October 29, 2018

Maintaining your Sponsor Licence : Steps to consider

Maintaining a sponsor licence has become a technical affair and understanding and applying the regulations correctly is the key to ensuring the ability to employ essential overseas staff. There are a number of areas where problems frequently occur. There is no substitute for the employer to read and apply the guidance. However the main flash points are as follows:

  • When selecting a Code to assign, it is important to ensure that it is a position at RQF level 6 i.e. the job must be managerial in its nature. This means carefully considering the example job tasks rather than the job title.
  • It is important to retain evidence of the work of the employee to produce when a Compliance Officer visit the premises. With smaller companies, one of the reasons for refusal is that there is no proof that the document was prepared or can be attributable to the employee in question.
  • Where positions need to be advertised, it is important to ensure that all the requirements for placing an advert are met. This includes stating the job title, the main duties and responsibilities, the location of the job, the salary package or range, the skills, qualifications and experience needed and the closing date. All the details of all applicants who are shortlisted are kept and it is vitally important to remember that the regulation states as follows: “You cannot refuse to employ a settled worker if they lack qualifications, experience or skills including language skills that were not asked for in the job advertisement.”
  • A particular problem that is often missed is what happens when there is a change in direct ownership or where a company sells all or part or the controlling number of shares in the business organisation. A change of ownership, merger, takeover or de-merger must be reported. If the controlling number of shares is transferred to a new owner the new owners must apply for a new licence. This issue, whilst it appears very straightforward can be an extremely complicated process for example where there is a holding company which changes ownership. It would require knowing what company structures there are and ensuring that the Level 1 users are aware of these changes and either report them or make fresh applications as appropriate.

In line with government policy that net migration needs to be reduced, sponsor licences are currently under the microscope. It takes much less now to have licences suspended and then revoked.

The only remedy at present is judicial review. This is a very expensive remedy which does not look at the merits of the application but rather at the reasonableness of the decision. The threshold is high and furthermore it does not protect the employee during the process. It is high time we saw a more independent and cheaper process of review.

June 21, 2018

Employers, immigration and data protection

The new date protection regulations which came into force on the 25th May 2018 through the General Data Protection Regulations (GDPR) and implemented in the UK through the new Data Protection Act 2018.

There are new rights for people to access the information companies hold about them, obligations for better data management for businesses, and a new regime of fines which are substantial for breaches.

Individuals, organisations, and companies that are either 'controllers' or 'processors' of personal data will be covered.

Both personal data and sensitive personal data are covered. Personal data can be anything that allows a living person to be directly or indirectly identified. This may be a name, an address, or even an IP address. It includes automated personal data and can also encompass “pseudonymised” (eg encrypted data) if a person can be identified from it. Sensitive data includes sexual orientation, political views etc.
The idea is to enable people to have easier access to the data companies hold about them, a new fines regime and a clear responsibility for organisations to obtain the consent of people they collect information about. Applying for data used to cost £10 but is now free.

There's also a requirement for businesses to obtain consent to process data in some situations. When an organisation is relying on consent to lawfully use a person's information they have to clearly explain that consent is being given and there has to be a "positive opt-in". A default consent would not be lawful.
In immigration cases, data is collected for a variety of reasons and at a number of sources. Most of the information is collected in an official capacity and is lawful.
However there are particular instances in which employers are required by the Home Office particularly in Tiers 2 and 5 particularly, to retain information in the form of CVs, application forms, references etc., about candidates who apply for positions but who are ultimately not selected. An employer will need specific consent to pass this information to the Home Office, remembering that consent can be withheld at any time. What if the candidate refuses? Can you legitimately refuse to provide this information to the Home Office? And could the Home Office refuse to accept this ?

When I contacted the Home Office about this, they pointed out that they are covered by exemptions and provided a link.

Regulation 23 provides that Member States can introduce exemptions from the GDPR’s transparency obligations and individual rights, but only where the restriction respects the essence of the individual’s fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to safeguard:

  • national security;
  • defence;
  • public security;
  • the prevention, investigation, detection or prosecution of criminal offences;
    other important public interests, in particular economic or financial interests, including budgetary and taxation matters, public health and security;
  • the protection of judicial independence and proceedings;
  • breaches of ethics in regulated professions;
  • monitoring, inspection or regulatory functions connected to the exercise of official authority regarding security, defence, other important public interests or crime/ethics prevention;
  • the protection of the individual, or the rights and freedoms of others; or
  • the enforcement of civil law matters.

This is a broad sweep of exemptions and the question will be whether it is proportionate to pass on this information to the Home Office. The employer is a collector of data and is ultimately responsible for making the decision about disclosing information and will bear the brunt of any breaches. And, in these circumstances, by requiring this personal information could the Home Office be encouraging unlawful use of data?

These are questions that need to be carefully considered and as part of that the Home Office have to make their position of collecting data very clear.

April 30, 2018

The broken immigration system is much more than one person.

Amber Rudd may have gone but the problem that the Government faces is its own policies and an inefficient Home Office that appears never to be accountable for its mistakes. Although appeals have been slashed, the proportion of successful appeals still stands at 40% and is indicative of the fact that there is a significant lapse in effective decision making. What has happened to the Windrush generation is just the tip of a very deep iceberg. The problem is that the Government lost their humanity a long time ago. Remember the bus that went round the country telling people they had to go or Capita given a contract to harass individuals on a daily basis?

What is worrying is the process that is currently followed in relation to perfectly legal applicants. The Home Office has become a business, albeit a poorly run one, in which premium fees are paid to fast track applications that are not fast racked at all.

The guidance provides a list of documents that should be provided in support of applications yet applications are routinely refused for reasons that are purely in the mind of the officers concerned and could not have been anticipated. The drive to decide without requesting evidence is routine in this Department. There is more than a suspicion that applications are refused, with no accountability by senior Managers, in order to attract fresh fees. What is particularly worrying is the fact that applications for Entrepreneurs, our much needed investors, are refused for petty reasons in some cases following interviews by inexperienced officials. The success rate of such applications has plummeted on the basis that this category is “abused” although there is no concrete evidence produced of this. One suspects that this is in order to soften up the case for getting rid of this category completely. There is a serious disconnect between what the Government says it wants, ie more investment and what the Home Office does.

Another area of concern which is a bubbling volcano concerns sponsor licences. Officers who attend visits of employers in order to decide whether they are compliant with the regulations take it upon themselves to make value judgments about what employers should or should not do, often with very little experience of business or an understanding of cultural issues which do exist in business run by Asians. The system is geared towards shutting down smaller businesses and it works very efficiently in doing its job. The worst aspect of this are the allegations that employers are “cheating” the system because they have not followed practices akin to bigger businesses. The only recourse for employers is judicial review which has a high bar. It cannot investigate the merits but merely the reasonableness of the decision. It is an expensive and time consuming process and employers do not want the costs or distraction of proceedings.

As for visitors, there is no process at all to review a wrong decision other than through judicial review. Not even an administrative review. Bad decision making is allowed to continue with impunity.

And so the list goes on. Until the next scandal. And the next. And the next.

January 25, 2016

There have been 2 major reports which have made recommendations for further changes to working routes in the skilled and unskilled sector.

Skilled
The Migration Advisory Committee was asked to carry out a wide ranging review and to recommend proposals for restricting numbers of migrant workers. It has made the following recommendation:

  • The minimum salary threshold should rise to £30,000 to reflect the current degree-level skill requirement for Tier 2. As the typical pay of migrants in some occupations, such as healthcare and teaching, is below the new proposed threshold the MAC recommends this new minimum is phased in.
  • An Immigration Skills Charge should be introduced, to act as a skills levy on firms using migrant labour. The revenue accumulated from the charge could be used to help raise skills in the domestic jobs market through training, and decrease the demand for migrant labour.
  • That there should be a limit placed on in country switches in line with out of country limits.
  • That the Government commission a more in-depth review of skills shortages within the IT industry.
  • That use of the Tier 2 (Intra-company Transfer) route for third-party contracting (which is primarily being used for IT contracts) be moved into a separate route and a higher salary threshold at £41,500 be applied. There is a view that costs are lower where there are migrant employees and that this depresses the overall costs giving them an advantage over companies that do not hire overseas labour.
  • Extending the qualifying period with the company overseas for intra-company transfers from 12 months to 2 years for the short-term and long-term routes.
  • There should be an active review of the jobs on the Shortage Occupation List. Employers should provide sufficient evidence when an occupation has been on the list for a number of years.
  • Tier 2 (General) should not be is restricted only to occupations only on an expanded shortage occupation list (which was an option favoured by the Home Office)
  • There should be no restrictions on automatic work rights for dependents

Domestic workers

Following pressure about the effect of restrictions on the ability of domestic workers to escape from abusive employers, the government finally commissioned a review of the domestic worker arrangements which has reported back with very interesting findings. The key recommendations are as follows:

  • That all overseas domestic workers be granted the right to change employer. The absence of a right to change employers (tied employment) is incompatible with reasonable provision to protect them from abuse and harm.
  • apply for annual extensions, provided they are in work as domestic workers in a private home The review finds that such extensions do not need to be indefinite, and overseas domestic workers should not have a right to apply for settlement in the UK in order to be adequately protected
  • that after extensions totalling up to 2 ½ years (as opposed to the current 6 months) overseas domestic workers are required to leave the UK


November 24, 2015

Entrepreneurs beware: the next targets for change

Entrepreneurs have been shielded from the largescale changes that were imposed on all other categories but that is about to change. The Migration Advisory Committee (MAC), which provides advice to the Government were asked to review this category and report back. They have done so. So far MAC have had a 100% success rate in their proposals being passed into law and it is unlikely that recommendations made this time will be rejected.

There are some interesting statistics which suggest that there is a high refusal rate overall of 48% but the figures include those Post study workers who, virtually overnight were told that they were not allowed to switch to work but allowed to invest £50,000 instead of the usual £200,000. It resulted in an explosion of applications and refusals.

It is accepted that the volumes for this category is much lower than in any of the skilled work categories. However the volumes are beginning to rise in this area.

The conclusion of the report is that the Graduate Entrepreneur scheme works well and it has been suggested that it is expanded to create a new start up route.

However MAC have concluded that the general Tier 1 Entrepreneur route contributes “little or nothing to UK plc” and they recommend a complete overhaul of the scheme. There is concern that the entrepreneur route is not clearly defined and should be designed to cater for those who bring new ideas and growth and should be actively involved in the business. In particular criticism is made of those who use an “investor lite model” which involves investing £200,000 and taking a small stake in the business which they believe does not fit the intention of this regulation. There was also concern expressed that there are businesses which have a low potential for growth and that these businesses are concentrated in retail, wholesale and catering industries. Other concerns centred around the fact that a number of dependants qualify to enter.

It is also recommended that the entrepreneurial team which can divide the funds should be abolished and recommends that the process is monitored on a regular basis.

The thrust of the report is that businesses that have innovative ideas and have potential for growth should be encouraged and that the small businesses such as restaurants are not considered to provide a suitable benefit for this category. There were some welcome comments about the need for a premium service to prevent passports being held at the Home Office for months.

What emerged from this report is that the rules do not encourage growth. However what is clear is that the regulations have been in force for many years. The young active entrepreneurs have not had restrictions in qualifying for entry and yet their numbers have not grown. It is hard to see how rules changes will affect this. The mood music of these changes is to bar the small time business and welcome the banker.


November 03, 2015

Immigration and landlords

Yet another Immigration Bill is currently going through Parliament. This is an opportunity for concerns to be raised before it becomes enshrined in law.

Over the last few months I have described the changes in general terms. It is important to focus on the detail as this will catch many innocent people in the process. For those who have buy to let properties in particular it is vitally important to understand and, if appropriate, oppose the changes through your local MP. The recent debacle about tax credits indicates that change is possible even at the very last minute.

The regulations provide that once the Secretary of State serves a notice on the landlord/landlady, he/she can terminate a tenancy by giving written notice of 28 days. This notice does not require an order for possession and is enforceable “as if it were an order of the High Court.” It appears to remove all security for the tenant and suggests that the belongings of the person can be thrown into the streets, reminiscent of England in the 1940s. What is particularly worrying is that there is no judicial oversight and no discretion for hardship cases. No account appears to be taken of the impact on children, and the operation of s55 of the Borders Citizenship and Immigration Act.

There is also confusion in the regulations themselves. They state that a landlord cannot evict for 28 days. But the law creates 2 new criminal offences which carry sentences of 5 years for knowingly renting to a person who is not lawfully in the UK. So although a landlord may be served a notice and give notice for 28 days, they can during this time be charged with a criminal offence.

The other concern is that the law will apply to lodgers. The bedroom tax has resulted in the increase of lodgers often by those with low economic means looking to plug the gap left by the introduction of these measures. The Government has actively encouraged people to take lodgers and many will be unaware of the impact of these changes on them. They could inadvertently face fines in circumstances in which they are already struggling with debt.

There is no judicial oversight whatsoever of these measures and therefore no chance of redress where there are mistakes or cases of hardship which require discretion. Our proud history where justice triumphs and is the envy of the world is dealt a further blow leaving power without accountability.

Lastly the age old issues of discrimination and images of “no blacks or dogs.” The Home office study based on a miniscule sample glosses over the concerns that will be caused by these changes which will inevitably affect the renting of properties to foreign sounding people. It is in a sense stating the blindingly obvious that the black population will suffer the most. A landlord wants the least problematic solution and therefore with all these regulations they can hardly be blamed for looking for the easiest option.

But all of this is surprising. The mood music is that of riding roughshod of the very principles that one made the UK the envy of the world. Over time recourse to the courts and therefore access to justice has been reduced, there has been a rise in making individuals responsible for issues for which they have no training (and are not paid) and as for discrimination who cares????


October 26, 2015

Small Mercies

There is so much to be thankful for. As human beings we moan and we groan about often trivial things. When you consider what is happening with the migrant crisis it is easy to dismiss it as something ' out there' which doesn’t affect your day to day life and threatens to cost you money as a taxpayer.

This is my rather pessimistic view of the world. Human rights have taken a backward step. We care more about money than about fairness and justice. We belong to a world where our values have been denigrated by our quest for our own comfort over the rights of the struggling masses.

So to the current laws the new rules aimed at landlords come to effect in February 2016 for new tenants. Thereafter landlords are drawn in to become policemen for the government. The net result of this will without any doubt be that anyone looking foreign will be turned away. We will be back to the days when blacks were turned away because of the colour of their skin. The worse part of this is that the law allows it. It is all very well for the government to say they have introduced regulations which ban discrimination. The point is that landlords want the least restrictive approach. And this is what will take precedence.

We are at a shocking state of affairs. Rights of independent appeals removed and powers given to the decision makers who are unlikely to change their own decision. This smacks of an Orwellian world which smacks of smoke and mirrors.
The Asian community, in a desperate attempt to be accepted, buy into a false dream that they will be accepted if they accept the changes. Today it is them tomorrow it may be you.


October 12, 2015

Landlords appointed to role of unpaid immigration officers

Last year, the Immigration Act 2014 introduced regulations which prohibit landlords from authorising adults to occupy premises under a residential tenancy agreement if their immigration status disqualifies them from doing so. There was a pilot study within certain areas in the north and the law will now be rolled out country wide.
Landlords need to get their affairs in order for any new tenants that are taken on after the law came into effect.

Properties affected
The regulations affect lodgers, those on short term assured tenancies or property that is sublet within the landlord's property.
Exclusions
The regulations exclude the following:
  • under 18s
  • long leases
  • care homes
  • student accommodation
  • Documents to check (originals only)
  • passports, biometric cards, residence cards
  • British citizens, EU citizens and those who have indefinite leave will not need to have further checks done.
  • There will be a need to repeat the check when the person's leave is due to expire.
  • When to carry out checks
    Before the tenancy begins and no earlier than 28 days before the start of the tenancy. The landlords should carry out the check themselves but can delegate this to an agent providing there is a clear written contract between the landlord and agent.
    Retention of documents
    Copies of documents must be made and kept for at least 12 months after the tenancy expires.
    Action that needs to be taken
  • The Home Office are establishing a Landlords Checking Service where enquiries can be made. If this service reports that a person has a right to rent, this will provide a defence against any changes that occur that the landlord is unaware of.
  • If the tenant no longer has a right to rent, the landlord is required to report this to the Home Office as soon as is "reasonably practicable" but thereafter under no obligation to evict the tenant. However there are regulations that have been put into the latest Immigration Bill which are designed to make it easier for the landlord to evict a tenant.
  • Penalties

    Lodgers in private households will receive fines of £80 or £500 if there has been a breach before in a 3 year period.
    Occupiers of rented accommodation will receive fines of £1000 or £3000 if there has been a breach in 3 years.

    Retention of documents

    A landlord cannot discriminate by selecting only British and EU citizens or avoiding renting to those who only have a limited right to rent. There is a Code of Practice issued which gives some guidance on this issue.


    October 05, 2015

    The New Immigration Bill: An overview

    Another year, another Immigration Bill. This Bill does not even pretend to be fair. It is designed to make the UK so hostile that the legal, not the illegal will suffer the most. More regulations to adhere to, reduced oversight by judges, more fines and in short the removal of all safety nets.

    Ending of interim rights to remain whilst pursuing legal options

    For several years applicants who are awaiting for appeals or reviews are allowed to stay onuntil the outcome is known. A worrying aspect of this Bill and completely against any senseof proportion is that they will no longer be able to remain legally once a decision has beenmade to refuse, regardless of who is at fault. So if a Home Office caseworker makes amistake the applicant will pay for it by being required to leave the country immediately. Noaccount is taken of the rights of the families, their situation including the period of theirresidence or the impact of having to leave suddenly. It would be necessary to advise clientsto pack their bags when they make an application as they would be required to leave, ifrefused immediately. Most of all is the fact that an injustice may have been caused throughno fault of their own. There are now very few rights of appeal with the majority of casesreviewed by the Home Office. Before the restrictions were introduced 40% of the cases weresuccessful on appeal.

    Landlords beware

    The scheme set up in the last Immigration Act is to be extended throughout the country. The Bill will give landlords the power to evict people without having to go to court. There is also a new criminal offence with a maximum of 5 years in prison for landlords who know or have reasonable grounds to believe that their property is being occupied by a person whose status is not legal.

    Banks and Building Societies

    They will be required to check the immigration status of current account holders and notify the Home Office and close accounts of those without legal status. Judging by the harassment applicants already suffer with banks, expect this to get even worse.

    Driving

    There is to be a new offence for driving whilst not lawfully resident in the UK an increased powers to enable immigration officers to search for a seize driving licences.

    Human rights appeals

    The Bill will seek to remove in country rights of appeal unless leaving the UK would cause "serious and irreversible harm". This would mean that applicants will not be able to give live evidence. It will turn human rights appeals into technical issues and over time judges will process this without having the benefit of hearing and seeing and evaluating cases properly.
    These changes remind me of the issues that Jeremy Corbyn raised about the fact that we continue to do business with Saudi Arabia despite their appalling record on human rights and more that we appear that we are following the example set by a lawless country in the way we treat people.


    July 20, 2015

    An assault on students: the details

    Changes being introduced for students from the 13/07/2015

    The main changes are as follows:
  • New students at publicly funded colleges can no longer work in the UK;
  • College students ( which is not defined) will not be able to switch to a work visa category
  • Extend their study visa whilst they are in the UK.
  • The rules around academic progression are being tightened so that university students will only be allowed to extend their studies at the same academic level if the course they wish to study is linked to their previous course, or if the university confirms the course "supports" the student's career aspirations (not clear how this will translate into the rules).
  • The time limit on further education study will be reduced from three years to two years in "the autumn"( no date provided yet).
  • The application of the rules on time limits is being "clarified" so that the time a student has already spent studying in the UK is calculated using the full length of the leave they have previously been granted.
  • The maintenance requirement for Tier 4 students will increase.
  • The rule around "established presence" which allowed students applying to extend their leave within the UK to show only two months' maintenance is being removed.
  • Changes are being made to allow a Tier 4 visa to be issued in line with a student's intended date of travel.
  • Conditions of study are being changed, to prevent those in Tier 4 from studying at academies or schools maintained by a local authority. Those who wish to study a foundation course to prepare for entry to higher education are also being prevented from doing so under the Tier 4 (Child) route.
  • ,

    July 06, 2015

    The Immigration Act changes

    This week's article provides further areas where changes have or are about to be introduced.

    Investigations of marriages
    New regulations in force from the 1st March 2015 introduce provisions for investigation into proposed marriages or civil partnerships. There is a 28 day period of notice which in non EU nationals can be extended to 70 days. All marriages where one of the parties is a non EU national must be referred to the Secretary of State who must decide whether or not to investigate it as a "sham" and must serve a notice of her decision under s48 of the Immigration Act 2014 before a marriage can take place.
    Removal procedures
    New regulations have been introduced. The aim is to simplify the process of removal. It will allow the Secretary of State to remove a person if they require leave to enter or remain and do not have it, there is no requirement for a notice to be served and enables their families to be removed without a separate notice.
    Biometrics for British Citizenship

    Intended regulations to come into force within 21 days after introduction (although the instrument has not yet been published)
    Introduction of biometric information to be required for registration or naturalisation applications as British Citizens. There will also be special provision for taking biometrics of children under 16.

    Residential tenancies
    This is still being piloted and the cities chosen for this include Birmingham, Wolverhampton, Dudley, Walsall and Sandwell from December 2014. Landlords will have a duty to check the immigration status of tenants and will be fined £3000 for each tenant for failing to do so.
    Banks and building societies required to check status of applicant
    Formal regulation bar those who do not have leave from opening bank accounts, although these regulations have now formally been introduced, it has in practice been impossible for those not lawfully present to open accounts. Even worse there have been cases of those who are in the UK lawfully who are denied the ability to open an account easily.
    Driving licences
    Those who do not have lawful status will not be entitled to apply for a driving licence. In reality this has been an unwritten rule for many years.

    ,

    June 23, 2015

    Tier 2: further restrictions proposed

    The immigration cosh has begun to be struck at migrant aimed solely at bringing down numbers at any cost. The Migration Advisory Committee (MAC) has been asked to consider the economic impact of Tier 2 on salary and more widely to consider restrictions. The first of these has a short deadline of 21/07/2015. The wider review will have until December 2015 to respond.

    The task of this Committee is to consider whether salaries and skill levels should be raised. MAC have invited evidence on a number of issues. I am reproducing the questions asked:

    1. How do the existing salary thresholds for Tier 2 compare to, and impact on, the overall wage distribution for each occupation?

    2. What types of jobs and occupations are done by highly-specialised and/or highly-skilled experts, and is pay a good proxy for this high level of specialisation or skill?

    3. What would be the impact of increasing the thresholds to a level that better aligns with the salaries of highly-specialised and/or highly-skilled experts?

    4. What would be the impact of increasing the thresholds to a level that restricts the route to occupations which are experiencing skills shortages skilled to NQF level 6 or higher?

    5. What would be the impact of increasing the Tier 2 minimum thresholds from the 10th to the 25th percentile for each occupation for new entrant workers?

    6. What would be the impact of increasing the Tier 2 minimum thresholds from the 25th to the 50th or 75th percentiles for each occupation for experienced workers?

    7. As an employer, what would be the impact of increasing the Tier 2 minimum thresholds on: a) hiring migrant workers from outside the EU; b) hiring migrant workers from within the EU; c) hiring natives.

    8. Are there additional national pay scales or sources of salary data that should be used to set the thresholds?

    9. What other appropriate measures would you like to see for determining the minimum salary thresholds?

    10. Should the minimum salary threshold take account of variations in regional pay? If so, how? Two industries in particular will suffer most from the changes. The health care and hospitality industries which have seen a sharp reduction in the available jobs and steep rise in salaries.

    Of these the hospitality industry has (just about) managed to, retain its ability to bring a limited number of chefs under the shortage occupation list who would otherwise not qualify as they are not graduate level positions.

    Looking at numbers in fact only 1,400 of the total of 52,500 Certificates issued abroad are from the shortage occupation list and 14,200 are from carrying out advertising requirements. Compare this to 36,500 Certificates issued for Intra company transferees. It is quite clear that the numbers coming in for care homes and restaurants are small. However multi nationals have the means to lobby for their interests and do so effectively.

    As for nurses, there is an acute shortage and this is causing a crisis within which will inly become apparent when it reaches critical levels.

    These common themes for both these industries are that they are disparate and lack a voice. It is vital that groups band together to give evidence before MAC on these very important issues. Failure to do so may be fatal. ,

    June 15, 2015

    The current focus on discouraging illegal work is upon employers

    Employer's obligations to avoid fines

    The current focus on discouraging illegal work is upon employers. Many employers are inadvertently caught out failing to follow the letter of the law and with fines at £20000 + it makes no sense not to understand fully what you need to do as a business to ensure that you do not fall foul of the law.

    There are strict obligations to check documents before a person starts work. To avoid discrimination employers have to check everyone's documents not just those of the perceived migrant. They should ideally take copies themselves although they can ask for copies to be supplied. The copies should contain a note of the date the document was checked and a signature or initials of the person who carried out the check.

    Many employers get caught out because of a failure to check from a designated list of documents. Checking National Insurance documents is not sufficient.

    The main problem arises at the extension phase when passports are sent in and therefore not available. In these circumstances it is necessary to retain a copy of the application form and the receipt of postage and within 28 days contact the Employer Checking Service to obtain confirmation of the status of a person. This will provide a "statutory excuse" in other words a defence.

    After employment ends it is necessary to retain documents for 2 years to ensure that the penalty is not applied.

    A fool proof way to ensure compliance is to take a copy of the Code of Practice on illegal working which is available on the internet and to read and understand the processes and then follow them. There is no substitute for this.

    In a climate in which the government has a low tolerance for those who engage illegal workers it makes sense, from a business point of view, to put processes in place to avoid the huge fines that are being levied. Shortly there will be more legislation to criminalise certain acts. This is the new reality that employers will have to incorporate among the myriad other areas of legislation elsewhere that shifts the responsibility on the shoulders of employers.

    June 08, 2015

    Civil penalties for landlords

    Last year the Government brought in new regulations which placed duties on private landlords to check the documents of a tenant before renting property out. The regulations have initially been piloted in the north but will be rolled out nationally. Having regard to the questions asked about this issue it would be useful to have a question and answer format.

    Who is affected by the rules?

    Landlords and their agents who rent property to a person as their main or only home.

    Who can a landlord rent to?

    Property can only be rented to British Citizens, EU nationals, Swiss nationals and those who have the "right to rent." A person has a right to rent if they have permission to remain in the UK. An agreement must be restricted to the period the person is allowed to remain. Follow up checks will be required if a person has limited leave.

    Which types of property are affected?

    The rules apply to all types of private residential agreements which include leases and licences. Lodgers would be included .There are exemptions for:

    • student halls of residence
    • accommodation provided by universities or colleges even if it is private
    • care homes and hospices,  provided by an employer
    • Refugee and homeless hostels which are charitable or non-profit making organisations
    • leases for over 7 years
    • holiday accommodation
    • accommodation provided by a local authority
    • categories of social housing where immigration is already an issue

    What is the process?

    The landlord must check a specified list of documents which typically include passports, biometric cards. If these are not available for any reason, checks can be made to a dedicated Home Office address and you should expect a response within 2 working days. To conduct the check it would be necessary to have at the very least a Home Office reference number. The number to ring is 0300 069 9799. The process must be repeated when the permission of the tenant is coming to an end.

    Does the law apply to existing tenants?

    Tenancies that began before the 01/12/2014 are exempted from this provision which includes any renewals providing if the parties and conditions remain the same and there is no break between the tenancies.

    Does the landlord have a right to evict the tenant?

    Landlords will still need to carry out the usual eviction procedures. These issues are separate the procedures that apply under the landlord and tenant legislation. If a person originally had permission to rent but no longer has that right, the landlord will not have to serve an eviction notice but will be under a duty to inform the Home Office.

    What are the consequences of noncompliance?

    A fine of £3000 per adult. You will be issued with a Civil Penalty notice and will have 28 days to object and if unsuccessful a further 28 days to appeal to the County Court.

    Will this mean that a landlord can refuse to rent to a person who appears to be a migrant?

    Landlords must be aware that there are tough anti-discrimination laws in place. A landlord cannot discriminate on grounds of colour, race, nationality, or ethnic origin. .

     

    May 05, 2015

    Off to cast your vote…….

    Finally, after all these weeks, the end is near, the vote ever closer. If you do not have a postal vote you will I hope be trotting down to the polling booths to cast your vote. I cannot bear those who say there is no point. Not after people have died for this fundamental democratic right.

    Immigration has been of course on the top of the issues that the various parties want to "tackle". Almost all of them talk about immigration control. EU "immigration" is top of the agenda although it is scandalous to describe it as immigration. The rights of EU citizens to move is a fundamental right derived from Treaties which Governments from all sides have signed.

    What has undoubtedly happened is that as a result of this, there has been an attempt to control migration from non EU countries, but even in relation to this not all migration is equal. In terms of actual numbers, the multinational companies have been able to bring and transfer their staff with ease. The smaller and disparate businesses have however suffered. Take restaurants as a prime example. Chefs have been completely obliterated from entering. New talent has all but completely been brought to a halt. The Migration Advisory Committee retained the shortage list although they recommended a raise in the salaries being paid. However the system has been manipulated to reduce numbers even further by creating a system in which control of the decision lies with the UKVI and their decision is final even if poorly reasoned. There is a huge amount of subjectivity in the hands of those whose primary task is to restrict numbers. Care homes too are suffering the same fate. And all the time much is being made of the fact that there is a shortage of nurses.

    Another area which is of great concern is the student market. Finally, the UKVI have removed the term "highly trusted" but they continue to grant licences to colleges and take them away at will. There is no oversight or protection for students themselves. I can point to countless cases of students who have paid fees upwards of £9000 only to be refused for some reason and give the colleges an excuse to pocket the funds.

    And individuals do not fare any better. The appeals system has been demolished despite the fact that around 40% of appeals were successful. The UK has always been known throughout the world for its rules of fair play, justice and the rule of law. Not any more. When we do not play by these rules any more we are not different to the dictatorship regimes that operate throughout the world.

    Much has been made of the pressure on services. What is true is that migrants contribute more than they take from the system. The politicians paint a picture out of numbers rather like the paint by numbers pictures you can buy. They deliberately scapegoat immigrants. There are decent, hardworking people out there who very rarely complain about their situation.

    When you go out to vote consider very carefully what has passed and what is on offer. Many of the immigrants reading this will be unable to cast a vote. For those who can, make it count.

    April 13, 2015

    In country Administrative Review

    The new Administrative review regime which until now applied mainly to entry clearance applications on Points based applications is now applicable to in country applications as well. It is important to recognise that it replaces the appeal system. It is vitally important to remember that once an application is refused, the reconsideration can only be done through this formalised Administrative procedure. There is no other form of reconsideration. So what does it involve?

    The first point to note is that it only applies to "eligible decisions" which are:
    • in country Tier 4 applications made by either a main applicant or their dependant(s) on or after 20 October 2014
    • in country Tiers 1, 2 or 5 applications made by either a main applicant or their dependant(s) on or after 2 March 2015, including indefinite leave to remain applications under those routes
    • in country applications where the decision was made on or after 6 April 2015 except for a protection (asylum) or human rights claim

    If there is a right of appeal, this must be exercised and an Administrative review cannot be used.

    Not surprisingly, there is a fee of £80 payable and completion of a form. The only consideration of the Administrative review is to consider "casework errors". The list as provided by the UKVI identifies casework errors as follows:

    (a) Where the original decision maker's decision to refuse an application on the basis of paragraph 320(7A), 320(7B) or 322(1A) of these Rules, or cancel leave to enter or remain which is in force under 321A(2) of these Rules, was incorrect;
    (b) Where the original decision maker's decision to refuse an application on the basis that the date of application was beyond any time limit in these Rules was incorrect;
    (c) Where the original decision maker otherwise applied the Immigration Rules incorrectly
    (d) Where the original decision maker failed to apply the Secretary of State's relevant published policy and guidance in relation to the application.

    Additionally, where the eligible decision is one specified in paragraph AR3.2, a case working error is also where there has been an error in calculating the correct period or conditions of immigration leave either held or to be granted

    As will be apparent from the list, it covers all the areas that the Tribunals and experienced judges have grappled with over the years. The careful development of the law is dealt a big blow. This responsibility will now be given to junior caseworkers to interpret as they wish. Bearing in mind the fact that the statistics indicated that 40% of appeals were successful, the concern is that this is a whitewash and a backward step for law.

    It is unlikely that errors of law will be corrected and this leaves a worrying precedent for the law in immigration. The only remedy will be judicial review which does not consider merits of a case as part of its jurisdiction. A very sad time for law, justice and fairness.


    April 07, 2015

    County Courts and lodging a Civil Penalty appeal

    This week I want to focus on an issue which very rarely comes into play. Our client incurred a Civil Penalty which they strongly believe is wrong and accordingly the only solution is to lodge an appeal against the decision. Appeals of this nature are quite rare. The issues themselves and the law on this is clear. The problem was actually in lodging the appeal which must be in a County Court. This is where the problem began. The first issue is where to lodge it. A Practice Direction which determines procedure states that it has to be at an "appropriate centre". What this means is anybody's guess. My office contacted the Court on around 15 occasions over the next 3 days but there was no answer. Emails were also sent, read but not responded to. We contacted the Ministry of Justice to ask for their help and they suggested the Royal Courts of Justice who told us in no uncertain terms that they were not responsible for the County Courts.

    As time was running out, my colleague visited the Willesden County Court and was told that applications could no longer be issued there as the Circuit Judges had moved to Barnet. Undeterred she travelled to Barnet and was initially told that she would need an appointment. Her persistence paid off and a member of staff finally appeared and agreed to accept the application.

    Despite the huge volume of information that the Court Service sends out, most of it useless, there was absolutely nothing on the internet which signposted applicants to the correct venue where applications can be lodged.

    This is the situation that I faced as a solicitor with experience of the law. What hope would a lay person have in these circumstances. With the reduction of legal aid and the likely rise of applications it is vital that someone gets a handle of this and makes it more user friendly. This is a blatant case of justice denied.

    County Courts have a good online system for money claims but nothing clear for other claims. In fact in this particular case the officers had never heard of an appeal against a Civil Penalty. Something must be done about this.

    The new NHS charges

    The new charges that are to be imposed on Tier 4 Students and other non permanent applicants came into force on the 6th April. It is interesting to note that those who come on intra company transfers (who are coming to work for multinational companies) and Australian and New Zealand nationals are exempt. It is not clear on what basis this decision has been made. I am tempted to speculate.

    March 24, 2015

    The new frontiers of attack against employers

    Codes and interpretation

    When the Points based system came into being, the main selling point was that it offered flexibility to employers. However that is very far from the truth. Whilst employers have been given this right, in effect it is an illusion. A case in point is the allocation of jobs. Sponsors now have to select an appropriate Code from a list of Codes available. The process is not an exact science. It is based on 3 issues:

    1. That the Job is at level NQF level 6 ( with some exceptions for those in the UK already in a Tier 2 category)
    2. That the salary is the minimum that is laid down in the Code
    3. Examples are provided about the type of work that code permits.

    Other than this, there is very little information. Employers particularly those which do not have experience of this system rely on what they believe is the correct Code. Now however, the UKVI are challenging the choice of employers and are imposing their own view of what the employer should have selected. Employers in my view are now in a worse position than they were. They are now given a free hand but this is illusory

    Another area which is a cause for concern is the very liberal use by the UKVI of labelling employers with accusations of falsehood. They have introduced the following regulation:

    Sponsor Guidance

    15.14 Examples of vacancies that are not considered to be genuine include:
    • one which contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of the Tier and category when it does not
    • for a job or role that does not exist in order to enable a migrant to come to, or stay in the UK
    • advertisements with requirements that are inappropriate for the job on offer, and have been tailored to exclude resident workers from being recruited.

    Dishonesty/ False representations

    The Courts have repeatedly thrown out cases brought by the UKVI alleging falsehood as they have the burden of proving this and fail to do so or do so on very flimsy grounds. In sponsorship matters there are no rights of appeal and there is a tendency at present for the UKVI to accuse employers of falsehood when in fact it is a simple disagreement about facts. This is a worrying development and unless challenged is likely to remain on records and be used against employers. It is an insidious development which is also snaking its way in other areas of immigration, where rights of appeal are not available. Be aware, be very aware.

    March 16, 2015

    The Immigration Act changes

    This week’s article provides further areas where changes have or are about to be introduced. 

    Investigations of marriages

    New regulations in force from the 1st March 2015 introduce provisions for investigation into proposed marriages or civil partnerships. There is a 28 day period of notice in which a non EU national can be extended to 70 days. All marriages where one of the parties is a non EU national must be referred to the Secretary of State who must decide whether or not to investigate it as a “sham” and must serve a notice of her decision under s48 of the Immigration Act 2014 before a marriage can take place.

    Removal procedures


    New regulations have been introduced. The aim is to simplify the process of removal. It will allow the Secretary of State to remove a person if they require leave to enter or remain and do not have it, there is no requirement for a notice to be served and enables their families to be removed without a separate notice.

    Biometrics for British Citizenship


    Intended regulations to come into force within 21 days after introduction (although the instrument has not yet been published)

    Introduction of biometric information to be required for registration or naturalisation applications as British Citizens. There will also be special provision for taking biometrics of children under 16.

    Residential tenancies


    This is still being piloted and the cities chosen for this include Birmingham, Wolverhampton, Dudley, Walsall and Sandwell from December 2014. Landlords will have a duty to check the immigration status of tenants and will be fined £3000 for each tenant for failing to do so.

    Banks and building societies required to check status of applicant


    Formal regulation bar for those who do not have leave from opening bank accounts.  Although these regulations have now formally been introduced, it has in practice been impossible for those not lawfully present to open accounts. Even worse there have been cases of those who are in the UK lawfully who are denied the ability to open an account easily.

    Driving licences

    Those who do not have lawful status will not be entitled to apply for a driving licence. In reality this has been an unwritten rule for many years.



    March 09, 2015

    An end to rights of appeal

    Recent changes to the Immigration Rules introduced to mirror the new Immigration Act 2014 have brought in sweeping changes which retain power in the hands of the Home Office by removing rights of appeal in nearly every area and by watering the ability to raise human rights within an application. The regulations are extremely confusing to understand.

    There are 2 dates that are important the 2nd March 2015 and the 6th April 2015.

    Points Based Cases


    From the 2nd March 2015 there will be no rights of appeal for all the points based categories, in Tiers 1, 2 and 5. There were only rights of appeal available to in country applicants and this has now extended to all cases. The Tier 4 category lost their right of appeal in October 2014. Instead there will be a right to an Administrative Review which is a process that is carried by the Home Office itself and this process prevents the raising of human rights issues.

    Appeals

    The new scheme no longer focuses on the type of immigration decision made but rather on the type of claim was made that led to the decision. Rights of appeal will only exist for either applications which have a specific human rights claim or certain applications listed below which according to the Home Office have an implied human rights claim. It will no longer be possible to rely on human rights in addition to other claims.

    From the 6th April 2015, appeals will be available only for particular categories:
    • Long residence (para 276B)
    • Private life (Paragraph 276 ADE or para 276DE)
    • Family members under Part 8 where the sponsor is present and settled. Those who received settlement through the point based system will be excluded)
    • Asylum
    • Appendix FM (family members except those who obtain leave to remain as a result of bereavement or domestic violence). (With regard to this particular category there are doubts which need to be clarified)

    Where there is no right of appeal, there will be an Administrative Review and Judicial Review at the High Court which is an expensive, does not consider the merits of a claim and costs can be imposed if the applicant is unsuccessful.

