Proposals for Radical Simplification of UK Immigration Law
The UK Home Office is consulting on proposals radically to ‘simply’ UK immigration law. The consultation paper includes a discussion of the Points-Based system being introduced for those coming to work or undertake economic activity in the UK.
The foundation of UK immigration law remains the Immigration Act 1971. The foundation of British nationality law remains the British Nationality Act 1981. These laws have been amended many times since they were passed. For example, new laws on immigration were passed in 1993, 1996, 1999, 2002, 2004 and 2006, and there is now another proposal for legislation, the UK Borders Bill, before the UK parliament. Each of these pieces of legislation amends the 1971 Act, and some amend the 1981 Act, but they also include new and freestanding provisions.
The result is a structure of enormous complexity, made all the more complex by the transitional arrangements that apply as each new piece of legislation comes into force.
Since at least 1999 there has been pressure on the UK government to consolidate UK immigration law: to pick up all the pieces scattered across various Acts of the UK parliament and put them all into one Act, so that everyone, the Border and Immigration Agency (BIA) of the Home Office, the immigration judges of the Asylum and Immigration Tribunal (AIT), lawyers and individuals, will be able to consult the laws in force. The government have now acknowledged the strength of these arguments.
However, the proposal on the table goes far beyond consolidation. It proposes that, at the same time as consolidating its immigration and nationality laws, the UK should simplify those laws.
The scale of the proposal is enormous, and this must raise some concern as to whether it is feasible. When consolidating legislation goes through parliament, it would be normal for it to have a limited aim: to consolidate the existing law. If this is the agreement then neither government nor opposition will propose changes, instead they will scrutinise the consolidating legislation to ensure that it is simply consolidating and not changing things. Once government try to change things, others may also come in with their proposals for change. The parliamentary project could thus become enormous.
What of the simplification itself? The consultation mentions the Points-Based system, where work is already underway. The aim of this work is to create five different tiers for people wishing to work or study in the UK to come here, rather than the 80 separate routes that exist at the moment. The proposed timetable for the points-based system is:
• Beginning of 2008: Tier 1 of the system, which caters for highly skilled migrants and is the successor to the current Highly Skilled Migrant Programme (HSMP), although it may cover a different group of people and have different requirements;
• Third Quarter (October to December) 2008: Tier 2, which covers people who would currently fall under the work permits system, and Tier 5, which deals with ‘youth mobility’ and temporary workers, probably involving the successor to, for example, the current Working Holiday-Maker scheme;
• Beginning of 2009: Tier 4, students.
The timetable does not cover Tier 3, low-skilled workers. This is deliberate. The UK has stated that part of the points-based system will be the ending of employment routes to the UK for low-skilled workers from outside the European Union except in cases of short-term shortages. Also, at the moment, the UK continues to restrict the work that can be done by citizens of the new member States of the European Union, Bulgaria and Romania, and their opportunities to come to the UK to do ‘low-skilled’ work for a UK employer are very limited. The UK, under European Community Law, cannot treat workers from outside the European Economic Area (EEA) more favourably than those within; thus, at the moment, there is no scope for general schemes for low-skilled workers who are not EEA nationals.
The current Highly Skilled Migrants programme (HSMP) is the only ‘points-based’ part of the current system and is generally seen as a testing ground for the new system. In some ways it has simplified matters: applicants score points for qualifications, earnings, age and having worked in the UK before. They must also speak English. However, in practice, the system has generated considerable bureaucracy over the way in which applicants must evidence that they score the required number of points. For example, even if English is your mother tongue and you studied at an Anglophone university, you must produce a letter from that university confirming that your degree was taught in English. The form in which evidence must be presented is extremely specific. Putting together an application is by no means as simple as it looks.
One proposal for simplification is to end the current system of ‘concessions’. Concessions govern how the Border and Immigration Agency will treat a case that does not fall squarely within the UK immigration rules. Many concessions deal with the way in which discretion should be exercised in cases that do not fit the standard format. Again, reading across from the Highly Skilled Migrant Programme (HSMP), the approach to date, as evidenced in particular by the changes made to the programme in December 2006, has been to try to reduce or eliminate discretion. The criteria have been made more objective. One difficulty with this is the extent to which it has changed the focus of the scheme. Criteria requiring more evaluation, such as previous work experience, have been replaced by criteria such as previous earnings, which are more susceptible of being counted. It is arguable that this has warped the scheme: world leaders in their field may be unable to qualify under the current HSMP because they do not have a degree, and the Programme looks increasingly like a graduate mobility scheme rather than one which brings exceptional people to the UK.
