by Colin Yeo;
It is important to remember that all of these cases cost a small fortune to bring to court, having to go through multiple steps in the legal system. In another case, Lord Justice Beaton points to the reallife consequences of this mess:
The detail, the number of documents that have to be consulted, the number of changes in rules and policy guidance, and the difficulty advisers face in ascertaining which previous version of the rule or guidance applies and obtaining it are real obstacles to achieving predictable consistency and restoring public trust in the system, particularly in an area of law that lay people and people whose first language is not English need to understand.12
You do not have to be an expert in reading between the lines to detect the judicial frustration infusing these quotes.
THE PRICE OF JUSTICE
Migrants have to pay a small fortune to set foot in this legal minefield. The upfront visa application fee for a spouse or partner is over £3,500, only £2,000 of which is returned in the event of a refusal. An extension application costing over £1,000 must then be made after two and a half years, and a settlement request after five years costs nearly £2,500. The total cost across five years is around £7,000, and that is before the cost of a lawyer to help with all these applications.
The cost of a settlement application for indefinite leave to remain has skyrocketed over the past decade. Fees for in-country applications were only introduced in 2003; before that they were free. Initially, the level of the fees was set to recover the costs of processing the applications, although they were soon increased to include some element of profit for the Home Office. In 2010, the fee already stood at a historic high of £810. Since then the fee has been nearly tripled by the Home Office, to £2,389 at the time of writing, and that is before the immigration health surcharge (otherwise known as the NHS surcharge) of £2,000 for a five-year visa is added. (At the time of writing it was announced the health charge would increase to £3,120 for a five-year visa from October 2020.) The real cost of processing these applications at the Home Office is much lower, though, standing at £243 in 2019.
The costs for migrants who can only qualify under the ‘private life’ rules, meant for those with a connection to the UK and considered in the next chapter, are particularly punishing. And they are intended to be so; these routes only exist grudgingly. Each private life application under the limited leave routes costs £1,033 plus the immigration health surcharge of £1,000. Three applications will be needed to qualify for settlement, meaning a total of £8,488 at today’s fee levels. In addition, the cost for a child is the same as for an adult. A family of four would thus need to find money for fees of £33,952 over a ten-year period.
The Home Office also does not stop at charging fees to make applications. To simply send an email to the Home Office, a charge of £5.48 is now levied, while a call to the department’s telephone helpline costs £1.37 per minute. Then, there is no guarantee that the emailer or caller will actually receive any help. The private contractors used by the Home Office to keep migrants at arm’s length capitalise on their contracts by limiting the number of free appointments and charging for ‘optional’ extras like uploading documents and ‘premium’ appointments for faster-than-normal decisions.13
The astronomical fees are part of a government drive to create ‘a fully self-funded borders and immigration system’. The Home Office line states, ‘It is only right we recover the costs of running our immigration system by making sure that those who benefit directly from it contribute appropriately – so the expense to the UK taxpayer is less.’ In reality, this means lawful migrants paying immigration and citizenship fees, while also contributing taxes through VAT and, where they are working, through National Insurance and income tax, then also being forced to pay for the costs of carrying out customs checks on incoming lorries, patrols in the English Channel and the deportation of foreign criminals. This double taxation imposes a heavy burden on migrant families, meaning they have less disposable income than their peers. The effect on children, particularly where their parents cannot afford to include them in immigration applications, is unconscionable. As one young person explained to the authors of a report by campaign group Let Us Learn, ‘I couldn’t do a lot of things other children did. It was the little things that really added up. Not having new shoes. Going to bed hungry. I was always anxious things would go wrong.’ For some, though, this adds up to a lot more than the little things; it means being stuck in unsuitable accommodation or, even worse, it means debt, evictions and constant instability.14 The government is forcing many migrant families into poverty – with all the misery that accompanies it – as the price of living in the UK.
SIMPLIFICATION
The introduction of the points-based system in 2008 marked an inflection point for the growing tangle of rules. As a result of a sudden proliferation of appendices, rules and guidance, the detail of the requirements for entry to the UK went from just about discernible to almost unknowable. And untangling a knot can be difficult. In 2017, the Law Commission, the official body tasked with legal reform, was asked by then Home Secretary Amber Rudd ‘to review our immigration laws with a view to simplifying them’.15 The report was produced in January 2020 and partially accepted by the Home Office a couple of months later just as the coronavirus crisis was beginning. Arguably rather optimistically, the Home Office said it intended to completely rewrite and reissue the whole of the Immigration Rules by January 2021.16
Simplifying and rewriting the Immigration Rules would be very welcome indeed, but still this would not address the stream of primary and secondary legislation that spews forth from the government so frequently. There was a Simplification Bill drawn up between 2007 and 2009, intended to consolidate the legal framework for immigration law and doing away with the Immigration Act 1971 and its successors. But the effort was eventually abandoned. There were all sorts of significant problems with the proposals, not least that many believed the exercise was seen by the government of the day as an opportunity to reduce rights and enhance executive powers. But at least the effort was made. Indeed, adherence to the Law of Holes (when in a hole, stop digging) would be a welcome start. Under a new system, politicians could stop introducing new immigration legislation, and if changes must be made, these alterations could be subject to proper consultation. Just as a pharmacist would prescribe Imodium to stem one sort of incontinent, unstructured flow, in this instance I would prescribe the medicine of parliamentary process; requiring the Home Office to submit changes to Parliament for votes and amendments might do something to slow the passage of new rules and improve the quality of those that do pass.