    It appears that it will be necessary to consider at the time an application has to be made whether there are human rights reasons and whether this application should be made. Failure to do so will mean any refusal will not be amenable to an appeal (although Administrative Review will still be available but is not an independent process). There are also difficulties with a human rights application as it will not attract an Administrative Review.

    There are difficult times ahead with the watering down of rights of appeal to almost a trickle. The period ahead is likely to be a very challenging one. There are other changes which will be discussed in next week's article.

    February 09, 2015

    Businesses are the target

    The immigration authorities are particularly active against others waiting to pounce on them with civil penalties for mere technicalities in some cases one of the days when you were safe as long as you did not employ illegal workers. Now fines are imposed where the checks were not carried out in accordance with the code of practice and more worrying is the fact that penalties are imposed for historical employment in cases where former employees are apprehended.

    In the licensing side it takes a minor digression to receive a downgrading and slightly more to have a licence revoked. The glaring defect in the licensing system is the lack of independent scrutiny of decisions. A review is the only time the facts are considered in any detail. There are many cases in which the employer disputes the account of an issue that took place at a visit. In those cases the account of the officer is always preferred. There is no appeal process and the only recourse is high court action which is expensive, already subject to restrictions and does not consider the merits of the decision. There should at least be an independent review of a matter which can have devastating consequences on the business concerned.

    Marriages are not immune from changes. From the 2nd March all cases which involve a foreign national will have to be referred to the Secretary of State to consider whether further checks are warranted and if so the period can be increased to 72 days. In practice this is likely to slow down the process of marrying and could particularly affect a person whose leave to remain is about to come to an end.

    .

    January 20, 2015

    Illegal work and the consequences

    Many to the people who do not have sponsor licences assume that they are protected from being fined if they do not knowingly employ those who do not have permission to work. The fact is that new regulations which came into force in May 2014 (and apply to those employed on or after this date) have strengthened the hand of the UKVI and it is possible to incur a fine in circumstances in which information was withheld from you by the employee.

    There have been some minimal changes made to the regulations to ease the burden of employers. One of the measures introduced is the removal of the automatic requirement to conduct checks every 12 months. Instead, once the initial documents are checked, there is no longer a requirement to re-check these documents again during the currency of the visa.

    Where students are employed it is now necessary to take further steps to obtain, check and copy evidence of the students education sponsor which must contain the term and vacation dates and must show the duration of the period of study.
    If challenged or visited, you must be able to demonstrate that you carried out the appropriate checks and as a result have a 'statutory excuse'. If you know that that a person is illegal this will not provide a statutory excuse.

    For a continuous statutory excuse for British Citizens or those settled here you will need to check original documents from a specific list of documents. The best form of evidence is a passport showing that the person is a British Citizen or settled or at least 2 documents such as a birth certificate plus a National insurance number.
    For a limited statutory excuse (for non British / Settled persons) you need to check a current passport and biometric card or obtain a Positive Verification from the UKVI. For EU nationals, a Certification of Application is acceptable. For asylum seekers an Application Registration Card plus a Positive Verification from the Home Office Checking service is necessary.

    In the first scenario you will not need to re-check the documents again. In the second case, it covers the period of the visa and for 28 days afterwards by which time you are required to carry out checks with the Home Office Checking Service or have seen a valid visa on a biometric card. A Positive Verification protects you for up to 6 months by which time you should have obtained copies of the person's passport. If not the check has to be repeated. You should satisfy yourself that any application for an extension was made before the expiry of leave.

    In terms of determining the level of the fine where the starting point is £20000 there are 2 processes:
    1. Have you been found employing illegal workers in the 3 years before this? If you have more than one site and recruitment takes place on each site, it will be treated as a separate site.
    2. Are there any mitigating factors which should reduce your fine for example active co-operation with the authorities or good recruitment practices generally. This has a whole host of scenarios as to what is active co-operation justifying a reduction by £5000.

    The first stage is a form of potential liability where further information is sought and the second stage is the liability notice itself. It is possible to object to the penalty within 28 days and if the decision is maintained appeal to the county court again within a further 28 days. There is a reduction in the fine if it is paid within a particular period.
    .

    January 12, 2015

    Beware the knock on your door

    Those who have sponsor licences beware the knock on your door. Unannounced and announced visits are a regular feature of the licencing system. Being caught unawares will not be an excuse if your paperwork is not up to date. There are a few ground rules that you should adhere to.

    Establish identity of the person

    This may seem an obvious and elementary issue but it is vitally important to ask an officer to produce his/her identity and to take a copy of contact details for any follow up at the start.

    Visits

    One of the pitfalls that occurs on fairly regular basis is that the officer will proceed to question whoever is available. This is a dangerous precedent as information provided can be mistaken, wrong or incomplete and can later be used as evidence for action against the employer/sponsor. The Home Office guidance is that the visit should continue regardless of the fact that the key officers (Is the Authorising Officer, Key contact or Level 1 User) are not present. However even if these officers are not present the only substitutes that can be questioned are the owner, a director or someone involved in the day to day running of the organisation (such as the Manager). This implies that the person available for questioning must be someone senior with a level of understanding of the business and some authority. Within the business there should be a policy to allow only specific individuals to participate in this process and if so this must be made clear to the officers concerned. They should be politely advised to return when the person is available and indeed steps should be taken to facilitate a convenient date for the visit to avoid giving the impression that you are not co-operating with the process. It is better to state at the outset that there is no competent person than to plod on with the interview and provide inaccurate information. It is vitally important to ensure that contact details of the person are taken and followed with a written record of any action proposed.

    Follow Up

    Another area which is of concern is when officers ask for further documents to be sent. Their guidelines surprisingly do not require them to put their requests in writing to prevent misunderstandings. If there is a request for further information, it is advisable to send out an email as soon as possible confirming the documents requested and include any deadlines set for this information. If there is a good reason why this cannot be provided within these timescales, reasons should be given and an extension sought. In this way it cannot later be argued that the employer failed to comply with requests. In a fairly large number of cases, when information is sent out, there is no acknowledgement of the receipt which is a bad practice and unprofessional. However to prevent any difficulties arising it is advisable to chase and to find an alternative email when there is no response. Evidence should be retained to prove that information was sent.

    Signing documents

    At the end of the interview employers are asked to sign the record and often do this without checking its accuracy and often because they are keen to end the matter. However beware of this. The Home Office have instructed their officers to "insist" on obtaining a signature. It is advisable either to check the document carefully and sign it or a better option is to state that you will check it and send it off to the officer by post. This takes away the pressure to sign it there and then and gives the employer a real opportunity to establish that it correctly reflects their views.

    Copies of reports of visit

    Regardless of the outcome of the visit and event when it goes well it is important to have a copy of the report for your own record and a copy of any interview note that was made.

    December 18, 2014

    Is it time for a right of appeal to be established

    The licensing system for migrant workers started out as a positive thing. In return for maintaining a good human resource system which captured any threats to immigration control it has now taken on a new rather alarming dimension. Initially it was left to an employer to decide how to keep records and where but now subjective decisions are made by officers on an inconsistent basis, minor infractions are being treated as serious problems and licences are being peremptorily revoked with very little recourse to a legal process. Of course the UKVI live in their ivory towers most of the time. Many have never worked in commercial businesses and their bureaucratic mindset is a concern when exercising their powers. The practical effect of their decisions can be so serious that it affects not only their livelihood but others in the wake. When bad decisions are made there is no redress other than to point them out. It is not unusual for lawyers to spend several hours piecing together the case brick by brick and providing explanations only to receive a response which mirrors the original decision. What many lawyers ask themselves is what the point was in making the representations at all.

    So what is the solution? Currently the only recourse is an action before the High Court which is expensive and which does not assess the merits of the decision but looks at the reasonableness of the decision. There is no appeal process. Representations are decided entirely by the body that made the original decision. Where there is a dispute about facts it is more likely than not that the facts proffered by the decision maker will be the acceptable version.

    It is arguable that employers have a duty to maintain a system in return for sponsoring migrants. Equally there is a duty to be fair and this must surely mean that there must be an independent process that considers all the facts and makes a decision. High court action is frowned upon and there are strict rules which were designed to reduce the number of cases being brought. With nowhere to go it is inevitable that cases will need to be brought there as there is nowhere else to go. A responsible Government does need to look at this issue. It is affecting the functioning of businesses and preventing businesses for achieving their full potential in terms of growth. The impact on certain businesses is absolutely devastating. Take care homes which have vulnerable residents in some cases suffering from dementia. There has to be a process which examines the breaches alleged to have been committed. Is it time for a right of appeal to be established which has independent members considering the facts?

    December 01, 2014

    Employers obligations

    Employers need to be aware that even though they do not have sponsor licences and do not bring in staff from abroad nevertheless there are stringent responsibilities and a failure to understand this can have be a very expensive process. If however they do carry out the checks that are required it provides a statutory excuse which is basically a defence.

    The checks begin when a person is offered a job. There are specific documents that need to be checked. If the candidate tells the employer that there is a pending application and therefore cannot provide originals the employer should contact the Employer Checking Service who can provide confirmation if the application is pending. If the employer obtains a response to this this protects the employer.

    When the candidates leave expires and makes an application for an extension there is again a requirement to contact the Employer Checking Service after a 28 day grace period. If confirmation is received that the person is allowed to work this provides protection for up to 6 months unless the persons documents arrive which have to be checked and copied onto files.

    All this will not matter much if it turns out that a person has lawful status to live and work in the UK but will matter if the person has no permission to live and or work in the UK.

    The maximum fine is £20000 per worker up from £10000 although reductions are made for cooperating with the authorities.

    As the process moves to self regulation by employers they will face an ever increasing rise in red tape. Processes and procedures will need to be adapted to this changing world to avoid the financial fallout.

    November 24, 2014

    The petty foibles of the Immigration Service

    Change is a fact of life and usually taken as a given unless of course you happen to be the Home Office who carry on as if nothing has changed since 1900. I recently had the misfortune to accompany a client to an interview at Heathrow Airport. It took several calls and faxes (email is still new technology) most of which fell along the wayside but I was finally informed at 5.00pm that the interview would go ahead. It was set for 10.00am in the morning. When I got there I was nonchalantly informed that there were no staff available to carry out the interview and that I could expect to wait at least 1 to 1.5 hours. When I protested about the reason why an interview would be scheduled if no staff were available I was given short shrift. After all the Immigration Service are "not there to answer questions." No they live in their ivory towers lording everyone about. The interview finally took place at 3.30pm. Worse was to come. The interview was held in conditions which are more appropriate for hot yoga sessions. I was tolerated at the interview, ignored mainly and made to stand throughout the interview whilst 2 rather large male officers sat on their backsides carrying out the interview. I have written to complain since and guess what. I have not heard a thing. Change happens everywhere but not at the Immigration Service.

    Of late employers are beginning to complain about the fact that more and more administrative burdens are being placed on them which rightfully belong to Immigration officers. After all we are paying our taxes to pay their salaries. These impositions are not just placed on employers who have sponsor licences but on all employers. Is there a clear dividing line between what an employer should reasonably be expected to do and what is being foisted upon them? Whilst the aim is to cut down numbers, it cannot be right to place additional burdens on employers whenever they employ migrant staff.

    Novermber 17, 2014

    Sponsorship licences: the punitive approach

    The approach of the UKVI in sponsorship has moved from collaborative to punitive and minor infractions are now being used to downgrade and worse suspend licences. Gone are the days when not finding an illegal worker was good enough to prevent any serious consequences. The problem is that there is no appeal before an independent body. This is of course a problem in all other areas of immigration but felt acutely in the area of sponsorship. The only recourse is to apply to the High Court but this is an expensive process. Furthermore its jurisdiction is different as does not consider the merits but looks at whether the process has been a reasonable one.

    Of course the downgrading and suspensions means that new staff cannot be brought in and this works effectively in cutting numbers of migrant staff and helps the government by reducing numbers.

    At present care homes are being targeted and this is causing great concern. These homes cater for vulnerable patients with dementia. Taking away their ability to retain or bring trained staff will only put pressure on a system that is already reeling with constant regulation. In the end the people who will suffer most will be the residents themselves. Local residents do not want to work the antisocial hours that are required and they will take these jobs as stop gaps moving on as soon as something better comes along. The situation is becoming desperate. So what is to be done?

    First make sure you have your systems in order. This means checking documents, ensuring your paperwork is uptodate and that you regularly check that you remain compliant. It is important to allocate this task to someone reliable. Secondly if you believe that you have acted reasonably be prepared to fight. Don't give in.

    October 20, 2014

    Provisions of Immigration Act being phased in


    Rights of appeal removed for students

    From the 20th October 2014, the first phase of the removal of rights of appeal is to kick in. The first category of people to be affected are as usual students. An Administrative review will replace a right of appeal which will only be available to the student or their family members where there is a human rights or an asylum claim. The process itself will only be available to “resolve caseworking errors” according to the explanatory statement that accompanies the introduction of the measure. Unsurprisingly it will prohibit new evidence from being introduced. Where an application is made in time, the leave of the person will be automatically extended whilst the Administrative Review is in progress. The review must be made within 14 days following receipt of the decision or 7 days if a person is detained. There will be a fee of £80. This applies to those who make applications after 20th October and will not affect applications already made awaiting a decision.

    Foreign prisoners who will no longer have a right to appeal against deportation or have a right to an Administrative Review.

    Further tightening of domestic workers (From 20/10/2014)

    An additional rule will be introduced to the already strict requirements for private domestic workers which will allow refusal where a domestic worker is “living in the UK through frequent and successive visits”. The reason given for these changes are to prevent abuse. However it is hard to imagine how this works. It is a subjective rule that can be used to refuse applications very easily.

    Business visitors (From 20/10/2014)

    New activities will be allowed:

    • scientists and researchers will be allowed to share knowledge, expertise and advice on an international project which is being led by the UK

    • overseas lawyers who are employees of international law firms which have offices in the UK will be able to give direct advice to clients in the UK

    • allow graduates of nursing schools to be admitted to sit Objective Structured Clinical Examinations (OSCE)

    Medical visitors (From 20/10/2014)

    Will be able to apply for visas for upto 11 months instead of 6 months in some cases.

    Investors (From 06/11/2014)

    There is an intention to increase of funds from £1 million to £2 million. It will no longer be possible to take a loan against assets. However topping up funds that are devalued or lost will no longer be required. There is to be a consultation on what types of investment will benefit the UK.

    Tier 2 (From 06/11/2014)

    When the points based system was brought in, it was supposed to be an objective test based on meeting the points. However that has been phased out. There will be a new rule which will require an assessment of whether a genuine vacancy exists and this will basically allow officers to refuse applications for a wide variety of reasons.

    The provision that allowed employers to pay a reduction in salary due to reduced hours is to be removed.

    October 14, 2014

    More stick than carrot

    Now that the summer season is over and the elections are around the corner, there is a renewed vigour by the Home Office to cut numbers. There is a drive to pursue employers who have sponsor licences (who have volunteered to have their systems checked in return for employing a small number of migrant staff). Restaurants are deemed to be in the high risk category as they fit a stereotype which usually involves harbouring illegal workers, who are seen being carted off in the full glare of the invited media. When restaurants hold sponsor licences they can expect unannounced visits that can last the best part of a day.

    There are a number of concerns about the way in which visits are conducted. When the visiting officers arrive for a visit, they approach whoever is on duty that day regardless of the fact that he/she may not be in charge of the human resources part of the business. It is a well known fact that Asians particularly do not question the reason for the visit or decline to answer if they do not have the knowledge or authority to do so. Many are too timid in the presence of immigration authorities. It is quite common that a junior person has answered questions, as has happened on many occasions, and this has resulted in inaccurate information being given and relied upon. A sponsor licence has an Authorising Officer who should be identified prior to the visit and should be the person who is questioned unless this responsibility is delegated by this person to someone else. Officers should identify the relevant person to speak to.

    The other more worrying aspect of the licensing system is that suspensions and revocations are meted out when there are minor infractions. Employers are expected to have experience of an online system and where they fail to report issues, they are dealt with severely. This is so even though the UKVI themselves continue to make mistakes on a regular basis. They want a gold standard that they are not able to meet themselves. The unequal relationship should not give them an unfair advantage. Employers are not immigration officers. Take one example that has come up again and again. On a visit the Immigration Officers conclude that an employee concerned is an overstayer and not permitted to work. They only cave in once provided evidence from the helpline for employers that they set up that the employee concerned is in fact allowed to work.

    An issue that relates to unfairness is a recurring theme of employers accused of breaching their duties without evidence being presented to back up the claims. In many cases suspicion takes precedence over the facts. Immigration is a civil matter and as such the burden of proving a fact must be on a balance of probabilities, in other words more likely than not. Criminals are given better treatment and judges would not hesitate to throw out a case which did not strictly comply with the rules of fairness. In immigration there is no right of appeal, no means of challenging a decision other than expensive proceedings in the High Court which does not consider the merits of the case as such.

    The licencing system was brought in to allow employers the ability to employ staff providing they followed the rules. When the system began there was a measure of collaboration and an opportunity to put right things that went wrong as they must in any organisation from time to time. There has been a sea change in that attitude now with more punitive measures being taken. As an employer recently remarked there are visits by other bodies but none are so negative as the Immigration Authorities. It is time that the employers who have licences make their views known. Less of the stick and more of the carrot.

    October 06, 2014

    The drum beat for Investors

    The election drum roll is in motion and the Home Office, like all other departments must be preparing for the inevitable.

    There was a time when there was a clamour for Investors and Entrepreneurs and political leaders on all sides including the Prime Minister himself made several personal appeals to invite investment. That was then. With the rise in applications for Entrepreneurs, the immigration authorities have gone into over drive but in a negative manner. Suddenly it has been alleged in larger and larger numbers of cases that the rise in numbers must amount to abuse. The number of interviews have gone up and the reasons for refusal are usually based around the fact that the Entrepreneur does not know enough detail about the figures and is therefore not a genuine applicant. Applications have been refused in some cases because the applicant did not know what the minimum wage was. The interviews are flawed because they are in many cases based on value judgements. They are also based on a cursory understanding of how businesses in India and Pakistan are conducted. There is a failure in understanding that, at the stage of making the application, the business plan is simply a plan and need not be the final business that the applicant engages in. It has been said that the primary motive for these applications is to live here rather than invest! If an Entrepreneur does not want to live here and make it his/her home it is unlikely that they would want to invest. Although the law does not contain exclusions of types of business other than property management or development, in reality a plan to open a restaurant coffee shop is likely to be frowned upon. The hospitality industry has suffered immensely in the last few years with the number and types of staff severely restricted. This discrimination extends to investors too who want to invest in hospitality related businesses. There is an unwritten rule that these businesses should be discouraged.

    For those who still want to enter as investors where currently they need to show the availability of £1 million and invest £750,000, time is fast running out. The rules are expected to change this month. The investment amount is likely to change to £2 million as recommended by the Migration Advisory Committee and there are likely to be restrictions on the type of investments that will be permitted.

    So as we go deeper into election mode it is hard to work out what it is he Government wants. Investment but not in certain industries or certain types of people. Already the number so students from India has fallen as they seek other countries to study. The same fate will fall upon the other areas including the investors.

    August 11, 2014

    Increased penalties for employers

    The civil penalty has doubled from £10000 to £20000. If an employer carries out checks in accordance with Code (using specific lists) they will have a statutory excuse against a liability for a civil penalty. There are 3 functions. The first is to obtain original documents, secondly check that they are genuine as far as is reasonably possible and third make a copy and the date of the check recorded on the document (this is a new requirement). Checks should be carried out whilst the proposed employee is present visual checks are reasonably accurate.

    The new Code of Practice affects all employers who employ staff on or after 16 May 2014. For those employed on or after 29th February 2008 but before 16th May 2014 the 2008 Code still applies.

    The requirement to check students documents has been tightened. Employers must obtain evidence from the education sponsor setting out term time and vacation periods. This can be a printout from the website of the institution or a copy of a letter from the college to the student or to the employer from the institution addressing these issues. Furthermore where the student has ceased study before completing the course they are not allowed to work. Furthermore once they do complete their course the Home Office will normally allow them to work for a "wrap up" period. The Code appears to suggest that the employer could be lose their excuse if the student finishes the course early and the Home Office do not reduce their wrap up leave. How this would work in practice is anybody's guess.

    There are now only 3 instances when it will be necessary to carry out verification checks with the Home Office, when an employer is presented with a Certificate of Application which is under 6 months old, an Application Registration Card is presented (ARC) or if the applicant has an outstanding application and is unable to produce any original documents. Applications for verification will not be able to provide information for applications that are under 14 days. The Home Office state they will respond within 5 working days. Where an employee is reasonably satisfied that an employee has submitted an application to the Home Office or has an appeal pending they will have a statutory excuse for a maximum of 28 days provided they contact the Employer Checking Service to verify the right to work. If a positive notice is issued (called the Positive Verification Notice) they will have a further 6 months protection.

    The starting figure for a person who has not been previously found to have employed illegal workers in a 3 year period will be £15000. For others it starts at £20000. Those who take staff on under the Transfer of Undertaking Provisions (TUPE) will be given a grace period of 60 days to check the status of their employees. Finally employers must now object to the Home Office first and then if the claim is rejected can appeal to the County Court.

    July 14, 2014

    Minimum income requirement upheld

    The Court of Appeal have finally delivered its judgement in the long awaited case on the lawfulness of the minimum income requirement and the result will particularly affect 4000 applicants whose cases were held in abeyance awaiting the result. Just to recap, in the Upper Tribunal the court decided that the introduction of a minimum salary of £18600 required to qualify for entry breached Art 8 of the European Convention of Human Rights. At the heart of the appeal is the question whether the Secretary of State had to frame the rules so that they "systematically" protected the Article 8 rights of the UK partner by any means or whether it was sufficient to have measures to enable the partner to qualify (for example by the use of exceptional circumstances).

    The Court concluded that the UK partners right to reside is a personal right and cannot be extended to others. There is no constitutional right for UK citizens to live in the UK with partners who do not have that right. Although there must be a right to respect those Art 8 rights, they are not absolute rights and must be able to be justified. The Judgment indicated throughout its decision that the Home Office had extensively researched the issue of income and concluded that the higher the income the less likely this would place a burden on the taxpayer.

    The question was are the measures the Government imposed necessary and do they strike the right balance. They also considered to what extent the court should substitute its own view of what the appropriate level of income should be. The judgment concluded that it was not up to the court to impose its own view of the minimum income requirement unless, "objectively judged the levels are irrational, inherently unjust or inherently unfair". It also concluded that the decision in the new rules to exclude third party support was not an irrational decision as it was based on research.

    It is likely that this case will be appealed and will make its way to the highest court in the land, the Supreme Court. If it does the pending cases will be held in abeyance pending that decision.

    Post Study Workers

    Changes took effect on the 11th July without warning to Tier 1 (Entrepreneurs). The UKVI have justified this course of action on the basis that it was necessary to avoid a "surge of abusive applications". Post Study Workers will only be able to switch to Tier 1 if they have access to £50000 to invest from one or more UK Entrepreneurial seed funding competitions endorsed by the UKTI, or Government Departments or have access to £50000 from any source and have established themselves in business before the 11th July and are working in a skilled occupation. The evidence requirements are in the process of being tightened. It will also be made clear that these applicants are only entitled to work for their own business. They cannot claim to be self employed yet work in a de facto employment relationship with another employer.

    July 07, 2014

    Marriage problems

    Although the Immigration Act 2014 has received Royal Assent which means that it is an Act, most parts of it have not yet come into force and require further measures to make them effective. On the 14th July 2014 one measure did. This concerns the right to marry. In the past the Home Office introduced a scheme requiring parties to obtain a Certificate of Approval before they could marry. The House of Lords found that the scheme was unlawful under article 12 of the European Convention of Human Rights as it restricted the right to marry not only of those conducting sham marriages but of a much wider pool. It was also found to be discriminatory because there were favourable requirements for Anglicans.

    The new rules do not prevent marriages. However they introduce increased measures to give the UKVI notice that a marriage is to take place between a non British or EU national. The period of giving notice to marry has been increased from 14 to 28 days. Marriages where one of the parties is a non British or EU national can only be conducted in designated registries. The regulations do not just catch those who are illegal but anyone who is a non EU national and will include students, Entrepreneurs or those under Tier 2. The Registrar must refer all cases in of such a person to the UKVI and if they indicate that they want to investigate the matter further the period will be automatically increased to 70 days. Anglican ceremonies which were previously exempt from many of the regulations are now brought under this umbrella and the preliminaries will need to be completed before they can marry. The main change is that the procedures are brought forward to the point of a notice of marriage rather the marriage itself. It delays the marriage rather than prevents it.

    In the meantime around 3600 applications for entry as spouses have been delayed pending the Court of Appeal decision which will decide (hopefully any day now) whether the law requiring British citizens to prove that they must earn a minimum of £18600 to bring in spouses must stay in place or be confirmed to be unlawful as the High Court decided. Usually when a court decides a matter and this is appealed, the law remains good until changed. In this case the UKVI have left families unable to be re-united whilst it holds applications until a decision is reached. Whichever party wins, the case will undoubtedly progress to the Supreme Court, making further delays inevitable.

    June 23, 2014

    Sponsorship licences: A licence to kill?

    Come the next election, all parties will be vying to be the ones that cracked the immigration issue. The immigration rules for non-EU citizens have become so strained that the newspapers are littered with warnings by CEOs of very large companies of the threat of businesses relocating elsewhere and taking jobs with them. For some businesses however there is very little alternative but to operate in the UK and to rely on non-EU staff to do the skilled work that is essential to the nature of the business.

    Take the care industry; residential, nursing and homes that specialise in mental health services. Over the last few years skilled staff have been squeezed out in various moves and this has had a significant impact on the standard of care offered. This by itself has been a blow for employers who want to offer these services. If this is not bad enough, things are now steadily getting worse.

    This time it is not only a change of law but a change and a sense of brutality in which the sponsorship system is being managed. It is one thing to make employers take responsibility for checking the status of its employees and quite another thing for them to take up the role of immigration officers. This seems to be the way it is all going. Initially the visiting officers would advise people to improve their systems where there were minor issues. Now there are regular visits, many unannounced ones, in which employers are assumed to be liars and cheats. Their systems are pulled apart and if there are shortfalls which by themselves are insignificant but cumulatively are used as an excuse to suspend licences and in extreme cases revoke them. The worst part is that the officers often get things wrong. They visit without having done their homework, there are tendencies tend not to raise issues with the employer at the meeting thing but to reach conclusions. There are numerous examples of decisions reached because officers simply did not understand the issues or the law, or misunderstood an issue or quite often there is an internal miscommunication. They are then forced into a defensive position adding another layer to the regulation they are already subject to.

    A worrying similarity of all these cases is that they are owned by Asians. A similar fate was experienced by members of the restaurant industry who were unable to fight off the changes. Now it is the turn of the care industry.

    The landlords will be the next to encounter these difficulties. The trouble with laws is that are created for one purpose; introduce bureaucracy which when operated can produce bizarre and unintended results. The law of unintended consequences. A licence to kill?

    June 02, 2014

    Access to Justice Denied

    The cornerstone of our democratic system has been the access to justice and it now looks that in immigration, the erosion in rights that began during the previous Government is now complete with the introduction of the Immigration Act 2014. Money or the need to cut expenses is behind the blue sky thinking and what better constituency to cut costs than the immigrants. They do not have a vote or a voice and in future their rights will matter very little.

    The judicial review process, whereby injustices could be brought before the High Court, has already been severely restricted. The circle is now complete with the ending of appeals to all cases other than human rights or asylum. There is a reduction of appeals from 17 to just 4. Instead the process of Administrative Reviews, which apply to all points based bases abroad, will now be extended in-country. In other words, decisions will now be reviewed by the Home Office themselves. Whilst it may seem that the process of review will remain in place but merely the procedure will change, it is far more prohibitive than that. The Home Office are hardly going to reverse their own decisions in large numbers. As for the Independent Monitor whose remit will involve looking at a sample of cases where there is no right of appeal it is a limited role. The current monitor is a very thorough individual who will make his comments and move on. The next person appointed may not be as be. The UKVI usually acknowledge any defects and promise to do better next time. When judges decide cases they vote with their feet. They make actual decisions. It is particularly important to remember that around 50% of appeals that were brought before Independent judges have been successful against only 18% of Administrative reviews. If this happened in any other jurisdiction it would indicate that there are major flaws in the system that first needed to be addressed. However in this case the Government's reaction is to level down. The new law has been allowed to ride roughshod through these statistics. We have to ask ourselves whether some of the MPs were asleep when these measures were being introduced. Whilst attention was being levelled at the more controversial aspects such as the removal of citizenship form terrorists (which affects a miniscule number of people) these measures were introduced without much resistance.

    The new measure introduce a new era where access to justice is less important for some people particularly those at the lower end of the economic scale. We have seen justification for a reduction of rights in many areas and this one is just another nail in that coffin. As Martin Luther King said, "injustice anywhere is a threat to justice everywhere."

    May 27, 2014

    The Tsunami of Disaffection

    As the tsunami of protests against governments hits the shore, with the immigration debate as the froth, the Governments throughout Europe are facing the lurch towards the right. The UK have brought in a string of new measures with the new Immigration Act which promises to send the illegal immigrants packing and punish employers and landlords if they do not do their unpaid job properly of checking the status of their staff or tenants. The Act does not affect EU citizens or Swiss nationals.

    Although the Immigration Act became law on the 14th May this provision will not take effect until October 2014. As of the 14th May, private Landlords are required to check the lawful status of new tenants before allowing them to rent of occupy premises. This means in effect checking the status of all prospective tenants. Failure to do so would be discriminatory. The important issue is that the provisions do not apply to existing tenants but to new tenants in respect of whom agreements are concluded after October 2014. The important issue is that they will apply to lodgers and to sub-tenants and accordingly are likely to affect landlords small and large alike. They also apply to all tenants, whether named on the agreement or not. If proper enquiries are not made they face a fine of £3000 per person identified. What is unclear is what will happen to a tenant when the initial fixed term comes to an end and a new agreement is in place. It is likely that the checks would have to be repeated at each stage. The Government plan to introduce a checking service for landlords along the line that is already in place for employers. There will be rights of appeal to the County Court.

    The Government have made assurances that the law is not meant to catch out well intentioned landlords but to catch out rogue landlords. The reality is that the rules will initially be applied more generously at first but will very soon become less of the carrot and more of the stick. And is there good news in all of this? Landlords will be free to rent to EU citizens. If there is a landlord who rents close to Nigel Farage they might like to bear in mind the fact that he does not want an EU national to live next door to him.

    May 19, 2014

    Were these boots were made for walking or kicking? The new Immigration Act

    This week the bare bones of the Act are explored and over the next few weeks I will be concentrating on key areas of change. The new Immigration Bill received Royal Assent on 14th May 2014 and is now officially the new Immigration Act. The main, though not the only, changes are:

    • Requiring landlords to check the immigration status of tenants. Failure to do so will result in a £3000 fine per person.
    • Prohibiting banks from opening current accounts by requiring them to check against a database.
    • New powers to check driving licence applicants
    • Require temporary migrants to make a contribution to the NHS
    • Those who need but do not have leave will be removed without rights of appeal
    • Increased powers of search are increased to allow searches of third parties not connected to the detained person
    • Power to make requirements for biometrics to be taken when applying for British citizenship
    • A severe reduction of rights of appeal to allow rights of appeal only when an asylum, human rights or EU application is made.
    • Tribunals will not be able to consider new matters not previously raised in human rights cases unless the Secretary of State gives her permission. There will be a new procedure to manage this process
    • Many rights of appeal (including some human rights appeals) will take place from abroad
    • In human rights appeals, the "public interest" as defined by the Act will need to be considered
    • Extension of the notice period to 28 days (extended to 70 days in some cases) for couples giving notice of marriage and require registration official to refer to the Home Office all marriages where at least one party is a non-EU national without settled status
    • Reduction in rights to apply for bail

    May 12, 2014

    Changes to immigration as at May 2014

    There are a number of changes of procedure, law and practice. The judgment of the case on the lawfulness of British spouses and the minimum salary requirement is awaiting a decision having been argued at the Court of Appeal.

    Tier 2

    Applicants who are applying for permanent settlement will now have their passports returned and will be able to travel abroad whilst their application is pending. Passports will be returned automatically after the application has been registered. It is not clear what will happen if the application is considered and refused whilst the applicant is abroad especially with regard to rights of appeal which are determined by statute.

    Ping Pong

    The House of Lords has now passed the third reading of the Immigration Bill and the next stage of the Immigration Bill is called ping pong, so called because the Bill goes from the House of Commons to the Lords to agree the final set of amendments before the Bill becomes law. This Bill, when it becomes law, will have a significant impact on the practice of Immigration in a number of areas including housing, employment and healthcare.

    Increase in Maintenance

    The required maintenance for Tier 4 students is to increase for applications made after 1st July 2014. The increases are not huge but nevertheless need to be carefully considered. For example for those studying in inner London the figure will go up from £1000 to £1020.

    Venezuela

    They join the list of visa national countries and will require visas to enter the UK as of the 5th May 2014.

    Call for Amnesty

    In the meantime Boris Johnson, the Mayor of London, has repeated his call for an amnesty of illegal migrants who have lived in the UK for 10 years or more. He believes that doing so will enable them to contribute lawfully to the Exchequer. He has also criticised the Government for restricting legal immigration. He is the only mainstream politician willing to make such a bold statement especially as the drum beat of the elections gets closer.

    April 28, 2014

    Sponsorship and the ultimate responsibility

    Employers who hold licences to employ migrant workers usually do so in order to sponsor a particular migrant worker but often forget that there is a continuing duty to actively manage the licence afterwards. Many employers fail to appreciate that delegating duties does not absolve them from their responsibilities. If the representative selected makes a mistake or deliberately misleads, the employer will have punitive action taken against them. This can be a downgrade, a suspension with a view to revocation of a licence or a straightforward revocation depending on the seriousness of the allegations. In the past dishonest representatives were weeded out by regulations that required registration with specific authorities such as the Law Society or the Office for Immigration Services. However the responsibility has now shifted to those who hold the licence. They do so on the strict understanding that they will bear the brunt for the actions of others. Employers be warned. It is essential to keep passwords safe, to limit the number of people who can access your system, to check and update the system regularly and above all take steps to ensure that the person you allow access is unlikely to misuse it, deliberately or otherwise.

    Whats in a name?

    The names English or British are used interchangeably but mean different things. Very soon we may need to revisit these terms if the referendum on leaving the UK in Scotland goes a certain way.

    The name United Kingdom refers to the union of what were once 4 separate countries, England, Scotland, Wales and Northern Ireland. Britain on the other hand comprises of England and Wales only. Great Britain is made up of England, Scotland and Wales. The British Isles consists of Great Britain and Ireland and 5000 smaller islands.

    If Scotland does leave UK would still exist albeit a smaller version and the "Great" in Great Britain will disappear.

    Human Rights

    In the past I have talked about an applicant who has serious kidney disease who has a 3 year child who is high on the scale of Autistic disorder. The NHS have been refusing to treat the father unless his need is required as an emergency. He recently reached this threshold. Despite receiving some treatment he is not responding well to the dialysis offered because of the delay. Legally for now there is very little hope. If the father dies, and the prospect is getting ever closer, the prospects are grim for the child. Legal aid firms have long turned away from this case. The family are now desperate. Statistics are one thing. Dealing with a real life case and watching a slow death is another.


    April 19, 2014

    The rising tide

    We know that the figures given of the scale of illegal immigration are at best guestimates. Figures are taken from passenger surveys that are outdated and completely inaccurate. These figures were compiled for a different purpose and therefore it is hardly surprising, The recent perceived announcements designed to discourage illegal immigration are in fact increasing it tenfold.

    Rights of appeal have been systematically curtailed over time with the sole aim of reducing pressure on the courts and this trend has been a feature embraced by all political parties without exception. It has led to deeply unfair decisions. Of particular concern are the severe reductions of rights of appeal for those abroad. One of the areas where this has had disastrous consequences has been where mistakes are made on forms or comments made during an interview which have led to the conclusion by immigration officials that false representations have been made. A person abroad is unable to challenge these assumptions despite the fact that they could be banned from the UK for 10 years. Within the UK applications which are made usually by those trying to regularise their status are refused without a right of appeal but told to leave. Many want their day in court, where they hope to persuade a judge that they have a reason to stay. Many have children who were born here or who have lived here for many years. They will have to wait for a removal decision when they will be able to argue their case. They are often told to leave within 10 days and many interpret this to be a legal deadline when in fact it is nothing of the sort. The Home Office's next line of attack is to hand the case over to its partner, Capita, who send repeated text messages to the applicant asking applicants to leave. Many applicants are unaware that Capita are merely glorified telephonists with no real powers. Removal directions, which should be the last stage of a legal process, are just not carried out sometimes for many years if at all.

    A large swathe of applicants, now classified as "illegal immigrants" are waiting for removal directions. In fact they cannot be removed without them. They are in the twilight zone unable to move forwards and unwilling to leave without being able to represent their case in court. There is a rising hinterland of numbers of illegal immigrants at this end. They continue to exist in this no mans land waiting, waiting, waiting.


    April 07, 2014

    Lessons of Yashika

    My daughter, who usually expresses very little interest in immigration debates, for or against, became very passionate about the unfairness of the decision to remove (not deport) Yashika, the 19 year old girl removed (not deported) from the UK last week. She could not understand why the Government would not let her stay to complete her exams, especially when dozens bunk school when given the opportunity. Attempts to explain that her case was not particularly compassionate when compared to others that I deal with did not change her views.

    The fact is that Yashika has a name, a face, a hinterland and she ceases as a result to become just another asylum seeker. In fact if the press reports are to be believed, she made an application for asylum on the basis that she was escaping from an abusive relative. Asylum has very narrow parameters. A person must seek asylum on the basis of persecution on grounds of political opinion, race, religion or membership of a social group. She appeared to meet none of these criteria and her application was bound to fail on legal grounds. As she has not lived in the UK for long she would not succeed on human rights grounds either. That was the legal aspect and why the courts could not intervene.

    The case, however, captured the imagination of the public in a very personal way and the debate on immigration took a whole new meaning, for a short while. Our youth have grown up in a multicultural world and they are by their very nature much more liberal and accepting of differences. They are free from the shackles of the past and do not see the world in black and white alone. No one had a solution other than allowing her to stay on a compassionate basis. If the Government caved in on this, however, they would then have to concede on a number of other cases, more compassionate and deserving. It was admittedly a difficult call.

    As for poor Yashika, her story is currently of interest. Her advisers probably did the right thing to publicise her plight. However this is a double edged sword. The thirst for more information on this to keep it going can result in her life being turned upside down and not always for the better. Already her father and grandfather have been contacted and have made conflicting statements. It could get worse if the digging into her story carries on. The Government know that the public are fickle, that there will be an immediate outcry and that this will pass. Once the press interest dies down as it must, Yashika will be consigned to history, forgotten by all but her close family, teachers and friends. The sad thing is that nothing will really have changed at all.


    March 31, 2014

    Too Old to Care

    One of the positive and defining features of immigrant communities is its all-encapsulating support for its extended family, particularly its elderly members. This in turn has a knock on effect on the younger generation who, in general, show much more respect towards the older members of the family.

