Time to stop lawyer bashing and look at where the real fault lies….

Source: Free Movement

UKBA post room

Carrying on from FM’s open season article last week, it is clear that immigration lawyers are getting a hard time of it at the moment: first it was judge bashing and now the lawyers are in the firing line. The pernicious pastime of naming and shaming the legal profession needs to stop. Fearlessness is needed for us to do our jobs properly, particularly those of us representing  or judging vulnerable migrants, a group even lower in the public’s esteem than politicians. That is made just a little bit harder where there is a risk of judgment in the kangaroo court of public opinion.

Under attack themselves, we have seen the judges in turn criticising claimants and their lawyers. What of the Home Office, though? The Chief Inspector of the UK Border Agency last week published a damning report on the UK Border Agency’s handling of old asylum cases. The report highlighted how the Home Office has mismanaged the “legacy” fiasco, of which regular blog readers will no doubt be aware. In short, in 2006 the Home Secretary promised that unresolved asylum “legacy” cases would be dealt with by July 2011 either by granting Indefinite Leave to Remain (ILR) or removing a person. There was in addition to this, a list of factors against which cases would be considered and prioritised accordingly (or not).

In his damning report, Chief Inspector John Vine said the following:

I found that the transition of work from the Case Resolution Directorate to the new Case Assurance and Audit Unit was poorly managed. The volume of the remaining work to resolve legacy cases was not anticipated by the new unit. As a result, CAAU was quickly overwhelmed by the casework and the associated high levels of correspondence from MPs, legal representatives and applicants. I have commented previously about the importance of effective governance during major business change initiatives. I was therefore disappointed to find that a lack of governance was again a contributory factor in what turned out to be an extremely disjointed and inadequately planned transfer of work. Such was the inefficiency of this operation that at one point over 150 boxes of post, including correspondence from applicants, MPs and their legal representatives, lay unopened in a room in Liverpool.

In addition Mr Vine also noted that the legacy cases were far from being concluded, stating specifically that the UKBA had resiled from their aim of concluding these cases by either granting leave or removing:

As with many of my previous inspections, I identified that customer service outcomes were poor. I found significant opportunities to improve both general correspondence handling and complaints handling.

Mr Vine also notes that the delay caused by the backlog has and is continuing to have serious repercussions for those waiting in this system.

The UK Border Agency has been caught lying to Parliament, allowing a backlog of 100,000 unopened letters to build up and dismally failing to deliver on general and case specific promises to decide cases by set deadlines. Legacy lawyers and litigants caught up in the whole shambles have long known there was arbitrary chaos behind the bland Agency assurances. Media coverage has been appropriately coruscating. The judicial response… has been tolerant and trusting in case after case.

The one case so far in which a higher court judge has found in favour of a Legacy litigant is Mohammed, in which Deputy High Court Judge Stephen Morris QC found that the failure to apply published policies in respect of promises made under Paragraph 395C was deemed unlawful. This and the new Chief Inspector report perhaps provide legal ammunition for re-opening the argument that the Legacy decisions made by the Agency are unacceptable and unlawful.

Open season on immigration lawyers

Source: Free Movement

There has been a lot of media coverage of judicial review applications in the last few days, as most readers will no doubt have noticed. The Government has announced plans to (a) reduce the time limit for judicial review from three months, (b) increase the court fees for bringing a judicial review application and (c) curtail the number of ‘appeals’ in judicial review cases. Prime Minister David Cameron himself trailed the proposed reforms in a rather ill-judged and frankly rather tasteless comparison between George Osborne’s faltering response to a downturn in the economic cycle and total existential war against the Third Reich. If Churchill’s response to the invasion of Egypt had been to adjust the time limits for lodging court cases then I don’t think we’d be worrying about the time limits for court cases right now.

Simon Jenkins is bang on:

A better approach might be to ask the real cause of appellate abuse. It is because so many decisions emanating from Whitehall are ill-considered and wrong-headed.

There will be a consultation, apparently, but this might be even more nominal than usual being as Cameron also in the same speech proposed restricting consultations with civil society — Government is all but infallible and will always Do The Right Thing, as we know.

One puzzling aspect of this attempt to blame litigants for the Government’s own failings is that it was NOT justified with reference to immigration cases. Usually the Other, those pesky immigrants and, even better, failed asylum seekers or alleged foreign terrorists, provide the justification for taking away civil liberties from us all. Given that a very significant number of judicial review applications are made in the field of immigration law, this was all the more surprising. See the interesting graphic below that has been doing the rounds on Twitter.

