by Colin Yeo;
For my clients
CONTENTS
Title Page
Dedication
Note on Terminology
Introduction
Chapter 1 Welcome to Britain
Chapter 2 Net Migration: The Accidental Target
Chapter 3 Hostile Environment: Papers, Please
Chapter 4 Complexity and Cost: No Way to Run a Whelk Store
Chapter 5 Families and Friends: You Cannot Hug Skype
Chapter 6 Asylum: Sandbanks and Crocodiles
Chapter 7 Economic Migration: Points Mean Prizes
Chapter 8 Students: Awesome or Bogus?
Chapter 9 Free Movement: Auf Wiedersehen, Pet
Chapter 10 Deportation, Exile and Modern Transportation
Chapter 11 Immigration Detention: Enforcing Control
Chapter 12 Citizenship, Nationality and Integration
Conclusion: What Now?
Acknowledgements
Index
Copyright
NOTE ON TERMINOLOGY
First, a few quick words about language. I have endeavoured to make this book an accessible one to non-lawyers and non-specialists. To do so, I have at times played a little loose with my use of technical terms and legal language.
In this book I have referred to ‘unauthorised migrants’ when describing non-citizens who do not have formal legal permission to remain in the country. Some prefer to use the label ‘undocumented migrants’ but I feel this confuses lawfulness with proof of status; there are lots of lawful residents of the United Kingdom who do not possess documents to prove their status, as the Windrush scandal (see Chapters 2 and 3) highlighted. This sorry episode concerned those who had arrived in the United Kingdom from Commonwealth countries in the 1950s, ’60s and ’70s but who, in recent years, were denied access to jobs, accommodation and services because of their lack of documents. The label ‘irregular migrants’ is also sometimes used, particularly in academic literature, but the meaning of the word ‘irregular’ is not sufficiently clear to my mind. Other labels include ‘illegal immigrants’ or ‘illegals’, but there are two major problems with that terminology. Firstly, no person is inherently illegal; actions might be so but people themselves are not. Secondly, there are many migrants who do not currently possess lawful status but who are eligible for it or who will become so in due course. To describe them as ‘illegal’ implies their position is clear and irredeemable when it is not. The boundary between lawful and unlawful is notably porous in both directions in immigration law.
Having said I do not consider the word ‘irregular’ sufficiently clear, I have struggled to find an alternative to the word ‘regularisation’. This is a term widely used by lawyers, campaigners and politicians to describe a process by which an unauthorised migrant becomes authorised. It might be through an ‘amnesty’, which is where status is granted to a significant number of migrants at the same time, or it might be through a more individualised legal process, whereby one single person eventually earns authorised status over time or because of family or other connections.
Some readers may be puzzled to encounter the word ‘racialised’ for the first time. This term is common in academic writing, but I have rarely seen it used elsewhere. It denotes a group of people who have ‘racial’ characteristics attributed to them and it is used because the whole concept of race is a colonial invention with no foundation in biology. Race is often used as an alternative to referring to skin colour, but it has a wider meaning because some groups with light skin colours have been racialised too – the Irish in the nineteenth century, for example, or Jews throughout history.
Legal readers will need to forgive me; I have at times been a little carefree with some of the terminology of immigration law. Deportation is a formal legal process under the Immigration Act 1971, usually used against migrants who have committed criminal offences and preventing re-entry. I have sometimes used this word to describe a forced removal from the country that could be described by a different legal process. However, in my view the word ‘deportation’ better reflects public understanding and is therefore more evocative of what removal from this country really involves. I have also been less than systematic in my use of the terms ‘asylum seeker’ and ‘refugee’. In my defence, in legal terms a refugee is a refugee whether or not she has been formally recognised as such. Likewise, an asylum seeker might be a person who is seeking asylum but may not be recognised as such.
Elsewhere, I have tried to provide context to words with a specific legal meaning where I have first used them. I have undoubtedly included too much context for some and too much jargon for others; I apologise to both sets of readers.
INTRODUCTION
Originally from Nigeria, Modupe Odelola is a doctor. She is not just any doctor, though; having graduated with distinction from the University of Ibadan, she later qualified as a consultant surgeon and senior lecturer at the University of Lagos and Lagos University Teaching Hospital. Following that, she came to the United Kingdom for a two-month clinical attachment, with a view to registering with the General Medical Council and applying to remain as a postgraduate doctor. Everything went well and, duly, she made her application, paying £335 for the privilege of doing so. She met the rules, she was highly qualified (the United Kingdom needing doctors of her calibre) and she fully expected her application to succeed. Yet, for some reason, a decision on her application was delayed – she had applied in January and by March had still not heard back from the Home Office.