    Despite the fact that we have signalled our intention to end age discrimination, it rears its head in all sorts of ways. What is clear is that there is ever increasing discrimination towards their needs. Recent reports from the body that regulates drugs to the NHS has declared that drugs should be targeted towards the younger members of our society. Increasingly the elderly are living on their own, isolated by the weather, by rising costs and the indifference of family members.

    The immigrant community, many of whom left their countries in search of better lives, and who have "made it" have always had a struggle to bring family members. Before the law changed in 2012, the criteria required was financial support and the fact that the parent had no one in their home country to turn to. It was a difficult test but not an impossible one.

    The new rules however are in a completely different league. They only permit the entry of a parent who "requires help with long term personal care to perform everyday tasks" and "where even with practical and financial help the parent is unable to obtain the required level of care in the community and there is no one to provide it or it is not affordable".

    Those who are from certain countries such as India, Bangladesh or any of the African countries will find it impossible to meet these rules and in fact they might as well not be there at all. They must also prove that there will not be recourse to public funds. Those who are earning a decent wage will be excluded on the grounds that they can afford the care and those who do not will be excluded on the grounds that they will become a burden on public funds.

    The extent of these changes were not appreciated by the immigrant communities initially and when the rules are explained to them there is disbelief that there can be such stringent requirements, so stringent that there is little point in calling it an "elderly dependants rule" when it is in reality a rule for exceptional cases. There has been disquiet about these rules and the only way forward is to challenge their fairness in the courts. There are a number of challenges ahead but until then, the old need not apply.


    March 24, 2014

    The Rich and Poor Divide

    Nigel Farage, in his latest words of wisdom, has accepted that migrants have "jollified" Britain and introduced better food but claims that they are now "affecting our way of life." So let's examine the impact on the community in a few areas. Migrant children on the whole do better than those born here, their parents are less likely to claim benefits and more likely to work, employers tend to prefer them and they bring new value systems such as the benefits and strengths of extended family. The rich of different nationalities have more in common with each other than they have with their working class counterparts. The rich and poor live completely different existences and have very little in common with each other.

    In any event Nigel forgets that life does not stand still. Practices, values and habits change over time and with the existence of technology the world has become a very small place. Nigel Farage belongs to the dinosaur age and is looking at the world through rose tinted glasses.

    As if to emphasise the rich/poor divide, the Home Secretary is about to announce a new VIP service for wealthy foreigners which will be a "bespoke service" and will ensure that their passage is swift and smooth and that a manager will arrange services "tailored to each individual needs at no extra cost." This service will only be for those who make a "significant contribution" to the economy, although how this will be measured is anyone's guess.

    In the meantime, the Home Affairs committee has shot down the idea of granting residence to a few people using an auction, under which surplus funds would go to good causes. Raising a sizeable fund for use for charitable purposes should not instinctively be thrown out without careful thought. After all other countries like Malta are giving away citizenship which will result in applicants using that status to live here without restriction or the need to invest anything at all. Why not give residence to a selected few, once there have been due diligence checks and put the funds to good use?


    March 17, 2014

    The Spouse Rules and the Argument at the Court of Appeal

    As thousands of cases languish in various entry clearances abroad awaiting the decision of the case of MM, the case has finally gone to the next stage.

    For those of you who do not know what this is about, it concerns the introduction by the Government of a minimum income of £18,600 to bring in non-EU partners to the UK. When the case came before the High Court, it found that the rules were unjustified and disproportionate where the applicants are British citizens or refugees. Justice Blake observed that British citizens have a fundamental right of constitutional significance to live in their home country and that the effect of these rules is to require them to leave their own country. The consequences of this are considered to be so excessive in impact that they are not reasonable. The absence of flexibility to the rules contributed heavily to the decision. There were particular concerns, expressed in the judgment, as perverse decisions to refuse to allow savings to be taken into account where there is a shortfall, to allow credible evidence by third parties of support or to take account of prospective income. Needless to say the Government appealed against the decision and in the meantime has put over 3,000 cases on hold.

    The Government believe that they should have the final say on what is proportionate and argued that they had consulted widely. Consulted usually means asking the wrong people vague questions and then rely on the answers given.

    A number of interesting points emerged from the hearing. First, that when the Migration Advisory Committee, who recommended the increase, recommended a range in which the highest figure was £18,600. This figure did not take account of housing costs. The evidence indicated that at least a third of applicants rely on accommodation provided by family. The estimated cost of this would be £6,000.

    The Government also argued that in some cases where the applicants did not meet the rules, the entry clearance officers had the power to exercise discretion and their instructions provided for this. However the evidence that was provided showed that discretion. In one case a shortfall of 59 pence led to a refusal. The Independent Chief Inspector found little and inconsistent consideration given to Article 8 and the best interests of children.

    The initial decision did not agree that the rules were discriminatory and the Government sought to uphold this decision. The evidence indicated that female sponsors earn less than male sponsors and accordingly are less likely to meet the requirements.

    There is also the issue of regional differences. Sponsors in Leicester for example earn far less than those in London and are therefore less likely to be able to meet the requirements.

    The Court of Appeal will reach its decision in 2-3 months' time. Whoever loses is likely to bring the case before the Supreme Court. The bad news is that it will take at least a year to resolve. In the meantime the applicants are caught in a time warp.


    March 10, 2014

    Migrant Nannymania

    A recent report indicates that the UK is now moving closer to the Victorian period in which domestic help is commonplace among middle class families not only among the "wealthy metropolitan elite" as indicated by the new Immigration Minister anxious to make his mark in the poisoned chalice of the Home Office. His remarks were considered to be more extreme than other politicians as he ascribed to the view that employers should shun legal migrants in favour of British workers. What he has said however is a variant of what others have said from all other parties albeit in more colourful language. The fact of the matter is that more women than ever are going out to work and need support in the home wherever they can find it. The migrant worker has not wrenched the job out of the hands of the British worker. Place an advert for this type of job and see who applies. Many of the migrant domestic workers make huge personal sacrifices to provide a better life for their families abroad. They leave children behind but their money ensures that the next generation aspire to different and better careers. Many stay on long after their children grow up and marry abroad. They provide a seamless service which includes both child care and domestic work under one roof and they usually do it without resentment. Another fallacy is that the labour is cheap. It is not. And it is a dying breed. The domestic workers that entered during the Labour years were freed from being tied to a particular employer and enabled them to change employers. It is likely that our Prime Minister, who reports indicate obtained his member of staff from Kalayaan, was able to recruit one of these workers. Ironically, under the rules established by this Government subsequently, domestic staff are not allowed to change employers regardless of the circumstances, are strictly limited to a 6 month permission and can only come if an employer normally lives abroad. These rules significantly favour those bringing in staff from the Middle East where, statistically, the abuse of staff was the most pronounced.

    As the drum beat of the election draws ever closer, parties are taking a stand. The Conservatives want a strict policy but are happy to benefit from the advantages that immigrant labour brings. The Liberal Democrats who have sleep walked into allowing draconian changes are now suddenly waking up to assert the positive effects of immigration. Labour will go whichever way the election wind blows them. For years, various bodies have reiterated the positive benefits of immigration but have been marginalised. Now it suits all parties to do so to attract the crucial vote of the ethnic minorities who tend to pay great deference to their right to vote and are an important sector electorally. Let the games begin.


    March 03, 2014

    Investors: The Winds of Change

    With countries all over the world marketing visas for investors, the Migration Advisory Group, an independent committee, was asked by the Government to consider whether the investment thresholds were appropriate to deliver significant economic benefits for the UK.

    They have reported back and firmly concluded that the investment rules, which have been largely unchanged since 1994, do not do so in their current form. The main thrust of the conclusions reached was that it is the migrant who benefits the most with marginal benefits to UK residents. Whilst they concluded that there is some benefit to the UK in the form of expenditure on education, private health care, creation of some staff, and indirect expenditure which generates VAT, this is marginal. There was particular scepticism that investors contribute to the housing market as demand for housing exceeds supply and additional demand only serves to increase prices which, in turn, place those looking to purchase a home at a disadvantage.

    As far as the actual investment is concerned, it concluded that investment in gilts is in effect a loan for nothing more for 5 years. The Government are apparently selling around £300 million gilts a day. The annual aggregate loan is equivalent to less than 2 days of the budget deficit. The loan is called in as soon as the investor obtains settlement.

    The proposals for change include increasing the threshold from £1 million to £2 million, removing gilts as an acceptable form of investment and widening the permitted investment types to include, for example, Venture Capital schemes, infrastructure bonds, pooled investments, SME business funds and philanthropic donations. The most controversial of these measures is the creation of an auction of some slots (around 100) with a reserve price of around £2 million and the suggestion is that it should be based on sealed bids. The excess over £2 million would then go to serve good causes. In return the investors would receive accelerated settlement and residence requirements would be relaxed. Practitioners argue that this system would create uncertainty for the applicant and therefore take up might be low.

    It is inconceivable that the Government will not raise the threshold and tinker with the types of permitted investments. However it will be interesting to see how the issue of auctions will play out with the public. Changes are likely to take effect in October of this year.


    February 24, 2014

    Reporting from India

    Business

    Did you know investment by Indian companies in the UK is substantially greater than investment by UK companies in India? Did you also know that India is in the top 3 countries that invests in the UK? Whilst in the UK arguments rage around the negative aspects of Immigration from non-EU countries, the picture that is emerging is a positive one for the UK if it plays its cards right.

    There are large scale plans to invest substantial amounts in industries that will create large numbers of jobs. The Mayor of London has put his weight behind initiatives to proactively encourage the businesses to come to London although the picture in other parts of the UK is patchy.

    Formerly the UK agencies funded by government were divided into 9 zones covering areas in the UK which had representatives and could put the case for investment in their region. However this has since been submerged into a much smaller organisation which collectively takes responsibility for all areas and the responsibility for generating business and funding has been placed in the hands of individual councils. The result is that some councils are more active than others. London and Birmingham have the greatest levels of activity.

    The industry that is particularly growing at a substantial pace is the pharmaceutical industry, which has the ability to produce generic drugs at a competitive price, manufacture them abroad, and then brands and packages them in the UK. It is a labour intensive industry and would create substantial numbers of jobs.

    The bad news is that Other European countries are arriving in droves with a plan to attract businesses to invest in their countries. The UK is still favoured over other countries for now but things could change as the competition for investment grows.

    Domestic workers

    A frequent complaint among those who want to invest and live in the UK was that they would not be able to take their staff with them. Staff that have been with them for many years, and who understand their homes and culture are an essential part of the package and the Government underestimates how important this factor is when these vital decisions have to be made.

    Visitors

    There is a growing trend for Indians to travel throughout Europe using the Schengen visa. Many have said that they do not bother to apply to come to the UK as they have to obtain a separate visa at great cost when they can visit a number of countries freely with the Schengen visa.

    Goa

    It was interesting to talk to local people about the effect of immigration in their community. There has been a huge influx of Russians in Goa which is creating resentment as there is a view that they are not only there as tourists but that Russians are illegally operating businesses which the Government appear unable to stop. There are also concerns that they do not make any effort to integrate and in certain areas the local communities have felt physically threatened by the behaviour of some of these illegal operators. There was an overwhelming view that the British tourists are much more polite.

    Immigration controls

    Whilst we are still estimating the numbers of passengers going in and out of the UK, India takes an image of the passenger which is stored which then will not only be able to calculate numbers but the actual identity of the person.


    February 17, 2014

    Golden Visas around the world: Do we offer a Good Deal?

    Investor programmes are currently the focus around the world as countries introduce various programmes. The boldest so far has been Malta who, in return for a huge cash injection into Government coffers, offers up its citizenship on a plate. The investors will never see their money again but in return will enjoy significant rights of free movement to the rest of Europe.

    Canada on the other hand has just announced its intention to terminate its Investment Programme which was set at the rather lower amount of CAD $800,000 after research indicated that the investors pay less in tax than other economic migrants, are less likely to remain in Canada over the medium term and lack the skills to integrate as well as other categories. In the place of this passive investment programme more focus will be paid on the active participation by entrepreneurs willing to create businesses and jobs, no matter how much is invested. In Quebec a new scheme is about to be introduced which will require CAD $800,000 to be invested in a government controlled fund at zero percent interest for 5 years. There is a catch to this superficially generous scheme. It requires proof that the net wealth of the person is at least CAD $1.6 million and was acquired legally.

    Cash strapped countries within Europe are offering residence for much smaller sums of money. For example residency in Cyprus is available for an investment into real estate of EUR 300,000 plus an annual income of EUR 20,000 per year or immediate citizenship for an investment of EUR 5 million in real estate or EUR 3 million in bank deposits. In Greece the purchase of property worth EUR 250,000 leads to residence.

    The UK minimum investment is £750,000 and the availability of £1 million and fast track residency after 2 or 3 years if the investment is £5 million or £10 million respectively. This scheme is actively being re-considered as the view of the Migration Advisory Committee believes that it does not offer the economic returns that make it viable.

    There are parts of Britain that desperately require economic regeneration, where the active creation of jobs is much more important for the health and benefit of the country than a passive investment of large amounts of money in the heart of London. A scheme which encourages and is properly policed and which could see vast stretches of the country re-developed. The Canadians have assessed their schemes and have reached their conclusions.

    The UK is very close to announcing their measures. Let's hope that job creation is at the top of the list.


    February 10, 2014

    The Minister, the Cleaner and the Law

    Whilst the resignation of the Minister responsible for Immigration, Mark Harper, was motivated by political considerations, it is quite likely that legally he had not done anything wrong. Although the circumstances are not entirely clear it appears that he had a cleaner. Cleaners that are called in to work once, twice or three times a week and are not regarded as employees but are considered to be self-employed. The requirements of checking the immigration status of a person apply only to an employee and not to the self-employed. The Minister's position contrasts that of Baroness Scotland who, some years ago, was fined because in her case she had employed the member of staff.

    The point that Mr Harper made is that he did in fact check the status of this person on 2 occasions but subsequently lost the paperwork. He also maintains that it later emerged that the cleaner's documents were found not to be genuine. The duty on an employer is merely to undertake reasonable checks to ensure that the document is genuine. If it later emerges that the document was not, the employer has a statutory defence.

    As the case of the Minister goes, he had advocated the use of vans that went around the country preaching to illegal immigrants to get out of the country so it was inevitable that he had to hand his head on a plate. However if this had happened to others, there would have been difficulties. Firstly, any person found on their premises would, in general, automatically be considered to be an employee. Where a person is unable to provide paperwork that proved that checks had been conducted, a civil penalty would have been levied. The proposal is for this levy to be doubled from a maximum of £10,000 to £20,000 although most fines are in the region of £5,000.

    This case demonstrates the practical difficulties that exist in asking the public to shoulder responsibility for work that is best done by Immigration Officials. There are various types of status, some of which permit work which are difficult to understand even by those experienced in this field. The new Immigration Bill attempts to extend checks to landlords, GPs and hospital staff.

    The difficulties in accurately identifying those who are allowed to work, those in respect of whom checks are mandatory, distinguishing genuine from forged documents are all issues that are complicated. What is likely to happen is that people of a different colour or accent will not be employed even when their situation is entirely legal. The regulations have a tongue-in-cheek statement which warns that employers must check the status of all staff to avoid accusations of discrimination. The evidence is that the ethnic minorities are being rejected for jobs and the feeling is that this has a relationship with the immigration regulations.

    The Minister may have gone but the proposed law and its myriad difficulties remain intact.


    February 3, 2014

    Double standards?

    This week the debate on the Immigration Bill has focused on human rights in two areas with divergent views expressed in each and emphasis placed on the political rather than the legal position.

    On the one hand British citizens who obtain their citizenship in the UK can be stripped of their citizenship even if it leaves them stateless. This measure flies in the face of international law where attempts are being made to prevent this. It should not be forgotten that statelessness was used by Germany to strip Jewish people of their right to citizenship of Germany and as a result of the "evil of statelessness" (a term used by the Supreme Court recently), this led to the development of the Universal Declaration of Human Rights which stated that no one shall be arbitrarily deprived of citizenship. The U.K. are signatories to a Convention on the Reduction of Statelessness.

    The law that developed, up to a point, was that Parliament was keen to honour its international obligations. There were sharp moves to the right to deprive citizenship by making inroads into the meaning of statelessness. One such case came before the Supreme Court where it was argued on behalf of the Secretary of State that the ability to obtain citizenship is enough reason to strip it from the individual. Not so ruled the judges. A person is either a citizen of another country or not. If the latter applies then that is the end of the matter. They would be stateless and could not lose their right to British citizenship.

    The Government have just passed an amendment to the Immigration Bill which will now permit the stripping of citizenship of a non-UK born person whether or not this results in statelessness. The practical effect of this is not just a right to live here but this will pervade every area of that person's life including that of children.

    As all this was going on in one area, Dominic Raab MP re-introduced an amendment to the Bill that would have the effect of preventing foreign criminals from benefiting from human rights legislation. The Secretary of State, rightly, argued that this would result in a number of expensive challenges before the European Court. In the end, the Government were asked to abstain from voting on this issue despite the groundswell of opinion that the UK should sign out of the European Convention of Human Rights. The amendment failed to make it to the books.

    The moral of this story? British citizens will lose important rights whilst foreign nationals who are criminals will not. Double standards?


    January 27, 2014

    Is Malta a Better Option for Investors?

    Whilst the UK has an investment route which requires a minimum investment of £750,000 and the availability of a further £250,000, it requires applicants to be resident in the UK throughout the period and citizenship is available after 6 years in all. The Government is looking at changes to this system and this may mean a rise in the figure or the rules for investment may change. This coupled with high inheritance tax rules are putting investors off and they have been looking elsewhere.

    There has been significant interest in the proposed investment programme in Malta which grants citizenship in exchange for an investment. Many EU countries have been up in arms as it appears that applicants can "buy" passports and there has been some talk of the regulations being challenged as unlawful. In fact nationality laws are a matter for each country to determine and so it would appear to be a measure that can lawfully be taken. In fact the EU Commissioner has said as much. Some years ago Ireland wanted to introduce similar rules but backed off after an outcry. This time Malta is staying put. In fact Malta has two options.

    The first is a nationality route which gives immediate rights to free movement to work or set up in business in all the 28 EU countries and to bring not only their spouse and children but also parents for a small additional sum. The total investment is EUR 1.15 million. EUR 650,000 must be invested directly in Government funds. 70% must be invested in the National Development fund and 30% will go into the public coffers directly. For spouses and children under 18 there will be an additional EUR 25,000 required and for parents and children between 18-25, a sum of EUR 50,000 will be required. They will also need to either buy property worth at least EUR 350,000 or rent it at a minimum of EUR 16,000 per year and hold it for a period of 5 years. A further EUR must be invested in bonds of shares. There are no requirements of residence and so upon the grant of citizenship applicants are free to set up elsewhere within the EU. There is a cap of 1,800 places and once these are filled the programme will be closed. Applicants will be subject to strict "due diligence" checks which can take up to 6 months.

    The other route that is available does not give rights of free movement immediately but will take 6 years, the same as the UK. The applicant must have business capital of EUR 350,000 or Real estate plus an annual income of a minimum of EUR 23,000 and will be required to buy or rent premises within 12 months of entry. There will be a requirement to transfer additional funds every year. The advantage of this category, however, is that there are no requirements for residence. Therefore for those who want a foothold in the EU can invest their money there and live elsewhere and wait for 6 years before qualifying.

    These regulations are by far the most generous amongst the EU countries. Coupled with far less stringent requirements, there are no inheritance taxes and tax is not based on worldwide income. If the nationality scheme goes ahead, and it looks likely, other countries are likely to follow suit in an effort to boost their economies. When changes are being considered it is vitally important for the UK not to price themselves out of the market by imposing stricter controls than are necessary. Malta is a country which enjoys permanent sunshine and for this reason alone would be a further draw for those coming to Europe from sunnier climes.


    January 20, 2014

    Changes to rules relating to Investors

    There is a clamour for investors to come to the UK and they are advised that their applications will be decided promptly. Whilst this is undoubtedly the case, once in the UK, extensions and applications for settlement can take many months. They are usually surprised to hear that many other categories are allowed to make same day applications for settlement, whilst their applications are only accepted as postal applications and these can and do take several weeks to process.

    Recently an investor pointed out that her domestic worker, who came in with her when she moved, obtained settlement long before her. During this time, applicants are unable to travel even if they have urgent business. Even if such applications are too complicated to be examined on a same day basis surely there could and should be a fast track system to enable these cases to be decided quickly. Whilst the applications are being decided travel is barred. There is currently a pilot which is being conducted for Tier 2 applicants (intra company transfers only) which has re-introduced the system for returning passports for travel. The system worked perfectly well in the past and it is unclear why it was stopped. However investors, for now at least, will not benefit although if the pilot is successful it could be rolled out to other categories.

    The other issue is that although permitted absences have gone up to 180 days, many investors have significant interests abroad and where travel exceeds this period, they are considered to have broken their residence and could face a rejection of their applications.

    The Migration Advisory Committee, which provides advice to the Government, has been asked to review the rules relating to investors, particularly whether or not the current investment limits are delivering economic benefits to the UK. Their preliminary views are that the rules do not provide robust measures to maintain the investment other than for a set period of 5 years when they qualify for settlement. They have taken evidence and will report their findings by the 7th February 2014. This can only mean that the rules are likely to be tightened with increases in the amount of funds required and other systems to make movement of the funds more difficult.

    The take-up of investors has not been significant. In comparison to other categories the entry of investors has been modest; 973 Entrepreneurs and 530 Investors compared with 30,000 in Tier 2 intra company transfers.

    The changes could affect those wishing to invest in the UK and it is hoped that they will not become restricted for the sake of it and thereby discourage investors.


    January 14, 2014

    Slaves or Immigrants

    Watching the brilliant film by Steve McQueen, 12 Years a Slave, was not only about the de-humanisation of fellow human beings but also about the effect of the slave trade on the history of migration of Asians.

    Once the slave trade was abolished in the UK in the 1830s, it led to a demand by slave owners for indentured labour for work in their rubber plantations and railways in colonies in countries from Kenya, South Africa to Mauritius, to British Guiana and to Canada. Although this was as workers receiving payment, there was large scale abuse as they were shipped at their own cost in poor conditions, leaving them in substantial debt. They were expected to acclimatise to arduous work immediately upon arrival and living conditions were abysmal. Many succumbed to disease, malnutrition and sheer loneliness. We are the children of that history. First, second or third generations.

    Theresa May has introduced a bill to toughen sanctions on modern day slavery and William Hague has written on the subject at length. The number of victims of slavery is said to have increased by 25% over the past year. What is surprising is that on one hand there are grand gestures to end this scourge, yet on the other hand immigration policies have vastly strengthened the hand of the exploiter. Unable to rent property, seek medical attention, they live at the edge of society, in the shadow lands, vulnerable in the extreme, eking out their days in misery.

    A frequent claim is that there is a lack of rational discussion about immigration yet it appears every columnist has a view of it, positive or negative. It is discussed every single day. Not surprisingly, an IPSO poll found that the young under 35 were positive about it whilst the older 60+ were against it. As to the old nugget about 'taking jobs', as someone on Question Time pointed out, jobs are not simply taken from one person and handed to another.

    The old nugget that is used with regard to immigration is the argument that this will be a burden on public services. Yet immigrants work and those who work contribute in taxes which pay for these services. There is no evidence whatsoever that there is a disproportionate use of services.

    In the end immigration is, as it has always been, a feeling of being swamped and of a need to preserve a way of life. It is, in the end, a question of race.


    December 30, 2013

    HARDENED HEARTS

    As 2013 draws to a close a sense of nostalgia is lacking in terms of immigration debate and Government policy. The clergy have spoken of a deliberate attempt by politicians to harden our hearts in all areas; chiefly among them in immigration. The debate has often ranged from xenophobic to pure hysteria. The immigrants that are raged about are faceless and having an existence that is of huge numbers racing into the country taking jobs away from local people. When anyone tries to disagree with these policies, most recently the United Nations High Commissioner for Refugees, pure bile is exchanged in an attempt to rubbish his views. The reality is that he is right. I would like to end this year by telling you a real tale of a person and thereby providing a face to the faceless.

    A young couple left India to come to the UK as visitors, leaving behind their very young daughter in the care of relatives and with the intention of remaining in the UK to earn a living. No doubt they believed that the pavements were paved with gold. They had a child who was born with severe disabilities. The child is malnourished. The husband caught TB as they were living in poor conditions and for a long time was unable to access medical facilities. Eventually, when he was treated his kidneys were damaged. The NHS wanted him to pay for treatment and, as he could not afford the costs, his health worsened to the point that now his kidney function is only 10% of what it should be. Whatever money he was able to gather has been spent on lawyers' fees and his inability to work means that he is unable to afford further costs. More importantly if he does not get treatment he is likely to die. He has already been through the court system and has been turned down as there was not medical evidence proving these facts.

    The law on these cases is fairly tough. The courts have said that the UK is not the "world's hospital" and that if treatment is available, regardless of affordability, applicants should return to their country. Only exceptional cases, where death is imminent, are spared.

    In terms of the hardened heart argument, he came here and remained illegally and therefore must bear the consequences. Secondly the courts are right – we cannot support everyone who comes over needing treatment. However the humanitarian bone in us should consider the facts. Put yourself in the decision maker's shoes and decide, knowing that at some stage we will be at the pearly gates having to answer for our actions to the Almighty. The faceless have faces - they have blood running through their veins too. What would you decide to do in these circumstances?

    On this sombre note may 2014 be a good year for all my readers.


    December 11, 2013

    Tier 4 Students

    Students are on one hand being encouraged to come to the UK and on the other regulations have been introduced that positively discourage them from doing so. The one problem that recurs time and time again relates to Universities and Colleges refusing to refund fees in circumstances in which there is no reason why they cannot do so.

    Home students in the same circumstances can choose to abandon courses without jeopardising them and then selecting a different course but when it comes to overseas students they are treated differently. Why?

    There are also colleges which close down after they have taken huge amounts of fees from many students. If colleges are visited as often as the UKBA claim they are, then surely these issues would be predictable. After all colleges have been given "trusted" status by the UKBA after, what is described as, a rigorous visit and checks of their system. This means that they should bear some responsibility. There should, at the very least, be a dedicated email address where concerns can be reported.

    In the meantime the courts are establishing a number of principles. A recent case has decided that time spent before Tier 4 was introduced will count towards the total of 5 years that is permitted.

    The Court of Appeal has ruled that the UKBA were not entitled to reject applications of Tier 4 students on the basis that the College which issued a CAS had not specified that academic progress had been made. The Court said that academic progress is decided by the College which issues this and if the college get it wrong they have means to take this up with the college.

    There are other practical problems that students may encounter which indicate a lack of advance planning on behalf of the UKBA. When students make an online application, they receive a letter advising them that their passport and photograph has not been received. This is a standard letter that is generated and is the cause of needless worry and tension. Surely the UKBA can find a better way to manage this process.

    Finally there are numerous incidents in which fraudulent calls are being made to students claiming to be the UKBA and requesting personal information and money. If students are contacted by the UKBA by telephone or email they should not be required to answer questions unless the bona fides of the caller has been established.

    In the course of a recent case the following comments were made by the Judge which sums the situation up:

    "The rules governing the PBS are set out in the Immigration Rules and the appendices to those rules. These provisions have now achieved a degree of complexity which even the Byzantine Emperors would have envied."


    December 09, 2013

    The Lessons to be Learnt by the Great Master

    "What counts in life is not the mere fact that we have lived. It is what difference we have made to the lives of others that will determine the significance of the life we lead." Nelson Mandela.

    It is befitting to begin this week's article by paying tribute to the great Nelson Mandela who ended modern day slavery in South Africa. In fact this week the Rev Jesse Jackson was in town and, as he pointed out, democracy even in the US is no more than 40 years old as the right to vote for all only came with an active civil rights movement fairly recently.

    We believe that we have moved on, that racism is largely in the past and that we are making progress. It is often said about the immigration debate that it is not about racism but about the fact that services are severely affected by the influx of immigrants. Whilst having my teeth cleaned the other day the hygienist expressed fears about the influx of Romanians and the conversation took a bizarre twist as she literally felt that her neighbourhood would be overrun by these "creatures". It demonstrated how the press can whip up a frenzy and create a false sense of fear. The immigration debate, from all political parties has followed this pattern of demonising the newcomers and the law is being used to stoke these fears.

    South Africa was able to wield power by using the law to exclude and divide people. As far as Indians in South Africa were concerned it started with the law. The Immigration Act of 1906 closed the Cape to Asian men over 16 from abroad and severely restricted their entry from other parts of South Africa. The Prohibition of Marriage Act 1949 forbade marriages between whites and non-whites. Also in 1949 the South African Citizenship Act was passed in which the Interior Minister reserved the right to grant or withhold citizenship without recourse to the courts. So what does all of this have to do with the UK?

    The law begins a process of changing behaviour. When seatbelts were first introduced, people were not happy about strapping up but over time it is now unusual to find a driver in a car without a seatbelt. The change in this case was for good. In immigration, rights of appeal are being eroded, both in the lower courts and further up. Laws are being created to force landlords and doctors to check the status of a person and by so doing leading them into a position in which they will exclude anyone they perceive to be "immigrants." South Africa was able to wield power through the law and because its people were able to look the other way whilst injustices were being perpetrated with impunity.


    December 03, 2013

    Best Interests of children and human rights law

    Children's rights have gained momentum over the years and now play an important role in immigration cases. Since then cases have sought to develop or limit these principles. The case that established clear rights Supreme Court has re-stated the factors that have to be considered when a child is involved in an immigration case. The principles that emerge are as follows:

    1. The best interests of a child are an integral part of the assessment under article 8 of the European Convention of Human Rights and must be at the forefront of the minds of the authorities making a decision involving children.

    2. In making the assessment, the best interests of a child must be a primary although not necessarily the only consideration, and the child's best interests do not have the status of paramount consideration;

    3.Although the best interests of a child can be outweighed by other considerations it is of great significance;

    4.While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations are present;

    5.It is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations;

    6.There is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and

    7.A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.

    British citizenship is of critical importance and would tip the balance in any case. Obtaining the views of children is also gaining momentum

    New forms

    In the meantime new forms have been introduced for those making human rights applications either as partners or as children. These forms will need to be used in place of a more general form which has existed until now. The questions appear to elicit information which is required to be considered under human rights principles. One of the questions on the form requires the applicant to explain why they cannot live outside the UK and provide evidence.


    November 25, 2013

    Tied Workers: Invisible Modern Day Slavery?

    As David Cameron has said, modern day slavery comes in many forms. Recent cases of slave labour highlighted in the press, whilst tragic, are only the tip of an ever-growing iceberg; there are legal and illegal categories of slave labour.

    A major area where slave labour is alive and well is in the arena of the domestic worker. Until 1998 domestic workers were not allowed to change employers. However, in response to widespread abuse that was proven to exist, restrictions on change of employer were relaxed. This gave essential rights to these employees by giving them a measure of bargaining power and some redress where there was abuse. Then came the changes in April 2012, which again introduced restrictions preventing change of employers and reducing their period of stay to 6 months. In other words they are tied to employers.

    The profile of domestic workers is a particularly important indicator of their status within our society. Domestic workers are a highly vulnerable group consisting of mostly women who are low paid, performing menial tasks and required to live in close proximity to their employer. They are often illiterate or have very little education. They rely on their employment to support families abroad such as children, parents and grandparents. Most of them have no family in the UK and, therefore, no support structure. Many do not speak English and are almost invisible; perfect environment for exploitation by the unscrupulous

    The extensive restrictions on the ability of workers to integrate into the community have had a cumulative effect. In 2006, the policy of introducing penalties against employers began to have unintended consequences as it pushed migrants further into the margins where they could be abused by exploitative workers. This trend has substantially worsened as the law has been tightened progressively. Reductions in legal aid have reduced the ability to seek help and increased the vulnerability of these migrant workers as there is no ability to seek recourse to the law. Those whose visas run out or who are refused leave to remain are driven and kept underground and, in doing so, are coerced into an abusive situation, living from hand to mouth, unable to find a solution.

    Where applications are not made in time there is no provision and no sympathy towards them as and if illegal have pariah status. Even those who are legal are unable to obtain settlement as the English tests are too difficult to pass and so they are tied to their employer; unable to change their situation from year to year. Locked in this situation they are enslaved.

    The UK's answer to trafficking is referral to the Government's National Referral Mechanism. This does not provide a solution to the personal difficulties of the individual other than a short period of respite. And so the abuse goes on and on, within the Dark economy where there are no rules and no human rights.

    The Government have introduced a number of measures to combat slavery but these policies are extenuating it. The van that told migrants to go home would have instilled fear in this vulnerable group. On the international stage, the UK has not ratified the International Labour Organisation's Conventions on equality of opportunity and treatment and respecting the rights of workers or the UN International Convention on the Protection of rights of workers. These Conventions would enhance and protect the rights of workers.

    David Cameron is right. Slavery does come in many forms – through poor immigration policies. Modern day slavery is alive and kicking and set to get worse as the law tightens its grip.


    November 19, 2013

    A Mixed Bag

    Denying rights to children

    A letter to the Times of 18th November signed by a number of organisations who act for children has expressed concerns about the implications of changes proposed in the Immigration Bill. In short, they have rightly identified the fact that the changes will limit children's access to vital services with regard to healthcare and accommodation. To recap – the plan is to force GPs and landlords to check the immigration status of applicants. Failure to do so will result in substantial penalties. It means that children will be the casualties of these changes.

    The food industry

    A food writer, Giles Coren, who reviews restaurants, bemoaned the fact that he was only able to review one Indian restaurant as he has found that restaurants appear to have a significant turnover of staff with the result that the food is variable. It can be great one week and not so good the following week. Not surprising at all given the fact that Indian restaurants are so restricted from bringing any new staff and even taking on the ones already here is usually such an uphill task that many give up and make do with poorly trained and skilled staff.

    Need for holistic health therapists

    There is a need for yoga teachers and therapists in various disciplines for a burgeoning industry in all things related to good health. These therapists provide a vital service but there is severe shortage of staff in this area. The occupation code does not allow for these professionals to qualify and they should. The health farms are crying out for these skills, in vain.

    Human rights

    The vexed question of the dumbing down of human rights goes on by providing examples of bad cases which have beaten the system.

    Tinkering on the edges

    In the meantime, any news is good news. The latest plan to ditch the bond system for visitors was bound to happen and should have happened much earlier. Still the latest plan to allow spouses to send in copies of their passports will enable them to travel for the months and months it takes for applications to be processed.


    October 28, 2013

    The NHS: The levy for migrants

    The plan to charge £200 levy on migrants does not seem unreasonable at first sight particularly then taxpayers are already stretched. However the hype that preceded this and the estimated costs have been estimated, and the benefits wildly exaggerated.

    What is discussed is health tourism which suggests that the problem lies with visitors. If this is the case (and there is no evidence that it is) than it is surprising that they will not be caught by the proposed levy system. Visitors are currently not allowed to seek medical treatment other than emergency care which should be available for everyone no matter where they come from. After all if someone had an infectious disease there would be implications for the wider public and in our interests that the person is treated.

    The UK also has reciprocal agreements with most European countries and 28 other nations, including countries such as Canada and Australia. Therefore if their nationals used our services we could reclaim the cost of that care from the other country. The research released by the Department of Health indicates that the NHS is not very good at recouping the money.

    Charging those who come to the UK is unfair as they pay their taxes and as part of that are entitled to receive NHS care. With students, some of them work and in the same position. The profile of this category of person is of young working age people who are unlikely to need health care. If required to pay a levy, which after all is miniscule in terms of the total amount spent may encourage this group to try to get their money’s worth and this may end up costing even more than anticipated.

    The total budget of the NHS is £104 billion and the costs that are being targeted amount to around £30 million or 0.15%. Once the additional administrative costs of putting this in practice are taken into account this figure will shrink even more. A sledge hammer to crack a nut?

    The group most likely to seek treatment are ex pats who live abroad, and accordingly, although British, do not pay UK taxes but come to the UK when they become ill and receive treatment. There is no bar to them doing so if they are coming over to settle here. They will be able to continue using the services.

    Whilst the Government claim that they want to attract the bright and the best, they continue to target migrants by increased regulations. Undoubtedly the levy will start a process at a low figure and slowly but surely the figure will begin to increase as it is a captive audience without much of a say. These groups already have to pay large amounts of money to enter and to study or work in the UK. To expect them to pay even more may be one step too far.


    October 21, 2013

    Trust me: The Highly Trusted Colleges

    “Highly trusted” conjures up an image of an institution which is fair and reasonable. The UKBA have designated colleges to be highly trusted and this encourages students to believe that the college will act in their best interests. This is far from the actualité to coin a French term.

    The definition of "Highly Trusted Sponsor" in the immigration regulations are “a sponsor which is recorded as being "Highly Trusted" on the register of licensed sponsors maintained by the United Kingdom Border Agency.” This register changes all the time. The essential thing to remember for the student is that a college is deemed to be highly trusted if it adheres to the UKBA rules which are set. Once they obtain their status as highly trusted, colleges market it aggressively. Interestingly enough the users of the system, the students, are never consulted as their views are not considered important. There is no system to prevent sponsors from taking advantage of students. The advantage may not be criminal behaviour or exploitation but it can nevertheless be behaviour which would be unacceptable if a local student suffered this fate.

    Colleges are very happy to offer overseas students courses, take their fees. If, for some reason, the student cannot take up the course colleges forfeit the full fees which can run into thousands of pounds. Colleges simply cannot justify retaining fee. It is possible for colleges to deduct administration fees but they appear to go much further. If this happened to a suspect college or two it would be understandable. However the evidence suggests that the problem is widespread and covers those colleges which pride themselves for their academic prowess.

    Students are often in a difficult position. They have parted with hard earned cash and are fobbed off by seemingly powerful human resources departments that are well organised and, one suspects, well used to dealing with such issues. After all for the colleges concerned, where they have taken a hefty chunk of money from a student and do not have to teach them, this is a win-win situation for them.

    And where does the UKBA come into this? They have given these licences a name and by doing so have sent a message to students that the college will act in their best interests when there is no guarantee that this will be the case, even among the older institutions who are all out to get as much funding as they can. There is no system of making sure that the system is working from both sides of the fence. Overseas students are often abroad and unable to fight on a level playing field. Students need to be more aware of this does not absolve the UKBA of their responsibility.


    October 11, 2013

    The New Immigration Bill

    Finally the Immigration Bill, which has had several advance previews, is out. What is interesting about the Bill are not the changes as such but the fact that airlines, banks, landlords, and even the DVLA will have to become trainee immigration officers whilst the courts are having their wings clipped. The devil is always in the detail. This week will concentrate on the bare bones.