In Other News, though, some judges and some other lawyers have taken up the Government’s baton. We have already covered Sir John Thomas’s tirade in Hamid. He is at it again in the case of R (on the application of Awuku) v Secretary of State for the Home Department [2012] EWHC 3298 (Admin), in which three immigration firms are named and shamed for failure to make full disclosure in urgent ex parte applications.. Not only that but in R (on the application of Gassama) v Secretary of State for the Home Department [2012] EWHC 3049 (Admin) another immigration firm was ordered personally to pay government costs on an indemnity basis for very poor litigation conduct.

Some perspective may be useful. This is not an attempt to defend the indefensible — lawyers should always comply with the law — but to question whether it is sensible or useful to declare open season on immigration lawyers as if they were the source of all ills in our underfunded legal system. Some balance is needed in this sort of debate and I certainly don’t see anyone else jumping to our defence.

1. The UK Border Agency are probably the most incompetent bunch of litigators in history. I struggle to remember the Government, media, judges or Treasury counsel attacking UKBA incompetence in the same concerted way or lamenting the HUGE waste to the public purse caused by this incompetence. The adverse judicial comment I have seen has been more in the nature of a helpless lament at the whole process (see whelks, merry-go-rounds and whirligigs) than an angry rant.

2. Linked to this, none of the various pieces analysing numbers appreciated that a HUGE number of judicial reviews are successful because the other side concedes the case. For example, the statistics for immigration judicial reviews in 2011 record 8,649 applications, only around half of which, 4,604, were refused. Only 607 were granted at the permission stage, though. What happened to the other 3,438 cases, which were presumably withdrawn? In comparison, only a tiny number of other types of judicial review are unaccounted for compared to immigration. I would suggest that a lot of these unaccounted for cases involved the decision maker accepting that the decision was wrong at an early stage in proceedings. Anecdotally that is my own experience – I barely ever get to go to court in the judicial review cases in which I am instructed because they nearly all get conceded. The apparently low number of cases that ultimately succeeded at court (only 54) is therefore highly misleading as to the effectiveness of judicial review as a remedy for correcting unlawful decisions or behaviour by government.

3. Treasury Solicitors and Counsel (who act for the Government) have a very difficult job to do in immigration cases. Their client, the UK Border Agency, goes incommunicado, gives no instructions, gives ridiculous instructions and so on. But the lawyers also make mistakes and act at least disingenuously. Many is the case that used to settle for ‘purely pragmatic reasons’ according to a Treasury drafted consent order, which is basically a lie, and I cannot recall the last time I saw the Government comply with a time limit in a judicial review case. There is HUGE tolerance for this systematic flouting of the Civil Procedure Rules (and lower down the system the tribunal procedure rules) because judges take the defeatist view that it is inevitable and Government is a special case of some kind. I always warn my clients early on in a case to expect these double standards, because woe betide us should we do the same. Does anyone recall anyone from Treasury even being required to go down to court to explain or apologise?

4. Similarly, there have been a number of cases in the last year in which the courts have, after several years of prevarication and inconsistency, finally accepted that UKBA have to pay costs when they lose, a principle that most lawyers in other areas of law would probably have thought was fairly obvious. See Bahta [2011] EWCA Civ 895, M v London Borough of Croydon [2012] EWCA Civ 595 and AL (Albania) [2012] EWCA Civ 710. It is astonishing that these principles needed to be re-stated and that some judges were not already applying them, and it is indicative of a different standard previously being applied by judges to UKBA.

5. Sir John and others would perhaps be usefully reminded of the fact that the UK Border Agency have employed no-notice dawn raid removals and otherwise operate on a 72 hour notice period. This gives a detained client very little chance to instruct or pay lawyers, who are now to be personally named and shamed for not responding to such action — sometimes unlawful action — absolutely immediately. This also ignores the fact that some immigration lawyers still perhaps naively expect the UK Border Agency to comply with its own policies on cancelling removals if a judicial review is lodged. Only when it becomes apparent at the last minute that UKBA is not complying does the panicked injunction become necessary. Only a person with no experience of acting for claimants in these cases could ever say that applying for an out of hours injunction is a deliberate tactical move. Sir John should try walking in a solicitors shoes before lambasting them for not quite filling in the form correctly or missing out information on an urgent and perhaps de facto pro bono application to the court that may be necessitated by yet further UKBA unlawfulness.

