. [73]

In July 2013 a controversial campaign to encourage voluntary returns by undocumented immigrants (‘Operation Vaken’) was piloted in six London boroughs, using mobile advertising vans, leaflets, posters and adverts in local media. [74] A Home Office evaluation found that 60 voluntary departures could be directly attributed to the campaign. [75] The Government decided not to use the advertising vans again. [76]

In July 2013 the then Minister for Immigration confirmed that the Home Office was planning to pilot a ‘security bond’ scheme for visa applicants in late 2013, in a bid to deter overstaying. [77] However the plans attracted criticism from some other Ministers and foreign governments, amongst others, and the pilot was not implemented. [78]

The Immigration Act 2014 was the Government’s only major piece of primary immigration legislation. The Government said the Act would make it easier to remove people refused permission to stay in the UK and create a more ‘hostile environment’ for people living in the UK illegally. Most of the Act’s provisions will have come into force (at least partially) by April 2015. Specific measures in the Act include: [79]

• Replacing immigration appeal rights for many immigration categories with more limited provisions for ‘administrative review’ of decisions, and limiting the grounds of appeal against an asylum or human rights application to Refugee Convention or human rights grounds.

• Simplifying the immigration removal process and giving powers to ‘deport first, appeal later’.

• Giving the Home Office greater powers to investigate and prevent ‘sham marriages’.

• Requiring private landlords to check the immigration status of tenants, in order to prevent irregular migrants from accessing private rented housing.

• Introducing new powers to restrict irregular migrants’ access to driving licences and bank accounts.

• Introducing a new requirement for temporary migrants to pay a contribution to the National Health Service.

3.3 Immigration detention

The Coalition Agreement committed to ending the detention of children for immigration purposes (as discussed in section 2.5).

Plans to convert HMP The Verne into an Immigration Removal Centre were announced in September 2013. [80] It is expected to increase detention capacity by around 580 spaces. [81]

In 2012 the Government commissioned an external review of mental health issues in Immigration Removal Centres. The report and the Government response were published in 2015. [82] In February 2015 the Home Secretary commissioned an independent review of policies and procedures affecting the welfare of immigration detainees, led by Stephen Shaw, a former Prisons and Probation Ombudsman. The review is expected to take around six months. [83]

In March 2015 the Government withdrew a planning application to expand Campsfield House Immigration Removal Centre, and confirmed that officials are considering future requirements for immigration detention, including capacity, purpose and location. [84]

3.4 Promoting migrants’ integration

Raising the knowledge of English language and life in the UK requirements

The Government increased the level of English language ability required for leave to enter/remain in various immigration categories, including for spouses/partners, students, and workers.

Since 28 October 2013, migrants applying for permanent settlement in the UK or British citizenship have had to satisfy a more demanding ‘knowledge of language and life in the UK’ requirement. [85] They are required to pass the ‘Life in the UK test’ and have intermediate speaking and listening skills (CEFR level B1).

A substantially revised ‘Life in the UK’ test, which has a greater focus on British history and culture, came into effect in late March 2013. [86] The test is taken by migrants applying for permanent settlement or naturalisation as a British citizen.

Government schemes to promote integration

The Home Office stopped funding the Refugee Integration and Employment Services project, which aimed to promote the integration of persons granted asylum in the UK. The Government said that it would instead work with the voluntary sector to identify “practical, cost neutral, solutions to address the integration needs of refugees.” [87]

The Department for Communities and Local Government (DCLG) published details of the Government’s approach to integration in February 2012. [88] It emphasised that integration of migrants is primarily an issue for local authorities to deal with, rather than a matter for central government. The DCLG terminated the Migration Impacts Fund, which provided funding for local community projects to manage the transitional impacts of immigration, in 2010. [89]

3.5 Cooperation with EU policymaking

In line with the approach taken by the previous Labour Government, the Government ‘opted-in’ to EU measures on asylum and immigration where it was deemed to be in the UK’s best interests to do so. However its stated preference was for measures which enhanced “practical cooperation” between Member States, rather than further legislation. [90] The Government agreed to table an annual report to Parliament on its approach to EU Justice and Home Affairs policy, including the application of the UK’s opt-in protocol. [91]

In April 2015 the UK will join the European SIS II database, which will give police and border force officials access to information about wanted foreign nationals and help identify those who seek to pass through UK border controls. [92] Efforts to join the system began under the previous government.

3.6 Reorganising the immigration agencies

The Crime and Courts Act 2013 included provisions to establish a dedicated Border Police Command, as part of a new National Crime Agency. The Government said that establishing a Border Police Command would improve coordination of border control and security operations.

The UK Border Agency (UKBA, an Executive Agency of the Home Office), initially had responsibility for processing visa and asylum applications and maintaining immigration controls at UK ports. The Government decided to split the Border Force from the UKBA and make it directly accountable to Ministers with effect from 1 March 2012. [93] Border Force is responsible for entry controls and customs functions at UK borders.