    Reduction of Rights of Appeal

    • The number of appeals to be reduced from 17 to 4
    • When decisions are made they will be accompanied by removal directions. They will be able to raise human rights issues at this point only. If encountered later they will not have any further rights of appeal.
    • Establishment of an administrative review system to replace the loss of these rights
    • In Article 8 cases make the test of the public interest to require removal stronger

    My comment: one way of preventing the judges from challenging the Government

    Increase in Powers of Immigration Officers

    • There will be a substantial increase in the powers of Immigration Officers to search property of third parties for documents, reduce their right to withhold consent to enter and search premises
    • Reduce the power of an applicant to apply for bail if detained. Furthermore, the Secretary of State will be required to consent to a grant of bail where removal is due to take place within 14 days of the Tribunal hearing the application. In other words the final say in these circumstances will be with the Secretary of State rather than the court
    • Foreign criminals can only exercise rights of appeal from abroad

    My comment: Ethnic businesses already suffering with the enormous number of raids can expect more

    Marriage

    • Marriages will be subject to notice periods of 28 days in all cases including British citizens and 70 days in cases where there are suspicions of a false marriage
    • Notices of marriages of non-EU nationals will be reported to the Home Office in all cases where there is an “immigration advantage” i.e. the applicant does not have settled status or British Citizenship
    • Non-EU nationals who want to marry in a Church will still need to complete the civil formalities
    • This scheme will be introduced in April 2015

    My comment: The judges threw out a previous attempt by the UKBA to introduce certificates before allowing marriage. This is a re-hash of that.

    Immigration Advisers

    • Tougher powers to regulate immigration advisers. There will be powers for the Immigration Commissioner to obtain a warrant to enter premises

    My comment: Overdue change

    Airline Operators

    • Exit checks will come into force in 2015. Carriers and operators will be expected to carry out these checks and will receive training to do so

    My comment: Seriously?

    Landlords

    Require private landlords to check the immigration status of their tenants, to prevent those with no right to live in the UK from accessing private rented housing;

    NHS

    • Introduce a new requirement for temporary migrants, for example overseas students, to make a contribution to the National Health Service;

    Banks

    • Require banks to check against a database of known immigration offenders before opening bank accounts;

    DVLA

    • Introduce new powers to check driving licence applicants' immigration status before issuing a licence and revoking licences where immigrants are found to have overstayed in the UK;

    My comment: The new breed to immigration officers


    October 10, 2013

    Carrots and Sticks

    Autumn is here and with it the new Immigration Bill which will, according to the Home Secretary, contain carrots and sticks. The carrots, she explained to Andrew Marr, are measures to end abuse. Pressed on this issue she told him that the visa service would be reformed to enable those who qualified to enter. Vague on policy and on carrots.

    When it came to the stick however, her eyes glistened. There were sticks aplenty. She wanted to end in-country rights of appeal for foreign convicts, all 140 of them. Health tourists would be stamped on hard. It appeared that those who needed emergency health would not be provided it. Imagine a baby requiring emergency health care and a doctor shaking his head and turning him away. Are we seriously going to allow this to happen? And what if the person has a contagious disease or a mental disorder which can risk public health? What then? Then there is the visitors’ bond scheme where someone would have to put up £3000 to ensure that a relative or friend leaves the country. The scheme was first thought of over 10 years ago, investigated and found to be unworkable. What has changed since then? Other than the Government.

    Italy has always been thought of as more restrictive when it comes to immigration. Yet the recent tragedy at Lampadusa where several hundred people perished whilst attempting to seek a better life led to actions which indicated that there is common humanity. There was a day of national mourning and the Pope was amongst those who expressed deep regret about the needless deaths. The UN Commissioner for Refugees spoke movingly about the need to stop the traffickers from preying on this desperation. Had this happened on our shores how would our authorities have reacted? Refugees, whether they are coming for political reasons, civil war or to escape economic hardship need to be welcomed and there must be measures agreed at an international level to keep people safe wherever they are and whatever their circumstances. As Clinton has always stated, we are all interdependent and their deaths are our collective responsibilities.

    We live in a country which has political stability and we take our security for granted. We must lead the debate for a better life for all. This is hardly likely to happen whilst the battle rages around carrots and sticks.


    September 30, 2013

    The Election Drum Beat

    As we head ever closer to the elections, the parties are starting to lay their wares out to attract voters. Ethnic minorities have traditionally voted for Labour but as they have become more affluent they have veered towards the Conservatives. There are recent concerns that not enough attention is being paid to the ethnic vote by the Conservative party.

    Certainly, in terms of immigration, visas are a common problem for Indians whether they are coming as visitors, to work or even to invest. Immigration is an issue that will directly or indirectly affect the lives of immigrant families living here for, at least, up to the next generation. The Rules may be the same for everybody but they take on a negative tone when applications are made in India, Pakistan or Bangladesh. During the last US elections, the contender to Obama lost heavily because of his failure to appreciate the importance of this vote.

    This is a salutary lesson for Labour too. They are proposing a halt to lower skilled staff. Surprising really, considering that this has is already the case and has been for the last few years. The other proposal is that every employee transferred must create an apprenticeship for another. The reason for the transfer of staff from abroad is to fill a skill that is not readily available in the UK. Therefore their time will be spent on the job. Where are they going to find the time to train up a person? If they are able to do so, it must mean that there are others able to fill their job and therefore the skill is not in short supply after all.

    The immigration debate appears to be led by UKIP and their primary immigration policy is to play the race card and frighten the other parties into knee jerk reactions. There have been polls that indicate that the public are concerned about immigration. The same study appeared to be unaware that restrictions imposed by the Government were already in place. It is not surprising given the daily onslaught of articles, usually scaremongering ones, which cumulatively cause a panic reaction, particularly during an economic downturn. The vote is a powerful tool which can make and break parties and Governments. It is also an opportunity to have your say. Use it and woe betide anyone who does not take the ethnic vote seriously enough.


    September 23, 2013

    A Raw Deal for Grandparents

    When the new rules on dependant parents became law, not many people realised the extent of the restrictions. It is now becoming clear to many that they will not be able to bring their parents to live with them. The rationale behind this was that the elderly would be a burden on the taxpayer. However, this could easily have been resolved by requiring parents to have private health insurance. As these restrictions bite in, the rules relating to visitors have also been tightened so that parents, even those who have retired cannot spend long or frequent visits without getting risking refusal.

    Even for parents who have no other children living in the same country, the test is that the parent would only qualify if they can show that they are unable to carry out personal tasks such as washing or cooking and that, even with the financial help of the sponsor, this care is not available or not affordable. If a parent lives in the USA for example it may be easier to qualify than if they live in India.

    The fight-back against the rigour of these rules will ultimately be through the courts and the use of human rights legislation and, in particular, the rights of British Citizens to share their lives with their families. With this in mind I am attaching an extract from a 10 year old British citizen, Ellie, from Leicester recounting her experience, in her own words, of her love for her grandmother.

    As usual, the inspector found significant delays in the processing of applications. Whilst applications abroad were taking on average 7.5 days, applications in the UK were taking on average 63 days, or eight times longer. He described this as a “glaring inconsistency” representing “extremely poor customer services.”

    “My grandma and I have a very special relationship. My Grandma came to the UK when she was young to be with her family. She holds a very precious position in my life and she is like the third parent to me. I know she loves me. She gives me lots of wise advice and brings me down to earth. She says saving is better than spending and to never waste food because there are some people who don’t have any. In the school holidays she is always there to help if we have no one to look after me. I go to her house and have lots of fun and I even have sleepovers there. She sometimes comes on holiday with me and I can have quality time with her which I treasure. I am very lucky because she lives quite nearby and I see her at least once a week. Overall I love my grandma!”

    Ellie encapsulates the importance of a grandparent. She is lucky that her grandmother is already living here. Unlike others who will not have the opportunity to enjoy such a relationship if they originate from another country.


    September 16, 2013

    Entrepreneurs: The latest indictment

    The Coalition Government have introduced restriction after restriction to the immigration rules and have stated that their aim is to get the “right type” of people whilst reducing numbers. Looking at the policies there certainly have been reductions in numbers of students qualifying leading many Universities to repeatedly express concern about the drop in numbers and the attempt to reduce spouses from, let’s just say the lower salary bracket. The Courts have declared unlawful this remarkable feat of engineering particularly citing concerns about British citizens being denied their rights.

    And believe me the argument is not about reduction of numbers in order to protect jobs of those resident in the UK. Australians have been granted an increase in the number from 35,000 to 38,500 that can come to the UK and work without restrictions for 2 years and Hong Kong has just been added to the countries which can send its youth over to work. There is no sign of India, Pakistan, Bangladesh or any of the African countries from qualifying any time soon. So much for the Commonwealth and the special relationship.

    And as for the investment categories, a recent inspection by the Chief Inspector uncovered the issues that continue to dog the process. For example, the Inspector stated that allegations were made about abuse in the Entrepreneur category which led to amendments to the Immigration Rules. One such change is the introduction of proving “genuineness”, yet the Home Office were unable to tell the Inspector what the outcome of the allegations had been. Bearing in mind a major change was deemed to be necessary it is extraordinary that no justification can be provided. Perhaps there is none.

    As usual, the inspector found significant delays in the processing of applications. Whilst applications abroad were taking on average 7.5 days, applications in the UK were taking on average 63 days, or eight times longer. He described this as a “glaring inconsistency” representing “extremely poor customer services.”

    The reason for the delay which he was given is the introduction of the Entrepreneur route following the closure of the Post Study route. This Rule artificially introduced the ability for graduates to invest rather than take up employment. It is one of the most poorly and ill thought out drafted rules ever, based on the need to replace the ability of these graduates to take up employment. Applicants were able to invest £50,000 as opposed to £200,000 but were also required to be working in positions selected from the Code of Practice. It is little wonder that it has created a backlog as caseworkers applying the rules struggle to understand it and therefore apply it in any meaningful way.

    The latest report reiterates the same problems as before: delays, failure to learn from appeals, poor customer service. When will they ever learn?


    September 10, 2013

    Autumn brings new winds of change

    Sara Teather, the MP for Brent, has always been feisty in her views on immigration and her decision to stand down in the next Parliament will be a great loss in Parliament and the immigration debate. She understood the plight of immigrants at the lower social scale of society and spoke with a deep understanding of the issues, something generally lacking in many of the Members of Parliament.

    The relentless drive for new changes continues. Here are some of them:

    Visitors

    • Visitors can study for up to 30 days
    • Degree level students from abroad will qualify for entry for up to 6 months at the invitation of a University to undertake research as part of that course

    Tier 1 (Entrepreneur)

    • Confirmation that an Entrepreneur team can consist of a maximum of 2 people
    • Clarification that funding can also be available to an applicant’s business

    Tier 2

    • Tier 2 (ICT) – removal of the English language test for those extending their stay beyond 3 years
    • Tier 1 (Graduate Entrepreneur), removal of need to advertise the job when switching from this category to Tier 2 (General)
    • Those earning £152,100 or more are no longer prevented from owning over 10% of shares in the business
    • Tier 2 applicants who are applying for settlement will require their Sponsor to continue to hold a licence

    Tier 5

    • Allow switching from Tier 4 to Tier 5 to undertake an internship for up to 12 months in the Tier 5 Government Exchange sub-category
    • Hong Kong is added to the list of Youth Mobility countries allowed to enter the UK for employment between the ages of 18-31

    General

    • Tier 1 (General) - new test of “genuineness earnings” when applying for extensions and for Tier 5, Tier 2 (Minister of Religion) and Tier 5 subject to test of genuineness
    • Electronic bank statements to be allowed
    • Format of payslips to be easier and consistent for all categories

    Dependants

    Dependants can apply to switch status in-country providing they are not illegal migrants or visitors. However the restriction on dependants switching to main applicants will remain.

    Family rules

    • Improve flexibility where specified documents can be verified by other means
    • Allow cash savings to be used within 6 months if they are the result of proceeds of sale of property owned solely or jointly by either partner or jointly
    • Allow person who is coming to take up non-salaried employment starting within 3 months to count as earnings

    General ground for refusal

    A stand-alone ground of refusal where offending has caused serious harm or is a persistent offender.

    English language

    • Applicants will need to pass an English level exam. The previous rule of qualifying through other means will no longer be possible. However those in the family route who cannot pass the test for 15 years will be exempt and the exemption for over 65s and those with disabilities will remain
    • The tests for Tier 4 students must achieve scores in all elements of the exam. If they previously passed the test at B1 or B2 they can continue to meet this level.

    September 02, 2013

    Business visitors: rights and responsibilities

    Categories of visitors have expanded over the last few years and the result of this is that it can sometimes be difficult to decide which one to select. The business visa category appears to cause the greatest number of problems.

    The following qualify as business visitors:

    • Film crew – in particular actor, producer, director, or technician shooting on location and employed by an overseas company
    • Representatives of news media making programmes for overseas publications
    • Academic visitors in certain specified circumstances
    • Religious workers undertaking some preaching or pastoral work
    • Advisers, trouble-shooters, consultants or trainers employed abroad and not coming to the UK for employment paid or unpaid
    • Specific one-off training providing it is not on the job training.
    • Secondees from an overseas company providing the UK company has a contract to provide goods or services but no corporate relationship with the UK company and paid by the overseas company.
    • Doctors or dentists undertaking clinical attachments which involves observation only and is unpaid.
    • Doctors taking the PLAB test

    In addition visitors qualify if they carry out “permitted activities” which include:

    • Attending meetings (including interviews arranged before you come to the UK) or conferences;
    • Arranging deals, or negotiating or signing trade agreements or contracts;
    • Fact-finding missions;
    • Site visits;
    • Delivering goods and passengers from abroad genuinely working an international route;
    • Accompanying a tour group as a tour group courier, provided you are contracted to a firm outside the UK
    • Speaking at a 'one-off' conference not run as a commercial concern;
    • Representing a foreign manufacturer by coming to service or repair its products within their initial period of guarantee;
    • Representing a foreign machine manufacturer by coming to erect and install machinery too heavy to be delivered in one piece, as part of the contract of purchase and supply;
    • Interpreting or translating for visiting business persons, provided you are employed by the overseas company and coming solely to provide this service for the person;
    • Acting as a monteur (a worker such as a fitter or serviceperson) for up to 6 months to erect, dismantle, install, service, repair or advise on the development of foreign-made machinery;
    • Attending board meetings in the UK as a board-level director, provided you are not employed by a UK company (although you may be paid a fee for attending the meeting)
    • Representing a computer software company by coming to install, debug or enhance their products. If you use your expertise to make a detailed assessment of a potential customer's requirements, this is regarded as consultancy work for which you will need a visa under the points-based system

    In addition there are prohibitions on activities other than employment.

    • Undertaking a course of study;
    • Marrying or registering a civil partnership, or giving notice of marriage or civil partnership; or
    • Receiving private medical treatment.
    • Undertaking paid or unpaid employment or produce goods or provide services to the public

    Finally, applicants cannot live in the UK for long periods through frequent or successive visits. Business visits are only expected to last a few days in most cases and long stays are likely to result in closer scrutiny.

    Business visitors are permitted to stay for a maximum of 6 months. Those who have multiple entry visas can come and go but can only stay for 6 months on each entry.


    August 27, 2013

    Terrorism or Terrorising?

    The detention of David Miranda, the partner of a journalist under the Terrorism Act has finally brought this matter to the public consciousness, as it has exposed the fact that the law was being used to prevent information coming to light that could embarrass the UK and US Government.

    The furore over the misuse of the Terrorism Act is not a new phenomenon. In fact it has been one of the most controversial pieces of legislation of modern times which has led to legal challenges in the courts. This latest incident is the straw that broke the camel’s back and opens up debate about the use of these powers.

    The Terrorism Act states that the power is only to be used when there is a serious threat of violence, damage to property, risk to health and safety of the public, where there is an interference with electronic equipment or where the action endangers life. The powers can only be used for the purpose of determining whether the person is a terrorist.

    In the current climate where terror threats are real and visible, and attempts by terrorists are thwarted, the public accept the need for wider powers. We are protected from these threats and the price we pay for that is the loss of our civil liberties. However are the public really aware of the extent to which these powers are being used?.

    The powers are undoubtedly draconian. The usual safeguards are stripped away. There is no right to silence. The refusal to answer questions can result in a criminal conviction. People can be detained for up to 9 hours, without a lawyer present, have their fingerprints and DNA taken and their equipment examined and retained for up to 7 days. There is no requirement for a “reasonable suspicion” which is the cornerstone of our criminal justice system.

    There has been clear evidence that the police have been using this law to stop and search activists for their political activities or political dissent and this is a worrying development of affairs.

    61,145 people have already been examined under this Act and unsurprisingly the majority are ethnic minorities. It is unbelievable in a civilised society that a journalist can be stopped because there is a belief that he should not publish material because of the damage publication might do. The matter is now with the courts. It is likely that the Government will seek to hear the challenge by Miranda’s lawyers under the “Closed Material Procedure” which will mean that the public don’t get to hear the details of this sorry incident.


    August 19, 2013

    Museum of Migration

    Plans are in hand to create a Museum on Migration which will celebrate for, once the, role of migrants to the UK. It is being developed by those with experience in immigration and human rights and will look at the migration patterns in the past and look at where this society is headed. The rationale behind it is that in order to improve public perception of immigration, they must understand its history and an interesting way in which this will be achieved will be by an educational programme aimed at the younger generation. The interesting and different aspect of it is that it will be a mobile museum unit based in areas where immigration was traditionally high for example the Lake District which has a high Viking stock or in major cities such as Leicester, Birmingham or London which have a strong immigrant presence. Exploratory work is being undertaken to establish how the units can be converged with other exhibitions taking place in the areas. There are museums of this nature in other countries but this one will be the first in the UK. It has solid financial backing and a good team of staff and trustees. Perhaps in time the notorious “Go Home” Van will be housed under the Silly Ideas section.

    Bloody Foreigners by Robert Winder

    Much can be done to educate the public about the role of immigration. It should become part of the curriculum. An interesting book called “Bloody Foreigners: the story of immigration to Britain “is a fascinating book taking the reader through the various periods in history from the Lascars, Chinese and Gypsies. There were apparently nearly 20000 negro servants in London alone in 1700s. At around this time rich visitors, particularly from India, began to influence British ideas and as far back as 1773 the first British curry appeared on the menu. An Indian, SK Mohammed, established the first vapour bath in Brighton and introduced the word shampoo. In 1892 the first British MP of Indian origin was elected. The more recent waves of immigration have provoked outcries and it began with the influx of Irish refugees escaping the potato famine. This later concentrated on the Jews and the other communities. The book is interesting because it acknowledges that initially there was hostility but that the public come to terms with the change. He traces a fascinating story of immigration through the ages and it a compelling factual narrative of how societies absorb and develop.


    August 12, 2013

    Ripped off: colleges and their practices

    There was a time when private colleges homed in on foreign students as their target market which was less about education and more about charging huge fees and providing poor quality of education, if at all. The quid-pro-quo for the student was that this enabled them to work, some for the permitted 20 hours, others for more. Many of the qualifications were not accepted for degree courses. All this was wrong.

    Fast forward to the present: Students are allowed 20 hours in some cases, 10 hours in others and are completely prohibited work for some courses. Colleges are highly trusted (this word is banded around a lot) and does this therefore mean that they can be trusted to deliver? Wrong.

    The introduction of ever-higher fees for home students have scared off the local populace, resulting in a reduction in numbers and making the overseas market more attractive. There have been instances, too numerous to put down to oversight or one-offs, where students have applied for and have been told verbally that everything would be fine. When things go wrong, deposits are retained, often running into hundreds and thousands. Colleges get the money and don't have a student to teach. Profits all round.

    In a particular case that I have come across, the applicant applied for one course at a known university, was accepted for another course without his knowledge and when he realised some weeks later, the college have attempted to hold on to his deposit. The student is in India and fighting the case could cost him more than the deposit so it is in his interests to stop fighting. The college is "highly trusted", in this case to relieve him of his funds. The pendulum has turned. The private colleges have all but disappeared but fear not, the recognised colleges are taking their place.

    When complaints are made to the UKBA (or whatever their new name is) they state that it is nothing to do with them. Ah but it is. They have created these super statuses and given untrammelled power to these colleges and when things go wrong they must take the responsibility when students are ripped off. At the very least should be a complaints system to ensure that colleges do not become too complacent believing that they can get away with students hard earned funds dishonestly. The UKBA are quick to name and shame restaurants with all the media hullabaloo. It's time to use this to shame bad practices by colleges.


    August 05, 2013

    Racial Profiling – is it any wonder?

    The furore about immigration officers stopping and searching ethnic minorities is nothing new – after all the mood music in the last couple of years has been overwhelmingly about migrants and most of it negative. The strategy has more recently been rolled out by the Pied Piper van that calls out to illegal migrant to give themselves up.

    With the change in law extending the powers of officers to carry out internal immigration control, so comes responsibility. An undertaking has been given to Parliament that enforcement visits will be based on intelligence rather than on fishing expeditions. The test for carrying out a street operation is that there must be a reasonable suspicion that there will be immigration offenders in the area. This, in practice, means going to areas like Wembley or Southall where there will be rich pickings. Officers are bound to find someone who is illegal and this they will argue justifies the visit. And the racial profile of the people they are likely to find? You get the picture. Be in no doubt that this is racial profiling at its best and more than that, it is legal. Take the van asking illegal workers to go home. It scoured Brent and Southall. Was it seen in Mayfair or in Maida Vale? This intrusion is set to increase with the introduction of laws requiring landlord to check immigration status. Already the Government has announced that certain areas will be targeted. Guess where they will target?

    The courts have stated that the questioning of individuals on the street must involve some information to justify this process. The questioning must be consensual. Individuals cannot be compelled to answer questions and if a person exercises their right not to answer questions and leave, there is no power to arrest a person purely on suspicion of committing an immigration offence. The Equality Act 2010 makes it unlawful to carry out their duties in a way that treats some people less favourably than others. There is an exception to this when undertaking immigration functions if authorised by ministers. In other words: legalised racism. Colour can never be the reason for stopping a person. If they are targeting people of a certain racial profile they should be able to justify reasons why they have done so.

    In joint operations with the police, the police can only refer a person to an immigration officer if they have reasonable suspicion and again the questioning must be consensual.

    Reasonable suspicion can arise in numerous ways.


    July 29, 2013

    Smoke and Mirrors

    Now that the cat is out of the bag that the figures on migration numbers are at best guestimates and at worse a gross miscalculation, it may be good moment to reflect on the politics of numbers and the Coalition government’s efforts to reduce numbers. Of course it is common knowledge that passengers leaving the country are still not subject to passport checks. And the reason is simply because of the cost of introducing these measures.

    As for the bus – that travels around the country telling people to leave the country – who invented this idea? It would be interesting to see how much it will cost the taxpayer: the cost of the van, the driver, the petrol. What do the Government think will happen? Lo and behold the illegal workers from all over the land will follow the bus like a pied piper straight into the arms of the waiting Immigration Service? Get real fellas, it ain’t gonna happen. Nor is it really intended to. Who is responsible for this idea, Mr Barmy?

    Last week my article focused on the new spouse rules, which the High Court ruled breached the human rights of British citizens. The Home Office have lodged an appeal to the Court of Appeal and in the meantime are holding all cases in the system pending a decision. As the higher courts are in recess, this means that realistically this case cannot be heard before October. It means that the backlogs are set to rise.

    A recent case examining the issue of raids has emphasised the importance of those executing a warrant to stick to the terms of the warrant. They have made it clear that the warrant is not a green light to undertake all kinds of searches. The Court made it clear that the Police and Criminal Evidence Act (PACE) rules apply to these cases and also warned that where there is no warrant the senior officer authorising a visit must have reasonable suspicion that there are grounds for the warrant.


    July 22, 2013

    Setting the bar for domestic workers

    The Government have expressed their view that there must be a drop in numbers but more importantly that the people who enter are the “right” type ie with lots and lots of cash or highly skilled. Investors are particularly welcome. However even with this latter group, what is encouraged is the right type of investor. Let’s just say that certain nationalities are less welcome than others.

    Those with money usually want to bring their retinue of staff with them, cooks, butlers, nannies who understand their needs and can cook the food that they want to eat. This might seem to be a trivial need for any civil servant processing an application but to the investor, without their trusted staff they do not function well.

    Domestic servants (although the word worker is used the restrictions of the rules are closer to servitude) and their rights have veered from granting them rights to change employer to a complete restriction, as now, of remaining with the same employer (whether they are abused or not). The rules have shifted to enabling staff to come in for a maximum of 6 months only and must return before expiry or earlier if the employer returns abroad before this. The rules are framed in a clumsy manner leading unsurprisingly to a complete misunderstanding of what is allowed or not allowed.

    The rules start with age discrimination. Those over 65 are barred despite the fact that we have legislation outlawing this in the UK. It is the case on one law for overseas nationals and another one for local nationals. The employee must have been employed under the same roof as the employer or in a household that the employer uses for himself on a regular basis. Employers who have homes in different countries would give a sigh of relief as they can continue to bring their staff over. Not so however because the next series of rules then seeks to claw back this requirement. The usual place of residence of the employer must be outside the UK and the employer must not intend to remain in the UK beyond 6 months. It is an innocuous phrase that occurs in a rule that is related to the intention of the employee.

    What many employers have not yet realised is that the domestic worker regulations have changed the rules with the result that unless you live overseas and have a summer home here you will not be able to bring domestic workers. Those from the Middle East will still be allowed to bring their staff with them but for the Indians who live mainly in the UK, you are in the throes of not having domestic workers in your homes. The sooner you get used to this the better. Your money, your investment is welcome but you cannot exercise choice about bringing staff from abroad. The clumsiness of the drafting of the rules has a purpose, the bring about change without appearing to have done so.


    July 15, 2013

    Setting the Income Threshold too High Breaches Article 8

    A recent High Court case has found that the new income threshold of £18,600 set by the Home Office to be an unjustified and disproportionate interference with a genuine spouse relationship under Article 8 of the European Convention on Human Rights. There was significant evidence collated to indicate that the variations in salary in different areas meant that in some areas a person would not be able to reach the minimum salary. The Judge compared this case to a case which declared the age requirement to be unlawful. In that case he noted that at least a person could hope to qualify if they waited to turn 21. In this case there was little prospect of the applicant earning the required amount thus preventing them from being joined with their spouse. He found that this was particularly difficult to understand this where it concerned British citizens who have a right to live in the UK. He compared EU citizens who can come and live in the UK without any restrictions whilst British citizens were excluded from their spouses joining them. The point on British citizenship has been made before in a case involving children and this case asserts the importance of this right to adults as well. The points that were made in brief were:

    • That the Home Office had rejected the lowest amount set by the Migration Advisory Committee, a figure of £13,400 which is the equivalent of a 40 hour week on the minimum salary. Of 422 occupations listed in the 2011 UK Earnings Index only 301 were above the minimum income threshold of £18,600. As the judge pointed out, the executive can hardly say that the minimum wage is an inadequate sum to provide a basic standard of living. To deny entry of spouses, it was stated, was to deny many young people and low wage earners in full time employment the ability to be joined by their spouses unless “they happen to have wealthy relatives or have won the lottery.” The Court suggests that the Government consider lowering the threshold to £13,500 or thereabouts.
    • The requirement of £16,000 before savings can be taken into account is too onerous a requirement and that a more reasonable approach is to consider all savings available.
    • Disregarding credible and reliable evidence of third party support. Cases had already established over several years that third party support could be taken into account.
    • Disregarding the spouses own earning capacity. The Court suggested that the Home Office could take account of the earning capacity of the spouse and/or the undertakings of third parties.

    The Home Office response is to “pause” decision making on “some” spouse/partner applications whilst they consider the implications of the judgment. They have been granted permission to appeal to the Court of Appeal. For now, what it will mean is that a number of applications will be delayed for months whilst the case is brought before the Court of Appeal. Watch this space for further developments.


    July 08, 2013

    Packing People Off

    Last week‘s article discussed the futility of the bond scheme. Following protests by heads of Governments, the plan might be shelved (again), another mother of U-turns.

    Abu Qatada has finally been packed off to Jordan to await his fate after years of wrangling and at a cost of an estimated £1.6 million of taxpayers’ money. The Home Secretary has stated that the new Immigration Bill will make changes to prevent this happening in the future to this case and others which involve criminals being allowed to stay on the basis of their family life. This aim although, many would agree with it, will be difficult to implement. The issue of family life is contained in the European Convention on Human Rights and although there continue to be discussions about curtailing or restricting this right, in reality it cannot be done without wide ranging measures. It is true that sometimes “the law is an ass.” Practitioners will all have stories of cases where the law provided unintended consequences.

    A former News Director of the BBC has recently admitted that the news coverage of the BBC on immigration has a “deep liberal bias”. In particular she noted that the views of Migration Watch had been ignored. Now here’s the thing. This body are a right wing body that consistently misrepresent or, more accurately, twist the facts to suit their argument. Taking their views into account is like asking them to take account of the views of the BNP. Anyway isn’t she the woman who was shown the door after the debacle following Saville? Does she have an axe to grind or a different agenda? The view that everyone is scared of discussing immigration is complete nonsense. On any day, newspapers have several articles on immigration, most of them negative, and this led Lord Leveson to criticise the press for the negative coverage. If anything, there are so many biased articles on this issue that it is hardly surprising that some of these stories stick. The interesting statistic of views of immigration was that those in the North where immigration numbers were low expressed greater concerns about immigration than those in London where immigration is high.

    David Cameron is interested in charging foreign student to attend state schools because of his concern that there has been a drop in numbers of students. It is easy to see how this would play out. Schools, desperate for funding will shaft the local students in favour of foreign students. The simpler answer to the problem would be to remove students from the definition of migrants. Had they done so early on when they were being urged to do so by several bodies it may have reveres matters somewhat. To do so now would probably mean a loss of face.


    July 01, 2013

    Is Immigration Good or Bad?

    Last week‘s article discussed the futility of the bond scheme. Following protests by heads of Governments, the plan might be shelved (again), another mother of U-turns.

    This week the Prime Minister was in Pakistan, drumming up business for the UK. What may have been more useful would have been the slackening of the relentless refusals that Pakistani nationals face when making applications of any kind of visa. Now that many decisions are not appealable, it makes the situation worse and it festers as a problem because there is no outlet. Even Entrepreneurs, with cash to spend, are treated like criminals. Real progress means treating people you want to do business with, with respect. Today the Prime Minister was in Kazakhstan, making the case for businesses again, ignoring the human rights abuses that are commonplace there. This is not surprising, especially as human rights does not have much truck in the UK.

    There was an interesting article this week about why those in the North are voting for the English Defence League and concluded, by the use of several thousand words, that it was poverty that was driving them against immigrants and towards these parties. An article by a Conservative MP Nadeem Zadhawi argued that there was a need to consider an amnesty as a way of engaging the party with the ethnic minorities. He argued, without much success, that students should be removed from being counted in as immigrants. Another Conservative MP has now also joined the debate, citing the report of the Organisation for the Economic Co-operation and Development (OECD) that immigration adds to economic growth as migrants pay more tax than they consume in public services. The voices in favour of relaxing the immigration stranglehold is growing, not one hastens to add, because of their altruistic concerns but because this could affect the outcome of the next election

    At least there is some consolation that a sensible decision has been made recently to keep out the two poisonous anti-Islam US bloggers who were planning to come to the UK to stoke up resentments here.

    Immigration is a subject that is debated on a daily basis, the benefits, the disadvantages, the rights and the wrongs. Parties on all sides will need to reach out to immigrant communities as they tend to exercise their vote much more so than the local population. To do so they will need to lay the groundwork, and that needs to begin now.


    June 24, 2013

    Families and Visitors

    Several months after the new rules on family migration have come in, MPs have finally had a debate on the impact of the changes.

    The Minister has explained that the family rules were brought in not only to reduce numbers but for 3 other reasons: prevention of abuse, to aid integration and to reduce the burden on taxpayers. When challenged to provide statistics on those who have claimed benefit or been a burden on taxpayers, the Minister indicated that he did not have these statistics. There was a suggestion that many marriages were not genuine, hence the need for the changes. So does increasing the income threshold make marriages genuine by the wave of a magic wand? Many MPs echoed concerns that the rules were rigid, inflexible and plainly wrong. There are regional variations and the impact of the rules is to deprive British Citizens, adults, elderly dependants and children from qualifying. The point that was made was that the best interest of children, which is a legal requirement, is not being observed. This matter will finally be resolved by the courts soon as no parliamentary process has the necessary motivation to bring about change.

    Two important points were made. The first was that there is an inadequate parliamentary process in relation to immigration and this means that it does not get the scrutiny it requires. The second is that the opposition were silent on what they would do about changing the policy. This means more of the same whichever party comes in.

    The system is such that EU nationals can bring in their spouses without the need to prove any particular level of income but British citizens are penalised in their own country. Is this fair?

    And so to the latest proposed change of the introduction of a bond system for visitors of £3000 where they are a borderline case. It is an old recycled policy that was considered some years ago and rejected as unworkable. This is to prevent abuse (a word used to describe any change), and to prevent applicants overstaying or working. It is system that is operated in Australia successfully. The first thing to note is that Australia has a system to check the entry and departure of every person that enters their borders. There is no such system here. Passports are still, several years later, not checked and recorded when leaving the country despite the fact that much is made of the issue of illegal immigration (and abuse). Secondly, there is no system to check whether a person who has entered works or not so how will this be policed? And what will the cost be for administering the system? Isn’t it far better to concentrate on spending the money on effective checks for all those leaving the UK?


    June 14, 2013

    Winds of change

    There is a wind of change at the Home Office (in line with the name change). Recently there was a webcam session which participants could access and, although it was on the whole a positive step in the right direction, the only 2 bits of useful information that came out of it was that a same day service for visitors is being trialled in Delhi and Mumbai and that there will be improvements to tracking an application online so that it is tailored towards the individual. Still it is good to know that attempts are being made to engineer changes. Other changes in brief include:

    • Applications do not have to be 6 months old before they can be chased up (although if enquiries are made stock phrases are used such as “there is no information available at this time”).
    • The long awaited review of the return of documents for travel is finally on the cards (although it is likely to apply to senior executives in Tier 2 and no one else).
    • There is to be a review of Tier 2 and the focus will be on “how to drive growth”. Forms are available for the review.
    • The bond system for visitors is to be piloted in India later in the year.

    The changes taking place on the 1st July 2013 are:

    • There will no longer be a resident labour market test for Tier 5 extensions for religious workers.
    • More legal courses will be exempt from the time limit of 5 years for Tier 4 students.
    • There is a change to the documents required for English language tests.

    In the meantime, a recent all-party group of MPs have reviewed the impact of the new rules for spouses by receiving evidence from a number of sources. They have expressed concerns in a number of areas.

    In relation to the income requirements, whilst the impact has affected a substantial number of people, it appears that there are regional variations with those outside London particularly affected as salaries in general are lower

    There are particular concerns about British citizens (adults and children) being unable to return to the UK because the rules are framed to only permit the income of the UK sponsor. Many spouses, particularly women, are not the main earners. There are also concerns that those who have substantial assets (but not in cash funds) cannot qualify either.

    As the report points out there are a number of “perverse outcomes”. It also considered the fact that the dependant relative route has the practical effect of preventing the entry of all elderly relatives other than those “vegetating.” Evidence submitted by the British Medical Association indicates that many doctors have returned overseas in order to care for elderly relatives. Change in this area is critical and if the trend continues it is likely that the Courts will step in to interpret the provisions by applying human rights law to redress the balance.


    June 10, 2013

    The positive approach

    It was interesting to see that a theatre Hungarian group, Attraction, won the Britain’s Got Talent contest. This was by the votes of the public and by a wide mile was the best act, richly deserved. It was interesting because the public were not put off by the fact that it was a non-British group. The talent of this group will no doubt become world famous and Britain will bask in the glory of having made this choice. It strengthens my view that the British people’s concerns about immigration are taken out of context and exploited for political reasons by all parties who repeat this mantra so often that it has become a fact. This week has also seen the result of a survey of the 20-somethings which indicate that they are very relaxed about immigration and about change in general. A YouGov survey also showed that when the benefits of immigration are explained to the public their opposition to it sharply drops. The direction and tone of the debate will need to change if there is to be any progress and woe betides any party that ignores the importance of this issue to settled migrants. New migrants are much more likely to vote than the population as a whole.

    This of course does not mean that there should not be reforms. EU citizens are not subject to any checks whatsoever and this can be a problem for those who have criminal and driving offences abroad and who live and work and drive in the country without the ability of the police to check their criminal record easily. The records of non-EU nationals are checked prior to entry and the records of British citizens are easily available.

    Now we learn that the police are using the immigration system to throw out those who are accused of serious crimes but not tried or in some cases not convicted. Those who practice immigration will know that this has been the case for minor offences for some years. Now the move is to apply this to more serious offences. Whilst it is undoubtedly fair for criminals to be removed from the UK where they commit crimes, there must adequate safeguards in place.


    June 03, 2013

    All about immigration

    The media is awash with stories or views about immigration. Is it a good or bad thing, is it positive or negative, is it desirable or not. Everyone has a view on it. At high levels there is disquiet and more politicians at senior levels on the Government’s side are now speaking out. Vince Cable, the Business Secretary rightly described it as public panic which is causing real harm to the entry of students. Gus O Donnell, the former Cabinet Secretary to David Cameron warned that it is shooting itself in the foot by imposing an immigration cap.

    There is also a great deal of disarray in imposing new tough laws without thinking them through. Take the announcement that regulations were to be brought in to require landlords to check the immigration status of their tenants. This having been announced a bold measure swiftly changed tack by another announcement that these checks would only be necessary in “problem” areas. However what problem area means was not clear. Is it going to be based on the level of ethnic minorities in an area, say conducted in Southall? Will it be confined to the poorer areas. Will it combine these issues and if so will it be lawful. Are the Government aware that the law does not permit discrimination, direct or indirect. Worse do they care? Are we returning to the dark ages?

    Now a new initiative is being proposed by the Conservative think (or more accurately thinkless) tanks. They would like to propose that residency be available for the comely price of £30000. In other words, you can buy your residency. It is easy to imagine the billboards all over inviting applicants to buy their residency to the UK. Are these people serious or simply bonkers.

    The Government have consistently ignored the cacophony of voices in favour of removing students from the overall calculation of migrants. They have kept on piling regulation upon regulation to stop the entry of students, workers and more recently spouses. The human rights regulations are suffering defeat after defeat in the courts, as was expected. When there are discussions about human rights, the worst case examples are put forward. Foreign criminals who are allowed to stay are highlighted as a reason for rejecting human rights law although they form a small number of claims.

    Non EU nationals are not allowed to claim any kind of benefit even though migrant workers pay their taxes. Nor do they want to. EU citizens are already limited in what they can claim.

    Politicians of all parties veer towards the immigration argument as they can all agree that that is a problem that needs to be solved. They do so on the basis that the public want this. So whilst the public are being fed these scraps, what is really happening is that public services are being decimated (with huge job losses) or privatised under our very noses. By the time they wise up to the smoke and mirrors it will be too late.


    May 20, 2013

    Discrimination: by another name?

    Immigration to the UK is as old as the hills, literally. It is a fascinating story of migration. From times when the Druids practiced human sacrifices, there have been an influx of Romans, Scandinavians, Jews, Caribbeans, Asians, more recently, Poles and now the prospect of Romanians and to a smaller extend Bulgarians.

    Each community has made its presence felt by the introduction of new cuisine, habits and cultures, and each community has been absorbed. How successful this is very much depends on the policies that are implemented. Those who are white will only be distinguishable by their names. The non-white, on the other hand, will continue to stand out.

    David Cameron, in one of his speeches talked about the need to retain “our way of life” and elsewhere people talk about a “tolerant” nation. The pressure group, Migration Watch, led by Andrew Green, in the meantime continues to stoke up fears about Britain becoming non-white. He still hankers after the imperial past that long ago faded away. The Conservative Party has made immigration the number 1 enemy, over and above the economy. The fact of the matter is that employers feel cheated at having to pay labour costs for staff that do not work hard or regularly and who lack skills. If immigration is restricted the work and jobs will simply move abroad where conditions are more favourable. Where employers cannot do so, by increasing fines, heaping more regulations on employers, landlords and doctors, the effect will be increased discrimination against anyone of colour or with a different sounding surname.