Then, at the very end of March, with immediate effect, the Home Office changed the rules under which Dr Odelola had applied. She was no longer eligible and, a few days later, her application was refused under these new regulations. Understandably unhappy with this outcome, Odelola challenged the refusal on the basis that it was unfair: she had come to the UK and made an application in good faith under one set of rules, only for them to be changed while her application was still pending. The British are supposed to pride themselves on their sense of fair play and this was a blatant moving of the goal posts. Dr Odelola’s case went all the way to the House of Lords, which was at that time the highest court in the United Kingdom, and over three years after her initial visa refusal, their lordships held that she could have no legitimate expectation that the same rules under which she had applied would be those under which her application would be decided. She had no vested right, no contractual right, no public law right, they said, nor was there sufficient unfairness in her treatment when attempting to overturn the decision. The rules belonged to the Home Secretary and he could change them as and when he wished, even if that was after Dr Odelola had made and paid for an application. The best the judges could do was politely suggest, though not order, that Dr Odelola at least be refunded the fee she had paid. Her appeal was then dismissed.1
But that was not the end of the story for Dr Odelola. She persevered and, fourteen years later, she now practises as a consultant surgeon, saving lives at a busy accident and emergency department in Essex. Which begs the question: what was the point of changing the rules and putting her through all that? Her experience typifies the treatment of migrants all across the United Kingdom. Having given up their homes and jobs to migrate, they have to play by multiple sets of complex rules in which they have no say. The rules can be, and indeed often are, changed – at any time, with immediate effect and without any warning. Courts are available to those who can afford them, but we will see that the reality is the judiciary in the United Kingdom is often unable or unwilling to interfere with Home Office decisions. Most migrants who arrive to work, join family members or seek sanctuary a
re eventually allowed to remain, but, having arrived full of hope, by then many are exhausted, alienated and disillusioned, not to mention considerably poorer. Nevertheless, they are expected gratefully to integrate.
Not all migrants are as persistent or fortunate as Dr Odelola. We will see that since 2010 a panoply of policies intended to deter migrants from coming to the United Kingdom have been introduced in a vain attempt to meet the net migration target set by David Cameron. There is no evidence that these deterrent policies have succeeded in reducing or limiting the number of arrivals, nor in encouraging departures. What the policies have done – from sky-high immigration application fees to effectively preventing migrant children attending university – is permanently handicap the migrants who do seek new lives here. Socially, economically, financially, educationally and otherwise, migrants and their families are deliberately penalised for being migrants. This government-orchestrated discrimination not only disadvantages migrants and their children compared to their peers but also makes their integration into British society harder, not easier. Meanwhile, a large unauthorised migrant population, thought to number between 600,000 and 1.2 million, has developed over many years. This is due to sometimes intentional and sometimes accidental (but always predictable) policy choices by successive governments.2 I argue here that this is a social and democratic policy disaster, and that we need fundamental reform of our immigration system.
But what would a fair immigration system with broad political and public support look like? Most of us, on whatever side of the political spectrum and wherever we stand on the rights of migrants, can agree that the current system is broken. It does not seem to work for the public. It also does not seem to work for the government or civil servants. And it certainly does not work for migrants themselves. The only people for whom the current system does function are immigration lawyers like me, and it is a very bad sign indeed if something is good for lawyers. It is easy to criticise the current system, but it is difficult to imagine how we might go about reforming it. To avoid the failures of the past we need to understand what those failures truly were, what their impact was, why they came about and how they were operationalised. This book is my attempt to step back, see the wood for the trees and propose some ideas for reducing my future workload.
I argue that we should see newly arriving migrants as citizens-in-waiting. Given that, as I will show, migrants arriving as family members, workers and refugees are ultimately going to be allowed to remain anyway, would it not be better to stop actively obstructing their integration into society? This means ending the failed attempts at deterrence, which do not actually deter migrants from coming but do nevertheless significantly handicap them as they live their lives here. At the same time, immigration and citizenship laws should be reformed in an inclusive way to help the current unauthorised population become full members of the society of which they are already part and prevent a replacement unauthorised population arising in future.
We have a long way to go to achieve any of this. On the face of it, the current ‘system’ does not resemble a true system at all. A member of the public reading newspaper headlines about the latest immigration controversy; a migrant trying to understand what documents to include with an application; a lawyer attempting to explain the nonsensical requirements; a civil servant puzzling over a conflict between a law and a policy; or a judge trying in vain to discern some sort of purpose to it all: every one of these would question whether there is any intelligent design behind the shambles. Applications by non-citizens to enter or remain in the UK are governed by a cobbled-together conglomeration of incomprehensible and outdated laws, criteria that are set out in constantly shifting so-called ‘rules’ and apparently randomly privatised services delivered by the lowest bidder. Immigration laws, rules and procedures appear to have evolved chaotically in response to short-term political crises and economic pressures, with very little in the way of strategic planning.
The Home Office, the government department responsible for immigration, was memorably described as ‘not fit for purpose’ by then Home Secretary John Reid in 2006 and, if anything, its reputation has only deteriorated since.3 But to see only accident and misfortune is to miss an important point. Politicians and civil servants are not naive or powerless, nor has this ramshackle construction evolved of its own accord. There are architects and engineers behind it all and the broad way in which the present system operates is the result of deeply ingrained thinking, long-term policies and conscious choices. Sometimes those choices may have been decisions not to act, but that in no way reduces responsibility for the predictable consequences of inaction.