The UKBA remained responsible for asylum and immigration casework, in-country enforcement activity and immigration operations overseas. However in March 2013 the Home Secretary announced the abolition of the UKBA. [94] It was replaced by two new Home Office directorates: UK Visas & Immigration and Immigration Enforcement. [95]

4 Changes to net migration 2010 – 2015 [96]

Revisions to net migration

In April 2014 the ONS published a revised set of net migration estimates for the United Kingdom for the period 2001 to 2011. [97] Total net migration during this period is now estimated to have been 346,000 higher than was previously thought – the original estimate of 2.18 million having been revised to 2.53 million.

Because the underestimation of net migration was identified indirectly from the Census, the ONS is unable to revise estimates of immigration and emigration as components of net migration during the same period. This means the revised estimates of net migration for the period 2001-2011 are not consistent with the available estimates of immigration and emigration in the same period. The ONS recommends that users of migration statistics should continue using the original LTIM series for immigration and emigration but should bear in mind the caveat that the headline net migration estimates have now been revised.

How did net migration change during the 2010 – 2015 parliament?

The Government said that it aimed to reduce net migration “from the hundreds of thousands back down to the tens of thousands” by the end of the 2010 – 2015 parliament. [98] Average annual net migration during the previous parliament had been around 247,000 a year; so the Government would have needed to reduce net migration by around 150,000 from its previous level to achieve net migration of less than 100,000 by May 2015.

The periods within which migration is estimated do not correspond precisely to the dates of general elections. However, using the closest corresponding migration estimates (from the year ending June 2006 to the year ending June 2010), average annual net migration during the 2005 – 2010 parliament was around 247,000 a year, reaching a high of 287,000 in the year ending June 2007, and a low of 205,000 in the year ending June 2009.

Net migration increased during the first year of the 2010 – 2015 parliament, reaching 263,000 in the year ending June 2011. Following this peak, net migration then fell over the next five quarters, reaching 154,000 in the year ending September 2012. This was the lowest estimate of net migration in any twelve month period since the year ending December 1998. Compared with annual average net migration during the last parliament, net migration fell by around 93,000.

Net migration then rose again, reaching 298,000 in the year ending September 2014, which was around 51,000 higher than annual average net migration during the last parliament. This was the highest estimate of net migration during the parliament and the second highest estimate of net migration in any twelve month period, lower only than the estimate of 320,000 in the year ending June 2005.

Net migration, Years ending each quarter, 2006-2014

 

Note: See Appendix Table A2 for data.

Source: ONS, Migration Statistics Quarterly Report, February 2015

5 Monitoring Government actions: some useful sources

• HM Government, The Coalition: Our programme for government, May 2010

• Cabinet Office, The Coalition: together in the national interest, January 2013

• GOV.UK, ‘Policy and legislative changes affecting migration to the UK: timeline’

• GOV.UK pages for the Home Office, UKVI, Immigration Enforcement and Border Force, for press releases, public consultations, Statements of Changes in the Immigration Rules, and successive versions of Business Plans and Annual Reports.

• Home Affairs Committee inquiries and evidence sessions, 2010 – 2015

• Independent Chief Inspector of Borders and Immigration reports, 2010 – 2015

• House of Commons Library briefings on asylum and immigration policy

© Parliamentary copyright

[1] HM Government, The Coalition: Our programme for government, May 2010, ref: 401238/0510

[2] The Conservative Party, Invitation to join the Government of Britain, April 2010, p.21

[3] GOV.UK/Home Office, Damian Green’s speech: the real immigration question, 7 September 2010

[4] Home Office, Research report 43 The Migrant Journey, September 2010

[5] GOV.UK/Home Office, The Home Secretary’s immigration speech, 5 November 2010

[6] Some detailed plans for change were set out in her oral statement on controlling migration: HC Deb 23 November 2010 c169

[7] BBC News, In full: David Cameron immigration speech, 14 April 2011

[8] GOV.UK, Home Office, ‘Making immigration work for Britain’, 2 February 2012

[9] GOV.UK, speech, ‘Home Secretary’s speech at the inaugural East West forum’, 12 September 2014

[10] See, for example, HC Deb 28 June 2010 c585; HC Deb 23 November 2010 c169; c183; HC Deb 2 November 2011 c643W; HC Deb 28 October 2013 c341W

[11] See, for example, BBC News, Nick Clegg on immigration policy and Vince Cable comments, 17 April 2011; The Guardian, ‘Cabinet split on immigration as Vince Cable condemns net migration target’, 22 March 2013; GOV.UK, speech, ‘Mansion House trade and industry dinner 2014′, 6 March 2014; Liberal Democrats, ‘Nick Clegg’s immigration speech’, 5 August 2014; The Guardian, ‘Vince Cable escalates battle with ONS over immigration ‘target”, 1 February 2015

[12] BBC News, ‘Tory MP’s group wants net migration target dropped’, 25 March 2014

[13] See, for example Demos, James Brokenshire MP speech to Demos, 6 March 2014; GOV.UK, speech ‘JCB Staffordshire: Prime Minister’s speech’, 28 November 2014