    In fact all you need to do these days is to pick up a paper. The Metropolitan Police only recently lost a Tribunal case where serious claims of racism were made and which they spent enormous sums of public funds defending. In the meantime G4S, that bastion of a company that let the country down during the Olympics, employed 2 officers who were discovered exchanging racist jokes on mobiles, to arrange to escort a deportee, who died during the process. It would not be surprising if these incidents will continue to rise as migrants are seen as a problem and the Government appears to legitimise these concerns.

    The rule of law is a wonderful thing. Judges, when faced with difficult questions, for example the deportation of Abu Qatada, apply the law, regardless of the consequences and in the knowledge of the criticism that a decision will inevitably generate. It takes a brave man and system to fight for what is right. The public are ignored when issues regarding the economy, education and public services are raised but their views appear important when it comes to immigration. The policies of the Druids and human sacrifices are returning, in a different form this time.


    May 13, 2013

    Shifting sands: the new Immigration Bill

    A new legal year and a new Immigration Bill which aims to get tough on immigration. There are 3 areas it aims to target:

    Landlords will be required to check the immigration status of tenants or face heavy fines. The Government assumes that all landlords are honest and law abiding. This requirement will involve the landlord being privy to sensitive documents (i.e. passports) which could be manna from heaven for the rogue landlords who can them use blackmail to extort money or worse. It will also substantially increase the availability of substandard accommodation for those who cannot rent easily. The problems will not, as is mistakenly assumed to be confined to the illegal community. Take the example of a family, legally here, who have sent their passports for an extension of their visa, and who therefore cannot prove their status, or those whose visas are about to run out. Landlords will take the easy option by not employing anyone with any perceived problem, with foreign sounding names and for those who are closet racists, they can discriminate with impunity - which suggests that the new changes also appear to be giving a green light to discrimination. All those years for campaigning for equality will come to nothing in practice.

    GPs will also be required to conduct these checks and have indicated that they are opposed to doing so. Many GP practices already operate this policy although, so far, they have the discretion to decide. Treatment in hospital already requires proof of immigration status although emergency treatment is still free. Introducing compulsory checks is against the Hippocratic Oath that doctors are required to take. Their role is to treat patients and thankfully, unlike the US and many other countries, we have a humane system in the UK. To turn doctors into immigration officers changes their role significantly. Furthermore, where patients cannot be treated at an earlier stage, they can end up with serious problems and will end up in emergency where the costs will be substantially more. Those who have contagious diseases can end up passing diseases to unknowing members of the public.

    The other proposal is an increase in fines. The maximum is currently £10,000 and there are indications that this will be doubled. Employers, particularly within the restaurant industry, have seen the decimation of their ability to bring in skilled staff and are struggling to retain staff because of the unsocial hours of work. Employers who employ students because of the absence of others are then harassed when it turns out that the student is working when they should be studying. Employers are supposed to do the job that the UKBA often fail to do. And if they do not do it well enough, ever increasing fines loom before them.

    In all these areas it is clear the task of immigration control is being shifted to the professionals, who have their work to do, leaving the UKBA to do what exactly? The proposed legislation can be summed up quite easily, a passport to discrimination and the shifting of the burden and blame to others.


    May 06, 2013

    Settlement: The New Changes

    The 6th April changes have introduced new guidance for calculating absences for those seeking settlement. There has there has been some confusion about this and so it is worth examining them.

    First of all, the changes cover specific categories. It includes Tier 1 (Exceptional) and includes Tier 1 (General) which is now closed. It does not include Tier 1 (Entrepreneur) or (Investor) although it does cover the pre-points based categories of investor and businessperson; and Tier 2 including the older categories of work permit holders. It does not cover family members who are covered under their own set of rules. It is also important to remember that the rules on nationality remain the same, permitted absences of 450 days.

    The first important change is that the applicant must give reasons for all absences and attach supporting evidence for this. The absences must be consistent with the purpose of the category. So, for example, a Tier 2 applicant is in the UK as an employee and can be absent for the purposes of work or on annual paid leave. Where an employee changes jobs, he/she is permitted to count a short holiday before starting the new position providing that it is within 60 days of concluding the previous employment. Absences outside the UK to take up other employment will not be counted as a permissible absence. However, absences are permitted for serious or compassionate reasons. These terms are not defined but examples are given of serious illness of close family members or natural disasters. The employee will be required provide supporting evidence of all absences.

    The second change is that it is possible to be absent for 180 days in each consecutive 12 month period. However if more than 180 days is spent outside the UK, even by 1 day, continuity of residence is considered to be broken. There appears to be no discretion once 180 days is exceeded.

    Those in Tier 1 Entrepreneur, Investor and Exceptional Talent and certain HSMP categories do not need to give reasons for their absences.

    In March 2013, the new Life in the UK test was introduced. From October 2013, there will be 2 English tests, the new Life in the UK test and another test for speaking and listening. Those who have already passed the old Life in the UK test can use this test but will need to take the additional test.


    April 29, 2013

    Erosion of Democratic Rights

    In many ways we take democracy for granted; believing that we have rights, that the courts will protect us when things go wrong and that somehow the truth will shine through. The reality is slightly different. This week the Home Office have finally confirmed that the right of appeal for family visitors is to go soon, now that the law has finally been passed. We have, of course, known this was going to happen but when it does, it will be particularly hard for families to reconcile themselves with the fact that if loved ones are refused entry this will mean no possibility of ensuring that Mum and Dad can attend your wedding or the birth of your child. When reality kicks in only then will the pain of the new rules hit home.

    Over the last few years there have been a number of subtle and not so subtle changes, all of them eroding an entitlement to bring your grievance before a truly independent body – the courts. The Points Based System introduced a system which did not allow for a right of appeal and as a result cases that might have succeeded had they had a right of appeal have quietly disappeared. Don’t forget the success rate of appeals is around 40%, which would indicate to anyone that there is a problem with the system. The hand having writ moves on.

    There is of course, theoretically at least, the possibility of bringing proceedings before the High Court but they are expensive and challenges have to be based on the basis that the decision is unreasonable or irrational – a test that is not easy to prove. Those with deep pockets are the only ones who can afford to take cases. The High Court, in the meantime, is also in the process of being reformed with the intention of making it more expensive, allow less time for an application to be brought and much difficult to access. Legal aid for immigration has disappeared except in a few areas, and other means of access such as and law centres are disappearing altogether from the landscape or no longer offering immigration advice.

    Access to justice is a central plank in the building blocks of democracy. However in immigration this is a pipe dream. As rights are slowly dismantled brick by brick, access to justice is only a word.


    April 22, 2013

    Taking racism out of immigration

    The Minister for Communities, Warsi, has defended David Cameron for his stand, she claims, in taking racism out of the Government’s immigration policy.

    Elsewhere, a Romanian paper, incensed by derogatory remarks expressed by Britain regarding the entry of Romanians and proposals to launch adverts discouraging it citizens from entering the UK, has issued its own adverts inviting the British to visit Romania instead. It leads with the claim that “half of our women look like Kate. The other half look like her sister” and has encouraged the public to place their own adverts.

    In the meantime in Warwickshire, an owner of a farm put up signs which state “No East Europeans” which is reminiscent of the 70s when these adverts were commonplace but usually related to the Irish or “Blacks”. In fact, in conversation the East Europeans are lumped together as if they are one nation and blatantly ignores the individuality of the nations that make it East Europe. Is this anything but racism? In Chichester, a Tory councillor has made derogatory racist comments about immigrant children. To adopt the words of a song “When will they ever learn?”.

    Diane Abbott has warned Ed Milliband not to indulge in “dog whistle” politics as a means of curbing the rise of UKIP who routinely stoke fears of the rise in numbers of immigrants and the effect on this on “our way of life” - as if a way of life remains static for all time. All parties have made major speeches about the need to listen to the population and profuse apologies for not “listening to people”. Which people? The ones who vote for UKIP?

    What none of them have done is to speak up on the benefits of immigration. We only have to look around for stars in our midst: Mo Farah, Lewis Hamilton and Amir Khan are all from immigrant backgrounds. Countless Asian and black names appear in all walks of life, who are here as a result of immigration, many of whom were derided when they arrived. Today’s porters, factory workers and cleaners will either themselves or through their children be tomorrow’s doctors, physicists and engineers. None of these positive factors are put forward. Instead the immigrant is supposed to be grateful for being here. And for those who are already here and doing well, shame on you for going along with the crowd and agree that immigration should be stopped simply because you think that it is the ‘cricket test’ which assimilates you, that you are OK, and that that the ladder should be pulled up for others.

    The politicians have a duty to act responsibly when they discuss immigration. They have been elected to lead and this is what they must do. Making positive comments about the benefits immigration brings (and there are countless examples of this every day) is a start. UKIP must be laughing that they are leading the agenda and that the parties are nodding their heads like the toy dogs at the back of cars. Race and immigration are conjoined twins. It is not easy to separate one from the other. There is however a need to shift the debate to where it belongs: that the country should not fear immigrants. They are the product of globalisation and need to be absorbed, as they will be, successfully, if there is leadership in the debate.


    April 15, 2013

    The Epitaph of Margaret Thatcher on immigration?

    In the last few days Bob Carr, the Australian Foreign Minister, has told the BBC of his shock by “unabashed racist comments” by Mrs Thatcher on Asian immigration. He reports that she said "if we allowed too much of it we'd see the natives of the land, the European settlers, overtaken by migrants."

    When Margaret Thatcher came into power in 1979, the country was gripped by high unemployment, and the famous “winter of discontent” epitomised by strikes, a 3 day week, mass picketing and visions of garbage piled high on streets, sick people turned away from hospital and the dead not buried. There was also a significant rise in racism and the rise of the National Front and numerous clashes with them. Those of us who had newly arrived in the UK will remember the no go areas that existed in pubs and clubs and will have personally experienced taunts, racist insults and in some cases violence.

    Mrs Thatcher, a rising star, but still not high in opinion polls, made the now famous World in Action Interview in 1978 in which she expressed concern that immigration was excessively high and that there were concerns by the British people that this country might be swamped by people from the new Commonwealth countries who had a different culture. She wanted an end to immigration. These right wing views increased her popularity.

    Files released to the National Archives under the 30 year rule show that she privately complained that too many Asians were being allowed into Britain. When her Home Secretary and Foreign Secretary, Willie Whitelaw and Lord Carrington, recommended that the UK take in around 10,000 Vietnamese “boat people” fleeing persecution from the communist regime in Vietnam she initially refused to do so and when pressed told those who insisted that Britain had an obligation to do so to house them in their own homes. During the same period she was much more amenable to allowing the entry of white Rhodesians and also Poles and Hungarians who she felt they could be more easily assimilated into British society.

    The policies introduced during her time in office included the infamous Primary Purpose Rule which required foreign nationals married to British citizens to prove that the primary purpose of their marriage was not to obtain British residency – designed to exclude Asians. It involved proving a negative and resulted in scandalous incidents such as virginity tests being carried out at airports. This insidious rule remained in place until its abolition when Labour came into power. The other plank was the British Nationality Act 1981 which effectively created classes of citizenship and Asians became second and third class citizens overnight. First class citizenship was however maintained for the white nationals abroad.

    Some would argue that Thatcher was simply doing what the electorate wanted. Others would argue that she wanted to dismantle the National Front by her own right wing policies. Still others would state that she held personal views which she exercised in her policies. Whatever the reason, and it may be a combination of all three, it separated families and created an underclass of citizenship which still exists to today.


    April 10, 2013

    Visitors and “minor” changes

    The new rules which take effect on the 6th April will affect visitors and the changes are proposed described as merely “clarificatory” is much more than that. The changes appear innocuous, merely “[the applicant] does not intend to live for extended periods in the United Kingdom through frequent or successive visits;”. The reality is that the changes will give greater authority to officers to refuse applicants who spend a lot of time in the UK. In a recent case the judges clarified the principles that should apply. In this particular case an elderly mother spent large amounts of time and the judge in the initial appeal decided that because of this she was not an ordinary visitor.

    The Judges in the higher court disagreed and stated that once he accepted that the Appellant was a visitor the case should have succeeded. The sole issue before the Judge was whether the appellant intended to visit and leave at the end of the period permitted.

    These following principles were re-iterated:

    • There is no restriction on the number of visits a person may make to the UK, nor any requirement that a specified time must elapse between successive visits.
    • The periods of time spent in the United Kingdom and the country of residence will always be important.
    • The purpose of the visit, what the person has done in the past, intends to do in the future is material as well as the length of time that has elapsed since previous visits. Where a parent is visiting a son or daughter, the parent will often help in the house and provide child care. In the case of an adult child visiting a parent, they will often assist in care arrangements. None of these activities, for that reason alone, will take the individual outside the definition of a genuine visitor.
    • The links that the appellant retains with her country of residence will be a material consideration. The presence of other family members will be a material consideration.
    • The Tribunal is required to ascertain what is the reality of the arrangement entered into between the appellant and the host in the United Kingdom.
    • The issue may be approached by considering whether the reality is that the appellant is now no more than a visitor to her country of residence as the purpose of the return home is confined to using his or her presence there solely as the means of gaining re-admission to the United Kingdom.
    • This does not prevent a person from remaining in the country of residence for the least amount of time.
    • Family emergencies, whilst likely to result in a longer visit, should not be regarded as taking up residence without adequate supporting evidence to that effect. Thus, the pregnancy of a daughter or daughter-in-law or the aftermath of the birth might explain a more-protracted stay (within the 6-month duration of a single permitted visit); so, too, a serious medical condition.
    • There may be comparisons with the person who owns homes in two different countries. Is he resident in both or a visitor to one of them?

    The right of appeal of family visitors will end in 2014 and when it does, these principles so carefully formulated by the judges will die with them.


    March 28, 2013

    Dissecting the Prime Minister’s speech

    When the going gets tough, the tough get going. Yet another week of speeches by the Prime Minister, another by the Deputy Prime Minister, comments by Labour and a zillion articles in the paper by journalists. What is striking is the complete dirth of evidence for the figures quoted or the need for measures to be implemented. In fact on closer examination it is clear that the speeches are big on scaremongering and small on substance and political posturing at its worst.

    Rogue landlords:

    One of the most worrying elements of the PM’s recent speech on immigration is the plan to introduce a requirement for letting agents and landlords to check the immigration status of the tenant and face fines if they are found to rent out properties to illegal immigrants. Those of us who arrived in the UK in the early 70s may remember signs on doors of landlords inviting applications by “Whites only”. The introduction of this rule brings back the same principle but dressed in more modern language. It is easy to imagine racist landlords using this excuse to prevent renting to anyone that does not fit a picture. OrweIlian or what?

    Stopping health tourism

    There are plans to introduce stricter rules for charging for health services or requiring private health insurance. Figures bandied about that the unclaimed cost of health tourism has ranged from £20 million to £200 million. Where did these figures come from? It appears from a report in 2003. The actual document no longer appears to exist! Apparently the health department spokesman described the figures given by the Health Secretary as a “stab in the dark”.

    The benefits argument

    It was announced that benefits will be restricted. Presumably the only category being discussed here are EU nationals as non EU nationals do not qualify for benefits until they become permanently resident in the UK. The rules on these benefits already catch those who have not found work after 6 months. So if the law already exists for these limits to be in place, why are we discussing this? Ian Duncan Smith, the Welfare and Pensions Secretary statistics show that recent migrants are fr less likely to claim benefits, 6% compared with 16.6% of the local population.

    As one of the journalist recently stated the leaders can do one of two things, bravely lead or feebly follow. It is clear that UKIP is the leader, the piped piper and everyone else follows. The river awaits.


    March 22, 2013

    Visitors and family members

    Have you noticed that whenever the immigration rules are changed they are usually “to avoid abuse” of the system?

    Now there is no doubt that in some cases there is justification for this. However, the latest amendments which come into force on the 6th April relate to visitors. The Rules are being tightened by the introduction of a paragraph which allows an Officer to refuse an application if he/she is satisfied that a person intends to live in the UK for extended periods through “frequent and successive visits”. These rule changes come in not long after the Rules on dependant parents in effect stopped them from qualifying to enter for settlement. Not satisfied with banning them from permanent stay it appears that the intention is to stop them from entering and spending periods with their families even on a short term basis. The question that I have is what evidence is there of abuse of the visitor rules and why it is felt necessary to tighten the rules in this way. It is simply not good enough to say that there is abuse. This word is bandied about and used to justify changes and often goes unchallenged. The next time you want to bring a family member be aware that there is trouble ahead.

    Human rights and criminals

    Dominic Raab MP has tabled an amendment to the Crime and Courts Bill which will have the effect of preventing criminals from using Article 8 of the Human Rights Convention to prevent their deportation. This issue has been used to justify a need to downgrade Article 8. Since attempts to limit their rights through the use of secondary legislation have so far failed, this is a clever ploy to introduce a limitation in primary legislation by amending the UK Borders Act 2007. The Courts would then have to apply it or if they declared it to be incompatible, cannot under the law strike it down but merely make a declaration to this effect. Will it succeed? Unlikely. Our Supreme Court is not the last call. The case would go the court in Strasbourg and is likely to be successful there. Our courts would then have to abide by the decisions of the European Court. Back to square one.


    March 18, 2013

    April 6th changes

    Fee rises

    Like death and taxes, the fees for immigrations cases is set to rise on April the 6th. What is interesting about the fees is that there is a large profit element to it. The increase, surprise, has been linked to a need to “reduce public spending…. and reduce contributions by UK taxpayers… by asking those who use it to make a greater contribution.”( Mark Harper, Immigration Minister) Except that the contribution in some cases is so high that it is fair to say it is helping to keep the economy alive. Take for example the cost of a 2 year visit visa. It costs £136 to administer but he applicant is charged £278. Or the fee for settlement of a dependant costs £407 but the fee charged will be £1906.

    Students

    Tier 4 students who complete PHDs will be allowed to stay in the UK for a year after completing their course. Also there has been an increase in Graduate Entrepreneur visas to 2000 to enable MBA students to enter in this category. They will be able to apply form overseas( providing it is within 12 months of graduation). For other students, those who are in the UK will not be able to study at a lower level than is on the Certificate of Acceptance.

    There will also be changes to the Tier 1 (Exceptional talent) route. The process will be split into 2. Applicants will no longer need to pay the fee until they receive notification that a body is recommending their endorsement.

    New codes of practice

    The new consolidated Codes of Practice come into operation. The layout will be different and should be easier. There will be 2 rates of salary, new entrants and established salaries for those who have been in the UK for over 3 years.

    And finally the Life in the UK test…

    I was skimming through the new life in the UK handbook which forms the basis of the test for those seeking settlement. As a book it is great if you are interested in history but useless in terms of educating a person seeking to live here. Of what use the Stone Age period or the wars during the Middle Ages beats me. Those who commissioned the book seem to have got carried away with the history lesson and have forgotten that the real purpose of the test is to help the individual integrate. Knowing a series of facts is hardly going to do the job. It is essentially a memory test and nothing more.


    March 10, 2013

    The power of myths

    As usual the news stories are dominated by immigration. Stories about the position of Labour which is not very different to the current Government. Suddenly all the politicians are falling over themselves to be first in line to the confessional to apologise for mistakes. Lord Leveson expressed concern about the way in which migrants were dealt with by the press yet the onslaught continues, fuelled no doubt by those anxious to kick the migrant to the ground in the hope of securing an advantage over the local populace and its vote. There are a number of statements made which on examination are very Orwellian in their truth. Take the UKBA – they announced that there was a 3% increase in University applications despite the crackdown imposed by the Government and this was trumpeted as proof that the policies are working. However, it turns out that the real reason is that those who arrived before the changes and have completed their foundation programmes in the UK are entering a University programme, hence the artificial increase. It has also been stated that the NHS is being abused. An organisation called the Doctors of the World (Medecins du Monde) who run a clinic for vulnerable people found that this is not true. Fewer than 2% left their country for personal health reasons and almost half have no understanding of their right to care in the UK. Ian Duncan Smith has implied that the UK is a magnet for benefit scroungers yet the figures show that 7% of working age migrants claim benefits compared to 17% of the local population. The evidence also shows that migrants as a whole put in 30% more in taxes than they take out through welfare or public services.

    Full page articles regularly appear on the subject of people and politicians not talking about immigration whilst they then proceed to talk about it at great length. And the level of prejudice amongst the literati class is astounding. Articles deriding the less skilled are fairly frequent these days. And this is by the same people who have their houses cleaned, who are served coffees, who take taxis so that they can drink themselves silly and who have their children looked after whilst they pontificate about the state of the country. As a recent columnist pointed out, those on benefits or low incomes spend their money in the UK. They cannot set up trusts or other vehicles to avoid paying their share. And in terms of charity they give more in proportion to their income than the rich do.

    Stories about immigrants are usually about the poor ones. The rich can take care of themselves. If worse comes to worse they can move to their own private island, and I suppose they could take all the cleaners, coffee makers and child-minders with them.


    March 04, 2013

    Changes to Codes of Practice for Tier 2 employees

    An announcement has been made of yet more changes that are due to take place to the Codes of Practice following the recommendations by the Migration Advisory Committee in October 2012.

    For the first time there is recognition that employers need a period of stability and accordingly no further changes are anticipated after these in the “near future” (whatever that means). The changes will only affect Tier 2 (General) and Tier 2 (ICT) applicants and will come into effect on the 6th April. Sponsors who have been issued allocations of Restricted Certificates must use them before this date, failing which they will no longer be valid. The new Code of Practice is intended to be simpler to use and easier to navigate and again is a recognition that the current system was much too confusing.

    As is currently the case, a limited list of PHD occupations will have a higher priority under the Tier 2 limit, will have a less rigorous resident labour market test and will be exempt from the £35,000 earnings threshold for settlement (which comes into effect in April 2016).

    The minimum pay threshold will rise from £20,000 to £20,300 and for ICT applicants from £24,000 to £24,300. In practice, of course, the actual rates are generally higher as the Codes set for most jobs are a lot higher than this.

    For the first time, there will be 2 level s of pay; new entrants and rates for the experienced. In all cases those who have been employed for over 3 years and 1 month will fall into the higher rate.

    The resident labour market test is returning to the old system in which adverts will need to be placed in newspapers, professional journals and the Job centre rather than in prescribed media.

    There will be transitional arrangements for those who assign Certificates of Sponsorships before 6th April 2013. For those who assign a CoS before this date, the old Codes of Practice and salary scales will remain in place. An important change is that the new criteria will also apply to those who apply for extensions, or change their employment or if they make applications for settlement. However, those who were exempt from the pay thresholds as a result of applications made pre-April 2011 will still need to be paid the appropriate rates. Those who have already advertised a position will not need to re-advertise but will need to offer the new rate if the CoS is assigned after the 6th April.

    Where the occupation has been re-classified to a lower skill level, extensions will not be affected. However the applicant will not be allowed to change employment to another employer within the same job classification.

    The new earnings threshold for settlement will rise to £35,500 for those who make applications on or after 6th April 2018. Those applying between 6th April 2016 and 5th April 2018 will be subject to a threshold of £35,000. Those applying before 6th April 2016 will remain exempt from a threshold but will need to earn the appropriate rate.


    February 18, 2013

    Shortage and Chefs

    For some time now there has been uncertainty about the future of the hospitality sector as there was a further review, its 6th iteration by the Migration Advisory Committee (MAC), which has now published its report.

    The long awaited report on a review of the shortage professions has been completed. The Government had asked for advice on the introduction of a “sunset clause” i.e. a clause that an occupation would automatically be removed from the shortage list after a period of time (2 years was suggested) in recognition of the fact that labour shortages provide temporary relief. MAC have rejected this and concluded that this would be a disproportionate response, as it will have little or no impact on migration flows.

    Some interesting statistics have emerged. Only 1400 Certificates of Sponsorship are issued for shortage professions representing 0.26% of the total (equivalent to 1 in 400 or 1 in 20,000 UK jobs). Of these figures, only 54 Certificates were issued between September 2011 and September 2012. The largest number of shortages came from within the medical profession. This figure compares with the issue of 7500 Certificates to those who have to undergo the labour test requirements of advertising or a thumping 25000 Certificates issued to multinational companies.

    MAC’s evidence from People 1st, a sector skills council recognised by government, has provided crucial evidence. It indicated that there are 2700 vacancies for chefs, 79% of them are skill shortage positions, with particular difficulties experienced by Asian and Oriental restaurants. In their efforts to upskill staff, People 1st indicated that they had launched, as a pilot, 5 Centres of Excellence to attract unemployed people who would continue to receive benefits. At the end of it, applicants were guaranteed an interview for a paid apprenticeship. However, due to limited interest, the pilot has been extended. The unanimous view of those who gave evidence was that resident worker’s interest in these apprentice schemes was limited. Even if interest could be drummed up, and at present there is a lack of it, it would take at least 2-3 years to enable recruits to gain basic proficiency, and around 7 years to deliver cuisine of the appropriate standard. Trained chefs were acceptable for non-specialised chefs but for ethnic restaurants, it was crucial to be able to employ chefs who are immersed in the culture of their cuisine with a highly developed palate.

    MAC also heard concerns about the other criteria that were excluding chefs from entering, such as the English test or the requirement that an applicant should be in the same role for 5 years before qualifying. Although MAC took the view that these issues were outside their remit, the fact that they included this in the report is telling.

    MAC concludes that chefs should remain on the shortage list, but that minimum salaries should rise to £29,570. The Government now have to consider this report and decide whether to accept the recommendations or not. They have in the past usually done so.


    February 10, 2013

    Human rights: the courts v the UKBA

    Immigration is getting more complicated since the Government introduced its own version of human rights law and where it considered the balance should be struck. As predicted in previous articles that there would be a challenge to the new rules introduced on human rights, the deluge of cases has begun.

    Judges now have to apply a two tier system. They are first required to consider the law as laid down by the UKBA in the Immigration Rules. Then they have to consider and apply the principles on human rights as set out in the cases decided in Strasbourg. Where there is a conflict the Strasbourg law takes precedence.

    The Immigration Rules have laid down that a person must complete 20 years in order to succeed under a private life. However the courts have stated that the law on human right as established in Strasbourg confirms that where a person has lived in the UK since childhood a claim on the basis of a private life must succeed unless there are very serious reasons to justify expulsion.

    In relation to children, it has been clearly ruled that the Rules do not provide a proper consideration of where the best interests of a child lie and in fact there is a conflict with its duty under Article 3 of the Convention on the Rights of a Child (and UK legislation which adopted this). In particular the UKBA had argued that the best interests of a child are adequately taken care of when there is one parent is in the UK to look after the child. The Courts roundly rejected this argument on the basis that it cannot be in the best interests of a child to lose contact with a parent simply because someone else can look after the child.

    These cases are just the beginning of a long line of decisions that are likely to be decided in the courts

    In other good news, a case has decided that where evidence is sent to the UKBA after an application is made (which existed but was not available) before a decision is reached, it can be taken into account in a case on appeal.

    There is some bad news for accountants as a recent case has concluded that ACCA does not have degree awarding powers and accordingly the qualifications it awards are not UK recognised degrees.


    February 04, 2013

    The Criticisms of Marriage Cases by the Independent Monitor

    The Independent Monitor has delivered his latest report. One of his tasks was to examine the efficiency and effectiveness of marriage and civil partnership applications and looked at the consistency in approach. He found that the majority of the decisions that he examined were reasonable but highlighted areas of concern.

    The first was that of the sample of marriage cases he reviewed, that the percentage of successful appeals, 53%, was far too high. He also questioned whether the UKBA have a systematic method of learning from appeal decisions, something that immigration lawyers have been complaining about for years.

    The second was that there was inconsistency in some areas particular in the application of human rights particularly of applications made abroad.

    Thirdly, not enough consideration was given to the impact of decisions on children and in particular of the sample he reviewed the number of cases that had considered the best interests of children was negligible. He expressed concern particularly as the law requires it. We are signatories to a Convention and as a result have introduced domestic legislation but this has made very little difference to the way cases are being considered.

    Fourthly, he found that the UKBA had not reviewed decisions when appeals were lodged because of the lack of resources. Had they done so, it might have avoided the need to go ahead with the appeal (and presumably saved costs to the public purse).

    He found a backlog of 14,000 cases in which applicants had asked for cases to be re-considered and which were gathering dust whilst the UKBA decided what to do with them. He noted that 2100 cases had been waiting for a decision since 2003.

    The UKBA has responded by stating that the new regulations in relation to marriage and children will deliver these issues. Those involved in immigration cases following the new rules will know that, on the contrary, the new rules only partially and clumsily apply human rights legislation and there is likely to be substantial litigation in this area.

    The plan is to re-introduce interviews for marriage applications and home visits, a system which was disbanded several years ago. The UKBA have also indicated that increased resources will be put into examining lessons and trends from decisions to enable better decisions to be made.

    Although the recommendations made were accepted in their entirety the response was a defensive one and unlikely to change much.


    Entrepreneurs: new addition to the rules to make it stricter

    The rules have just got a lot harder for this category. Until now all that had to be shown was available funds and the main tests for checking that the investment had been made and that jobs were created were carried out at the first extension, 3 years later. As a result of the tightening of the work categories more people have opted to come into as Entrepreneurs. There are concerns because of the increase in numbers that this category was being abused. The rules were changed with 1 days notice. It requires that a business plan must be put in place and the business experience of applicants will be checked. There are likely to be interviews for some cases to assess genuineness. This category has just got a lot harder.


    January 28, 2013

    The Criticisms of Marriage Cases by the Independent Monitor

    The Independent Monitor has delivered his latest report. One of his tasks was to examine the efficiency and effectiveness of marriage and civil partnership applications and looked at the consistency in approach. He found that the majority of the decisions that he examined were reasonable but highlighted areas of concern.

    The first was that of the sample of marriage cases he reviewed, that the percentage of successful appeals, 53%, was far too high. He also questioned whether the UKBA have a systematic method of learning from appeal decisions, something that immigration lawyers have been complaining about for years.

    The second was that there was inconsistency in some areas particular in the application of human rights particularly of applications made abroad.

    Thirdly, not enough consideration was given to the impact of decisions on children and in particular of the sample he reviewed the number of cases that had considered the best interests of children was negligible. He expressed concern particularly as the law requires it. We are signatories to a Convention and as a result have introduced domestic legislation but this has made very little difference to the way cases are being considered.

    Fourthly, he found that the UKBA had not reviewed decisions when appeals were lodged because of the lack of resources. Had they done so, it might have avoided the need to go ahead with the appeal (and presumably saved costs to the public purse).

    He found a backlog of 14,000 cases in which applicants had asked for cases to be re-considered and which were gathering dust whilst the UKBA decided what to do with them. He noted that 2100 cases had been waiting for a decision since 2003.

    The UKBA has responded by stating that the new regulations in relation to marriage and children will deliver these issues. Those involved in immigration cases following the new rules will know that, on the contrary, the new rules only partially and clumsily apply human rights legislation and there is likely to be substantial litigation in this area.

    The plan is to re-introduce interviews for marriage applications and home visits, a system which was disbanded several years ago. The UKBA have also indicated that increased resources will be put into examining lessons and trends from decisions to enable better decisions to be made.

    Although the recommendations made were accepted in their entirety the response was a defensive one and unlikely to change much.


    January 21, 2013

    Rehabilitation of Offenders: not in immigration cases

    There have been subtle changes in immigration which cannot be traced to any particular change in law, but rather a change of practice.

    In immigration, until recently, the regulations in relation to criminal offences were tailored to the Rehabilitation of Offenders Act 1974 which provided a process whereby a person convicted of an offence could have his/her record wiped out. An offence became “spent” after a period prescribed by the Act. Some professions have exemptions to this rule but in general the law provides a system to enable a person to start again, rehabilitated. The Rule worked well in general although many people did not understand what “spent” meant and this resulted in them assuming that once their sentence was served, for example a ban on driving, they did not need to declare it on forms. It led to conclusions by the UKBA in many cases to concluding that applicants were deceitful in not declaring offences. I suspect that as a result of such cases coming before Tribunals and being won has led to a change in the recent forms to questions. Applicants are now required to disclose all offences, spent or unspent. Simultaneously there have been changes in the application of nationality rules, which relate to good character. Applications made after 13th December (but announced on the 9th January) will not be considered under the criteria of the Rehabilitation of Offenders Act. Instead they will be measured against a new set of sentencing limits. A sentence of 4 years in prison will bar an applicant forever from qualifying for British citizenship. Furthermore, cautions will be considered in order to determine whether a person meets the good character requirement. At the date of writing this, full details were not accessible.

    In making these changes without any primary or secondary legislation, the UKBA are going against the grain of the Act and these changes may be unlawful. It is certainly against the rule of law which requires laws to be certain and clear. The UKBA have already lost a large number of cases as a result of not properly introducing clear laws and processes and this one looks like it is heading the same way.

    The worst part of this shift is the way it was introduced on the sly without any scrutiny and no direct means of challenging it. The UKBA have been criticised by Judges for this introduction of law by stealth and have had to change their practices when caught red-handed. However they continue to introduce these unfazed by the criticism and the costs that are awarded against them when they lose. Watch this space.


    January 14, 2013

    Immigration Around the World

    In the US, President Obama has taken a major step towards immigration reform by changing immigration policy in order to allow undocumented immigrants with families to stay in the US, and on a path to citizenship despite opposition from the Republicans. They will need to return to their countries to apply for residency. Latino voters turned out in record numbers in Florida and Colorado and made it clear that they wanted changes that Obama had promised in 2008 and it appears that he is now fulfilling those pledges.

    In the meantime, in Ecuador there has been an influx of pensioners to the city of Cuenca and is causing concerns amongst local residents.

    Canada has opened their doors to skilled tradesman, for example electricians, welders, heavy-duty welders and pipe fitters to address serious labour shortages in some parts of the country.

    Russia has announced a reduced quota of workers for 2013, down by 50,000 to 410,000. There are exemptions from this quota for certain professions, which include senior staff usually Directors and Engineers.

    In Australia there is to be a new visa option for international students graduating in Australia to be allowed to work for between 2 and 4 years depending on their qualifications.

    In the meantime in the UK, we are awaiting the report of the Migration Advisory Committee into shortages. This will be presented to the Government who will, inevitably, accept the recommendations. Yet another report has concluded that the number 1 concern of the British public is immigration. Interestingly, however, it found that the concern was greatest in areas where immigration was low, and lowest was in London where immigration forms the highest concentration. There is to be (yet) another announcement of the need for integration by the improvement of English blah blah blah……


    January 07, 2013

    Capita: The new UKBA enforcement team

    As we begin the New Year, students who should have returned home to celebrate with family were stuck here despite a guarantee by the Chief Executive of the UKBA that all such cases would be processed in time, a promise inevitably not met. Others were cowering with fear as they had received what appeared to be quite threatening calls from Capita, a company contracted by the UKBA (for a princely sum of £30 million) to get rid of illegal immigrants. Except that not all of them were “illegal”. When solicitors intervene to advise Capita that there are pending issues they are completely ignored.

    What is of concern, however is whether Capita are attempting to massage the figures to show them in a better light. In one such case, a letter was received asking a client to leave the country. This was followed by a second letter with the same date confirming that the client had agreed, following a telephone conversation, to leave the country. There was only one problem. The client had left the country over a year ago, long before the call was made. When contacted he had no knowledge of a phone call.

    In a second case, a woman is 34 weeks pregnant and suffers from depression. She has been receiving threatening calls despite this information being provided. Surely Capita know that no carrier will carry a woman at this stage of pregnancy. Her mental state is fragile yet they continue to push her. The UK public, despite what the media say, are fair minded and I doubt that they would have any sympathy with a company that places its profits above the life of an individual, even an illegal one. There are many more cases that are appearing all over the UK since this company began its work. Let’s hope that their actions do not lead to tragedy.

    Missing targets

    In other news, the fact that the Government are likely to miss their key target of reducing the numbers of immigrants is unsurprising given that the debate centres around numbers and ignores all other issues. The “reduction” is mainly due to foreign students coming to the UK. This group bring in immediate financial benefits to the UK and, in the long term, a relationship with the UK which can endure for generations. Bogus students form a very small part of numbers who enter the UK. This obsession with numbers plays on fears of a few.

    Chefs

    Finally the Migration Advisory Committee will shortly be submitting its recommendations on shortage occupations having extensively taken evidence. Chefs could be facing removal from the shortage list. If this happens we could finally see an end to chefs coming in.


    December 21, 2012

    A Mixed Bag of Problems: Inroads into Rights of Individuals

    There have been substantial changes to the immigration rules in the last year. We have seen the introduction of a new income requirement of £18,600 which looks reasonable but has a number of nasty hidden extras; dependent parents can only qualify if they are virtually on their death bed; and the process for the grant of work permits is balanced against the employer and employee and where the principle of giving reasons for actions is being eroded.

    The appeals process, which had a success rate of 40% and indicated that there was a systemic problem, was dealt with by a reduction in rights of appeal. With dwindling rights of appeal at the lower courts, increasing numbers of applicants took their cases to the High Court to challenge arbitrary decisions. The Justice Secretary is now proposing to reduce numbers. There are plans to reduce the period within which a Judicial Review application must be made from 3 months to 1 month. Usually in cases brought before the High Court, parties are under a duty to attempt to settle the matter and only if such mediation attempts fail can proceedings be brought. The reduction in the deadline for bringing claims will be a lowering of attempts to mediate. Judicial Review is an important avenue for holding the state to account and an essential process in a democratic system.

    There are also worrying signs of debate on the Human Rights Act. The UK are signatories to the European Convention on Human Rights. The Human Rights Act was passed to, as it aptly stated at the time, “bring human rights home”. Until 2000, human rights claims had to be made at Strasbourg and often took years to decide. The Act meant that human rights claims became incorporated into our legal system. A Commission that was established to investigate the creation of a UK Bill of Rights has failed to reach a consensus. Two of the members did not support the creation of a Bill of Rights. Baroness Kennedy, the renowned human rights lawyer, and Professor Phillip Sands raised fears that it could be used as an excuse to get the UK out of its obligations under the Convention. In their words, “it is not a risk we are willing to take.” The Chairman has proposed that the rights could be extended under the new Bill to include equality.

    Finally, the UKBA have swiftly brought in last minute changes. The change is to apply the new law introduced on the 13th December to applications made on or before that date, i.e. the change is retrospective.

    On this depressing note, I take this opportunity to wish all the readers of my column a Happy Christmas and joyful 2013.


    December 17, 2012

    Should we trust our politicians?

    This week the Office for National Statistics released Census data which indicated that the number of people born outside the UK has increased by 63% from 2001 to 2011. This has led to claims that this was the result of “uncontrolled immigration” and led to the Home Secretary accusing immigrants of pushing up prices of property. Boris Johnson, newly returned from India, expressed concern as he felt Indian businessmen feel that the environment for Indian business is hostile. An interesting fact from the census was that 51% of those born abroad were aged 15-29. The significance of this is the fact that we have an aging population and there is an urgent need to inject those of working age who can provide taxes to plug the gap that will paralyse the country in the future. Tony Blair realised this and he was taking measures to ensure that this was sufficiently addressed.

    Ed Miliband has now jumped on the bandwagon, abound with confessions and regrets, and insisting that immigrants must assimilate and that they must speak English. This is unobjectionable as a statement. If only it was as easy as that. I wonder sometimes whether he truly understands the struggle of immigrants shunned from mainstream jobs through racism. Their tenacity resulted in many of them setting up in business and becoming successful despite this. It is this success that is now lauded.

