Over the past 13 years of the Labour administration, the British Immigration System has undergone the most profound and comprehensive overhaul in living memory.
The Government has been resolute in its determination to reduce the number of migrants coming to the United Kingdom and in doing so has been prepared to undermine the entire basis of immigration law. Labour has been engaged in a quest to reduce the number of asylum seekers, whether bogus or legitimate and, simultaneously, to substantially reduce the number of legal and legitimate migrants to the United Kingdom. This has included drastic reductions in a number of people coming to the United Kingdom for the purposes of business, investment or innovation. The pretext has been supposedly on the basis of protecting ‘British Jobs for British Workers’; a phrase coined by Gordon Brown and quickly adopted by fascist nationalist supremacists. Such a principle is entirely contrary to the provisions of the European free movements and is arguably an infringement of those rights. In an effort to maintain publicity statistics the dramatic restrictions placed on legal immigration to the United Kingdom have now affected students, those coming to the United Kingdom for family reunion as well as visitors and legitimate economic investors; who are well placed to contribute to British Society. Much of these draconian measures have been a knee jerk reaction to appease the tabloid press and an effort to win over votes.
The labour administration has presented this reduction in the number of migrants to the United Kingdom in a concentrated projection of spin which has been inappropriately named the Points Based System (PBS), loosely modelled on the Australian immigration system of attracting educated and qualified migrants.
The introduction of the Points Based System has resulted in;
- The erosion of subjectivity from the immigration decision–making process
- The introduction of a requirement for all applicants to speak English to an advanced standard
- The new requirement for each applicant to produce totally prescriptive documentation in support of their application under the Points Based System, with a failure to take account of any additional supporting information
- The gradual removal of what had previously been automatic appeal rights in relation to the decisions of the United Kingdom Border Agency and British Consulates abroad
- A dramatic reduction in the availability of Publicly Funded Legal Advisors and Legal Aid
- The consequent misinformation by government and political parties to the public
The new immigration system is now based on a set of unverified and draconian principals dependent almost entirely on the applicants ability to tick and fit into boxes designed by auditors and political policy makers with hardly, if any, consideration given to the law, the rights of individuals or fairness.
UK Border Agency
Part and parcel of the public presentation of this bundle of publicity based spin by the Labour administration has been the creation of the new United Kingdom Border Agency (UKBA) with its continuous mantra of proclaiming that the Points Based System has resulted in the reduction of more than eighty immigration categories into five new immigration Tiers. This has led to the inevitable reduction in the available pool of migrants, particularly skilled migrants, who would otherwise have qualified to enter the United Kingdom as well as the number of potentially highly qualified contributors to the workforce. The UKBA has responsibility for, supposedly, securing the UK borders and controlling migration. The Agency is a mammoth government organisation sliced out of the former Immigration & Nationality Department (IND) of the Home Office; created solely, it seems, for the purposes of maintaining government statistic, discouraging the use of solicitors by applicants and potential applicants for entry to the UK and, creating and impenetrable shell of misinformation and secrecy around itself. In reality those who are familiar with the system will be aware that the hype claiming the creation of the new agency was little more than a change of name, a few new name plaques in Croydon and at the airports and a great deal of media interest in a new monthly regime of publishing immigration statistics specifying media savvy soundbites of the number of successful deportations or immigration detainees each month. Part and parcel of this assault on logic was the creation of the Points Based System.
The Points Based System has been packaged into a supposedly simplified, objective and transparent immigration system which has been simplified for all prospective migrants. This is far from the case; indeed the system now is more complex than at any stage in the past and is fraught with pitfalls and robotic decision making systems.
A huge number of immigration applications are now being rejected, even from migrants who are supposedly being encouraged to enter the United Kingdom. Many of these refusals are either completely baseless or fraught with errors, mistakes and clear incompetence. The supposedly transparent system and publicised simple application forms are misleading, to say the least!
The quality of refusals of entry clearance and visa applications from UK Consulates has fallen dramatically over the past thirteen years. I am now regularly confronted by refusals of applications for visas, based on incomprehensible and unfounded reasons for rejections. Whether these rejections are based on failures of poorly trained staff or, whether they are based on a covert and concealed political itinerary, is not clear. However; what is clear is that the entire system has now being manipulated for political gain and public consumption.
Immigration Solicitors & the UKBA
It is now not uncommon for the UK Border Agency staff to openly encourage applicants not to use or seek the assistance of legal representatives and to discourage those who have received negative decisions on their applications from taking legal advice. Jeremy Oppenheim, Regional Director and Policy Head for the PBS stated in March 2010 that; ‘the Points Based System applications are now so simple that lawyers are no longer needed’. As an immigration lawyer, this leads me to ask why the Regional Director of the Points Based System would be so interested in discouraging the use of legal representatives and solicitors in advising clients and potential applicants in relation to their rights or entitlements under British Immigration Law.