[14] Libdems.org.uk, ‘Nick Clegg speech on immigration’, 22 March 2013

[15] GOV.UK/Number 10, ‘David Cameron’s immigration speech’, 25 March 2013

[16] Financial Times, “Free movement within Europe needs to be less free”, 26 November 2013; GOV.UK, speech ‘JCB Staffordshire: Prime Minister’s speech’, 28 November 2014; Liberal Democrats, ‘Nick Clegg’s immigration speech’, 5 August 2014

[17] See Library standard note SN07138 Reforming the EU: UK plans, proposals and prospects

[18] HM Government, The Coalition: Our programme for government, May 2010, ref: 401238/0510

[19] EEA – European Economic Area (EU Member States plus Iceland, Norway and Liechtenstein)

[20] Fixed quotas were already in place for certain other longstanding immigration categories (SAWS scheme, SBS scheme, Tier 5 (Youth Mobility) scheme).

[21] HC 1039 of 2012-13

[22] HC Deb 23 November 2010 c169 ; HC 1138 of 2013-14

[23] HC 1039 of 2012-3 ; HC 1138 of 2013-14

[24] See, for example, Library standard note 05922 April 2011 changes to Tier 1 and Tier 2 of the points-based system and indefinite leave and 06037 Immigration: permanent settlement reforms (workers)

[25] UKBA, Points-based system Tier 1: an operational assessment, 16 November 2010

[26] HC 1039 of 2012-3 ; HC 1138 of 2013-14; HC 1025 of 2014-15

[27] Immigration Rules, HC 395 of 1993-4 as amended, Appendix I

[28] HC Deb 12 September 2013 c60-61WMS

[29] Discussed in Library standard note 04786 Calls to change migrant domestic worker visa conditions

[30] HC Deb 22 March 2011 cc855 – 872

[31] Discussed in Library standard note Immigration: Tier 4 (student visa) reforms

[32] HC Deb 24 June 2014 c206-8

[33] UK Border Agency news release, ‘New interviews for students’, 9 July 2012

[34] GOV.UK/Home Office, An immigration system that works in the national interest, 12 December 2012

[35] Discussed in Library standard note 05881 Immigration: Tier 1 (post study work) visas

[36] UKBA update, ‘Rule changes announced for students’, 14 March 2013

[37] Cm 7944 of 2010-11. There are exceptions for nationals of majority English speaking countries, persons with academic qualifications taught in English, applicants from countries where there is no approved test centre, over 65s and persons with certain physical/mental conditions.

[38] HC Deb 30 November 2010 cc770-1W

[39] Discussed in The financial (minimum income) requirement for partner visas

[40] Discussed in Library standard note SN06353 Changes to Immigration Rules for family members

[41] Discussed in Library standard note Article 8 of the ECHR and immigration cases

[42] Discussed further in Library standard note SN06363 Immigration: Family visitor visa appeal rights

[43] Library standard note SN/HA/3780 Immigration: Abolition of the Certificate of Approval to Marry requirement contains background information.

[44] GOV.UK, news story, ‘New visa waiver scheme for Qatar, Oman, the UAE and Kuwait’, 12 November 2013

[45] GOV.UK, news story, ‘Chancellor announces simplified visa applications for Chinese visitors’, 14 October 2013

[46] GOV.UK, news story, ‘Historic UK-Ireland visa deal signed’, 6 October 2014; ‘UK and Irish Ambassadors launch joint visa initiative between Ireland and the United Kingdom’, 28 October 2014; ‘British-Irish visa scheme launches in India’, 10 February 2015

[47] GOV.UK, speech, ‘Home Secretary’s speech at the inaugural East West forum’, 12 September 2014

[48] GOV.UK, ‘Changes to UK visa requirements for Venezuelan nationals’, 13 March 2014

[49] HC 1025 of 2014-15

[50] Discussed further in Library standard note SN/HA/5591 Ending child immigration detention

[51] HM Government, The Coalition: Our programme for government, May 2010, ref: 401238/0510

[52] See HC Deb 15 November 2010 cc545-6W for further details. Implementation timetable as per Home Office Business Plan 2011-2015, May 2011, and UKBA, Asylum Improvement Project Report on Progress, 26 May 2011

[53] ILPA information sheet, Asylum Operating Model, 2 May 2013

[54] Home Affairs Committee, Government Response to the Committee’s 4th Report of Session 2010-12 HC 1027 16 May 2011, p.5-6

[55] See Library standard note SN04439 Asylum ‘legacy’ cases

[56] Discussed further in Library standard note SN05618 Asylum: Claims based on sexual identity

[57] HC 1039 of 2012-3

[58] HC 628 of 2013-14

[59] HC Deb 29 January 2014 c863-865

[60] Discussed further in Library standard note Syrian refugees and the UK

[61] Discussed in Library standard notes SN06686 Croatian nationals’ rights to live and work in the UK after joining the EU and SN06606 Ending of transitional restrictions for Bulgarian and Romanian workers

[62] HM Government, The Coalition: Our programme for government, May 2010, ref: 401238/0510