    Leaving the rich and successful aside for a moment, lets face it, the care workers who were the butt of further criticisms, take jobs that nobody else wants. The work is hard, the hours are long and anti-social and the pay is poor. Ask any care home owner why they prefer migrant workers. These staff often have substantial skills lacking in local residents, are reliable and turnover of these staff is much lower than the general population. This industry is already in crisis. Attacking it when it is already down is opportunistic and unwise.

    Politicians of both parties, and the papers appear to have this view that the public’s main concern is immigration. It really isn’t except among the literati. The fact is that when a country faces economic woes, immigration becomes the scapegoat. We now live in a global world, which is fluid and forever changing. In the US the white population has decreased substantially over the years and one of the reasons Romney lost was his failure to understand the demographics of the voters.

    The number1 hit and one of the most popular songs in the UK and beyond is Gangnam style, a song that is sung in Korean. It is clear evidence that we live in a changing world where barriers of race, colour or language are being broken down. Politicians need to understand this new landscape and re-draw their lines of battle.


    December 10, 2012

    Latest changes to the immigration

    Further changes were laid before Parliament and these are due to take effect on the 13th December 2012. The changes have been described as minor changes but in some areas the changes are important. Here is a summary of the changes.


    Tier 1 Entrepreneur and Investor


  • The requirement for an English test for Entrepreneurs has dropped from advanced to intermediate in recognition of the fact that the test initially introduced was far too high.
  • Students under Tier 4 will not be allowed to switch to Entrepreneur status unless they receive funding from a specific source (ie registered venture capitalist firms, UK Government funding or listed seed funding operations).
  • Curtailment of the leave of investors who do not maintain their investment for the duration of their stay.
  • The rules clarify the fact that secure investments and offshore investments will not qualify.

  • Tier 2 (Sponsored Work Visas)


  • A minor correction is being made to confirm that transitional arrangements apply for those who entered the UK between 6th April and 13th June 2012 who will continue to be subject to NVQ level 4 requirements and not NQF level 6 requirements.
  • Intra company transferees on salaries of £150000 can remain for a maximum of 9 years rather than the 5 year limit that is currently in place.
  • There is clarification that pension contributions do not count towards salary.
  • Those in Tier 2 categories can be absent for up to 180 days in each year providing it is related to work or economic activity or for compassionate reasons.
  • Tier 2 employees can take up supplementary employment in shortage occupations even it this is different from their current employment.
  • There is a change to the way that the cooling period will work. The 12month period can start from the earliest date that the employee can demonstrate that they left the UK.
  • Medical students and dentists (under Tier 4 visas) will be able to start working immediately once they submit an application to do a recognised NHS Foundation programme.
  • December 03, 2012

    Sponsor licences: Punitive rather than conciliatory

    At present there appears to be a flurry of activity on Sponsor Licences with unannounced visits and threats to downgrade or terminate licences. When the scheme began, the emphasis was on helping applicants to obtain licenses. Numerous employers were granted licences after making online applications even though representatives were advising caution.

    Now after concerns about abuse (unbelievably this was not assessed adequately in advance) and the need to cut down on numbers the process has become punitive rather than conciliatory. The process is much more cumbersome, typically taking around 6 months to process, consists of unannounced visits (which unlike the immigration raids carried out by officers do not need a reason to visit). The officers are quite robust and require instant gratification in terms of what they want to see. Applicants are advised to keep their documents in a way that suits them yet if they do not demonstrate it in an way which the Officers are used to seeing they are very keen on downgrading applicants and collecting a £1000 fee to create a non existent plan. It certainly is one way of making money for the Government and the evidence suggests that it is a lucrative area.

    A pleasant and reasonable officer may make the process bearable but the indications that are coming through in relation to the small businesses in particular is that officers are increasingly bad tempered about any shortcomings and unwilling to give Sponsors a chance to put things right. Although a requirement for a Sponsor to speak good English is not (yet) part of the requirements, it is usually likely to count against an Applicant. It always surprises me that there is a belief that if you can speak English then you must be thick. At least this is the case at the lower end of the market. Those who bring in funds, such as Investors with a £1 million do not need to meet the English test and the English test for Entrepreneurs has gone down on level following some rule changes.

    November 26, 2012

    Tougher rules for children with effect from 13th December

    The UKBA re-introduced a rule which allows children to remain in the UK if they have been resident here for 7 years or more. However recent rule changes to take effect on the 13th December indicated that only minor changes were being introduced. However there is a sting in the tail for children because it has added to the requirement of residence for 7 years a condition that it must also be unreasonable for the child to return abroad.

    Bankers gone bonkers?

    Whilst it has become a sport to bash bankers most of the time, there are times when they deserve it. Take the case in which a client has fulfilled the rules for entering as an Entrepreneur, having successfully completed all the checks. He wants to open a bank account and took his passport to a bank who turned him away because he required 2 photo IDs. He has a driving licence with a photo but it was not acceptable because it has a foreign address. He produced his passport and bank statements to show that he has come from abroad but none of this made any difference. He cannot rent a property because he requires advance payments and because he does not have a bank account this is a problem. So, the sum total of all his efforts are that he is unable to move forward and is already beginning to feel the bureaucratic heat which is getting him down. Come on bankers, use your grey matter. Accounts have been opened for drug dealers where zillions have been passed through the accounts. Whilst ensuring the bona fides of an applicant is acceptable the regulations are affecting the innocent.

    Brain drain

    Recent Home Office research has found that an increasing number of people from professional and managerial backgrounds (around 350000) are emigrating abroad mainly to Australia, Canada and the US raising concerns about future skill shortages. Most of them (93%) are of working age and 43% are British nationals and 57% EU and non EU nationals. The study found that citizens of EU countries, who do not have to travel far, more likely to return to their home country than migrants from India or the Caribbean countries. Interestingly the most recent estimate from the World Bank shows that 4.7 million British citizens are living abroad representing 7% of the population and the eighth highest of any country in terms of absolute numbers.

    November 16, 2012

    Defending the indefensible

    Recently I have come across 2 cases in different areas that have made me want to bash my head against the wall in sheer frustration. The first concerns an Entrepreneur application which would bring in lots of cash into the economy and create jobs, the stuff that the Government are doing their best to encourage. There was one problem. The letter from the bank who certified that these funds were available and transferrable failed to include an address of the third party who was providing the funds. The address of the third party appeared in 2 other documents. There is a procedure called evidential flexibility which contains a detailed procedure and would enable minor missing information to be requested. This procedure was brought into effect to prevent cases being refused unnecessarily after judges criticised refusals for these reasons. When I pointed out that this procedure had not been used, I was informed that because the application had been considered by the caseworker some 4 months after it was lodged they could not apply this flexibility. In other words the client had to pay for the delay caused by the caseworker!!

    The second case concerns an application for a certificate for a person who is in the UK. Certificates of this kind are known as unrestricted certificates and the process of applying for them is completely different to the process that exists for those coming into the UK. The application was refused on the basis that it was not clear what the application was. When this was challenged the goal posts shifted and in effect the reason that was now being given was that the employer cannot be trusted to issue the right certificate and that he must provide a detailed description. Except for one thing … There is only space for around 10 characters.

    Best interests of the child

    Whilst the battle rages around us regarding child abuse, immigrant children are being treated as second class citizens. We have signed up to the United Nations Convention on the Rights of the Child which requires that the best interests of a child must be fully and appropriately considered in all proceedings irrespective of the length of residence of the child in question. However the new immigration regulations imply that best interests only come into effect after 7 years or after children spending half their life here once they become adults. This has become a source of conflict particularly by the 4 Children’s Commissioners who have written to the UKBA to express their concern. The new rules appear to appear to bypass a ruling by the Supreme Court that children’s rights must be considered first. As expected let the battle begin….

    November 05, 2012

    The final days of the US election

    As the US electioneering reaches a frenzy in its final days the US elections, who hitherto have focused on two key issues, the economy and the global competitiveness of the country have turned to immigration policy. Both agree that the system needs to be reformed. Years of immigration from South and Central America and more recently from Puerto Rico have changed the demographic landscape with Latinos rising from one tenths of the population 30 years ago to a quarter today.

    Both candidates have attempted to appeal to the Latinos who are critically important as a voting block. When Arizona introduced tough immigration laws, which were labelled as racist, required all aliens over the age of 14 to carry their papers at all times and introduced punitive sanctions for failure to verify the status of employees, both private companies severely affected by the exodus of its staff and the Obama administration challenged this in the courts and achieved some concessions. Obama has more recently spearheaded a new policy that granted deportation immunity to undocumented (illegal) immigrants who came to the US as children. He attempted to introduced an Act (called DREAM) to put undocumented children on the path to citizenship but the legislation was defeated in the Senate in 2009. In the meantime Republican challenger Mitt Romney has shifted away from the hardline stance of self deportation which was the preferred route by the Republican but remains opposed to the policy of offering undocumented immigrants path to citizenship.

    Among the Latinos whilst generally they are more supportive of President Obama (3:1), the Cubans, who are based mainly in Florida are solidly pro Republican as they fled from Fidel Castro’s rule and are hostile to communism. Even they, however, have expressed concern about the Republicans hardline attitude to immigration which they feel re-inforces the perception that the party is hostile to minorities. There is concern that the Republicans want to make English the only language whilst latinos want their children to remain bi lingual. Mitt Romney has relied on Marco Rubio, a Florida senator who is of Cuban ancestry for the Cuban vote.

    Obama has scored points with some Puerto Ricans by appointing Sonia Sotomayor who is of Puerto Rican heritage to the US Supreme Court. He has also tried to woo the Cuban American community by receiving an endorsement from Cristina Saralegui, who is the Oprah Winfrey in Spanish language television by joining Michelle Obama in an advert in which immigration reform was a key issue and Obama himself has also appeared on the television show and talked about immigration reform.

    Interestingly on students, both are highly supportive of retaining them. Romney told the Latino audience that he would like to “staple a green card to the diploma of someone who gets an advanced degree in America” and Obama in his State of the Union address in 2011 expressed the frustration of seeing foreign students come to the US from abroad but leaving once they get their qualifications and end up as competitors. It makes no sense he said.

    It is a known fact that the immigrant population as opposed to the indigenous population generally cast their vote. As the result is to close to call these vital votes will take on a new significance. Fingers crossed for Obama.

    October 29, 2012

    Deprivation of Citizenship: Is it fair?

    Unusually for me, I found myself agreeing with the sentiments expressed in the Daily Mail, about an article on deprivation of citizenship of a Somali national who it appears may have been lured out of the UK because he refused to co-operate with MI5 and whilst out was deprived of his citizenship and is currently detained somewhere in Africa. The thrust of this report was of draconian measures that have gone unchecked. As a result of the terrorist challenges we have faced since 9/11 we have undoubtedly accepted these laws blindly as a necessary consequence.

    Until 2003 a person could only be deprived of citizenship on the basis of fraud, false representation or concealment of a material fact. Following 9/11 David Blunkett introduced the “Hamza amendment” which provided for deprivation if satisfied that the person had done something prejudicial to the vital interests of the UK. It was not clear what conduct this covered as no cases were decided on this. Hamza won his case on the basis that if he was deprived of citizenship he would become stateless and so the matter was dropped there.

    Initially there was a right of appeal in country against deprivation and the decision could only be made once these rights were exhausted. However in 2004, without any notice or debate the section on retaining British citizenship whilst the right of appeal was pending was removed. The effect of this was drastic. A person could now lose their right to be a British citizen whether or not a right of appeal was exercised. For those in the UK already deprivation and deportation would be served at the same time and an applicant would obtain a right of appeal against deportation. The problem is what happens when a person is outside the UK. The worrying trend seems to be that the Secretary of State waits for a person to leave the country and action is then taken to deprive the person of citizenship. Notices informing the applicant are sent to a person’s last known address. Astonishingly, there is no requirement under nationality law (although there is under immigration law) to serve these by recorded delivery. Once the order is served warning notices are sent out to the ports which prevent the person’s return. By the time a person discovers what has happened appeal rights have long passed.

    By 2006 the test was widened and made much more subjective. A person could now be deprived of citizenship if satisfied that it is “conducive to the public good”. In an excellent article written by an experienced barrister in this field, Amanda Weston, she expresses concern about the fact that extremism would be grounds for deprivation and argues that

    “one person’s extremism is another person’s adherence. It is difficult to know, without a definition where one ends and another begins and who gets to judge”

    Even where a right of appeal is exercised abroad an applicant is not allowed to be present at the appeal to give their side of the story and because there is a closed procedure which prevents the applicant from seeing the evidence presented the case is stacked against them from the start.

    The irony is that those who have a lesser status, ie indefinite leave or any other temporary status have the safeguards of a right of appeal before an independent body whilst British citizens do not.

    An eminent lawyer Nicholas Blake QC, now a High Court Judge expressed severe reservations about the changes but as a result of the political climate no one was ready to take this on board. Ms Weston argued that one way of restoring the rule of law was to look to the European Court of Justice for a solution. A recent case before the Court of Appeal challenged the absence of an in-country right of appeal which was argued violated a right to an effective remedy and the right not to be discriminated under EU law. The case was lost on the grounds that it was a domestic case with no exercise of any right conferred by EU law. It appeared that the Court primarily did not want to interfere in issues that involve nationality as this is a matter for each Member State.

    In the meantime these draconian provisions continue to blight the essential principle of the rule of law. As a democracy we should be concerned about these developments.

    October 22, 2012

    Delays, delays, delays

    My postbag is full of questions about the delays in applications being considered both abroad but particularly within the UK. There is a great deal of frustration with the system and representatives often have to bear the brunt for this. It is a subject that I have covered on many occasions and sadly, in all this time, there is very little available for the vast majority of applicants. There is a same day service but even those require a month’s notice and a new postal service has been set up for some Tier 2 applicants but because the conditions are strict and the numbers limited it is not providing anywhere near a solution.

    The real scandal is the time that it is taking for Sponsorship licences to be issued. The goals are forever changing. Initially they were taking around 3 months but this has now shifted to 6 months and is rising. Moreover when licences are granted, it takes weeks and months for certificates to be allocated to employers. When employers are applying for certificates for those who are already here the procedure should be easy as these applicants do not come under the quota set up by the Government. They are basically staff who are simply changing employers. However even this process has round to a halt. The only means of contact is by email and the usual response is…er …… no response. Customer service standards have completely bypassed the immigration departments. It is not simply about delay. It is a complete lack of regard or anyone who has dealings with these Departments.

    And as to solutions, there are to put it simply, none. The new immigration minister has refused to hold ministerial meetings instead preferring to leave everything to the UKBA. Therefore as he appears to have no appetite for grappling the difficult issues and as there is little momentum within the UKBA itself things can only be expected to get worse.

    In trying to assess the reasons for this, undoubtedly numbers of staff have been reduced and partly explains for the increase in delays. But this is not the whole story. The whole focus of immigration has been negative and perhaps one way to stop people entering is to make their life so miserable that they will not want to go down that path. If this is the strategy then it is working. Many employers are so fed up that they do not want to continue with the process. The downside of this is that where possible they are looking abroad for their staff and their business and this unfortunately is bad for business.

    October 8, 2012

    Reat Immigration Debate

    As of the 1st October all those who have overstayed their leave to remain by 28 days will be automatically refused if they make a fresh application. This change will mean that if a person is refused and does not either appeal or bring proceedings in the High Court a fresh application cannot be made unless there are exceptional circumstances.

    In points based cases, the case of Alvi which shook the very core of the system when the Judges by declared the system to be unlawful, is set for more fights after the UKBA set out its solution to the problem by advising its caseworkers to withdraw the unlawful decision but to re-make it applying the new law. In effect it puts the applicant in the same position as before. There are contradictions in the guidance. At one point the caseworkers are advised that decisions are lawful unless they are declared to be unlawful. At other points they are told that if applicants are out of time for appealing decisions or bringing High Court proceedings then their cases must not be considered. In effect they are advising their caseworkers to pay lip service to the rules. Challenges are inevitable.

    In other news, the numbers of immigrants is down to 216000, and the Home Secretary has indicated that the target of getting numbers to 100,000 is well on its way to being fulfilled. She has also firmly indicated that students will not be removed from the definition of migrants as some of them stay for 3,4 and 5 years. The London Metropolitan University who recently were granted permission to have their case heard, were singled out as a warning to Universities to put their houses in order. Meanwhile students do get it. There has been a sharp drop in numbers coming to study.

    Darren Brown, the illusionist,, provides a fascinating insight into the part that subliminal messages play on our attitudes and behaviour. In our daily life we are bombarded by negative stories of immigrants that portray impressions of foreign prisoners using human rights law. Of the 216000 migrants mentioned above, only 195 were foreign prisoners. In response the Conservatives have introduced tough laws that have and will continue to see a drop in numbers, particularly of plebs. Only the educated and high earning patricians will be welcomed into our shores. The level of frustration is intense among employers who are having to wait for months to obtain a licence only to be told after that they cannot bring a member of staff.

    And in the meantime it is worth noting as a fact that the people most likely to vote in the general election are the immigrant minorities who engage much more vigorously in the process than the indigenous population.

    October 1, 2012

    Human rights: Adding another layer of bureaucracy

    Theresa May does not believe that in human rights, at least not in relation to immigrants. So it was no surprise that when she changed the law it would be a backward step. Her views were that there is widescale abuse in relation to human rights and indeed some of the cases put out in the press were tales of injustice. However they appeared to concentrate mainly on foreign prisoners allowed to stay despite crimes which naturally would cause revulsion in any reasonable person's mind. What is forgotten in all of this is the fact that there are very few foreign prisoners who have benefited statistically. The main victims of the changes will be ordinary families.

    The case for the changes were that judges were applying their knowledge of law without any real guidance and that this was creating inconsistent results and gaps. Accordingly she has in effect incorporated human rights within the domestic Immigration Rules which she expects the judges to apply.

    The starting point is that the legal authority in human rights case is contained not in the Immigration Rules but in the Human Rights Act 1999 (which is classified as primary legislation) and that this will ultimately need to change.

    More importantly the new Rules are a very crude attempt to redress a balance. For example the Rules were changed so that those who have been living in the UK for 14 years to qualify for some status bow have to wait for 20 years when it will be deemed that they have established a private life. Children who have lived here for 7 years will be considered to have established a private life. However, the law on human rights has established that private life is not just a question of residence. It incorporates a wide range of events. Human rights can never be applied rigidly and cases are considered on a case by case basis. It is therefore not possible to establish a one size fits all scenario.

    And in terms of family life, again the law has laid out a whole body of principles which must be applied when considering a case. The impact that any removal will have on not only on the family member but on others must be considered. However these Rules do not provide for this. The best interests of the child are enshrined in an Act but this is not mirrored in the Rules. And there are rules on a balancing exercise, none of which appear in the Rules. They fail to set a realistic standard which can be fairly applied.

    Judges will have an uphill task. They will first look at the Immigration Rules. However they cannot stop there. They will also have to look at the body of caselaw which has been painstakingly been put together and decide a case on the totality of the law. This rather complicates (rather than simplifies) the decision making process. In the coming months the issue of human rights is likely to be the subject of conflict between the judges and the Government. Watch this space.

    September 21, 2012

    Unlawful system legalised: the points based system

    The UKBA have, for some time now, been a law unto itself issuing "guidance" which contained details which did not appear in the body of the rules and could easily, at a stroke, be changed to suit any situation. Take, for example, a system whereby the UKBA introduced Codes of Practice for different occupations. There were regular changes to the Codes and positions that were initially in the Code were withdrawn. Specifically there were changes on the 14th June 2012 that had the effect of completely removing some occupations. Using their new "powers" the UKBA were able to bypass Parliament and they did so with impunity. That is until the case of Alvi was heard in the highest court of the land, the Supreme Court. This threatened to change everything.

    In brief, the Supreme Court ruled that any requirement, which if not met, can result in a refusal, is a "rule" and must be incorporated within the Immigration Rules (which unlike the guidance are scrutinised by Parliament). The practice of the UKBA to put changes in their guidance alone was unlawful. The UKBA responded to this judgement immediately by placing the guidance within the Immigration Rules and thereby adhering to the judgment. However, how were the UKBA going to treat applicants who had already made applications or received decisions based on the old system?

    The UKBA have now issued guidance for their staff, which contradicts itself. On one hand there is an acknowledgment that their practice was unlawful but on the other hand staff are told that decisions to refuse are lawful unless and until they are successfully appealed or quashed in judicial review proceedings.

    The way in which they plan to undo their unlawfulness is to withdraw the decision to refuse and remake it under the current law, which has cured the illegality. It is simply a paper exercise and gives no remedy to applicants. In fact it is a kick in the teeth to judges who dared to strike out laws that gave the UKBA untrammelled powers. Litigation is sure to follow.

    Calling all Chefs

    In other news, the Migration Advisory Committee has been asked by the Government to review the shortage list, which currently includes chefs. The questions that have been put to them to consider are whether a shortage of labour should still be filled by foreign workers. The report states that the Government has indicated that it wishes to remove from the occupation list jobs that have been on the shortage list it for more than a given period, in principle two years, regardless of shortages affecting the sectors concerned. This is because it considers that inclusion on the shortage list was intended to provide temporary relief. It also has to consider whether there should be a standard period after which removal should become automatic. MAC are calling for evidence and restaurateurs in particular should pay heed to this, as it will affect them.

    The deadline for submitting evidence is 30 November 2012.

    September 17, 2012

    When is someone going to do something about the delays?

    There was a time a couple of years ago or more, when the pressure to reduce delays and backlogs was so high that the UKBA established a two tier system which divided the old cases from the new cases. Many of those old cases, known to some as the "legacy" cases remain unresolved. They have now been transferred to a Directorate with a different name (the Case Resolution Directorate) and it is very difficult now to audit their progress. The politicians who were once chasing the UKBA over these delays have lost interest in them. In the meantime, for the newer cases, targets were established requiring applications to be considered within 13 weeks. These targets never really worked and have been quietly abandoned are now taking the region of 6 months to resolve, sometimes more.

    For employers the position is dire. Those who need to apply for licences are not given any confirmation of the receipt for applications. When applications are made there are often exchanges of communications and finally, after some persistence are given standard responses advising them that it is not possible to state when the application will be decided. Initially the waiting time for applications was 12 weeks. It then went up to 16 weeks. A recent enquiry suggests that the waiting time has increased yet again, and is more in the region of 6 months.

    Investors and entrepreneurs are being encouraged to come to the UK to invest. Yet when they apply for extensions, they cannot make premium (ie same day) applications. Once their applications are lodged they lose control over the applications and it is now a normal occurrence for applications to be caught up in queues leaving business man frustrated because they are unable to travel. It is not clear why there is this delay, whether it has been caused by the lack of experienced staff able to handle such cases or the fact that there is no system to separate these cases. Either way it is likely to put people off from choosing the UK as its destination.

    Lastly those who urgently need their passports back to travel in a hurry beware. There is no clear process for its return and experience suggest that it can take several days and weeks and despair before it is returned. A recent experience has left the widow of a client bereft. He died whilst his application was in a queue. After several attempts the passport was finally returned after 6 weeks. The body of the client lay in a mortuary waiting for the passport to be returned so that he could be buried in his home country. And when the passport id finally arrives, it was addressed to the deceased advising him that he had withdrawn his application!

    September 10, 2012

    The effect of absences or breaks

    One of the questions that often arises as applicants approach settlement is to what extent absences are likely to affect their case. In some cases those who have not left the country but have had breaks in their employment want to know whether this will affect them.

    Surprisingly, the immigration Rules do not actually specify what absences are allowed or prohibited for most categories. Investors (ie investors in the £1 million category) have specific rules allowing them to be absent for upto 180 days. The requirements require that a applicant must have spent a continuous period and that this must be lawful. Many applicants (wrongly) apply the Rules that exist for British citizenship which are much more specific.

    The UKBA sets out its interpretation of "continuous period" in its policy guidance which provides the following :

    For those who are not absent from the UK, they are allowed interruptions of upto 3 months or 6 months in total over the whole 5 year period. So for example a person in Tier 2 can remain out of work for the periods allowed without it affecting their status.The general rule for absences is that short absences are allowed (for example to cover the annual l leave entitlement or short business trips). However where there are longer absences, absences are allowed for 3 months at a time or 6 months in one period where the reasons are for compassionate reasons or for employment. In the latter case it would be necessary to outline what the reasons were and provide evidence of the serious implication for the employer had the employee not travelled.

    Although the Immigration Rules spell out the fact that an Investor can be out of the country for upto 180 days, in reality the Entrepreneur can also do so as the guidance states that this period is disregarded.

    As far as spouses are concerned, again the Immigration Rules do not specify allowed absences or prohibitions in its conditions. However the UKBA state on their website that they will consider a number of factors where there are absences including whether the couple travelled together.

    A quick glance at the case law indicates that not many people have brought cases on the meaning of continuous period. A case that was brought stated that this has to be construed sensibly.

    A recent case heard in the highest court in the land, the Supreme Court, decided that any requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule within the ordinary meaning of that word. And this means that the rule needs to be laid down in the Immigration Rules. The guidance cannot be interpreted as if it is law. Where applications are refused purely on the meaning of the Guidance that the UKBA lays down, they can expect litigation to follow.

    September 3, 2012

    The crackdown on Universities

    The revocation of the sponsor licence of the London Metropolitan University sent shockwaves to the academic community which until now has been immune whilst private colleges have been targeted and closed down in droves over the last 18 months. The immediate suspicion of the public is that these colleges have been harbouring students intent on breaking the rules. The truth, however, is that the criteria for obtaining and maintaining a licence are stringent. The responsibility for immigration control has moved, in one big sweep, from the Government to the licence holder. They have continuing responsibilities for making checks on immigration status and have a duty to report a number of activities within prescribed time limits. There are regular visits by officers and where there is a shortfall in any area, not necessarily only passport checks, they can suspend and following revoke licences.

    It is not clear why the licence of the LMU was revoked. However it is likely to be the result of failure in a number of areas which were not remedied despite warning. Universities, who stand to earn millions of pounds on overseas students need to employ staff to manage this process properly. My experience from a student angle is that Universities generally err on the side of caution and where there is doubt they throw out a student. On many occasions, they misinterpret the regulations or overreact. And by the sounds of it they were wise to do so after what has happened to LMU.

    Students can expect to have a harder time as a result of what has happened. What is grossly unfair is that when students commit minor infractions and are not allowed to continue their studies, their fees in are withheld. Often they have paid around £12000 to £13000 and none of it is refunded. Initially I assumed that it was a few rogue operators abusing their positions. However it has been clear that all kinds of institutions have been doing the same thing. These stories repeated abroad will without doubt put a brake on student numbers resulting in a loss of billions of funds not to mention the prevention of a long terms relationship with the subject or the country.

    The headlines this week have referred to "deportation" of students. Whilst it undoubtedly sounds very serious and punitive the reality is that the UKBA will "curtail" ie cut down the leave or permission of those who have over 6 months left on their visas to 60 days. If they find a college by then they will need to make a fresh application. If they do not find a college or switch into a different status, they will have to leave the country or risk being classified as overstayers. All students whose leave is curtailed will be given a right of appeal and many are likely to exercise it. They are still a long way away from deportation.

    Students will have to take risks by coming to the UK to study. The question is will they want to.

    July 30, 2012

    Law to be created by parliament not by the executive

    A recent case at the Supreme Court (our highest court) finally laid to rest an issue that the lawyers had repeatedly warned was unlawful since the introduction of the points based system in 2008. The strategy of the Government was to introduce the bare bones of the regulation within the Immigration Rules (which governs the procedure) and provide the detail in the form of guidance, which was then treated as if it was the law and could and was changed (or manipulated) at will. The judges roundly rejected this methodology. Cases in the past had warned that introducing legislation in this was unconstitutional as it was not subject to scrutiny by Parliament. However the UKBA pressed on with this as it provided an easy way to change policy. This untrammelled power is an anathema in a democracy and the judges have finally ruled that this was unlawful. The UKBA’s response was to bring the guidance within the law for future cases. However they may be looking at a floodlight of challenges for those who are already in the UK.

    A class war?

    The main aim of the restrictions to the immigration regulations have not only been designed to reduce numbers but have a much wider remit of a less than subtle attempt at social engineering. The working classes are being rapidly phased out and replaced by the more educated and the monied classes.

    Take for example the Life in the UK test. It is designed not to test a person’s English but their intelligence. Domestic workers who may be able to learn to understand English and even to speak and write it, will be unable to pass this test because it requires understanding and memorising a number of facts and the use of a computer to answer them. Many domestic workers did not go to school and passing this test will be an impossibility.

    The last Government, in recognition of the exploitation that was taking place against domestic workers allowed them the freedom to change their employer . This Government have prohibited any change of employer for those now coming in. Their solution to any abuse that they will arrange to repatriate the worker to their country. But this misses the point. Domestic workers do not choose this profession for the love of it. They need the job and the money to support their families and prevent them from following them into this profession. If they are abused and cannot change employer, they will stick it out and endure the insults, violence and even death. In all other working categories a change of employment is not only allowed but any attempt to restrict this would not be legal and sanctioned by an industrial tribunal.

    July 23, 2012

    Points Based System declared unlawful

    The points based system has suffered a huge set back.

    The Supreme Court, the highest court in the land last week lambasted the UKBA by declaring their methods unlawful. It is case that the media have not been particularly interested. However it is a decision which is a victory for the application of democratic principles.

    In recent years all government but particularly this one have introduced a broad brush approach to immigration leaving the detail in guidance which is not subject to parliamentary scrutiny. The danger with this is that the guidance can be changed without any oversight. The judges quite early on expressed concern about this system as they took the view that it was unconstitutional. The latest case finally laid to rest the issue by declaring the current system unlawful.

    The response of the UKBA is to put this guidance into the main body of the law rather than in separate guidance at breathtaking speed. It will apply to cases on or after the 20th July. However there is still the difficult problem of what happens to the cases that were made before this. Undoubtedly a floodgate of cases could be in the pipeline that will rely on this issue. Time and time again concerns were expressed by lawyers about the legality of these methods but they were ignored. It was far easier for the UKBA to manipulate the guidance by treating it as law when in reality it was not. Many have relied on the guidance as anything but.

    Now after huge cost to the public purse by fighting this they have been forced to do so anyway. Hopefully lessons have been learned. Immigration may be a political football but the judges apply the law in this area as much as any other.

    July 16, 2012

    Are the UKBA living in Ivory Towers?

    Dealing with the UKBA as a body is like banging your head repeatedly against a brick wall. As a practitioner clients become frustrated and assume that we are not doing enough to progress their case particularly with moving targets. For example when an application is made the target is 12 weeks. By the time that period has come to pass the target has moved yet again to 16 weeks.

    Try speaking to someone at the UKBA. It is not possible to. There are no contact details provided, no means of speaking to a human being. A telephone call at the hugely expensive telephone enquiry bureau is likely to result in the applicant either being told not to bother them (because the application is outside the target of 6 months) or told that the case is “under consideration.” No one has to take responsibility for making a decision or to justify the delay. In fact no one cares about the image of the UKBA. The way that the process is handled is suggests that the applicant is lucky that their application is being considered at all. There is no customer service culture and the policy of the Government does not encourage this Department to put itself in a favourable light.

    If it merely concerned students then knowing what the Government think about them it would be understandable. However the Government have been keen to drum up business for investors. Those who have successfully entered and then applied for settlement are then mysteriously held back for further enquiries whilst other categories are free to apply for settlement the same day.

    And if anyone, God forbid, needs their passport back in a hurry it involves a dance with the Gods to get an acknowledgment of this request let alone get it actioned. Can it really be that difficult for the UKBA to retrieve a passport and send it back? And why must it take several weeks ?

    Finally, if all else fails, will making a complaint have an effect? You will definitely receive an acknowledgment of the complaint but that is about it. There will be no investigation, the caseworker will suddenly appear to wake up from their slumber and respond and the matter will get swiftly swept under the carpet.

    Obfuscation is the name of the game and the UKBA do it well. Then again they are protected by a culture which demeans the migrant and constantly send s a message that they are not welcome. The ivory tower and the brick wall rule OK.

    July 09, 2012

    Another U turn on students?

    For the past year Universities have warned about the fact that the new restrictive rules would impact adversely on foreign students. This clamour appeared to have no effect at the time. The Government droned on about the need for the brightest and the best numbers. However the Government are now finally waking up from their long sleep to the reality of the irreversible damage that this policy will cause and articles are appearing in the press undoubtedly to lay the foundations for a change. A Conservative MP has expressed concern that this may lead to the opposition accusing the Government of massaging the figures and invites consensus in dealing with this issue. What he fails to say is the incompetence of holding on to a policy that made no sense at all.

    And if there are plans for the rules to be changed it is essential that they are not tinkered with at the edges. Students need to work and they will not come unless this area is opened up. Furthermore there has to be more flexibility to the rules preventing students for being penalised for minor infractions. Last of all Universities and Colleges must be brought in line too. They should not be allowed to withhold a whole years fees where the student is unable to continue studying for circumstances beyond their control. There is simply no justification for this. The argument that educational institutions cannot be held accountable by regulations simply does not wash.

    It is not surprising that a U turn is on its way. I suppose the Government will face the “I told you so” adage

    In other news, from October any out of time applications will be refused regardless of the merit of the case. The problem with this rule is that applicants run out of time because cases take around 6 months in some cases to be dealt with. By this time, inevitably, the applicants time has run out. Before introducing new rules it is imperative in future that the UKBA first examine their own wrongdoing. It is hardly fair to penalise the applicant because the UKBA cannot get their act together.

    The changes to the family rules have been hotly debated but appear to be destined for the rule book. Another Conservative MP has warned about the effect of this on communities. So far it has fallen on deaf ears. Watch this space in a year as this is about the time it takes for U turns in immigration.

    July 02, 2012

    The pitfalls of the new restrictions

    The new rules for the entry of family members applicable on or after the 9th July are not what they seem and need to be carefully considered before applications are made.

    The sting in the tail applies to the financial requirements. Those who wish to bring a spouse must earn a gross salary of £18600. This is the minimum income that must be earned. Thereafter the first child is worth a further £3800 and any subsequent children will qualify by showing an additional £2400 each. Third parties cannot promise to provide support although there is no restriction on them providing funds as a gift.

    Where a person does not meet the income threshold the Sponsor must have £16000 in cash savings for at least 6 months. Any sum above this (important) can be counted against any shortfall.

    The complications arise in the rise of amounts that need to be shown if a person does not earn the minimum required. A person in this situation would have to show £16000 (in savings) plus the shortfall multiplied by 2.5. So take for example an applicant on a salary of £15000 per annum. He would be short of £3600. He would have to show savings of £16000 plus £3600x 2.5 for each 30 month period i.e £25000. And a person without a job would have to show £62500 in savings.

    The salary has to be earned with the same employer for a minimum period of 6 months. Where there is a change of employment the period of 6 months has to be restarted.

    In other areas, when assessing genuineness of marriages, various factors will be taken into account. For example a public statement by either the applicant or sponsor will be enough reason to refuse the application. Where marriages end badly a letter to the UKBA, whether true or not, can trigger a refusal much more easily.

    Elsewhere with regard to children, the 7 year rule, whereby children were allowed to remain if they had been resident for 7 years which was discontinued a few years has been re-introduced.

    Finally the UKBA have attempted to define or set limits on the application of Article 8. It also attempts to put such applicants on the long track to settlement requiring them to spend 10 years in this category from 6 years. It is likely to be the area where the most litigation will take place.

    And for a snippet of good news. Applicants who currently leave the UK beyond 28 days are usually banned from travel for periods of 12 months, 5 years or 10 years. 28 days has been replaced by 90 days. The purpose of the rule change is to “incentivise” voluntary departure.

    June 25, 2012

    The new immigration landscape

    The soon to come into force rules limiting the entry of families only to those who earn salaries of around £27000 will inevitably result in an immediate reduction of numbers. Surprisingly enough the strongest concern has been raised by Baroness Warsi who recognises the impact that this will have on ethnic communities. Changes in the other areas rules have already started to bite and affect other industries. Colleges an d restaurants are closing down at rapid rates.

    What is increasingly clear to those wanting to move here is that unless you are rich and speak English as a first language (having most likely come from a country in the West) you will not be welcome to the UK. The English tests created, one after the other is a smokescreen for a return to the old days where discrimination flourished and when migrants were trashed and denied employment. And they are worse off as migrants do not want to claim benefits and a low proportion that do so.

    In the last few days there have been pronouncements by the leader of the Labour Party that his party got things wrong. He is primarily referring to the entry of countries within the EU who were no restricted form coming to the UK to work and that the Government underestimated numbers. However of concern are his pronouncements that there should be a plan to identify firms that hire a greater proportion of foreign workers. What Milliband in effect is saying is that is saying is that he wants local British workers to be hired instead. If we are ever going to get out of the economic crisis that engulfs us year after year we need to de-regulate and the current Government recognise this. For the Labour Party to introduce measures to force employers to take on useless employees who do not have the motivation to improve their lives, in effect give them a job regardless of their ability to do the job is sheer folly. Employers need staff, the best they can find who want to work and have the qualities that will result in increased productivity. We are living in a global village and those who want Britain to hold the island mentality are normally those who have no vision. Until the welfare reforms kick in (which will take several years) and creates a work ethic employers will want to select the best. If this amounts to foreign staff then that is what has to happen. With the EU workers no Government will be able to restrict their entry or work.

    Tony Blair presided over a very vibrant economy despite the fact that he opened the borders for immigration. Today he stated that the problem with immigration is when it becomes uncontrolled and illegal and used by the unscrupulous. He recognised the political need to raise this issue rather than the merit in doing so.

    Both parties are attempting to change the immigration landscape. In doing so little regard is being paid to the needs of families or for businesses to take on the best staff. This political football mentality is principally what is wrong with the immigration debate.

    June 15, 2012

    The next target: families

    Who said the press no longer wield any power. The long awaited rules on families are finally out, not announced to Parliament but to Andrew Marr in his Sunday programme and to the newspapers where it made headlines. So much for democracy. The new regulations are extremely long winded and incomprehensible in parts and I find myself wanting to hang my coat and take off to sunnier climes.

    Spouses

    Those married for 4 years or over will no longer get any concessionary treatment. All applicants will get 5 years in 3 tranches multiplying the amount of fees that can be extracted from the applicant. The 5 year point is dangerous territory because it is usually the point at which husband and wife want to bump each other off. The financial requirement is earnings of £18600 for one person, £3800 for the first child and £2400 for each additional child. A 2 child family would have to show earnings of £27200. Extended families are not allowed to help with support although they can offer accommodation. Savings of over £16000 will be able to be used.

    The English Test

    For those struggling with the Life in the UK Test things have just got 100 times worse. There will be an additional test for speaking and listening. I wonder if there will be an option to speak in cockney slang, necessary for living in some parts o London.

    Dependant parents and grandparents

    The Rule regarding this will be completely revamped. Aunts and uncles will not longer qualify (not that many did in fact) This class will only qualify if they can demonstrate through medical evidence that as a result of age, illness or disability they require long term personal care and that the applicant is unable even with practical and financial help of the sponsor to obtain the level in their country. Applicants can only make such applications abroad. This rule, already very difficult in its present form, will be impossible under the new changes.