Almost from the outset of the Points Based System the UK Border Agency has overtly publicised its complete disregard for the involvement of solicitors in the Immigration Application Process. The UK Border Agency now encourages employers to contract directly with the Agency in obtaining sponsorship licenses. The UKBA now speaks directly to businesses and effectively advertises itself as a streamlined and simplified immigration process.
|What is concealed under this façade of simplicity is the introduction of a myriad of new criminal and civil penalties for any business found to be in contravention of the new complex rules and regulations of sponsorship, as well as corporate humiliation and extensive of powers of the UKBA to freeze sponsors licences or to downgrade or confiscate these licences including, lengthy and complicated investigatory powers conferred upon the UKBA. I was recently consulted by a London based College providing sponsorship certificates to more than 450 foreign students whose sponsorship licence had been temporarily revoked by the UK Border Agency pending an investigation. It later transpired that the basis of the investigation had been an unscrupulous and unfounded anonymous report alleging poor conduct on the part of the College. The UKBA investigation lasted almost three months during which time the College Sponsorship Licence was suspended and the fait of the 450 foreign students who where in the United Kingdom and who had paid their college fees and continued to be liable for their living expenses, was left hanging in the balance.|
Added to this discouragement that the UKBA provides applicants in taking legal advice, are the dangerously regular and unfounded errors in the decision making process by the UKBA. This is not withstanding the supposedly simple and transparent points based system which in reality is neither simple nor in any way transparent. Indeed to a legally trained specialist the system is extremely complicated and loaded with pitfalls.
Also worthy of mention is the keen interest the UKBA now has in actively and openly profiteering from the demand for British Visas or extensions of visas to Remain in the UK. Some applications for extensions of Visas are now being sold by the UKBA at fees exceeding £1,095.00 whilst potential applicants have been charged extortionate telephone charges simply to make an appointment to attend one of the Public Enquiry Offices to submit their application. These fees are charged with no refundability options whatsoever and no guarantee of any results. The processes of obtaining an appointment to visit a Public Enquiry Office are needlessly complicated and almost ideally designed to discourage any potential applicant from pursuing an application. In addition to charging potential applications the UKBA is selling the concept of a sponsorship licence to employers in the UK and charging a substantial fee from those employers whilst, at the same time, monitoring those employers activities and issuing them with penalties for alleged breaches of the licence terms. One could be forgiven for believing that the UKBA is now profitably selling the ‘concept’ of immigration to the UK.
There have been many instances of the UKBA sending emails directly to applicants, openly discouraging those applications from taking legal advice and providing them with updates to the guidance materials and forms as well as directing potential applicants to links on the UKBA website. The UKBA openly refuses to allow solicitors to participate in key stages of the immigration process and flagrantly disregards widely accepted basic human rights which would apply, were the client arrested by the police and subjected to an interview in the police station.
Even where clients are clearly being represented by a solicitor, the UKBA will flagrantly ignore the existence of the solicitor in an attempt to communicate directly with the applicant by letter, email or even telephone and will very often return documents directly to the applicants rather than to their chosen legal representative in a show to demonstrate their disdain for the involvement of lawyers.
The General Election
In the past few weeks we have borne witness to the publicity of immigration by the three main politically parties in the UK in the showdown to the General Election. Indeed the existence of some of the minor political parties in this country (UKIP, BNP) is based entirely on the concept of immigration and their resistance to it. It is undeniable that immigration is a subject close to the public’s heart and, one upon which many people hold views, often strong, albeit almost resoundingly misinformed. However it is inescapable that much of the publicity, hype and spin surrounding the subject of immigration to the UK is based on incorrect facts and completely unachievable and unrealistic objectives, set out by politicians.
Labour entered this election with a manifesto pledging to persist with the simplification process of the Points Based System. The Conservatives propose an annual limit on the number of none EU economic migrants allowed to work in the UK. Also proposed is an assault on the student visa system which is receiving a considerable amount of negative press in recent months. The Liberal Democrats suggested that the only effective way of dealing with illegal immigration is an amnesty for all those illegal immigrants currently inside the UK and, to be followed by a closed borders policy.
Not withstanding the political overtness of the topic, the tabloid press maintain a constant rhetoric torrent of immigration’s statistics designed to suggest that the UK is now victim to the invading marauding masses of economic migrants.
Immigration is not a British phenomenon. Human migration can be traced back throughout history. The movement of large numbers of peoples across continents and borders is not a new development and is certainly not capable of being controlled by legislative processes. This is a reality of our society and it must be appreciated that it is a two-way road. The level of migration into the UK is not significantly higher than the numbers exiting the UK. However having stated this, immigration can be split into two distinct groups; comprising encouraged migration and discouraged migration.
What is abundantly clear is that any person contemplating seeking entry to the UK or wishing to extend their stay in the UK is faced with one of the most complicated and technical immigration legal systems in the developed world. At the same time the legal profession has witnessed an enormous departure from the field of immigration law by some of the biggest names in the legal industry. This departure is due partly to the reduction in the availability of Public Funding and Legal Aid and the disenchantment of the legal profession with the current UKBA policies and procedures. The UKA would like any potential applicant to the United Kingdom to believe that the services of a solicitor is no longer required. However the reality of the situation as it currently stands is, that the UKBA is charging potential applicants to the United Kingdom a higher fee for their visa application than those applications would have paid to receive professional and independent legal advice from a trained specialist in immigration law. The UKBA would like potential applicants to believe that they no longer require the services or advice of a trained professional solicitor. It strikes me as odd that a potential applicant would believe such a profoundly misguided and delusionary concept.
There can be no doubt that a specialist immigration solicitor has the experience and understanding to conduct any potential immigration application or appeal on behalf of their client, in accordance with the complex current laws and rules and, in particular, to give their clients sufficient peace of mind to know that their matter is being handled diligently and expertly. Despite the publicity surrounding the issue of immigration in the United Kingdom and, the interest of the various political parties and government bodies in proclaiming their own victories, it is the duty of us solicitors to ensure that the rights of our clients are protected and every stage in this extremely complex maze of immigration laws and regulations and, to stand up for fairness and the rule of law.