[63] Discussed in Library standard note SN06889 Measures to limit migrants’ access to benefits

[64] See GOV.UK ‘Review of the Balance of Competences’

[65] HC 863 as amended by HC 908

[66] UKBA news release, ‘Changes in the assessment of good character in citizenship applications’, 9 January 2013

[67] PQ 218768 [on British nationality], answered on 13 January 2015

[68] Written Question PQ 208389, 8 October 2014

[69] See Library standard note SN/HA/5771 The e-borders programme

[70] See Library standard note SN06750 Reintroducing exit checks on passengers departing the UK

[71] UKBA news update, ‘Capita Business Services contacting overstayers in the UK’, 16 January 2013

[72] HC Deb 27 February 2013 cc484-5W

[73] UKBA news update, ‘Operation Nexus results in more than 175 removals’, 3 January 2013

[74] UKBA, ‘Six boroughs targeted in returns pilot’, 25 July 2013

[75] Home Office, Operation Vaken: evaluation report, October 2013

[76] HC Deb 31 October 2013 c58-9WS

[77] HC Deb 8 July 2013 c20W

[78] BBC News [online], ‘Visitor bond scheme to be scrapped by government’, 3 November 2013

[79] See GOV.UK, news story, ‘Immigration Bill becomes law’, 14 May 2015 and Library briefings 13/59 Immigration Bill and SN06806 Immigration Bill: Committee Stage Report

[80] GOV.UK, Ministry of Justice, press release, ‘Modernisation of the prison estate’, 4 September 2013

[81] HC Deb 11 September 2013 c718W

[82] GOV.UK, Home Office, press release, ‘Home Secretary announces independent review of welfare in detention’, 9 February 2015

[83] GOV.UK, Home Office, press release, ‘Home Secretary announces independent review of welfare in detention’, 9 February 2015

[84] www.nicolablackwood.com, ‘Campsfield application finally withdrawn!’ (undated; accessed 20 March 2015)

[85] Gov.uk/Home Office, ‘Tougher language requirements announced for British citizenship’, 8 April 2013

[86] UKBA news update, ‘New life in the UK handbook published today’, 28 January 2013

[87] HC Deb 15 March 2011 cc227-8W

[88] DCLG, Creating the conditions for integration, 21 February 2012

[89] For background, see Library standard note SN/HA/5725 Migration Impacts Fund

[90] HC Deb 9 December 2010 cc43-46WS

[91] HC Deb 21 January 2011 c56WS

[92] GOV.UK, news story, ‘UK joins international security alert system’, 10 February 2015

[93] HC Deb 1 March 2012 c43WS

[94] HC Deb 26 March 2013 cc1500-1

[95] Discussed in Library standard note SN06719 Organisational reforms to the immigration system since 2006

[96] Discussed further in Library standard note SN06077 Migration Statistics

[97] The results of the 2011 Census showed that the population of England and Wales was larger than expected, given the recorded number of births and deaths and the estimated level of net migration during the decade since the last Census in 2001. The ONS considered that the “largest single cause” was most likely to be “underestimation of long-term immigration from central and eastern Europe in the middle part of the decade”

[98] HC Deb 23 Nov 2010 c169

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The Report of the Inquiry into the Use of Immigration Detention in the United Kingdom

A Joint Inquiry by the All Party Parliamentary Group on Refugees and the All Party Parliamentary Group on Migration

EXECUTIVE SUMMARY

Key Recommendations

• There should be a time limit of 28 days on the length of time anyone can be held in immigration detention.

• Detention is currently used disproportionately frequently, resulting in too many instances of detention. The presumption in theory and practice should be in favour of community-based resolutions and against detention.

• Decisions to detain should be very rare and detention should be for the shortest possible time and only to effect removal.

• The Government should learn from international best practice and introduce a much wider range ofalternatives to detention than are currently used in the UK.

About the Inquiry

The inquiry into the use of immigration detention in the United Kingdom received written submissions and heard oral evidence from over 200 individuals and organisations, including those with experience of being detained, the Immigration Minister, academics and charities. The panel looked at the way immigration detention is used in the United Kingdom, including the lack of a time limit on the length of time an individual can be detained, and at the conditions within Immigration Removal Centres. The panel conclude that the UK uses detention disproportionately and inappropriately. The evidence shows that the current system is seriously detrimental to the individuals who are detained in terms of their mental and physical well-being, as well as hugely costly to the tax-payer.

For more information about the inquiry or to read the full report:

Visit the inquiry’s website at www.detentioninquiry.com
Contact Sarah Teather’s office at teathers@parliament.uk

Practice and Culture

Home Office guidance currently states that detention must be used sparingly and for the shortest possible period. What became clear during the course of the inquiry is that the standard working practices and the enforcement-focused culture of the Home Office are resulting in this guidance being ineffective. This is compounded by the lack of a maximum time limit and a lack of effective means for those detained to challenge their continued detention.