6. It is relevant to point out that these pesky immigration solicitors (and Counsel, although we barristers have been left out of the firing line so far) are acting on instructions. Yes, they should fill in the forms correctly and yes they should fully disclose the history. But to attack lawyers for lodging last minute injunctions against removal when acting on their client’s instructions is very dangerous indeed. Will we next attack the solicitors for appealing terrorist convictions? Adam Wagner, a rightly respected legal blogger but one whose experience is I think exclusively in acting for Government in immigration cases, states the widespread assumption that

Claimants are badly advised and given false hope that their case has merit– and then are left waiting a year for the inevitable failure of their Judicial Review when they could have been getting on with their lives.

He goes on in a similar vein cataloging errors by claimants before more gently suggesting UKBA is ‘by no means blameless’. There is an assumption being made here. The fact is that if a client is fully advised on the merits in an immigration case involving permanent separation from family and children and return to a country where he or she (rightly or wrongly) fears for his or life, that client will often still want to pursue every possible legal action. Even Adam’s no doubt considerable powers of persuasion might fail to dissuade such a person from pursuing doomed legal action.

7. These one-sided and ignorant attacks have a pernicious effect. In Marx’s early historical work, The Eighteenth Brumaire of Louis Napoleon, he wrote that

Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce.

Just this week an immigration judge demanded that the senior partner of a very well respected immigration firm attend the tribunal to explain why a bundle had been served late. Who on earth did the judge think he/she is to make such a demand? I have never, ever heard of the UK Border Agency being held to account in such a way, even for their more egregious errors causing awful waste of public funds and terrible, damaging inconvenience to the other party. Also just this week I was helpless when UKBA withdrew a decision on the day of hearing because of their error, causing my client huge further delay and prolonged detention away from his family. We wanted to press ahead. The judge was terribly, terribly sorry for my client but did not demand the UKBA caseworker or manager attend court to explain why the error had been made or not corrected sooner. We’ll be back at court on that one in a few months time at considerable expense to UKBA, the tribunal and the legal aid fund.

8. It is worth recalling the harm that is allegedly done here. Harm to the administration of justice is a serious matter. But poorly or unpaid immigration lawyers acting urgently on last minute, desperate instructions do not generally ruin anyone’s life, unlike an incompetent UKBA decision wrenching a family apart or a badly drafted will or a badly handled family law dispute over children or a badly handled personal injury case for someone with very serious injuries.

Lastly, I also worry that these sorts of attacks are sometimes carried out by wealthy, white, middle class, well educated lawyers and judges with no personal experience of working directly with immigrants or hard pressed ethnic minority law firms. It is entirely reasonable to expect the rather well paid solicitor for a footballer or politician to dot every ‘t’ and cross every ‘i’ when seeking an urgent privacy injunction. That expectation might be a bit unrealistic in immigration law, the hardest and most bitterly fought, most controversial, most convoluted, perhaps most poorly funded and surely most tilted legal battleground between the individual and the State.

Asylum credibility: timely new case from Strasbourg

In a case that in some ways exceptional but in many ways entirely ordinary, the UK Border Agency this week rejected an asylum claim by a young Afghan man. The reason the case was exceptional is that he had previously worked with the British armed forces and been horrendously injured in a Taliban attack that killed a British serviceman. The reason that the case is entirely ordinary is that the UK Border Agency followed its normal processes and approach. The fact the man was covered in scars was irrelevant as there was no ‘proof’ of what caused them. This reasoning is standard even for very serious injuries. The easily authenticated documents presented by the man were rejected out of hand as being capable of being forged. This is standard practice at UKBA who refuse to attempt to check any original document (and yet always demand originals). The easily verifiable account given was rejected as featuring ‘inconsistencies’, even though it took a Newsnight journalist 20 minutes to find two independent sources to confirm the account. This total absence of forensic ability or, frankly, interest by UKBA officials is also typical.

Read more

Source: Free Movement

Asylum Seekers’ Child Starves to Death

The government has been warned that it must have a proper support system in place for asylum seekers after a child starved to death in temporary accommodation in one of the wealthiest parts of the country.