    Human rights

    This particular change was declared with triumph as a means of taking control of human rights which the Government believe has been abused. The detail provided is more conciliatory and suggests that the criteria that are being introduced into the main body of legislation are designed to meet an Article 8 threshold. There will be a debate on this in Parliament. Applicants will be granted 10 years before they can qualify for settlement. According to the UKBA private life will only exist after 20 years of residence. There are differing periods of residence for children under 18 (7 years) and young adults between 18 and 25 who will need to have spent at least half their life in the UK.

    In essence the long residence rule which grants leave after 14 years is being replaced by the 20 year rule. It is in the area of human rights that there is likely to be an almighty clash with the judiciary.

    June 11, 2012

    The problems with policy

    In the last few weeks immigration for once has not dominated the headlines. However this is the calm before the storm. Behind the scenes there are changes afoot which will this time have a huge impact on the fortunes of families. In the next few weeks an announcement will be made about the minimum income threshold for families to be re-united in the UK. It is believed that it will be £25700 which is the top end of what the Migration Advisory Committee recommended.

    There are many chefs and health care workers who came to the UK many years ago with the aim of establishing a life for themselves and their families. The two categories have traditionally been low paid workers and it has taken many years for them to reach the point at which they can qualify to bring family. The argument for raising the threshold is, according to Theresa May, to prevent these families from relying on public funds. There is no evidence whatsoever that this is the case. What is clear is that the Government need to reach their goal, using whatever means are available to them.

    The Universities are up in arms over the severe restrictions placed on students. 85% of students return to their country after finishing the course. And when they do come they pay huge amounts in fees and need accommodation, utilise services and spend money within the economy. Apart from short term gains they take with them the experience and connections of having studied in the UK. Some will later enter public life or successful private businesses and their experiences will form a bias towards the country they know best other than their own. These long term goals are as important if not more than the short term aims of controlling immigration. A recent article quoting the Ambassador discussed the tendency for the Chinese to prefer other destinations within Europe to visit and study because of the visa restrictions in place and it appears that Germany appears to be the country of choice. Germany have been actively encouraging students and looking at their economy it is clear that they know what they are doing. Elsewhere artists and writers have been expressing concern about the negative impact on their industries.

    The industry that is particularly struggling is the hospitality trade. Any restaurant that offers a take away or buffet service is excluded from qualifying to bring staff. In this economic climate restaurants are using every opportunity available to attract customers. If this includes a lunch buffet or some kind of take out service they will have to make do with local staff. The much trumpeted idea of a chef school to train local staff is a good one but the process will take years, at least 5. The high street will not be able to bring in good staff and therefore the quality and authenticity of the cuisine will be lost to the mass population leaving the best restaurants only available to a few who have lots of cash and want the best.

    May 28, 2012

    A round up of the weeks news

    As usual immigration has occupied a top spot in this week’s news yet again. There is a direct correlation between the economic woes of the country and a rise in stories on ed that “tough love” measures will be taken to make an illegal immigrant’s life a misery by preventing them from working or opening bank accounts. Surprising comment. Does she honestly not know that illegal immigrants are already in hell, living well below the poverty line, often exploited mercilessly by the unscrupulous.

    Then there was an announcement that “contingency plans” are being made to exclude the Greek in the event of them heading for our shores. We signed Treaties to bring countries within the EU closer politically and economically. When times are hard, whilst there are undoubtedly measures that can be taken in an emergency, it would damage Britain hugely if any steps are taken to limit these nationals and could well be challenged. More importantly than this is the fact that if Greece falls, other countries like Spain, Portugal and Italy could also head for the abyss. Are they also likely to be excluded?

    Todays papers concentrate once again on students. The Government are now advising Universities to set up branches abroad so that students can stay in their own countries. Easy said. The Universities are of course in arms. They believe, sensibly, that students should not be counted as migrants as they clearly are not. If this was accepted the Government targets would be met without much difficulty. The Government have been quite blatant about the fact that they do not want students to come to the UK to study. There has already been a drop in student numbers and the figures are likely to get worse as students make other plans. In the long term the bond that is developed when a person has studied in the UK that endures for many years will no longer sustain future generations. By then the present Government will have long gone leaving its lasting legacy.

    We wait with bated breath for the new regulations on families and the amount that they have to earn before they qualify to bring their dependants. Shortly immigration will be in the news again. The lives of many will be irreversibly affected. And all in the name of the numbers game.

    May 18, 2012

    The scandal of colleges: Are the UKBA complicit in this?

    Committee Chairs and the press concentrate on abuse of the system by students. Whilst students are demonised, very little attention is paid to institutions and their practices or opportunities depending on which way you look at this.

    Take College A, which has Highly Trusted status which issued a Confirmation of Acceptance for Studies (CAS) to a student and pocketed an annual fee of over £4000 for an MBA course. A student adviser wrongly advised the applicant about the application with the result that his application was refused. In order to make a fresh application the student needs a fresh CAS. However the College now want a further £1500 to issue a further CAS or intend to forfeit his fee.

    College B, again in the highly trusted range, issued a CAS to a student who paid £3000 for the year’s fee despite the fact that the institution knew or should have known that the Student was studying below degree level and therefore could stay in this category for a maximum of 3 years. She has been refused. She has been told by the college that she is not entitled to any of her fees back.

    The Colleges when contacted do not want to discuss this and are not unduly worried that the student will issue proceedings or complain to the UKBA as they know that the UKBA are not concerned about this and that the student’s immediate concern is to resolve their status or leave the country. There are stiff penalties issued to colleges if they do not report various activities of the student for example failing to report the fact that the student has not turned up to classes.

    However the Colleges can, with impunity, forfeit fees in this way. They are free to abuse the system. The system in effect criminalizes students for minor breaches whilst allowing colleges to make loads of cash for doing nothing. A nice little earner. The UKBA are not interested in what the colleges get up to in term so abuse of the student. Surely they must know by now the scams that are being operated by using or abusing the UKBA rules. They choose to close their eyes to this. The law states that those who are reckless as to the consequences are as guilty as the actual perpetrators.

    We intend to keep a register of our own to name and shame colleges that abuse their position. It would be useful to hear from student with experiences similar to those described above so that we can ascertain the scale of the problem. In the meantime we hope that the UKBA will do something to address this fullscale abuse that appears to be going on.

    May 14, 2012

    The Assault on Family Visitors

    If the queues aren't getting any better i suppose we can take comfort from the fact that eventually immigration laws introduced will deter people from coming and it can then be a win win situation. The recent assault is aimed at family visitors. The government intend to do away with a right of appeal to family visitors from 2014 and for now amend the law so that the categories of family are restricted. It is a fact that the success rate ofappeals has been so high that if it occurred in other area the system would have undergone a radical overhaul. The reason given for the ending of appeals is that the vast majority of appeals succeed because additional documents are produced at the appeal hearing. The truth of the matter however is that the guidance provided with applications set out the types of documents required. However refusals are based on the fact that the documents provided are not enough. Where this is the case it would be reasonable to ask for further information. However rather than do this applications are refused outright presumably in order to meet their targets.

    Beyond this the message that is continually being peddled is that people are not welcome. The government have stated that visitors abuse this route and remain illegally. This is a bare faced lie. Where is the evidence for this? This continuous negativity will have a far reaching impact on the perception of the UK as a welcoming country. By that time the damage will have been done. Very soon the issue of queues may resolve itself. Nobody will want to bother to come at all.

    In other news Indian Restaurants are suffering from the introduction of rules preventing those who offer a takeaway service (even though miniscule) or a buffet service from qualifying to bring skilled chefs from abroad. These industries are already suffering from the economic downturn and their attempt to improve their competitive edge had been given short shrift. Recently a college has opened to train chefs. It will however take roughly 5 years to get them to a level at which they are of use to employers.

    May 07, 2012

    Money Money Money

    Financially the UKBA are in a win win situation with the (substantial) increases in fees in all areas and refusals for minor reasons which then result in further applications, and more fees. Since this has been such a glowing success the UKBA have now stepped up on the commercial by introducing premium services, £25000 will offer an account Manager and enable passports to be turned around very quickly and priority given to such applicants. The smaller firms, on payment of £8000 will get an Account Manger and some priority but not as much as the £25000 customer’s buying power. Abroad premium services are mushrooming all over the place. But are these pledges going to work or is it all going to end in tears.

    A number of things are happening. The Immigration Services Union have organised a strike for next week and there is a sneaking suspicion that they were involved in diverting staff away form the front line and it is commonplace for IT systems to go down regularly leaving hands tied. What are Account Managers going to do in this situation I wonder. Get the vignettes out themselves and endorse passports?

    Migrants generally wait for months (6 months to be precise) for their cases to be decided. There are all sorts of consequences resulting from the delay. However their voices are silent. They do not have the buying power to kick up a fuss. Letters go unanswered and most MPs are not that interested in the plight of the proletariat. Today however big business have made headlines because very important Executives are unable to travel because the IT systems have collapsed (again).

    Whilst all this is going on, however, the rich are able to buy themselves out of the queue ( for £1800) and according to the reports staff are deployed from the queues to process the entry of a few.

    Money plays a big part in the way the UKBA runs, at all levels. Who said money does not buy happiness.

    April 30, 2012

    Tackling delays

    Something has happened to the immigration system of late with delays on the increase. The target waiting times for applications at the UKBA have increased from 13 weeks to 6 months. Anyone making enquiries about their applications are told not to contact the UKBA until a full 6 months have passed. The regular and rapid increases in fees appear to have no impact whatsoever on speed. The lack of communication as always increases frustration of the system.

    At airports the problem has reached crisis point. There are reports of queues taking over 3 hours to get through and passengers trying to walk out without going through controls. As we get closer to the start of the Olympics these numbers and problems will increase.

    Bearing all this in mind it is surprising that risk profiling is not used more aggressively to identify risk and for the system to target these areas specifically. After all those who come from countries where visas are compulsory have been already been assessed for risk and their immigration status has been cleared. The Airlines Liaison Officers who act in an advisory role at airports understand the immigration requirements and very few applicants as a result are allowed to get through to board airlines. The Airlines already have enough information about travellers by the time they board the aircraft. Therefore the risk assessments have almost entirely been completed before a passenger arrives in the UK. From an immigration perspective the areas of risk have largely been covered. It would therefore make sense for the checks to be random on arrival without the fear of compromising security.

    In Australia risk profiling is prioritised before a person travels. Everyone, regardless of nationality requires a visa. There is an Advance Passenger Processing system which requires airlines or shipping companies to confirm that a person has the right documents to travel. Within 4 seconds the documents are checked and the airline is informed whether the passenger can or cannot travel or in some cases of doubt the passenger will requires further screening on arrival. This makes it easier for those who have been pre-checked and cleared.

    Another measure may be to introduce these checks on board airlines. There is not reason why this cannot happen. The Immigration Act 1971, which determines a lot of immigration functions, appears to contain powers to enable immigration officers to board ships or aircrafts and even if the powers currently do not do so it would be a relatively easy thing to implement. In Kuala Lumpur, Malaysia this is exactly what has happened. They are introducing on-board checks to ease the passenger load. At present biometric capture is possible though the use of mobile units and so where there is a need the existing staff can be deployed to carry out these checks.

    It is clear that the situation at the airports cannot carry on for much longer. It carries its other risks and will damage UK’s reputation in the long term. A number of temporary and permanent solutions need to be put in place. But this does require thinking out of the box.

    April 23, 2012

    What More Changes


    The Abu Qatada saga

    The case of Abu Qatada has gripped the nation and many migrants cannot understand why their cases are not successful whilst that of a person accused of terrorism is. And so the battle rages like a game, on and on. With arguments, counter arguments and opportunism all parties, the media and politicians wade in with differing views about whether or not Abu Qatada appealed to the European Court in time. I find myself wondering whether the outcome would have been any different had the Home Secretary delayed the announcement of the deal between Jordan and the UK until after the 3 month period thereby denying the right to appeal to the European Court. I was particularly impressed by Theresa May who has behaved impeccably throughout this affair and despite pressure to ignore the European Court she has abided by the Rule of law. Had she ignored the European Court decision there have been no sanctions as such other than political fallout.

    Face to face interviews back on track

    The practice of conducting face to face interviews had been abandoned in favour of paper based reviews after the Points based system came into being. However after concerns that applicants were not able to communicate in English in Pakistan a pilot study was carried out and the result is that face to face interviews will now be conducted for Pakistani students. But that is not the end of it. There are currently pilots taking place elsewhere in particular Bangladesh, India, China, Nigeria, Sri Lanka and Egypt and there is little doubt that interviews will be judged to be the best way of preventing “abuse.” Many of us suspect that the true reason for this is that control of immigration will be given back to the officers abroad. If the only reason for the introduction was concerns about English the colleges which conduct these tests, with strict controls could have managed this issue. What it will inevitably mean for students is delay. Come September the problem will become acutely apparent.

    Canada’s doors are open

    In the meantime Canada has been active in promoting the entry of young immigrants. The Immigration Minister has outlined a transformed immigration system that will cut through backlogs for federal skilled workers make the system flexible and introduce incentives to encourage students, who are permitted to work, and graduates from their Universities are free to remain in Canada to gain work experience and to stay on thereafter.

    April 16, 2012

    Bring in the money and brains

    In its immigration strategy the Government has placed emphasis on encouraging investment to the UK and on raising the skill levels even within the investment categories. The regulations that have been rolled out over the last few months have been introduced with this vision in mind. This article charts through the two themes to assess the changes.

    Visitor

    Starting with visitors there is a category of prospective entrepreneur for those who want to come to the UK to secure funding so that they can join, set up or take over, and be actively involved in the running of, a business in the UK. Applicants must be able to show that listed organisations are supporting the application and are considering funding the proposed business. They must be able to show that there is interest in funding from either a registered venture capitalist firm, UK entrepreneurial seed funding competitions or one or more UK government departments.

    Entrepreneur

    A Tier 1 entry clearance or in country switch is available to an individual who has £200,000 or to a person who invests £50k or more into an existing or new UK business, but only if the funds comes from a reputable source. Third party funding is allowed, provided that the entrepreneur has unrestricted access to those funds.

    Entrepreneural Team

    For the £200k investment, the funds can be shared between an Entrepreneurial team of up to 2 people, and both business partners can qualify for entry clearance or leave to remain in the UK on this basis.

    Post study workers

    With the closure of the category of post study work, those who are in the UK can set up a business with £50,000 in funds. However to prevent the mushrooming of cleaning and taxi businesses there is a requirement that the occupation of the applicant will be at graduate level or above.

    Graduate Entrepreneur

    The Tier 1 (Graduate Entrepreneur) category has opened for graduates who wish to extend their stay in the UK in order to establish one or more businesses in the UK and who have been identified by Higher Education Institutions as having developed world class innovative ideas or entrepreneurial skills. There is a limit of 1000 places available for this category and the award of these places is carried out by the Institutes.

    Settlement

    The entrepreneur can qualify for settlement (permanent residency) after 5 years. An initial period of 3 ears is granted initially and a 2 year on extension whioch must show that they have created 2 jobs for settled workers and the required investment has been completed. Settlement is generally granted after 5 years. However there are fast track rules for settlement:

    • 3 years (rather than 5) if the entrepreneur creates 10 jobs for settled workers or has achieved an annual turnover of at least £5m for the UK business or 2 years if the turnover is £10m.

    On the employment front the bar has been raised form NQF level 4 to NQF level 6 and as a result a number of occupations will from the 14th June be removed from the Code of Practice for new applicants and these positions include Hospitality Mangers and Event Managers.

    April 04, 2012

    Change, change change

    The Government have announced further changes to Tier 2 (General) which will affect applications made after 14th June 2012. There is no change to Intra company transfers. A summary of the changes is as follows:

    Removal of some occupations from the Codes of Practice

    In brief certain professionals will no longer qualify. The list includes:

    Office Managers, Healthcare Practice Managers, Event Managers, Customer care Managers and Residential and daycare managers.

    Chefs are still on the Shortage Occupation List but the Migration Advisory Committee has been asked to review this list later this year. If they recommend any changes these will then be considered by the Government and further changes could follow.

    Relaxation of labour market test for high earners and PhD level jobs


    • Those paid over £70 K and PhD level occupations will no longer need to advertise in Jobcentreplus although they will still need to advertise elsewhere. Those earning over £150000 are completely exempt from the advertising requirements.
    • For PhD level jobs the best rather than the most suitable applicants can be selected
    • Any advertising carried out will be valid for 12 months rather than 6 ( as is the case now and remains the case for all other applicants)

    Can I take this opportunity to wish everyone a very Happy Easter holiday.

    April 02, 2012

    The next raft of changes due

    Following the National Audit office conclusions that there are 65000 students who are not actively studying, they are likely to be the next target when searches are conducted by the UKBA. In fact even before this the UKBA were looking very carefully at students in the work place and this new statistic will increase focus in this area. Employers are advised to go beyond the usual checks of the passport and obtain copies of the students current registration and timetable. If it turns out the student is not genuine the employer will not face the risk of a civil penalty.

    Student Dependants

    In the meantime there are changes to the rights of student dependants who until now could switch to Tier 2 and were treated as unrestricted staff (which meant that they were not subject to restrictions in numbers). They will from the 6th April be restricted positions and this will mean that they will need to be approved by a Panel at the UKBA and will need to return abroad to apply for entry clearance.

    Visitors within the creative sector

    A further category will be added to the category of visitor. This will be a new route for those visiting the UK for one month or less which will allow them to undertake certain permitted paid engagements.

    Premium Scheme

    In the meantime the UKBA are now openly advertising profit making schemes in the UK which already exist in some form abroad.

    There will be a new premium service for large organisations and also one called the Small Medium Enterprise plus (SME+) scheme for smaller organisations. Employers will pay an annual fee and receive a benefits package including an online application process.

    A summary of how the proposed schemes will work is summarised below:

    • A web-based service with annual subscription of £25,000 for the premium service and £8000 for the SME's.
    • The full subscription fee is only chargeable once the Sponsor Licensing Unit has granted the application.
    • Both packages will be subject to audit for compliance by the UKBA.
    • Sponsorship will be offered to A rated sponsors only.
    • The scheme will provide a faster, more streamlined service - initially for Tier 2 and 5 applications. The intention is that it will be extended to other routes under the Points Based System (PBS) such as family settlement and out of country in 2013.
    • Sponsors will be allocated a designated account manager.
    • Applicants must create a customer account, which enables them to do a self assessment on eligibility. The key data is automatically transferred from the self assessment onto the application form. Applicants are able to save and print data at any stage of the application before they submit. Guidance is given throughout the process, including details of how to pay and what documents need to be provided.
    • There will be priority access to Public Enquiry Office (PEO) via the on-line system.
    • When an application has been submitted to the UKBA, supporting documents will be scanned and immediately returned to the applicant.
    • Applications made through the standard route will receive an appointment within 14 days, a premium route applicant or dependants will be able to walk into a PEO at any time to have their documentation verified.
    • The system will be phased in and initially only apply to in country applicants then extended to out of country applicants from 2013.
    • From September 2012 a facility will be added to the on-line system which will allow sponsors to check the status of the application.

    Employer feedback on the proposals

    These proposals are subject to ongoing development and discussion and members of the UKBA employers stakeholder group have been asked to gather information of the following five questions:

    • What is the best way of deploying online applications?
    • How should the UKBA select the tier/sponsor?
    • Should the UKBA phase the system in by sponsor or tier?
    • Will phasing in be an extra burden for sponsors?
    • Is this the right time to introduce online applications?
    • We would like to hear your comments on the proposed scheme and specifically your responses to the five questions above by 30 November 2011. Please send your feedback to recruitmentandretention@nhsemployers.org.

    March 26, 2012

    Words and music

    Theresa May has been very busy indeed using the immigration argument, this time to warn the Scottish that an independent Scotland would open the door to mass immigration because they would not be able to protect their borders. She also released more press releases about the fact that by June she will bring in measures to prevent “abuse” by preventing the entry of dependants unless they earn around double the amount of £25000 and even more if they have children. I suppose you could call it a tax (pun) on families. What next I wonder. Compulsory sterilisation of all future applicants? And before you laugh some of you may remember the compulsory virginity test that were being conducted on applicants in the 70s. Certainly in terms of language there are echoes of the past. The word “abuse” is bandied about very easily and recklessly. It suggests that relationships are not genuine and this is not responsible governance. And in the meantime organisations have expressed concern that around 48% of nurses working for the NHS and 37% school teachers will not qualify and leave as a result at a time when training budgets for nurses are being slashed. Damien Green in the meantime has said that the policy is to bring in “ only those migrants who can make the greatest contribution to life in the UK." Obviously the only contribution that is worth it in the eyes of the current Government is the ability to earn big bucks. So welcome bankers. It is hardly a surprising statement given the fact that money buys access.

    The Hindujas hit the right note when they criticised the Government for not granting visas quickly enough. There is a system that provides for a premium service at an increased cost. It obviously is not working.

    This brings me back to the benefits of immigration. Last night was an example. I went to Ronnie Scotts, the famous jazz club to listen to a band called Lokkhi Terra who were showcasing fusion music combining Bangladeshi ballads with Cuban samba and using instruments as varied as table to African drums to saxophone to create the most heavenly music to the ears. The band consisted of varied nationalities, featuring Bangladeshis, Cubans, English, Swiss, African and Afghanistani members all playing with passion and skill. Through music common interests emerged as well as differences and these were celebrated by one heavenly cacophony of sound. As a poignant reminder of the common thread that runs through their latest album is called “No visa”!

    March 19, 2012

    Changes to Students investment and work related categories

    The latest changes to the Immigration Rules have now been laid before Parliament and will come into force on the 6th April unless stated otherwise. To summarise the main changes:

    Students

    There will be a limit of stay of 5 years or 6 years, with some exceptions, with a total limit of 8 years where students are studying for a PHD. Exceptions have been made for law, medicine and dentistry, veterinary sciences, music and architecture. The limit will not include the period of study below degree level and any time spent under Tier 4 (Child).

    They will be able to switch to full time employment without the need for an employer to undergo a labour market search under Tier 2 once they complete obtain a UK degree or complete 12 months towards a PHD. No other students will be allowed to switch in country and will need to return abroad to apply for entry clearance.

    Post Study Workers

    This category will close on the 6th April 2012 but they will be able to switch to Tier 2 without a labour market test and will also be able to remain as a Tier 1 (Entrepreneur) by investing £50000 and creating 2 jobs. They will no longer be required to be employed by the same employer for 6 months but will be required to prove that they have sufficient funds to meet the maintenance requirements.

    There is also provision for this category to switch to Tier 5 (Temporary Worker) to obtain work experience.

    Graduate Entrepreneurs

    This new category of Graduate Entrepreneur (which replaces in effect Post Study Work) is selected by their Higher Education Institute to develop ideas or entrepreneurial skill and limited to 1000 places each year. It permits up to 2 years following which the Applicant will be expected to either invest £50000 or leave. The time spent up to that point will not count towards settlement.

    Entrepreneur Pairs

    When 2 applicants form an Entrepreneurial Pair the dates relating to their business and investment was tied to the date of the earlier member’s application. This condition is to be removed giving the second team member more time to qualify.

    Tier 2

    There will be a maximum period of 6 years within which applicants either have to qualify for indefinite leave or leave the country. If they do not qualify there is a 12 month cooling off period during which they will not be able to qualify in this category.

    To qualify applicants need to earn a minimum of £35000 per annum in basic salary excluding overtime or the amount that is stated in the Codes of Practice relating to their occupation whichever is the higher. There is an exception for those who are or were at any time on the shortage list.

    These changes will come into effect in April 2016 and will accordingly affect those who came in April 2011.

    All extensions will be standardised to 3 years and 14 days.

    Domestic workers

    New applicants applying for entry in private households after the 6th April will only be allowed to enter strictly for 6 months, will not be able to switch employment or bring in dependants and will not qualify for settlement. They will need to accompany their employer or his/her family and leave with them. There are corresponding restrictions for those in diplomatic households.

    Fee rises for PBS applicants

    Finally from 14th June 2012 there will be a rise in the maintenance figures for all points based categories. These figures will be reviewed annually from now on (and so are expected to rise each year)

    Category Existing level of funds required New level of funds required
    Tier 1 Migrants - £2,800 for entry clearance applications

    - £800 for leave to remain applications

    - £3,100 for entry clearance applications
    - £900 for leave to remain applications
    Tier 2 Migrants and Tier 5 (Temporary Worker) Migrants - £800 - £900
    Tier 5 (Youth Mobility Scheme) Migrants - £1,600 - £1,800
    Dependants of Tier 1, 2 and 5 Migrants - £1,600 for dependants of Tier 1 Migrants who have been in the UK for less than 12 months

    - £533 for all other applicants

    - £1,800 for dependants of Tier 1 Migrants who have been in the UK for less than 12 months

    - £600 for all other applicants
    Tier 4 (General) Students - Inner London - £800 per month, up to a maximum of 9 months (£7,200), or 2 months if the applicant has an established presence (£1,600)

    - Outer London / rest of UK-£600 per month, up to a maximum of 9 months (£5,400), or 2 months if the applicant has an established presence (£1,200)

    - Inner London - £1,000 per month, up to a maximum of 9 months (£9,000), or 2 months if the applicant has an established presence (£2,000)

    - Outer London / rest of UK -£800 per month, up to a maximum of 9 months (£7,200), or 2 months if the applicant has an established presence (£1,600)
    Dependants of Tier 4 (General) Students - Inner London - £533 per month, up to a maximum of 9 months (£4,797), or 2 months if the applicant has an established presence (£1,066)

    - Outer London / rest of UK - £400 per month, up to a maximum of 9 months (£3,600), or 2 months if the applicant has an established presence (£800)

    - Inner London - £600 per month, up to a maximum of 9 months (£5,400), or 2 months if the applicant has an established presence (£1,200)

    - Outer London / rest of UK - £450 per month, up to a maximum of 9 months (£4,050), or 2 months if the applicant has an established presence (£900)
    Tier 4 (Child) Students - Where the child will be studying at a non-­residential independent school and is in a private foster care arrangement or staying with and cared for by a close relative - £500 per month, for up to a maximum of 9 months (£4,500) - £550 per month, for up to a maximum of 9 months (£4,950)
    Tier 4 (Child) Students - Where the child will be studying at a non- residential independent school, is under the age of 12 and is (or will be) accompanied by a parent - £1,333 per month, plus £533 per month for any additional child accompanying the applicant and the parent, up to a maximum of 9 months (£11,997 for the student and parent plus £4,797 for any additional child)

    - £1,500 per month, plus £600 per month for any additional child accompanying the applicant and the parent, up to a maximum of 9 months (£13,500 for the student and parent plus £5,400 for any additional child)
    Tier 4 (Child) Students - Where the child is aged 16 or 17 years old and is living independently and studying in inner London - £800 per month of the course up to a maximum of 9 months (£7,200), or 2 months if the applicant has an established presence (£1,600)

    - £900 per month of the course up to a maximum of 9 months (£8,100), or 2 months if the applicant has an established presence (£1,800)
    Tier 4 (Child) Students - Where the child is aged 16 or 17 years old, is living independently - £600 per month of the course up to a maximum of 9 months (£5,400), or 2 months if if the applicant has an established presence (£1,200)

    - £700 per month of the course up to a maximum of 9 months (£6,300), or 2 months if the applicant has an established presence (£1,400)

    Other Changes:

    Refusals for false representations:

    • There will be an additional ground for refusal if an applicant has made false representations indirectly for example to obtain a genuine qualification.
    • English language – Where a person has previously been refused for producing a false certificate this can form a ground of refusal in any future application.

    Curtailment:

    Leave will be curtailed and mandatory when the migrant is non-compliant.

    19/03/2012

    Changes to Students and work related categories

    The latest changes to the Immigration Rules have now been laid before Parliament and will come into force on the 6th April unless stated otherwise. To summarise the main changes:

    Students

    There will be a limit of 5 years or 6 years , with exception, with a total limit of 8 years where students are studying for a PHD. Exceptions have been made for law , medicine and dentistry, veterinary sciences, music and architecture. The limit will not include the period of study below degree level and any time spent under Tier 4 (Child).

    They will be able to switch to full time employment without the need for an employer to undergo a labour market search under Tier 2 once they complete obtain a UK degree or complete 12 months towards a PHD.

    Post Study Workers

    This category will close on the 6th April but they will be able to switch to Tier 2 without a labour market test and will also be able to remain as a Tier 1 (Entrepreneur) by investing £50000 and creating 2 jobs. They will no longer be required to be employed by the same employer for 6 months but will be required to prove that they have sufficient funds to meet the maintenance requirements.

    Graduate Entrepreneurs

    This new category of Graduate Entrepreneur is selected by their Higher Education Institute to develop ideas or entrepreneurial skill and limited to 1000 places each year. This category will permit up to 2 years following which the Applicant will be expected to either invest £50000 or leave. The time spent up to that point will not count towards settlement.

    Tier 2

    There will be a maximum period of 6 years within which applicants either have to qualify for indefinite leave or leave the country. If they do not qualify there is a 12 month cooling off period during which they will not be able to qualify in this category.

    To qualify applicants need to earn a minimum of £35000 per annum in basic salary excluding overtime or the amount that is stated in the Codes of Practice relating to their occupation whichever is the higher. There is an exception for those who are or were at any time on the shortage list.

    These changes will come into effect in April 2016 and will accordingly affect those who came in April 2011.

    Domestic workers

    New applicants applying for entry in private households after the 6th April will only be allowed to enter for 6 months, will not be able to switch employment and will not qualify for settlement. There are corresponding restrictions for those in diplomatic households.

    Fee rises for PBS applicants

    Finally from 14th June 2012 there will be a rise in the maintenance figures for all points based categories.

    March 12, 2012

    Snippets of news

    Reported News

    Recently the Immigration Minister claimed that companies are “addicted to migrant workers “and need to “kick the habit” by employing local staff instead. If only it was that easy. This is in the same week that a restaurant that the Home Secretary opened in her constituency was raided by the UKBA. This week also highlighted the fact that children of immigrant parents who speak another language were outperforming their English counterparts. In the meantime the Times Higher Education supplement reported on the result of a You Gov poll commissioned by universities. It appears that two thirds of people underestimate the value of international students to the UK economy. They did not fully appreciate how much the sector received from overseas students. They estimated the figure to be below £500 million when in fact it is £5.3 billion. More than a third incorrectly believed international students were taking places allocated for home students. And 71 per cent believed international students stayed in the country long after they graduated when only 3%t settled permanently in the UK five years after graduation.

    In the meantime on television, a recent programme “Making Bradford British”, where individuals from different classes and colours were put together in a house and spent time living with each other highlighted the fact that when communities have to live together common humanity steps in and they are tolerant of each other ‘s customs and behaviour and in general more accepting of each other than the politicians would have us believe. One of the most poignant moments in the programme was when a white young male accompanied his Muslim housemate to a mosque and met the devotees afterwards. He noted that the values that he saw that day reminded him of the values of justice and fair play and good manners taught to him by his grandfather which he had forgotten.

    As to what’s happening:

    Tier 2

    The Migration Advisory Committee has reviewed the annual limit ( of 21,700)which was put into place last year and recommended that no changes be made to this despite the fact that the take-up was low, at 10000 and has been consistently undersubscribed since its introduction. It was also asked to review intra company transfers, which was granted to 30,000 migrants. Whilst acknowledging that these take up the lions share of these types of visas it recommended no change but more close monitoring of the use of intra-company transfers for third party contracting. It was also asked to look at an increase in skill levels but did not do so. Finally it considered that highly paid jobs and PHD level jobs should be exempt from the requirement to conduct a labour market search within the UK.

    Sponsor licences

    A reliable source has advised that businesses who are downgraded from A to B and who agree to sign up to an action plan will face a rise in fees from £1000 to £1500 a rise of 50%. Where else can rises like this be imposed without an outcry. Are the Government using the UKBA to dig themselves out of a recession?

    The details of changes to immigration rules will be introduced this week and will be reported in the next issue.

    March 05, 2012

    A listening Government?

    Most Governments claim to listen to their citizens but as always they are selective with their listening, deaf at times or suffering from tinnitus as a result of all the other moans from other areas taking place on their collective ears.

    When the Government were thinking, or rather planning change, they consulted widely. Today the changes were announced. Here is a snapshot of the listening process.

    Tier 2

    • 73% of all respondents disagreed with the proposal that Tier 2 (General )should become a wholly temporary route with no avenue to settlement
    • Tier 2 will become a temporary route for all those earning less than £35000. There will be exceptions for those on the shortage occupation list and for some scientists.
    • 67% of all respondents disagreed with the proposal that temporary leave for Tier 2 migrants should be capped at a maximum of 5 years.

    • There will be a cap of 6 years and the introduction of a 12 month cooling period


    • 66% agreed that Tier 2 migrants should be allowed to re-apply for another Tier 2 visa after they have left the UK.
    • Tier 2 applicants who leave the UK will not be able to re-apply to return for 12months

    Summary of changes


    • Only those earning over £35000 will be able to bring in their families.
    • The rules relating to settlement will only take effect on 6th April 2016 and so those in the UK currently under Tier 2 can relax. The other rules will apply from the 6th April 2012.
    • Domestic workers will only be allowed to accompany visitors, will be allowed to remain for a maximum of 6 months and will not be able to change employers or settle. In recognition of the fact that such workers are vulnerable instead of allowing them to change employers the way in which abuse will be tackled is by “strengthening” the entry clearance measures( ie refusing applications more) and they will receive help and support to return to their home (not clear if this will be financial and if so whether the cost of doing so has been factored in). Those in diplomatic households will be allowed to stay for a maximum of 5 years and will not be allowed to change employment or settle. It is interesting that the response of the consultation process was that 53% disagreed that the route for domestic workers in private households should be closed.
    • There will be a new route for limited professionals to come as visitors (and thereby prevent being included in the statistics as migrants) to undertake paid engagements.
    • There are changes to Tier 5 but no further changes to Tier 1.

    The catchphrase “brightest and best” unsurprisingly only favours the high earners. World events have so far led to an increase in applications from war torn countries and this is an area that is likely to result in an increase in numbers. Students will eventually find other pastures. Those who are the” brightest and best” ( the catch phrase of this Government) have the world as their oyster and therefore there is no reason why they will choose to remain in the UK.

    Immigration policy has always been based on the perception that numbers are growing and successive governments have sought to make political capital out of placing restrictions. Whilst these changes are being made which will have an impact on families around 30,000 employees of companies came into the UK without any restrictions. A listening Government? Yes but listening to whom?

    February 27, 2012

    The practical and the altruistic changes to immigration.

    Immigration law has always been an area of rapid change. The changes that are being rolled out are not only confined to changes in law but are also operational and require a degree of computer literacy. It appears that the premium service, i.e a service that costs a great deal more is being rolled out in different counties thereby creating one queue for the rich and one for all others. With the introduction of online services there are likely to be problems.

    Within the UK those applying to extend their Tier 2 or Tier 5 visa online could in theory do so from the 14th February 2012. However at present this facility is unavailable as the UKBA need to undertake essential “maintenance work”. The advice on the website is that once this service is resumed it will be posted on the website. So much for the new process. For those interested in this process once it is back up and running is as follows. The application is made online but only complete after the supporting documents are submitted. If the applicant is sending supporting documents by post the time limits for submitting this is 15 days from the date of the online application. The applicant will then be invited to attend a biometric appointment. If submitting the application through the premium service the applicant has 45 days to submit the documents and go through the biometric process. Applicants should be particularly careful when submitting evidence of the English test appropriate as the online application may not request the concise information required.

    Abroad, as of the 5th March 2012 all applicants in India will need to make their applications online. In Bangladesh, there are plans in hand to introduce a premium service for Tier 2 applicants and business visitors to enable them to obtain visas quickly. These changes were announced by the British High Commissioner in Bangladesh in recognition of the trade relationship between the 2 countries but full details of this are not yet available. This service already exists for visitors in India (excluding student visitors) who have not in the past been refused. Extending this facility to Tier 2 applicants in India would speed up the process.

    As for the latest development on the numbers game, of the Government’s aim to bring the numbers down the latest figures showing a rise in the number of immigrants is up mainly as numbers leaving the UK has declined and it takes account of student numbers. Students are not migrants as they have no long term status and a rise in their numbers would be good for the educational institutions. If the Government adopted a sensible approach of taking these numbers out of the equation the true numbers would be within their reach. The danger of trying to reach the numbers will be to stifle growth and play rough shod (even more) with families. Governments come and go but the of the changes they introduce can affect families for generations.

    February 20, 2012

    Students under the spotlight again

    The date for the closure of the post study work route, which allowed foreign students who completed degree level studies or above to remain and work for 2 years has finally been set to the 6th April 2012. At the same time, and in order to deflect criticism, the Government are introducing a new category for students called the Graduate Entrepreneur category for those who have engaged in entrepreneurial activity for example developed a business idea whilst at university. This route will only open in April 2013. The proposal is to introduce it for one year and allow an extension for up to 2 years. Applicants can thereafter switch into Tier 1 (Entrepreneur) if they invest £50000 in their business. However the catch is that this category will be limited to 1000 places.

    The other changes to be made are an increase in the amount that students and those in work will be required to meet to show that they can support themselves. Students will have to demonstrate availability of £1000 per month from the current £800 for those in London and to £800 from £600 for those outside London. Furthermore those who pay accommodation fees to their Tier 4 Sponsor will only be allowed to deduct a maximum of £1000 from the maintenance required to be shown even if the student has paid more than this. The final change is that there will be a limit of 5 years for students to remain in the UK with some limited exceptions. Work placements will be limited to a third of the total time spent in the UK.

    To cap it all off there are will be further rises to fees.

    A former Education Minister, Lady Blackstone has expressed her concern about the drop of students in particular from India which she estimates to be 20% and the effect this will have on Universities as students will chose UK’s main competitors, the US and Australia, who have much more generous arrangements to encourage students. Her view is shared by many others including Viscount Hanworth, professor at University of Leicester.

    The amounts required to be met are already high and these measure will definitely have an impact on students. Universities who have already seen a drop of 14% will see a huge drop of students to the less popular Universities at a challenging time and in a short span of time the influence of the UK as a centre of learning will diminish, once lost never to return. A high price to pay for a political goal of a party which failed to appreciate the difference between students and immigrants.

    February 13, 2012

    The shifting sands: the hurdles of sponsorship

    When the sponsorship regime was introduced in 2008, it preceded an extensive and expensive campaign to encourage employers to join. Employers may remember that there was an advertisement showing hurdles. Applications were online and employers were being given the impression that if they applied and obtained their licences their prize would be to be able to bring staff with as little as a click of a button. Initially employers applied, many of them with very little idea of the criteria or their responsibilities. All they had to do was to produce a few documents and hey presto the licences came through. Many, having obtained licences, then went on to issue Certificates of Sponsorship (old work permit) which are virtual documents and brought in staff. During this period numerous licences were granted by the Sponsor licensing Unit often with very little idea or understanding of the business.

    However, after some months, there was a change of emphasis with more visits starting to take place. Different officers focused on different areas of compliance. At first the visits provided helpful advice and employers found that they could turn to the officers for advice. Good business practice began to be the new buzz word. However over time the system has become punitive in its nature. Many employers have discovered that following visits their licences are being suspended, downgraded even revoked. If employers are found employing students who have not been studying or who have been exceeding their hours the finger of blame is pointed at them even if they were not aware that this was the case. A large proportion of employers targeted appear to be ethnic minority businesses. Many of them are small businesses and many do not have the time or energy to fight and many give in. They accept their fate.