We believe that depriving an individual of their liberty for the purposes of immigration control should be an absolute last resort, should be comparatively rare, and should only take place for the shortest possible time. To achieve this, not only are changes to the procedural practices of the Home Office required, but also a radical move away from a focus on enforcement to one of engagement.

In this report, we recommend that a maximum time limit of 28 days should be introduced and that this should be set in statute. Decisions to detain should be taken much more sparingly and only as a genuinely last resort and to effect removal.

To prevent the 28 day time limit from becoming the default period individuals are detained for, we also recommend that the Government should introduce a robust system for reviewing the decision to detain early in the period of detention. This system might take, for example, the form of automatic bail hearings, a statutory presumption that detention is to be used exceptionally and for the shortest possible time, or judicial oversight, either in person or on papers.

To accommodate these changes, the Government will need to introduce a much wider range of alternatives to detention affecting the entire process of the immigration system. We were told of numerous examples of alternatives to detention being used in other countries which focus on intensive engagement with individuals in community settings, rather than relying on enforcement and deprivation of liberty.These alternatives not only achieve high compliance rates, but they are also considerably cheaper than our current system which, particularly in the case of asylum, could be characterised as low-level initial engagement and support, lengthy decision-making of variable quality, and expensive ineffective end-stage enforcement. We recommend that the Government learn from the alternatives that work elsewhere and make much more extensive use of these schemes.

Given the scale of the task, we recommend that the incoming Government after the General Election should form a working group to oversee the implementation of the recommendations of this inquiry. This working group should be independently chaired and contain officials from the Home Office as well as representatives from NGOs in order to widen the thinking and approach. The working group should produce a time-plan for introducing a time limit on detention and the creation of appropriate alternatives to detention, drawing on the best practice that is already in place in other countries.

Asylum Applicants and the Detained Fast Track

The Detained Fast Track (DFT) was introduced to deal with a sharp rise in the number of asylum seekers entering the UK by deciding straightforward cases quickly. We are concerned that the DFT has become too focused on utilising detention for administrative convenience rather than speedy, high quality decision making. Additionally, many individuals who are detained within the DFT are, by the Home Office’s own guidance, allocated to it incorrectly.

Failures of the DFT screening process and the inherent stressful environment of being detained are not generally conducive to allowing asylum seekers to receive the support they need and are entitled to, as well as being counter-productive to high quality decision making. We recommend that the Government takes urgent steps to reduce the number of outstanding claims. While the need for a fast-track procedure still exists, we do not believe that this necessitates a presumption of detention and we reiterate our belief that detention should be a last resort and for the shortest possible time.

Literature Review

Over the last twenty years, many inquiries and reports have been published into the workings of the current immigration and asylum system as well as into the operation of the detention estate specifically. Few of these reports appear to result in meaningful action by the Home Office and the repetitive nature of the constructive suggestions for improvement can lead to fatigue and unwillingness to engage among those who want to see an effective system. We recommend that a literature review is undertaken by the Home Office to collate the recommendations for improvement of the immigration and asylum systems, including case-working and the use of detention, that have been made in successive reports, drawing out common themes with a view to analysing what progress has been made against these recommendations.

Immigration Removal Centres should not be prisons

Individuals detained under immigration powers are increasingly being held in prison-like conditions. The most populated IRCs are either converted high security prisons or have been built to that specification. However, IRCs are not prisons and detainees should not be held in prison-like conditions. We recommend that detainees are held only in suitable accommodation that is conducive to an open and relaxed regime.

Fewer restrictions on internet access in IRCs

Individuals detained in IRCs have access to the internet, but we were told that this access is severely limited. We were particularly shocked to learn that in some IRCs detainees could not access the website of this parliamentary inquiry. Additionally, the Home Office’s blanket ban on the use of social media appears to be counter-productive and unjustified, particularly for those who will subsequently be returned to their home country and who want to make connections in order to prepare for return. We recommend that detainees are allowed to access social media and filtering should be akin to the parental controls that are used in households across the country.

Better access to legal representation

Detainees require legal advice for a number of reasons, and often have complex legal cases. However, individuals are frequently unable to secure high quality and timely advice within IRCs. The contracts for providing publically funding legal advice in the IRCs are very restrictive and do not allow detainees to receive the support they need, or allow legal practitioners the time and resources to properly represent their clients.

We recommend that the Legal Aid Agency and the Immigration Services Commissioner carry out regular audits on the quality of advice provided by contracted firms in IRCs, and this must involve talking to detainees about their experiences.

Detainees should only be movedaround the detention estate when absolutely necessary

Many detainees who gave evidence to the inquiry had been moved between IRCs. One detainee likened his experience to being treated like a piece of furniture. When the Home Office were asked for information relating to how often such moves are made, the information was not available, making it difficult to effectively scrutinise.

Frequent moves around the detention estate can be extremely disruptive and distressing for detainees, as well as their friends and families. We recommend that the Home Office ensures that detainees are only transferred between IRCs when absolutely necessary and that legal representatives are in formed. We also recommend that the Home Office ensures information relating to the number of transfers is collated and published as part of the quarterly immigration statistics.