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Source: IB Times

Vice Chancellor attacks treatment of Overseas Students

The UK failed to treat more than 2,500 overseas students threatened with deportation at London Metropolitan University like human beings, a leading vice-chancellor claimed today.

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Source: Independent

The New Deportation Rules

Source: Free Movement

From 9 July 2012 the UKBA’s new rules on deportation took effect and should be retrospective, paragraph A362 stating ‘Where Article 8 is raised in the context of deportation…the claim under Article 8 will only succeed where the requirements of these rules as at 9 July 2012 are met, regardless of when the notice of intention to deport or the deportation order…was served.’  If then, regardless of when the notice of intention to deport or the deportation order was served, the requirements of these rules have now to be met one wonders why Home Office Presenting Officers and the Secretary of State’s counsel are currently being instructed not to raise the new rules in appeals against decisions taken before 9 July 2012.   Whatever their instructions, it’s essential to be prepared though as accordingly to our sources guidance given to Tribunals directs them to apply the new rules to appeals.

As a starting point for looking at these rules, section 7 (‘Policy Background’) the Explanatory Memorandum to the Statement of Changes is worth reading, the deportation portion providing:

Clear criteria on criminality

7.9 The new Immigration Rules set clear criteria for how an applicant’s criminality will impact on the scope for them to be granted leave to enter the UK on the basis of their family life or leave to remain in the UK on the basis of their family or private life. ..

At first glance then it might seem that, if it were possible, things have just got even worse for foreign national prisoners seeking to assert their Article 8 rights.   The criteria within the rules are certainly clear enough but whether the Secretary of State is correct in stating that Article 8 claims can only ever succeed if the rules are met is highly questionable.   In fact, I don’t think it’s right at all.

Here are the new rules:

396. Where a person is liable to deportation the presumption shall be that the public interest requires deportation.   It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007.

397. A deportation order will not be made if the person’s removal pursuant to the order would be contrary to the UK’s obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed.

That’s clear enough.  They continue:

398. Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and

(a)       the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b)       the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

(c)       the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors..’

Pausing there, the ‘..persistent offender who shows a particular disregard for the law’ in paragraph 398(c) is arguably the old conducive test anyway and I don’t see why a ‘serious harm’ test even appears since any ‘serious harm’ to the public would likely attract a sentence of at least 12 months in any event.    On the other hand, one can perhaps guess that it at least gives the Secretary of State the power to interpret ‘harm’, ‘persistent offender’ and ‘particular disregard for the law’ as widely as is necessary at any particular time.

Paragraph 399 provides that it applies where paragraph 398(b) (sentence between 12 months and under 4 years) or paragraph 398(c) (persistent offender/offending caused serious harm) apply.   Paragraph 399(a) refers to partners and children whereas paragraph 399(b) refers to just partners:

399 (a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

(a) it would not be reasonable to expect the child to leave the UK; and

(b) there is no other family member who is able to care for the child in the UK; or

(b)       the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and

(i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and

(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK..

At paragraph 399A, the SSHD turns to the situation where an offender has no children or partner:

This paragraph applies where paragraph 398(b) or (c) applies if –

(a)       the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or

(b)       the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.’

The Explanatory Memorandum summarises the supposed effect of these rules more emphatically:

Deportation will not be proportionate where:

- They have a genuine and subsisting relationship with a partner in the UK (who is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection), and they have lived here lawfully for at least the last 15 years (excluding any period of imprisonment) and there are insurmountable obstacles to family life with that partner continuing overseas; or

- They have a genuine and subsisting parental relationship with a British citizen child, or a foreign national child who has lived in the UK continuously for at least the last seven years, and it would be unreasonable to expect the child to leave the UK, and there is no other family member who is able to care for the child in the UK; or

- They have resided in the UK continuously for at least the last 20 years, or the applicant is aged under 25 years and has spent at least half of his life residing continuously in the UK (in either case, excluding any period of imprisonment), and they have no ties (including social, cultural or family) with their country of origin.

Taking all of the above into account, is the Secretary of State therefore saying that Article 8 would not be breached in situations other than those listed and thus the consideration of any person’s claim would fall into the legally meaningless ‘exceptional’, for example, where a foreign national prisoner’s sentence is or exceeds 4 years’ imprisonment?    It does seems so, but she must be is wrong, mustn’t she?

