Green Paper : citizenship changes - all existing immigration laws to go

The government has this month issued a new green paper setting out further major changes to the United Kingdom’s system of immigration. The changes will be set out in a draft bill in the summer. This will be followed in November of this year by a single piece of legislation which, according to the Border and Immigration Agency will “replace all existing immigration laws”. The proposals are apparently the consequence of several months of public listening sessions carried out by the Central Office for Information. In December of last year the Immigration Minister Liam Byrne was quoted as stating that (happily) this consultation programme had revealed that the UK was not a nation of “Alf Garnetts”.

The Green Paper proposes that there should be three routes to naturalisation as a British Citizen. These will consist of highly skilled and skilled workers who enter under the new Points Based System, and their families, family members of British Citizens and others with permanent residence in the UK and lastly people who are in need of international protection.

To reach the goal of British Citizenship people will go through three stages. Initially they will be “temporarily resident” in the UK. They will only become British Citizens after a period of “probationary citizenship”.

Under the proposals people who come within the first two categories (i.e. “economic migrants” who have entered the UK under the new Tiers 1 & 2 of the points based system, and refugees) will have to complete a total of five years’ temporary residence before they start their probationary citizenship. Family members of people settled in the UK will have to complete just two years of temporary residence.

During periods of temporary residence only refugees and those granted humanitarian protection will be able to access benefits and services. But people in this group will only be able to proceed to probationary citizenship if they are still in danger in the countries from which they came. If they are unable to prove this they will have to leave the UK.

During their period of temporary residence the highly skilled (Tier 1) and skilled (Tier 2) “economic migrants” will have to show that they have contributed to the UK’s economy including via paying tax. If they do not demonstrate this they will not be allowed to proceed to the probationary residence.

People in the third group – family members of people settled in the UK – will have to show that they are able to support themselves or be supported by their sponsor (who will have to be a British citizen or permanently resident in the UK). Spouses / civil partners of the sponsor will have to show that their relationship with him or her still exists. Failure to prove these facts will result in their being not allowed to progress to probationary citizenship and being required to leave the UK.

Unsurprisingly there are also proposals for preventing migrants who have criminal convictions to be either denied the right to proceed from temporary residence to probationary citizens. If the offences are serious enough to justify someone’s deportation they will be removed from the UK. If there are legal barriers to removal they will not be allowed to progress from temporary residence to probationary citizenship. The Green Paper also states that the government is also considering whether:

“progression to citizenship could be stopped or delayed for those whose children commit criminal offences.”

The mandatory probationary citizenship period will last one year for all three categories. During this time people will be expected to have demonstrated some form of community involvement. This is the novel principle of “active citizenship”. The government states that it doesn’t wish to prescribe the form of activity which will constitute active citizenship, but suggests that being an active member of your local community by undertaking voluntary work or serving as school governor would qualify.

If someone fails to perform as an “active citizen” he or she will be eligible for UK citizenship only after three years as a probationary citizen. The Green Paper emphasises that the government particularly welcomes views as to these proposals stating:

“Given the potential benefits to migrants themselves as well as the benefits for community cohesion, we would also welcome views on whether there should be a minimum level of active citizenship as a requirement before a person can become a British citizen or permanent resident. We are sensitive to the notion of compulsion in this area, but believe that there may be a case for a minimum requirement. We would be particularly interested in views on what this level might be, and are therefore consulting on this issue.”

(There are exceptions to the obligation to undergo a period of probationary citizenship in the cases of people discharged from the HM forces after 4 years service, victims of domestic violence who were admitted as the partner of a UK national or a person with permanent residence, and the bereaved partners of people who die in the 2 year period of temporary residence).

This concept of “earning” British citizenship or at least of accelerating the path to it by “active citizenship” is striking – but the promise to replace “all existing immigration laws” is indicative of the enormity of the legal measures being proposed in the Green Paper. If the past is anything to go by this endeavour may be thought by some people to be overambitious.

It is perhaps worth remembering that at the beginning of this government’s first term in office back in 1997 it was thought that what became the Asylum and Immigration Act 1999 might attempt to consolidate and to replace existing legislation. The Act did indeed include an entirely new structure of appeals against decisions affecting people’s ability to enter or remain in the UK – but this structure was itself then replaced within a few years by the Nationality, Immigration and Asylum Act 2002. Many of the other measures brought in by the 1999 Act never actually came into force. Since the 2002 Act there have been the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, the Immigration Asylum and Nationality Act 2006, and most recently, the UK Borders Act 2007.

Despite all these statutes it remains the case that the central principles of immigration law still stem from the Immigration Act 1971.

It is proposed to do away with the concepts of entry clearance, leave to enter and leave to remain and to replace them with the simple requirement that everyone who is not a British citizen will require “permission” to be in the UK for his or her presence here to be lawful. However the concept of a “visa” will apparently remain as the means whereby a person who is outside the UK can demonstrate that he or she has permission to be in the UK. This is perhaps a case of “Plus ça change plus c’est la même chose.”

As well as the concept of “active citizenship” there are however several other unquestionably new proposals in the Green Paper. The Government has announced its intention to review and possibly to abolish the right enjoyed by nationals of Commonwealth countries to come to the UK to work and to settle after five years provided that they can show that one of their grandparents was born in the UK. Such people currently have free access to the UK labour market, compared with people who apply for work permits (and who will soon be included in Tier 2 of the points based system) who have to satisfy a “resident labour market test”.

It has proposed that people applying to come to the UK will pay a fee over and above the regular fee for making their application. This will contribute to a fund which will alleviate some of the demands that are made by migrants upon public services. People who are more likely to require such services – people who are either old who are children – will have to pay more than young adults. It is stated that by this measure, which will begin in April of 2009, “tens of millions of pounds” will be raised.

The Green Paper also indicates that it is once again seeking to get rid of the right of people who appeal unsuccessfully against immigration decisions, to then apply for reconsideration of the appeal to the High Court. The Green Paper does not indicate whether its target is the right to apply for reconsideration at all (which was always meant to be to a judge in the High Court and is only currently made to the Asylum and Immigration Tribunal by a “filter provision” which is meant to operate for a transitional period), or instead the right to renew the application in the High Court if a Senior Immigration Judge in the Tribunal refuses to make an order for reconsideration. It seems likely that the government has an Appellant’s entitlement to renew the application for reconsideration in the High Court in its sights.

In the original bill which became the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 the government also intended to get rid of the right to apply for any review of the Tribunal’s own decision on reconsideration. It was only the outrage that this provision caused among lawyers advisers and judges which led to the existence of the right to apply to a judge in the High Court to review the Asylum and Immigration Tribunal’s decision not to make an order for reconsideration. So the same debates which raged three years ago will be revisited in the course of the consultation process of the consultation process announced in the Green Paper.

The consultation period ends on 14 May 2008.