Challenging ongoing detention

Detainees need to be able to challenge their ongoing detention, particularly given the lack of a time limit. Unlike in the criminal justice system there is no automatic judicial oversight of the decision to detain or the decision to continue to detain. Challenges to detention must be instigated by the detainee. The main mechanism for doing so is through asking for a bail hearing.

The evidence we received shows that this mechanism is not currently working. Not only do detainees struggle to get legal support, but bail hearings also appear to operate in a way that creates a presumption against release. Until the time limit recommended in Part 1 of this report is implemented, we recommend that automatic bail hearings, as contained in section 44 of the Immigration and Asylum Act 1999 when it gained Royal Assent, be introduced.

There is a lack of adequate healthcare in detention centres

Detainees told us that the healthcare they have access to while in detention is inadequate. Additionally, the screening interviews that take place at the start of a period of detention, which are supposed to gain information about any health issues, are routinely tick-box processes that do not allow detainees to talk about possible concerns.

NHS England have recently taken over the commissioning of healthcare services within IRCs in England and we hope that this leads to improvements in the standard of care. We recommend that NHS England ensure that screening processes are suitable and that detainees have access to the healthcare they are entitled to.

Detainees with mental illnesses are detained too often

Immigration Removal Centres are not conducive to the treatment of individuals with mental illnesses. Many individuals who are currently detained have experienced trauma in their past and detention is wholly unsuitable. Furthermore, healthcare professionals do not appear to have either the resources or the training to be able to identify and treat mental health issues in detention.

We recommend that individuals with a mental health condition should only be detained under very exceptional circumstances. In addition, we recommend that NHS England work with experts who have experience of working with detainees to produce a training programme on identifying and treating mental illnesses that should be mandatory for all staff in detention centres.

Victims of trafficking or torture should not be detained

A number of the detainees who gave evidence to the inquiry were victims of trafficking or torture. They should have been referred to the National Referral Mechanism (NRM) rather than being detained. Given the Government’s focus on supporting victims of these crimes, this is especially worrying.

We recommend that screening processes are improved before a decision to detain is taken so as to ensure that victims of trafficking are not detained for immigration purposes and that Home Office caseworkers understand the NRM. Additionally, as part of the ongoing reform of the NRM, detention centre staff must be given more training about identifying victims of trafficking.

Rule 35 Reports are not protecting vulnerable detainees

Rule 35 Reports are supposed to provide protection for vulnerable detainees for whom continued detention is detrimental to their health, or who are victims of torture. Currently this safeguard is failing – in too many cases GPs are either simply passing on the details of claims made by detainees rather than giving a clinical opinion or Home Office staff are failing to act on the evidence they receive.

We recommend that when completing a Rule 35 report GPs should give a clinical opinion rather than just passing on what they have been told by the detainee. Caseworkers should be properly trained in how to respond to Rule 35 reports, so that responses are in accordance with Home Office policy.

Women in Detention

The nature of detention is often particularly distressing for women, who report feeling intimidated by male staff and lacking in privacy. We recommend that gender-specific rules are introduced for all IRCs where women are detained to prevent such intimidation.

Additionally, Home Office guidance lists groups of people who should not be detained as it is unsuitable.We recommend that women who are victims of rape and sexual violence should not be detained and should be added to this list and pregnant women should never be detained for immigration purposes

Lesbian, Gay, Bisexual, Transand Intersex detainees

We were extremely concerned to hear that LGBTI detainees face bullying, harassment and abuse inside detention centres. This is not acceptable. There is a lack of information available about the extent to which LGBTI individuals face detention and the Enforcement Instructions and Guidance make no mention of assessments of the risks to detaining LGBTI individuals.

We recommend that the Home Office works with the Home Office National Asylum Stakeholder Forum to properly assess what risks there are and to ensure that those LGBTI individuals who do face detention do not also face harassment.

Detainees should only be held in prisons in the most exceptional circumstances

Around 10% of individuals detained under immigration powers are held in prisons, usually after serving a custodial sentence. Failures in Home Office procedures are resulting in delays in removing those who should be removed at the end of their sentences, and we agree with the Public Accounts Committee recommendation that the Home Office and the Ministry of Justice should undertake a full review of the end-to-end process of removing foreign national offenders.

We recommend that where it is necessary to detain individuals at the end of a criminal sentence this should be done on the basis of a risk assessment showing that community alternatives are not appropriate. Detention should only continue in prisons under the most exceptional of circumstances.

With the introduction of the Immigration Act 2014, it is now more critical than ever to secure specialist and competent advice when faced with a refusal from either within the UK or overseas as quickly as possible. The new Act has and will remove what were standard rights of appeal from numerous immigration categories, leaving applicants with severely restricted options. Expert advice must be sought immediately and carefully following receipt of a refusal, to ensure your options are weighed carefully as the next steps are critical to a successful outcome. Following the removal of rights of appeal, applicants, depending on the nature of the refusal and application, may consider lodging a fresh application, or pursing an Administrative Review or Judicial Review. ICS Legal will assess your individual needs and help you salvage your application. We understand that receiving a refusal is not only hugely disappointing, but moreover a worrying and distressing time for many. Our friendly team experts will take the stress out of the situation and advise you as to what action you can take.