Looking at paragraph 399(a), for example, can this be said to be fully compliant with section 55 of the Borders, Citizenship and Immigration Act 2009 and/or the Supreme Court’s ruling in ZH(Tanzania)?   I would say not where, for example, the child has lived here for all his life but that life is, say, but 4, 5 or 6½ years long.   Also, by whose standards are we to judge whether another family member is ‘..able to care for the child’.  Further, even if there is a family member able to care for the child, is the exclusion of the foreign national parent in the child’s best interests?  Can a few lines of rules reflect such a legally vexed and emotionally charged issue?  (As an aside, in a recent determination one Tribunal found that the exclusion would be in the child’s best interests as the father would not be a good role model for the child anyway.   Look out for that one in the coming weeks and months).   Further, paragraph 399(b)(ii) reintroduces the ‘insurmountable obstacles’ test.  Whether that means ‘Mahmood insurmountable’ or ‘VW(Uganda) insurmountable’ is unclear.

The SSHD’s claimed intention was to have its officials and Tribunals apply her definition of proportionality as codified in the rules.   But these rules do not define proportionality in the way that it is understood in domestic or European jurisprudence.  My colleague Claire Physsas in her excellent recent post clearly sets out the conflicts between the jurisprudence and the SSHD’s idea of Article 8 proportionality and it is therefore unnecessary for this to be repeated here.

Certainly, Article 8 jurisprudence will have to be referred to in interpreting some of the rules (reasonableness of expecting a child to leave the United Kingdom, insurmountable obstacles, etc.) and, as stressed by Claire, where it demonstrated that the rules do not accurately or lawfully reflect Article 8 jurisprudence on proportionality (or even family or private life) then the courts will be unable to ignore their constitutional duty under the Human Rights Act 1998.

To add to the unsatisfactory nature of the construction of the new rules, at paragraph 399B it states (my emphasis): ‘Where paragraph 399 or 399A applies limited leave may be granted for a period not exceeding 30 months.  Such leave shall be given subject to such conditions as the Secretary of State deems appropriate.’ Therefore even if the particular foreign national succeeds under deportation rules on Article 8, the SSHD’s power to grant only 30 months’ leave is discretionary only. It does seem bizarre that when, in the SSHD’s own words (paragraph 397) a deportation order will not be made where removal pursuant to that order would breach Article 8 that a person’s stay in the United Kingdom would still potentially be subject to arbitrary decision making.

It is either ‘necessary’ to deport a person or it is not and once the SSHD or a Tribunal has decided that it is not, it is only right that the enjoyment of these Article 8 rights be properly respected by the certainty that 30 months’ leave will automatically be granted and that the leave is free from any ‘conditions’ deemed appropriate by the SSHD and what the current SSHD considers appropriate is probably highly inappropriate.

Operation Mayapple and Home Office use of social media

Source: Free Movement

Raid in Brixton

The UK Border Agency has taken to using social media to proclaim its propaganda on the ongoing purge of illegal immigrants from the United Kingdom. Conventional press releases are no longer sufficient. Free Movement has already covered the bizarre use of YouTube. Now Twitter, Storify and Flickr are being deployed to celebrate what has been called Operation Mayapple, the latest chistka.

Is this language unreasonable? To talk of ‘purges’ and ‘propaganda’ evokes the totalitarian regimes of the 20th century and Orwell’s brilliant exposition of the thinking behind their methods in 1984. We are a long way from that, surely?

The latest social media campaign shows that politicians and civil servants are going considerably beyond the dirty business of quiet and competent enforcement of immigration laws. Some would say exactly the reverse is true: it is loud and incompetent. There is perhaps a link between volume and efficiency.

All those targeted in Operation Mayapple seem to have been in ethnic minority areas (Walworth Road and Atlantic Road in South London are specifically mentioned as having been targeted) and indeed the press release states the nationalities were all from ethnic minority nationalities:

Of the 2,000 London cases, roughly a third were from India. Significant numbers of illegal migrants from Pakistan, Nigeria, China, Bangladesh and Brazil have also returned home as a result of the campaign.