    Those who were lucky enough not to get targeted earlier now find that the rules on sponsorship have shifted further into the sand. Employers are now being punished for not applying rules that were not even in existence at the time that they obtained the licence. The guidance is vague and poorly drafted as to not make any sense on some issues. There is an enquiries unit but very little meaningful advice ever comes out of a call to this team. Guidance was meant to be what it says, guidance, but it has started to be used as the more than that. The Courts have expressed concern about these regulations but they continue to be used to beat the employer with.

    The hurdles are now being raised with fees going up further, more red tape coming in, less carrot and more stick and more confusion about what they mean. Employers were taken in like lambs to slaughter and are now being taken to the slaughter house. An ending to a successful campaign ?

    February 06, 2012

    Statistics and the political football

    This has been an uneventful week in terms of actual policy but it has been a good week for political rhetoric or as it is known in the US, dog whistle politics. It started with Ministers publishing statistics purportedly showing a large number of foreign nationals claiming benefit only to be rebuked by the independent watchdog for misinterpreting the statistics or in other words for ‘bending the truth’. When the will statistics were more closely examined it turned out that foreign nationals are less likely to claim benefits than British born workers. Then there was a speech by the Immigration Minister talking about the fact that only those who earn a certain amount (pitched at £30000) can qualify for entry. There are already plans in hand to prevent those who come in to work from obtaining a right to settlement.

    As statistics go there has been a drop of 8% of British students applying to go to University. Interestingly there has also been a drop of 14% of overseas students as well. Overall 20% less students. These must have implications for Universities and colleges. True it means that it may help the Government reach their target of reducing migration but it also means that colleges and Universities are suffering a drop and that this will have a drip effect on the loss of jobs.

    The speech by the Minister placed emphasis on the fact that only those with high salaries are of benefit to the UK and will qualify for settlement because in effect they are of benefit to the UK. Nurses, chefs, teachers and care workers are given no value in terms of the jobs they do or the benefit they bring to the table. Taking this argument forward the bankers earning well in above of the £300000 mark must surely be gods in terms of the benefits they brought to the UK.

    And there is talk of the brightest and the best qualify. This meaningless term is actually stating a fact, that education in certain places, earnings of a certain level, a lifestyle that is based around money is good and everything else is worthless is a very dangerous and morally bankrupt argument and is a reason why we in the West are in the predicament we find ourselves in. When Mitt Romney, the candidate for the Republicans, dismissed the need for the poor to be given a hand up there was an outcry. The pronouncements by the Minister are similar but because it is aimed at foreign nationals it immediately appears to be acceptable.

    The Government can play statistics with peoples lives. They may even achieve a result, a reduction in numbers although their task is gargantuan if it is to achieve its aim. It is predicted that this will inevitably result in an increase of cases in court and the increased role of the judges to cure the defects that exist.

    January 30, 2012

    Have our institutions taken over the role of the UKBA?

    The rug was pulled from underneath the overseas students feet when changes to the student rules came in quickly and without much notice. New students of course know what to expect and they can decide for themselves whether or not UK is the right destination for them. Many European countries have relaxed their regulations in order to encourage students but this has not, until now , been taken up in large number s because of language barriers. The real problem is for students already in the UK looking to extend their stay. The problems initially came from the changes but now it appears that institutions, universities and colleges, who rely on overseas funds have tightened up their procedures in a manner that errs on the side of caution and excludes genuine students. Clearly many do not understand the rules very well and rather than risk losing their licence they lost the student.

    Take for example the case of a current student who has completed a degree and is eligible to become a post study worker. This category is due to end at some point in April (the exact date has not yet been announced). The student concerned would like to switch to post study worker status but continue to complete her Master course. This is because at the end of it she will have a period on her visa to enable her to do some work experience. She clearly meets the criteria, there are no restrictions on her continuing to study as a post study worker. In fact the UKBA have confirmed as much in writing. However the University concerned will not to allow her to do this.

    Another case concerns a student whose college closed abruptly and without prior notice in the middle of the term. The college may have been suspended but the UKBA do not disclose this to the student . As it was mid term finding another college offering a course similar to the one that he had been doing was proving difficult. When he finally did he has been told by the College that before they issue a Certificate of Acceptance (CAS) he must get la letter from he UKBA confirming that he is allowed to seek a further college. Those of us who work in this area of law will know how futile such a task can be. Nor is it necessary for the college to obtain such a letter.

    The English tests have also been causing a number of difficulties. Admittedly the rules are complicated at time but as a result they are being misinterpreted at times. For example a student who is issued with the CAS after April 2011 to do an NQF level 6 course must be proficient at level B2 of the CEFR. The college are able to choose their own method of assessing the language ability but often insist on a student passing an approved test.

    And then there are numerous cases of downright dishonest colleges who take fees often for 12 months and if the student is refused for one reason or another they refuse to refund any fees providing a nice little earner for the crooks. There is a need for this issue to be monitored closely by officers visiting colleges.

    January 23, 2012

    Watering down of human rights

    The Home Secretary has always been very clear about human rights law. In her view it is used to pursue useless cases (the law is an ass) and accordingly she clearly signalled the need to take an axe to what she considers are loopholes in the system. As practitioners there is always a tendency to await grand announcements of Bills (the precursor to laws being made) and then to consider the clauses and prepare for battle. This time however changes are being made quickly and without any consultation.

    There is currently a rule that requires the Secretary of State to consider a number of factors before making a decision to remove a person from the UK. It is if you like the final opportunity for all the factors surrounding the case to be considered. The current law provides that the following issues( which is a non exhaustive list) have to be considered:

    • age;
    • length of residence in the United Kingdom;
    • strength of connections with the United Kingdom;
    • personal history, including character, conduct and employment record;
    • domestic circumstances;
    • previous criminal record and the nature of any offence of which the person has been convicted;
    • compassionate circumstances;
    • any representations received on the person's behalf.

    In the case of family members, the factors listed in paragraphs 365-368 must also be taken into account. These are:

    • he has qualified for settlement in his own right; or
    • he has been living apart from the deportee.

    In cases involving children the following are considered.

    • he and his mother or father are living apart from the deportee; or
    • he has left home and established himself on an independent basis; or
    • he married or formed a civil partnership before deportation came into prospect.

    In considering whether to require a spouse or child to leave with the deportee the Secretary of State will take account of all relevant factors, including, as well as the following:

    • the ability of the spouse or civil partner to maintain himself and any children in the United Kingdom, or to be maintained by relatives or friends without charge to public funds, not merely for a short period but for the foreseeable future; and
    • in the case of a child of school age, the effect of removal on his education; and
    • the practicality of any plans for a child's care and maintenance in this country if one or both of his parents were deported; and
    • any representations made on behalf of the spouse or child.

    All the above factors would cover the human rights of a person and any compassionate or unique circumstances of the individual. The UKBA have stated that they will consider these factors anyway but that they do not want the Secretary of State to have the responsibility of considering this and that in the majority of cases these factors are irrelevant particularly as many applicants leave voluntarily. They are obviously stung by the fact that the judges in the Court of Appeal have time and time again stated that where decisions to refuse are made decisions to remove should also be made at the same time and this will require considering the factors above. The danger of removing the safeguards which consider human rights issues is that the applicant will have no safeguards from removal. Para 395C came in for that very reason. Removing it is a major step towards watering down human rights.

    December 21, 2011

    As Christmas approaches I am reminded by a recent speech by Reverend Jesse Jackson, the famous civil rights campaigner. He reminded us that Jesus was a peasant who was born when it was decreed by Herod that all male children would be killed, and who understood how an immigrant felt as he migrated with his family to Egypt and lived there as an immigrant from the age of 11. As an adult he castigated those selling their wares in the temple of God. Christmas is a special time to reflect on the issues that matter. A spirit of peace and forgiveness. Can I wish all my readers a very happy Christmas and a healthy and prosperous 2012.

    Employers beware

    In a recent decision an employer contacted the UKBA to check the status of a family member of an EU national and on the basis of what they were advised suspended the employee. The employer argued that during the suspension the employee did not have the right to work and that the employment contract was unlawful and could not be enforced. At the Employment Tribunal the employers were initially successful but on appeal the Judge re-iterated that the right of the applicant emanated from EU law which gives rights to family members and that the fact that the employer relied on what the UKBA told them did not have any bearing on the legality of the contract. A right to reside of a family member of an EU comes from the law. The UKBA issue a residence permit as evidence of an existing right.
    This judgement highlights the difficulties faced by employers when making decisions which appear on the fact of it to be reasonable. With the increase in immigration raids employers are erring on the side of caution but this can result in the type of issue that this case highlights.

    The cost of justice: Fees introduced for appeals

    As of the 19th December fees will need to be paid for lodging appeals. Last week I wrote about this issue. The fees decided are now £140 for oral appeals and £80 for paper appeals. No cash or cheques but credit and debit cards are acceptable. Thos who do not have cards and cannot arrange payment should submit the appeal and explain this and the Tribunal will write to explain how to make a payment directly into the tribunal’s bank account.

    If this system is anything like that operated by the UKBA in taking card payments then applicants are in for a miserable period ahead. The literature that accompanies the changes emphasizes the low level of fees. However like all fees introduced this is only a starting point.

    Rogue traders: Colleges and their tactics

    Whilst the introduction of sponsor registration was supposed to improve the system for genuine students it has proved to be a gold mine for a number of rogue colleges. A familiar story heard in our offices is of colleges who advise their students to make applications for extensions when there is not a chance that it will be successful and then pocket the full fees (often running into thousands of pounds) when applications are refused. A nice little earner for some.

    December 16, 2011

    Fees for appeals

    Fee charges come into effect for most asylum and immigration appeals from 19 December 2011 and will include asylum, human rights and applications made under EU law. Those who want to appeal against a decision notice dated 19 December 2011 or later will be required to pay a fee. The fee proposed was £65 for a paper appeal, £125 for an oral appeal and £250 for an appeal to to the Upper Tribunal. It remains to be seen what the final figure will be. The funds can only be paid by credit card or debit card and it will be possible to pay online.

    Applicants who win their cases will be able to ask a Judge to make an order for costs limited to the cost of the fee. The Judge has the discretion to grant this if it is reasonable to do so.
    A further change is that applicants will need to lodge their appeals at the Tribunal in the UK. It will will no longer be possible to lodge an appeal at any of the overseas posts.
    Full details will be available after the 19th December 2011

    December 09, 2011

    Is it time to declare an amnesty?

    Recently the government has announced that biometric cards are to be extended to more categories and that the benefit of this is that it will enable employers to check the status of individuals more easily than is currently the case and it will also have the added benefit of deterring and squeezing out those who are illegal.

    Illegal immigrants are nameless and faceless and accordingly when discussing them they are treated as non persons and de-humanised as a result. Where people have personal contact with individuals their opinion is often very different. The childrens author Michael Murpugo wrote Shadow which humanises the pain of being an Immigrant through his characters. There are many children of illegal immigrants unable to make progress because of the status of their parents.

    The public currently believe that there are too many immigrants and that the trend should be reversed. Their views are tainted by their perception of immigrants. It is clear that most immigrants either take jobs that no one else wants to do at the lower end and those that the local population are unable to do at the higher end of the scale. The public are also barraged by the political capital that each party seeks to make about the value of immigrants. It is particularly disturbing that in an attempt to play the numbers game the benefits which can enhance the applicant and the country are discarded for unachievable political gain. The Bangladesh Caterers Award ceremony last week attended by over 1000 people was testament to the success story of the immigrant using their skills to create business opportunity.

    Boris Johnson was right to speak out about the need to grant an amnesty to immigrants and to be able to collect taxes. There are more disturbing reasons for the small minority who may have criminal tendencies. Imagine this scenario. A child abuser, a violent mentally ill person, or a murderer who lives on the on the fringes of society. They are more of a danger because they are not on any radar and would not be able to be traced.

    There is now sufficiently advanced technology to prevent a deluge of illegal immigrants as has happened in the past. However those who are already here need to be regularised. The fact that it is unlikely to happen is not reason enough not to discuss this openly.

    December 02, 2011

    Are the migrant population taking our jobs?

    Recently the Daily Mail, ran a headline indicating that there has been a rise of foreign workers and the decline in the number of local workers employed. A number of employers were interviewed and it was surprising, for a paper with generally such extreme views to report its findings by in a balanced manner. Employers interviewed indicated that foreign workers have a strong work ethic which is sadly lacking in the local population. They are prepared to go the extra mile, they regard their work as being of the utmost importance and they take on tasks that others are not prepared to do. The Immigration Minister Damien Green recently indicated when justifying the reasons for maintaining the restrictions for Bulgarians and Romanians that this would “reduce employers' dependence on migrant workers, particularly for lower skilled jobs.” What tosh.

    Mr Green must be living in a different planet if he thinks that if he stops the entry of lower skilled jobs that these jobs will magically be replaced by local workers. The fact that unemployment is rife has not made an iota of difference to the type of jobs local staff are prepared to do. Libby Purves in a recent article in The Times suggested that British ciitzens should take the Life in the UK test as well as migrants. It is an extrmely good idea for such a test to be introduced. Can I suggest that the test also includes some lessons on work ethic and the importance of a job other than the salary it brings? And until such time as the message gets through can employers be allowed to judge for themselves who to award jobs to. There is no right to a job. The sooner this message gets through the better.

    The complex matter of being a visitor

    Visitors in the past were just that. They could come to the UK to visit family, as tourists, to meet business partners or to receive medical treatment. The changes to the visitor regulations and the creation of numerous categories of visitors have made the whole business of being a visitor very complex. Imagine the scenario of a visitor wanting to enter the UK to visit family and whilst here conduct some business. He could not under the regulations in place do this. There are specific criteria for each type of visitor and a breach could have serious consequences for breach of conditions. The rules have moved from the very general to the too specific. There should be some flexibility in operating them.

    November 11, 2011

    Reduction of migrant numbers

    Finally there is a reduction of migrant numbers…. of birds to the UK rather than human beings!!

    Spouses

    Following the loss of a case in the Supreme Court that declared the rise in age of marriage from 18 to 21 to be unlawful (as it was a disproportionate response to the aim of prevent forced marriages) the UKBA have introduced guidelines to enable those who made such applications between 27th November 2008 and October 2011 to seek a review of that decision using a specific form created for this purpose. Applications (which are free of charge) will only be accepted until 31st May 2012. All those in this category are advised to get their applications in as quickly as possible.

    A tribute to my cousin Elaine

    These last few days have been a poignant reminder to me of how short and precious life is. I received shocking news that my cousin, a healthy and fun loving girl who was passionate about life and causes and who lived life to the brim suffered a massive brain haemorrhage and following a short period in a coma she finally lost the fight yesterday. She was a migrant, not once but twice. She arrived in the UK as a young child of 3 with her parents from Kenya to start a new life in the UK and became British in every way whilst also being quintessentially Indian with a Kenyan twist.

    Some years ago, she moved , again, with her daughter to a small town in Ireland to start a new life there with her new love. In this tiny picturesque town overlooking rugged mountains and an azure sea she found her home, surrounded by the local community who adopted her as family. This ability of adaptability to new countries and situations is a unique quality found in migrants. Goodbye to Elaine, a British, Indian, Kenyan, Irish much loved girl.

    November 18, 2011

    Taking a machete to the family route

    Some time ago the Government announced that its intention to reduce numbers in all areas including the family route. Despite clear evidence that the UK has an aging population and therefore it is necessary to have an injection of younger workers who can provide taxes to support them the Government have been pressing for change in all areas. Interestingly, although the perception is that numbers in this category have been rising in actual fact statistics re-produced by the Migration Advisory Committee(MAC) in their recent report indicate that the numbers of those seeking entry under this route have been steadily dropping over the last few years.

    The family route is the last bastion in the process. Introducing stringent English language requirements has certainly had an effect in reducing numbers temporarily. Now the MAC have reported on the task set by Government They were specifically asked to determine the minimum threshold to ensure that the sponsor can support their family without them becoming a burden on the State. In reaching their conclusions they the system operated in other countries was compared. The surprising conclusion is that most countries do not have a specific minimum threshold and that the yardstick used is the minimum wage or their benefits scale. In the US for example the minimum figure starts at £11400 per annum. In Demark and Australia the Sponsor are required to sign a bond which enables the Government to recoup any sums paid in benefits.

    MAC have now reported to Government. It would be very unusual for the Government not to accept the recommendations of this Committee. It has concluded that the minimum threshold that a Sponsor must earn should be between £18600 and £ 25700. In setting these figures MAC acknowledges the overall success in adopting these measures as it will have the effect of disqualifying around two thirds of all applicants. The decision that is reached is made purely in economic terms. There is a tacit acknowledgment that migration issues cannot be determined solely in economic terms and it also flags up the fact that the consideration of these issues did not consider the impact of Article 8 rights.

    Until now the Government have dealt with students, work permits and investors. The family route however is a very emotive issue. Families cannot be defined purely by economic indicators. If the measures that are introduced cause an imbalance applicants will take their cases to the Courts for redress. In recent times Governments have sought to take populist measures which have a short term impact but long term consequences. The machete will be aimed at the family next. It remains to be seen how bad the injury will be.

    November 11, 2011

    Border control fiasco

    And so the battle rages on over the fact that robust checks were dispensed in certain cases. The politicians blame each other and the civil servants and the media engage in scare mongering. I have no statistics to hand but I would have thought that entry into Heathrow Airport by illegal entrants would be rare as it is accepted that it is a secure point. Those who have visas have already been checked for criminal records. Various countries are risk profiled and therefore any additional checks are conducted in advance.

    In terms of EU nationals, there is in any event very little scope for checks to be made. EU applicants have a right of free movement and passports are I believe very rarely scanned. Those on a warnings index and wanted for specific offences would I suppose get in but somehow I doubt it if their entry would be through a major port.

    The main issue is not whether or not there was a relaxation but whether this was done in a random fashion which would then minimise risk.

    Fees for appeals

    As of the 19th December fees will be introduced for appeals relating to applications to enter, vary status or remain in the UK. From this date new legislation will also come into force, which will allow appellants to pay for and lodge an appeal on-line. There are some exemptions for those on legal aid, for compassionate circumstances and where asylum seekers are receiving support.

    November 03, 2011

    The English language test: A tool to axe numbers?

    Recently I went on an intensive course to learn Spanish and expected at the end of it at the very least to hold a very basic conversation. However whilst I now know the meaning of some words and phrases applying the correct grammar and constructing sentences which make sense is a mammoth task which I have yet to conquer. I suspect it will be many months (or even years) before I can make sense when I speak.

    The rapidity with which the new rules on the English tests was introduced has at a stoke excluded many families who did not make their applications quickly enough. A language is not something that you can learn within a short period. These regulations were considered by the last Government who took the view that the changes had to be phased in and the process to do so had begun. The new Government fast tracked this process with very little interest in considering the impact of such changes.

    If the rationale behind the rule was to enable communities to integrate why was there a need to rush in this manner. Is it because the purpose was to cut numbers? Obviously the reason for not stating that this was the blatant purpose was that this could fall foul of the human rights law. And the effect has been felt across the board. As well as the humble carpenter the changes have also affected businessman who do not (yet) have the luxury of a £1 million which by passes the need to take the test but could make an enormous economic contribution nevertheless but are unable to do so because of the English test.

    The rules regarding the English language tests have had a further knock on effect on students. Colleges who are required to assess English when applications are made for admission rather than undertake the assessment themselves are now requiring students to provide a test result at a certain level before they consider enrolling them. And in terms of actually taking the test there are very few centres abroad that offer the test. In Pakistan the number is miniscule.

    Spouses of British citizens or those who have permanent settlement status who have been married for over 4 years and are planning to return to the UK are entitled to immediate settlement if they pass the Life in the UK test. So far so good. Whilst the law provides for them to be granted permanent settlement there are no test centres abroad and now test centres in the UK are requiring proof of address in order to enrol applicants. So whilst in theory an applicant can qualify in actual fact there is no ability to do so with the exception of a few applicants.
    Is all this the fallout of the changes or the grand plan?

    October 13, 2011

    Sledge-hammer to crack a nut?

    Finally, after along wait the case of Quila was handed down on the 13th October. The case was essentially about the fact that the Home Office had in 2008 raised the age for allowing spouses to come to the UK from 18 to 21. The Rule came into effect with very little notice and applied almost immediately leaving many couples stranded abroad.

    As the Judge in the case noted, this case was not to control immigration. It was to deter forced marriages. The Home Secretary commissioned a report led by Professor Hestor and a Team at Bristol University to consider the merits of raising the age of an applicant. They recommended that the age should not be raised because it would be discriminatory on racial grounds and with regard to love and arranged marriages. However it appears that the Home Secretary did not publish this report and its findings but pressed on.

    A consultation paper was produced and the Home Affairs Select Committee considered the issue of forced marriages. They concluded that further evidence was required and conclusive evidence to make these wide sweeping changes. However this view was considered and rejected.

    The evidence that was presented to the Court was that the proportion of people who would be affected by these changes would be small, around 3% of the total numbers or 3940 in actual numbers. The Judges took a dim view of this argument. They pointed out that regardless of percentage the number of applicants who would be affected would be in the words of the judge be “vast”. The Court set out 13 identified motives for forced marriages. Of these only one reason would be to secure entry to the UK.

    There followed a second Home Affairs Select Committee report on this issue which took evidence from those who felt that the measures were helpful in preventing forced marriages and others who were against this. Still others had mixed views about this.

    The Judgement concludes by stating that it is debatable whether the measures prevent or reduce forced marriages. What it does do however is to prevent a large number of unforced marriage applicants from qualifying for entry. In the words of Lord Wilson the principal judge:

    “it is a sledge-hammer but she has not attempted to identify the size of the nut”

    During the hearing arguments were put forward which appeared to blur the reason why the law was imposed in the first place ie to prevent forced marriages and not arranged marriages. The Judge stated that the Secretary of State cannot on one hand say that she is not doing this for the purpose of controlling immigration and then rely on laws which are based upon the right to control immigration.

    The judges concluded that this increase in age without clear evidence that forced marriages would be prevented as a result was a “colossal interference” of a person’s rights. The Home Office will now need to consider the judgment and make the necessary changes.

    September 22, 2011

    Deciphering the Immigration Minister’s Speech

    The Minister for Immigration, Damien Green delivered a speech on family migration on 15th September 2011 and in that speech outlined further areas of immigration reform. He emphasised the need for immigration to be better targeted and fairer. This article examines whether the reforms achieve this aim or indeed if this is an intention to bring net migration back down at whatever cost.

    The excerpts listed below are taken from his speech and commented on.

    [TIER 2 WORK PERMITS] have “been under subscribed each and every month since it was introduced. Those who predicted it couldn’t work or it would damage British businesses have been proved wrong”.

    The reason that the limit has been under-subscribed is that the majority of Certificates of Sponsorship are issued for Intra-Company transfers which are exempted from restrictions following successful lobbying by this sector and support by Vince Cable, the then Minister for Business.

    [STUDENTS]. “We listened carefully and ensured that the brightest students will be welcome here. But they will have to speak good English and if they are not studying at a university they wont be able to work or sponsor dependants.”

    The reason why the Rules relating to work for students was relaxed was that students provide a very healthy income to colleges and therefore to the economy and the relationship with the UK that is developed lasts a lifetime and could affect foreign policy. Having bright students does not assist the economy in any way unless the students decide to stay. So the question is, what is the benefit to the UK.

    [FAMILY MIGRATION]: “too often we have seen family migrants without the means to support themselves, unable and on occasion unwilling to integrate into British life.

    Financial

    Where is the evidence for this? Family migrants in the majority of cases end up working extremely hard and make a great success of their lives. The pockets of the unemployment or those on benefits are likely in the main to be in the categories of asylum or humanitarian protection (and even in this category unemployment claims on the benefit system are short lived). The evidence so far is that the immigrant population bring with them aspirations for betterment.

    Tackling Abuse

    The Immigration Minister concentrated on tackling abuse of the family route. He quoted statistics “719 who were sponsored to the UK as foreign spouses, and then quickly went on to sponsor another spouse. 19%, virtually a fifth, of these people had sponsored their new spouse within two years of being granted settlement. In actual numbers it amounts to 145 spouses out of a total of 53,147. The “evidence” was based on a small sample but used to make sweeping claims. The percentage hardly indicates that there is abuse of this category.

    Attack on Family Cultural Values

    “a couple should generally be able to demonstrate they have been in a relationship for a minimum of 12 months prior to being granted a visa for Leave to Remain based on marriage or partnership”.

    The first question to be asked, is what does “relationship” mean in this context. Partners to arranged marriages do not have “relationships”. Asian families who are involved in arranged marriages will be particularly affected. The Immigration Minister referred to the Denmark model, which appears to be a preferred model which requires the sponsor to be resident for 15 years and for the applicant to have visited the country at least twice.

    Extension of Probationary Period

    “Proposing to extend the probationary period before a spouse or partner can apply for settlement from two years to five years. This will allow for additional time to integrate into British life and give us a longer period in which to test the genuineness of the relationship before permanent residence in the UK is granted on the basis of it. It will also make the route less attractive to those whose sole purpose is to gain settlement here.”

    [VISIT VISAS] New evidence is often submitted on appeal which should have been submitted with the original application. Analysis of a sample of 363 allowed family visit appeals determinations received by the UK Border Agency in April 2011 shows that new evidence produced at appeals was the only factor in the Tribunals decision 63% of cases and it was an additional factor in a further 29% of cases. “The taxpayer is footing the bill for people to have a second bite of the cherry”.

    Isn’t the real reason the fact that it will deprive applicants from claiming benefits for a longer period. No statistics or evidence is provided to indicate the majority of couples do not stay together. The sole purpose of these changes is to delay substantially a claim on benefits.

    Cases are decided on the basis of the evidence presented. This in turn relies on the guidance that is issued to help applicants. Sometimes where a further information might have helped an application, the application is refused rather than giving the applicant an opportunity to produce it. The Tribunals then have to correct this. If there was a system asking for additional evidence where the officer is not satisfied as there used to be in the past then not only will justice be served by cases being considered properly but also it will save taxpayer funds.

    [HUMAN RIGHTS] “I have established a Commission to investigate the creation of a UK Bill of rights. It is my sincere hope that the Commission will help bring some common sense back to this, admittedly a difficult, area”.

    The Commission on the Bill of Rights does not propose to end Human Rights. In fact as explained in last week’s article it remit is to consider how these rights can be enhanced. True, there is a need for reform of the European Court of Human Rights. This is already taking place to a large extent. There is no grand plan to end Human Rights. To do this the UK would have to withdraw from the Convention on Human Rights and this would have significant consequences affecting its position in an international arena.

    Feburary 11, 2011

    Occupations that will qualify for Certificates of Sponsorship under Tier 2

    Migration Advisory Committee (MAC) have issued their report which lists occupations skilled to NQF Level 4 and above.

    Equivalence of qualifications of Chefs and Skilled Senior Care Workers is still under review.

    Fernandes Vaz gave evidence on the issue of shortage occupations and are listed in this report.

    http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/
    workingwithus/mac/analysis-of-the-pbs

    December 21, 2010

    The Immigration Cap Declared Unlawful By The Courts

    On Friday finally after months of concerns by businesses and the CBI the matter reached to a head when the High Court declared unlawful the interim cap introduced on the 28th June 2010 an announced on the Home Office website rather than in Parliament. The judges expressed concern that the Secretary of State had made no secret of her intentions and in doing so acted unlawfully for attempting to “side step Parliamentary scrutiny”. The judges emphasised that the provisions were substantive changes and should have been laid before Parliament. This is the second case this year which has been thrown out after concerns were expressed about abandoning constitutional principles which have “stood for four centuries as the pillar of democracy.” The Government were warned that their decision was hasty and ill thought out. However they pressed on regardless. The public purse will pay for the legal costs and the cost of administering the changes that will need to be put in place.

    The result of this decision is that all those who lost the certificates of sponsorship which had previously been issued will have the right to be granted them. The Government have indicated that they may appeal against the decision.

    The Minister stated today that the UKBA lost on a technicality. This is not true. The judges expressed concern that a fundamental principle of parliamentary scrutiny in a democracy had been ignored. This can hardly be described as a technicality. Furthermore now that the interim cap has been declared unlawful the UKBA will need to implement this. They have instead stated that the plan is to introduce new rules. Watch this space for further developments

    Graduate level or not: Consultation by Migration Advisory Committee(MAC)

    MAC are currently consulting as requested by the Government on 2 questions:

    1. What codes should be considered to be graduate level occupations for Tier 2 applications

    2. How should the current list be revised to remove jobs below graduate level.

    Graduate level refers to NVQ level 4. MAC will be able to specify job titles within particular industries even if the broader occupations are not skilled. Interestingly they have identified factors that will be considered to include:

    • Whether there is a requirement to hold a formal qualification
    • If formal qualifications are less relevant what level of on the job training is required
    • Whether there is a degree of innate ability required to do the job.

    This call for evidence is critically important for restaurants and care homes in particular where formal qualifications are less important than skills.

    The deadline for submissions is 21st January 2011.

    July 14, 2010

    The 2 Immigration Caps

    On the 28th June 2010 the Home Secretary announced that the Government intended to introduce an annual immigration cap to take effect in April 2011. However in the meantime in order to prevent the sudden rise in applications, a temporary cap has been introduced which come into effect on 19th July.

    This article will look at both caps. Both caps are only limited to Tier 1 (General) applicants and to Tier 2 applicants. It excludes Ministers of Religion, Sports Persons and Post Study Workers. Intra Company Transfers are not included in the temporary cap and views are sought on whether they should be included in a permanent cap.

    INTERIM (TEMPORARY) CAP

    This took effect on 19/07/2010 and runs until 31st March 2011, when the permanent cap will come in force.

    There are 3 aspects:

    1. A limit will be introduced on a number of applications which will be granted under Tier 1. This will be decided on a month to month basis and the limit will be published on the Home Office website. Once the cap has been reached the excess numbers will be rolled over to the next allocation. There will be special provisions for exceptional cases and new Sponsors. Employers have received a brief letter outlining the changes and a more detailed letter setting out each organisation CoS allocation for the period. There will be a small number of CoS available for exceptional cases for new sponsors licensed during this period or where a sponsor requires additional CoS for exceptional reasons.

    2. The criteria to Tier 1 will be raised. Points required will rise from 75 to 80 points.

    3. There will be a reduction in the number of Certificates of Sponsorships (CoS, formerly work permits) granted to licence employers. This will affect the hospitality industry the most. Employers have received letters informing them of their CoS allocation for the period. There will be a small number of CoS available for exceptional cases for new sponsors or for those who need additional CoS for exceptional reasons.

    Immediate Effect

    The interim limit applies regardless of the sponsor’s renewal date.

    Sponsorship Action Plan for ‘B’ Rated Sponsors

    Sponsors who are downgraded to or are granted a ‘B’ rating will not be allowed any CoS allocations until they sign up to (and pay a fee) for a sponsorship action plan. Full details of this are not yet available.

    ‘B’ rated sponsors cannot apply for exceptional consideration for CoS whilst they remain ‘B’ rated.

    This means that any CoS granted can no longer be used.

    New Sponsors

    New Sponsors will not be awarded an automatic number of CoS. They will have to apply on a separate form to request CoS and justify the need. It will be necessary to show why the role is critical to the business.

    Additional Certificate of Sponsorship (CoS)

    For those who do not have any CoS (or who have had their CoS removed) and want to apply for additional CoS the following conditions must be satisfied:-

    • Sponsor must ‘A’ rated
    • The number of CoS requested must take into account any available CoS remaining in the existing allocation. CoS will then be ranked and granted in the following order :-

    • 1) Work Permit or Tier 2 (General) for an existing sponsor.
    • 2) Work Permit for Tier 2 (General) Extension for new Employer
    • 3) A new shortage occupation post for a new sponsor
    • 4) A non-shortage occupation post for an existing sponsor
    • 5) A non-shortage occupation post for a new sponsor

    This means that extensions will take priority over new grants of CoS, and that shortages will take priority over non shortages. Looking at the list, it appears existing sponsors will not have priority where they want new staff even if there is a shortage.

    A CoS can only be requested for an extension where the migrant’s leave is due to expire within the next 60 days.

    Any CoS granted following a request for exceptional consideration must be used for the role for which it was requested.

    Process

    UKBA Managers will meet on a monthly basis on the 1st working day of each month to consider requests for CoS. Requests must be received before 25th of each month.

    Sponsors will be notified within 5 working days of the panel meeting. Where the request has been successful the Sponsor Management System will be updated.

    Urgent decisions will be made by the Deputy Director for Sponsorship.

    The decision is final. There is no appeal or reconsideration process.

    The guidance indicates that
    • There will be very few CoS which will be available mainly for new Sponsors. This means that employers who wish to open or expand businesses may not be able to do so.
    • That no reasons will be given you refusing applications and no appeal or review process. This would mean applying to the High Court if there are grounds to do so.

    This limit will provide learning for the new permanent cap planned from April 2011. These changes are a blueprint for the future. The Hospitality Industry will need to brace itself for major change.

    PERMANENT CAP

    A consultation has been announced to consider a number of options. The deadline for responses is the 17th September 2010. There are in fact 2 elements to this :-

    • The UKBA will look at how the limit should be applied (UKBA).
    • The Migrant Advisory Committee then will look at what level the Government should set its limit.

    UKBA Consultation

    The options offered are the following :-

    Pool

    This adopts the system in New Zealand. Applicants who pass the points test would apply under Tier 1 or 2 and would be entered into a pool of candidates. The UKBA would then select the best candidates. It is not clear how ‘best’ candidates will be selected. If someone was in the pool for over 6 months without being invited to come over they would be removed from the pool.

    First come first served

    This adopts the Australian and US system. Under this method, applications for permission would be dealt with in the order in which the UK Border Agency receives them. When the limit is reached no more applications would be accepted.

    It is not clear whether each country would specific limits if there was just one number. In theory applicants in New York for example whose applications are decided within a matter of days and weeks would use up the limit. This would mean that applicants from other countries would not be able to qualify.

    Auction

    For this method the UK Border Agency would invite employers on a quarterly basis to bid for allocations of Certificates of Sponsorship (formerly work permits). A limited number of certificates would be available and these would be given to the employers who bid to pay the highest fee. This method would be highly advantageous to large multi national companies who have unlimited funds.

    Other Conditions

    In addition to the above proposals there are also other plans such as:

    • Raising standards of English language qualifications.
    • Introducing a requirement that the employer must hold health insurance for employees.
    • Wider responsibilities for employers to make a practical commitment to upskilling British workers for example by supporting national or local apprenticeship and other similar schemes.
    • Requiring employers to work with local providers and job centres and contribute towards investment for training.
    • By requiring all shortage jobs to be advertised before recruiting overseas staff (this was the situation before the shortage was in place following recommendations by Mac advertising requirements were lifted. It is difficult to understand and why a job that is accepted to be in acute short supply would need to be advertised and what benefits this would bring to the process.

    Highly Trusted Status

    A little mentioned change is the plan to introduce highly trusted status for employers under Tier 2. This is already in force for Tier 4 (students) and is planned for introduction in April 2011.

    The MAC consultation

    MAC has been responsible for taking very detailed evidence on national shortages and as a result Chefs were placed on a shortage list for the first time in years. The deadline is 07/09/2010 that responses are sent. It will be necessary for all hospitality industry to look specifically at the likely impact of these changes to their businesses.

    They have now been asked to prepare a report taking account of the impact of migration on economic, social and public services. The deadline is 07/09/2010. MAC recognised that they will need to take into account the following:

    • The time, cost and policy implications of accelerating any required upskilling of UK workers.
    • Feasibility of other alternatives to migrant labour including paying higher wages and increased mechanisation and the use of new technology.

    MAC have commented that there may be a small reduction to begin with followed by smaller or larger reductions in successive years and acknowledges that Tiers 1 & 2 can only reduce net migration up to a point.

    MAC have highlighted the fact that there are complex issues which require specific data. For example they would need information on how many migrants leave the UK having previously entered via Tier 1 or 2. This will to a certain extent require them to estimate the impact of policies particularly where the data is in short supply or only partly available.

    The intention of the cap is to reduce migration in Tiers 1 and 2 by 5%. The regulations indicate that there will be very strict controls over the grants of CoS. Those who did not use their CoS are at a disadvantage as this is forming the basis of the calculation for this year. The temporary cap is done on a month to month basis and so there is also likely to be a backlog. Expect major changes ahead.

    Maria Fernandes has been in practice exclusively in immigration for the past 25 years and is accredited in Immigration Law by the Solicitors Regulation Authority. Fernandes Vaz is based at 87 Wembley Hill Road Wembley in Wembley and can be contacted by telephone on 02087330123, by email on info@fernandesvaz.com.

    The 2 Immigration Caps

    On the 28th June 2010 the Home Secretary announced that the Government intended to introduce an annual immigration cap to take effect in April 2011. However in the meantime in order to prevent the sudden rise in applications, a temporary cap has been introduced which come into effect on 19th July.

    July 05, 2010

    The Visa Cap

    The Home Secretary, Theresa May has announced that there will be a visa cap for categories under Tier 1 (General) and Tier 2 (General).

    For Tier 1 applicants the cap will be decided on a monthly basis and once the allocation is reached the outstanding applicants will be held until the next allocation period.

    Tier 1 applicants will have to score an additional 5 points as of 19th July 2010.

    For Tier 2 (General) applications there will be a reduction of Certificates of Sponsorships. A letter from the UKBA suggests that those granted over 2 certificates will be expected to reduce their numbers. The reduction will be based on the usage of the previous year.

    Tier 2 (Intra Company transfers) and other categories are not affected by these changes. An article detailing these provisions will appear in our article section.

    Pankina

    The Court of Appeal decided that applicants must have £800 at the date of the application but that imposing the requirement for 3 months beforehand was unlawful. Lord Justice Sedley was concerned about the lack of scrutiny of “guidance notes” which are issued alongside the Immigration Rules and at times appear to exceed the powers laid down by the Rules.

    March 03, 2010

    NEW CHANGES Due to take effect on 03/03/2010

    STUDENT
    Below Degree Level
    • Students studying below degree level (except for those on a foundation degree programme) will only be allowed to work for a maximum of 10 hours (Those on work placements are unaffected by these changes.
    • Dependants of students undertaking a course below degree level (except for those on a foundation degree programme) will not be able to work unless they qualify in their own right.
    • Those who a come on course of less than 6 months will not be allowed to bring in dependants
    English
    • Those coming to the UK to study English or to study below degree level (except those on a foundation degree programme) will need to ensure that their standard of English is at Common European Framework of Reference for Languages (CEFR) B1 level.
    Current Applications (Transitional Arrangements)

    Students who were approved leave to enter or remain proir to the 03 March 2010 will retain their previous conditions, until such time when they need to renew their leave.

    Applications made before 03 March 2010 will be considered under the 22 February 2010 rules. For in-country, the date of application is taken from the post mark date or the date of appointment for premium applications. For out of country, the date of application is taken from the date the fee is paid and biometric details are taken.

    Where a Tier 4 (General) student has a valid CAS that was assigned before 10 February 2010 for an English language course at level A2 or B1, the student will still be permitted to apply for leave to undertake that course after 03 March 2010. The student will be able to use the CAS to support their application whilst ever it remains valid.

    Lower Level and Work Placement As on 06/04/2010

    Sponsors will need to be highly trusted to offer courses at National Qualifications Framework Level 3 (and its equivalents) and courses with work placements below degree level.

    At present only publicly funded organisations are included in this category and private institutions will need to apply to become highly trusted sponsors.