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________________________

4 March 2015

PRESS SUMMARY

R (on the application of Jamar Brown (Jamaica)) (Respondent) v Secretary of State for the Home Department (Appellant) [2015] UKSC 8

On appeal from [2013] EWCA Civ 666

JUSTICES: Lady Hale (Deputy President), Lord Sumption, Lord Carnwath, Lord Hughes and Lord Toulson

BACKGROUND TO THE APPEALS

The Respondent is a citizen of Jamaica. He arrived in the UK on 7 May 2010 on a one-month visitor’s visa. On 14 October 2010 he applied for asylum on the ground that he is homosexual and feared persecution if he returned to Jamaica. On 20 October 2010, he was detained pending a decision on removal. This was done pursuant to a fast-tracking procedure as Jamaica was on the list of states designated under s 94(4) of the Nationality, Immigration and Asylum Act 2002 (the “Act“).

Jamaica was added to the s 94(4) list by article 3 of the Asylum (Designated State) Order 2003 (SI 2003/970). This was done pursuant to the Secretary of State’s power in s 94(5) of the Act as it was believed that the following conditions were met: “(a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and (b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom’s obligations under the Human Rights Convention”.

Jamaica’s inclusion on the s 94(4) list meant that asylum or human rights claims from individuals entitled to reside in Jamaica were required to be certified by the Secretary of State as “clearly unfounded” unless the Secretary of State was satisfied that this was not the case (s 94(3) of the Act). The effect of this was that appeals made by applicants against immigration decisions in relation to “clearly unfounded” claims would have to be brought from outside the UK (s 92 of the Act).

The Respondent’s complaints that it was unlawful to detain him and that the fast-tracking process was unsuitable for his case were rejected by the Secretary of State. As a result, on 15 November 2010 the Respondent issued a claim for judicial review seeking declarations on two grounds: (i) his detention was unlawful; and, (ii) the decision to include Jamaica on the list in section 94(4) of the Act was unlawful.

On the same day, the Home Secretary refused the Respondent’s claim for asylum but did not certify it as clearly unfounded. This meant that he could appeal the decision whilst remaining in the UK. The Respondent was released from detention on 24 November 2010. On 4 February 2011, the First Tier Tribunal upheld his claim that he was homosexual and at real risk of persecution if returned to Jamaica.

The Deputy High Court Judge, Mr Nicholas Paines QC, dismissed both of the Respondent’s grounds. The Court of Appeal allowed, by majority of two to one, the Respondent’s appeal on whether Jamaica should be designated under section 94(4). It held unanimously that his detention had been unlawful on other grounds. The Home Secretary appealed to the Supreme Court solely on whether Jamaica should be included in the section 94(4) list.

JUDGMENT

The Supreme Court unanimously dismisses the appeal. Lord Toulson (with whom Lady Hale, Lord Sumption and Lord Carnwath agree) delivers the lead judgment. Lord Hughes concurs with the result but for different reasons.

REASONS FOR THE JUDGMENT

Lord Toulson (in the majority) reads s 94(5) of the Act as referring to countries where its citizens are free from any serious risk of systematic persecution either by the state or by non-state agents which the state is unable or unwilling to control. The phrase “in general” differentiates persecution which occurs in the ordinary course of things from isolated incidents of persecution. It does not require the persecution to affect any particular percentage of the population [21].

Rather, the persecution must be a general feature of life in the country and apply to a recognisable section of the community. This reading is influenced by the fact that “persecution” within the Refugee Convention will often be directed towards minorities and that the majority of asylum and human rights claimants belong to minorities. Requiring the group persecuted to exceed a percentage threshold is open to several objections: there is no way of determining that threshold; it is hard to see why it should make a difference whether a group just exceeds or just falls below the threshold; and, there would be no way of obtaining reliable information about the size of many minority groups [22]. The leading authorities do not contend otherwise [13]-[19].

Lord Toulson is not persuaded that it makes little or no difference to individuals whether their state is on the s 94(4) list. The purpose of designation is that applicants from those countries will normally be detained and fast tracked, as borne out by the facts of this case. Designation of a state changes the complexion of the analysis of the claim [23].

Lord Hughes (in the minority) agrees that it would be impossible to lay down a defined percentage of the population which needs to be at risk before there exists “in general” a serious risk of persecution. However, the Secretary of State should not be prevented from designating a State under s 94(4) of the Act simply because some form of grouping or a recognisable section of the community may suffer persecution when in general that State is free from persecution [30]. To bar designation where the risk is systemic, in the sense that it applies to members of an identifiable group, risks redefining the phrase “in general” and removes the intended flexibility on the part of the Secretary of State to make these complex decisions [34]. Nonetheless, in this case the risk to all who are homosexual, lesbian, bisexual or trans-sexual can only properly be described as a “general” risk in Jamaica so that the appeal should be dismissed [36].