The United States, Australia and Canada do not appear on the list. Is this because nationals of these countries do not overstay at all, because they are not a priority or because they are less easy to pick off in raids? The excellent Nando Sigona considers the potential rationale for the choice of ‘targets’ for Mayapple:

A devil’s advocate may argue that there is not one rationale but three. To maximise impact and minimise troubles, the ‘illegal migrants’ were carefully cherry picked according to the following criteria: a) no women and no childrenbecause human rights activists could make a fuss; b) no citizens of rich and wealthy allies (i.e. US, Canada and Australia) because their embassies could raise a few eyebrows; c) no white people because they don’t fit the stereotype of the ‘illegal’ migrants, and, added benefit, the choice would please a section of the right-wing electoral body.

We also know that a comprehensive database is now being created to assist the citizenry in identifying and reporting suspected illegal immigrants. The Prime Minister himself encourages such reporting of co-workers or neighbours. Even inadvertent employers of undocumented migrants are named and shamed, giving any employer pause for thought before giving a job to anyone who might be foreign. Colleges and universities are treated similarly where a foreign student fails to complete a course. Newspapers doorstep supposedly liberal immigration judges. Matters are now so extreme that children are now to be deprived of one of their parents if he or she is foreign and the British based parent earns less than £18,600.

Migrants are increasingly being portrayed as some sort of potentially dangerous Other in our midst, a Third Column that poses unspecified dangers to us all and must be rooted out. This is a dangerous and divisive trend. The direction of travel is downward. What will our polity, society and economy look like a few years hence?

Can reducing immigration be a legitimate aim in human rights law?

Source: Free Movement

It has been announced that a minimum income threshold will be introduced for foreign spouses to be eligible to come to or remain in the UK. The level will be set at £18,600 for those without children and at higher levels for those with children. In doing so on Sunday morning breakfast TV Home Secretary Theresa May is reported to have said:

“This isn’t just about the numbers though…”

Observers of Government immigration policy might be rather surprised to hear this. The Government has made very plain that the intention of its immigration policy is to reduce numbers of immigrants. This is certainly no secret. The Conservative Party manifesto for the 2010 election was very clear:

“…immigration today is too high and needs to be reduced”

All sorts of legal and policy levers have been pulled to achieve this aim since the Conservatives took office. Numbers of foreign students are being heavily reduced and a quota has been imposed on skilled worker migration, for example. These measures have not, however, been enough to meet the manifesto commitment to “take net migration back to the levels of the 1990s – tens of thousands a year, not hundreds of thousands”. The most recent figures show that immigration is actually increasing under the current Government, in fact.

So, further levers must be found, and the Government turned to family immigration. In July 2011 a consultation was launched on this issue and the very first words to Theresa May’s forward were as follows:

“This government is determined to bring immigration back to sustainable levels…

May then continued in a similar vein, specifically saying that family migration had to be reduced:

“But we have been clear that we will take action across all the routes of entry to the UK, so we must also take action on the family migration route.”

Again, the intention could not be clearer. So why would May suddenly be claiming that a central plank of the policy to reduce family migration is actually not about reducing numbers?

Because reducing immigration is probably not a legitimate aim under Article 8(2) of the European Convention on Human Rights? Article 8 reads as follows:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Government is very likely to lose the inevitable legal challenges to this new rule if it interferes with an individual’s family life in a significant way and does so for a reason that is not one of the legally permissible ones. National security cannot be invoked here, nor can public safety or the prevention of disorder or crime. The economic well being of the country might be argued, but in reality Government policy on immigration is not an economic policy, it is a social and cultural one. In any event, the level at which the income threshold is being set is based on a snapshot short term approach to economics. It is well known that immigration always boosts an economy as a whole. The protection of health or morals might also be argued, as it could be suggested that the measure is about promoting social integration. It seems a bit of a stretch to say this is a matter of protection of morals, though.

Judges are usually slow to say that politicians (or their lawyers) are being disingenuous, but the explicit public statements already made on this issue will be hard to explain away. The government is cruising for yet another legal bruising.

Asylum contract pledge call

Campaigners have demanded the UK Border Agency ensures standards are maintained when the provision of housing for asylum seekers is handed to a private firm in August.

Source: Herald Scotland

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Fresh asylum claims, the UKBA and access to justice

Given the shortage of legal representation at Asylum and Immigration Tribunal hearings, it is perhaps unsurprising that many people seeking to overturn negative decisions approach agencies such as ours. This is a short account of a model used by ASIRT that takes a different approach to legal representation.

Source: http://www.migrantsrights.org.uk

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