Since 1962, successive governments have pursued an exclusionary citizenship policy. It is hard to escape the conclusion that this was and still is intended to preserve the existing ethnic composition of the population. In other words, and not to beat around the bush, the policy is racist. Contorted legal devices were initially deployed to maintain a facade of wide citizenship, but in practice they denied rights of entry to those citizens who were black or Asian. The pretence ended with the creation of new forms of British nationality and the abolition of birth-right citizenship in 1981. Since then, citizenship policy has been repeatedly tightened further by means of wider and tougher character tests, a written examination, dramatically increased costs, new bureaucracy for EU citizens seeking citizenship and the increased use of citizenship-stripping powers. For a short time, during David Blunkett’s tenure as Home Secretary, cosmetic attempts were made to present British citizenship as more potentially inclusive in nature, while, in reality, reforms only made citizenship harder to acquire.
This exclusionary approach heavily influences the shape and nature of the immigration system that acts as a gatekeeper to citizenship. The immigration system has also therefore been exclusionary, albeit with very significant exceptions during the decade from 2000 to 2010. Restrictions are imposed both directly, through rules, and indirectly, through complexity and cost. To enforce this approach, the United Kingdom’s border has been exported abroad and heavily fortified with fencing, scanners, guards and dogs. These twin policies of externalisation and securitisation have been very effective at keeping unauthorised migrants out but at a huge cost in migrant lives lost. A ‘pull factor’ is something that, in theory, attracts migrants to one particular destination country over another. Policies allowing migrants to work or claim benefits might be examples, as might fair treatment, a common language and a nice climate. Rather than seriously attempting to enforce removals, deterrent policies intended to eliminate as many of these supposed ‘pull factors’ as possible were introduced, beginning in the 1990s in the asylum sphere and then later for unauthorised and authorised migrants alike. The ‘hostile environment’ system of everyday citizen-on-citizen immigration checks, by employers, landlords, banks, hospitals and others, aimed at unauthorised migrants began tentatively in 2006 and was massively expanded from 2012 onwards. Then, a seemingly never-ending series of rule changes targeting authorised migrants began in 2010, including a minimum income threshold of £18,600 for marriage and partner visas and increases to the length of time spent here and the qualifying salary needed to achieve settlement. The purpose of these changes was to break the link between migration and settlement.
Unlike the secure and external border, there is no evidence that any of these deterrent policies have achieved their overt objectives. What research is available suggests that reducing pull factors simply does not work. The result of these policies, combined with what have, in reality, been tokenistic attempts at detention and deportation, has been the growth of a significant population of unauthorised migrants. Finally, what has made all of this possible is a highly centralised immigration system governed by total executive discretion with very weak oversight, whether by the legislature or the judiciary: there is no policy devolution and little to no input from departments other than the Home Office. None of this is accidental. The Immigration Act 1971, which continues to form the bedr
ock of immigration control today, embodies a deliberate decision to confer huge power – and huge responsibility – on the shoulders of the Home Secretary alone.
Seen in this way, today’s immigration ‘system’ includes lacunae and accidental outcomes, as well as explicitly expressed rules. Or, to put it another way, the law comprises the actual effects of the laws themselves, as well as the stated intent. Politicians and policy-makers are responsible for the whole system, including the unintended but often eminently predictable effects.
Returning to the example of resident unauthorised migrants, the growth in their numbers was the foreseeable outcome of multiple facets of citizenship and immigration policy over many years. Politicians have repeatedly stated that unauthorised migrants are not welcome and have continually passed laws criminalising their presence, yet no government has been willing to detain and remove them. A radical and controversial programme of building detention camps and tearing families and communities apart, similar to what we see in the United States today, would have been needed to enforce such ideas. Instead, for example, asylum seekers whose claims are rejected are unceremoniously evicted from their accommodation, while their departure from the United Kingdom is not enforced. The same applies to migrants who overstay their visas. Birth-right citizenship was abolished in 1981 and high fees have been introduced in recent years, both of which prevent children born in Britain from registering as British even when they qualify, and thus making this precariousness generational.
The outcome of choices like this over many years is that the population of unauthorised migrants could now be as high as 1.2 million. It is thought there are around 215,000 undocumented non-citizen children living in the UK today and a further 117,000 young people between the ages of eighteen and twenty-four who were born in the country or brought here as children. The size of this unauthorised population is likely to increase significantly after Brexit for two reasons. Firstly, policy-makers have chosen to require EU citizens currently resident in the UK to apply for a new immigration status. As discussed in Chapter 9 on free movement, it is inevitable that tens or even hundreds of thousands of EU citizens will not do so and will therefore become unauthorised. Secondly, EU citizens not resident in the UK will still be able to enter the country without a visa after Brexit. It is inevitable that some will then remain in the country to work and live without applying for the permission they will need to do so lawfully. They will be unauthorised migrants, as will be their children.