It will always be the case that in immigration, as in other areas of the law, the government cannot act in a way that will breach people’s human rights under the European Convention on Human Rights (ECHR). This involves weighing up all the factors in the individual case, especially in cases involving people’s rights to private and family life under Article 8 of the ECHR, which is often relevant in family cases or where people have resided in the UK for a long time.
Work has been done to simplify this in the past, for example the concession giving people who have been victims of domestic violence a route to settlement (Indefinite Leave to Remain, ILR) in the UK, although they have split up from their British or settled spouse/civil partner was incorporated into the UK Immigration Rules, as was a concession giving people with long residence the possibility of settling in the UK. There is undoubtedly scope for incorporating more of the well-established concessions into the rules. Another possibility is that the Border and Immigration Agency (BIA) may get rid of some of the concessions. But concessions start life as a response to situations not covered by existing rules. New situations will keep arising and will need to be addressed. It is not always possible, faced with a new situation, to make a decision straight away on how a new rule should be framed.
The consultation paper states that:
‘The Simplification Project aims to produce a single, consistent and coherent framework of primary and secondary legislation, together with any further guidance and instructions that are strictly necessary.’
The less discretion then the less guidance will exist to tell caseworkers how to exercise discretion. But guidance will always be needed to ensure consistency. Where Border and Immigration Agency (BIA) caseworkers are working to internal instructions it is desirable in the interests of ‘transparency’, which the consultation paper recognises as extremely important, that people are able to consult the guidance being used to determine their case. Again, however, there are reasons to be concerned based on the HSMP. Back in March 2007 the Border and Immigration Agency resisted requests made under Freedom of Information legislation to publish the internal guidance on the HSMP on the basis that it was reviewing the guidance and intended to publish it anyway at the end of May 2007. It is now July and still no internal guidance to caseworkers has been published.
Firms such as Gherson and Co., who are doing significant numbers of HSMP applications, are learning from experience how the Border and Immigration Agency is handling these applications, but the failure to publish the internal guidance arguably leaves individual applicants and firms handling only a small number of applications at a disadvantage. Gherson and Co. has always specialised in nationality law, a particularly complex area of UK law that may involve looking at the status of parents and grandparents and the UK’s Colonial history to determine present-day entitlements. Here there is undoubtedly considerable complexity. Proposals to simplify the law may lead to more calls for holders of British nationality other than British Citizenship, such as British Nationals (Overseas), or British Overseas Citizens, to be given full British Citizenship. It seems unlikely that this is the type of simplification that the UK government has in mind, but this is the debate that it has opened.
The consultation speaks of there being ‘over thirty’ ‘statutory instruments’ – regulations made as secondary legislation under the principle Acts of parliament -- that will need to be reviewed as part of the simplification process. In practice there are many, many more than thirty sets of regulations that would be affected by the changes. There are a large number of regulations on immigration and nationality law. In addition, a person’s immigration status affects entitlements in other areas of the law, for example entitlement to State benefits, payments made to people in need. This is the subject of a complex framework of regulations made even more complicated because some areas of the laws affected, unlike immigration law, are devolved to the Scottish Parliament and Welsh assembly, or separate regulations that exist for Northern Ireland. Like the main Acts of parliament, many regulations have been amended numerous times. Again, transitional provisions accompanying amendments may continue to be important as it may be necessary to look at entitlements months, or even years, previously. For example, the Asylum and Immigration Tribunal (AIT) has been operating since 2002 on ‘transitional’ arrangements. In 2002 the AIT was made a single-tier rather than a two-tier tribunal but,under transitional arrangements, was allowed to review (to ‘reconsider’) its own decisions, because of fears that otherwise the UK courts would become overwhelmed by applications for review of decisions on the basis that the Asylum and Immigration Tribunal had got the law wrong.
The consultation paper proposes that the simplification project should be based on principles of:
• transparency
• efficiency
• clarity and predictability
• plain English
• public confidence
Consolidation of UK immigration law is long overdue, and lawyers as well as officials are likely to commend the Home Office for embarking on such a difficult project. There is likely to be concern from many quarters that if the project to too ambitious and wide-ranging then it could become bogged down and flounder, with the result that consolidation is delayed and simplification not achieved. The Home Office consultation paper invites views on how the simplification project should proceed and it is to be hoped that this will provide an opportunity for such concerns to be aired and addressed.
The deadline for responding to the consultation is 29 August 2007.
Alison Harvey, Gherson and Co.