References in square brackets are to paragraphs in the judgment

NOTE

This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at:

www.supremecourt.gov.uk/decided-cases/index.html

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New Statement of Changes in Immigration Rules published

Saturday, February 28, 2015 @ 02:02 PM
Author: icslegal

New Statement of Changes in Immigration Rules published

The Home Office today released a substantial new Statement of Changes in Immigration Rules (HC 1025). The Statement notes that the purpose is to make the following changes:

• Consolidate and clarify the Immigration Rules for visitors, by streamlining 15 visitor routes down to four: visitor (standard); visitor for marriage or civil partnership; visitor for permitted paid engagements and transit visitor.

• Create a single set of Rules for visitors covering: requirements for entry and stay in the UK; how to make an application as a visitor; suitability grounds for refusal and cancellation of visas or leave; eligibility requirements for each of the new visitor types; curtailment; the list of nationalities which require a visa in advance of travel and permitted activities for visitors.

• Rebrand the student visitor, and extended student visitor routes into new routes for short term study, which sit in Part 3 of the Rules, so that the routes are conceptually clearer for those undertaking short courses.

• Rebrand the “parent of a child at school” route as “parent of a Tier 4 (child) student” and place into Part 7 of the Immigration Rules as these individuals are not visitors.

• Enable caseworkers to require persons present in the UK with limited leave to provide evidence and/or attend an interview in order to demonstrate that they continue to meet the requirements of the Immigration Rules;

• Ensure that Overseas Domestic Workers have contracts that meet UK employment laws and that they will be paid in accordance with the National Minimum Wage Regulations;

• Amend the Shortage Occupation List in Tier 2 of the Points-Based System, following a partial review by the Migration Advisory Committee;

• Make scheduled annual updates to minimum salary thresholds and appropriate salary rates for occupations in Tier 2;

• Introduce a requirement for prospective Tier 1 (Investor) Migrants to open a UK-regulated investment account before making an initial application;

• Apply a “genuine entrepreneur” test to Tier 1 (Entrepreneur) extension and indefinite leave to remain applications;

• Close the Tier 1 (General) category for extension applications, and restrict the ability of Tier 1 (General) Migrants to switch into the Tier 1 (Entrepreneur) category;

• Make other changes to Tier 1 and Tier 2 of the Points-Based System;

• Update the list of Tier 5 Government Authorised Exchange schemes;

• Update the list of approved English language tests in Appendix O following the awards of new concessions to test providers and make changes to the Immigration Rules to ensure that English language tests taken for immigration purposes are taken at approved test centres.

• Make changes to the Immigration Rules relating to valid applications;

• Make changes and clarifications to the Immigration Rules relating to family and private life;

• Amend the circumstances under which a claim for asylum may be treated as implicitly withdrawn;

• Amend the requirement to grant a minimum of five years leave to any person granted asylum or humanitarian protection;

• Make other minor amendments and updates to the requirements for indefinite leave to remain for persons granted asylum or humanitarian protection;

• Enable UAE, Bahraini, Kuwaiti, Qatari and Omani diplomatic and special passport holders and Turkish diplomatic passport holders to travel visa free to the UK for the purpose of “visit in transit”;

• Extend the rules on when and how a person may apply to the Home Office to have a casework error in an eligible decision, as defined in Appendix AR of the Immigration Rules, corrected through a process of administrative review;

• Make minor changes and clarifications to the Immigration Rules relating to armed forces;

• Enable applications for entry to be refused if, where requested, a person fails to provide an overseas criminal record certificate;

• Change the Immigration Rules for TB screening incorporating compulsory screening for active pulmonary tuberculosis for migrants coming to the UK for over six months by amending Appendix T to accurately reflect the details of screening providers overseas and clarifying requirements for certificates; and

• Make other minor changes and updates.

New Immigration Act 2014 commencement order

Also new today was the fourth commencement order made under the Immigration Act 2014. EIN members can read it here.

Announcing the order in the House of Commons, Immigration Minister James Brokenshire said:

Today is another significant milestone in bringing the reforms in the Immigration Act 2014 into force. We are finishing the task of sweeping away the remains of the excessive number of rights of appeal and implementing the new scheme to stop sham marriages being used to circumvent immigration controls.

On 24 November I announced our plans to implement from 2 March 2015 the main provisions in the Act that tackle sham marriage and civil partnership. Today’s commencement order, together with the secondary legislation we have already laid before Parliament, will bring the new scheme into force from that date. The Act will give us a much stronger platform for effective, systematic action to disrupt and deter sham marriages and civil partnerships and prevent them gaining an immigration advantage.

Last October we started the phased implementation of the new immigration appeals system. The old system was a costly and time-consuming way to correct simple case work errors which could be resolved by a request to the Home Office to review the decision. Instead of appeals, the new system provides a system of administrative review through which case work errors will be corrected within 28 days. By 6 April 2015 the new appeals system will be fully in place.

Also on 6 April 2015 new provisions will come into force that enable children of unmarried British fathers born before 2006 to register as British citizens, correcting a historical anomaly in our nationality law.

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