THE SPIDER’S WEB
The trend towards tortuousness began as a result of haste and incompetence. On the face of it, straightforward bad legal drafting by relatively junior and inexperienced civil servants appears to be behind much of the mess. Rumour has it that a single official was responsible for cooking up the non-sequential paragraph-labelling idea for Appendix FM, thinking that it would be a breakthrough in simplicity of use. But we can be sympathetic, to some extent: the frequency and volume of changes to the rules insisted on by ministers had made it difficult for new rules to be slotted in between existing ones and to maintain sequential numbering. This is not the fault of civil servants; it is the responsibility of the politicians who allocate insufficient resources and time and yet insist on change after change after change in an already complex area of law.
Often the changes politicians have insisted on in immigration law are really about the outcomes of individual cases that, either alone or collectively, achieve media notoriety. It is headline-driven law-making whereby general rules are drafted with a view to avoiding yesterday’s news stories. The pattern begins with the introduction of complex rules that are intended to eliminate the need for supposedly unreliable, potentially inconsistent human judgments on individual cases. When the outcomes are then inevitably not as expected, the rules are repeatedly tweaked. Ministers and officials fail to real
ise that the problem lies not in the detail of such rules but in thinking that complex real-life situations can be predicted and satisfactorily determined without human input. One particularly bad example can be found in the ragbag of knee-jerk reactions that is the Asylum (Treatment of Claimants etc) Act 2004. Section 2 of the Act attempted to criminalise arrival in the UK if the migrants came without a passport or where that paperwork had previously been held but had later been destroyed. A ‘reasonable excuse’ clause needed to be inserted, which was defined in the negative as not including deliberately destroying or disposing of a passport, unless the person had ‘reasonable cause’. But ‘reasonable cause’ then also needed to be defined and was labelled as not including certain reasons. Eventually the whole section was rendered largely ineffective by the courts because of the failure to define ‘passport’ properly;17 though not before hundreds of genuine refugees had been prosecuted, convicted and imprisoned under this labyrinthine provision, only to later have their convictions quashed, following considerable physical and emotional expense.18
My own view is that the continued layering of new complexity on old has, along with increased costs and reduced remedies, come to be opportunistically embraced as a way of meeting the net migration target. While overall immigration policy was driven by this target, it was actually seen as undesirable for migrants to be able to understand and therefore abide by immigration law. If they could not apply in the first place, or if they made simple mistakes leading to rejected applications, that only served to keep the numbers down. Even once within the UK, the intricacy, cost and sheer impenetrability of the system forces some migrants and their families to the margins and out of the net migration figures, a process fellow immigration lawyer Jo Renshaw has described as being ‘administrated into illegality’.19 The opacity of the rules served as a useful smokescreen, obscuring the road to a successful application, and as a financial filter against incoming migrants, as it was only those who could afford a good lawyer who could successfully navigate the rules.
When I started out as an immigration lawyer at the turn of the millennium, making a spouse visa or a work permit application was relatively straightforward, and it was even possible for members of the public to do this themselves. It was like using an accountant to file a tax return: optional for most people, although those with spare cash might prefer to pay a professional to do it. Since then, the Immigration Rules have become so complex that it is now virtually impossible to succeed in making an application without a lawyer.
NOTES
1 MA (Nigeria) v Secretary of State for the Home Department [2009] EWCA Civ 1229.
2 Tom Bingham, The Rule of Law (London: Allen Lane, 2010).
3 Catherine Baksi, ‘Immigration judge bemoans “worse than useless” Home Office officials’, Legal Hackette’s Brief, 8 November 2017.
4 Martha Bozic, Caelainn Barr and Niamh McIntyre, with additional reporting by Poppy Noor, ‘Revealed: immigration rules in UK more than double in length’, The Guardian, 27 August 2018.
5 Lord Neuberger, ‘Welcome address to the Australian Bar Association Biennial Conference’, 3 July 2017.
6 R (on the application of New London College Ltd) v Secretary of State for the Home Department [2013] UKSC 51.
7 Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568.
8 Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320.
9 Secretary of State for the Home Department v Khan [2016] EWCA Civ 137.
10 Khan v Secretary of State for the Home Department [2017] EWCA Civ 424.
11 Mudiyanselage v Secretary of State for the Home Department [2018] EWCA Civ 65.
12 Hossain & Ors v Secretary of State for the Home Department [2015] EWCA Civ 207.
13 Darren Stevenson, ‘The absolute state of the UK visa application system’, Free Movement, 2 May 2019.
14 ‘Normality is a luxury: How limited leave to remain is blighting young lives’, Let Us Learn, 31 July 2019.
15 Oral evidence of Amber Rudd to Home Affairs Committee, published 17 October 2017, available at: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/home-affairs-committee/the-work-of-the-home-secretary/oral/71645.html
16 See ‘Simplifying the Immigration Rules’, Law Commission, January 2020, and ‘Simplifying the Immigration Rules: a response’, Home Office, March 2020.
17 R v Mohammed and Osman [2007] EWCA Crim 2332.
18 ‘Syrian asylum seekers without passports to appeal UK convictions’, The Justice Gap, 23 April 2015.
19 ‘The lawyer who takes the cases no one wants’, The Guardian, 14 April 2016.
CHAPTER 5
FAMILIES AND FRIENDS: YOU CANNOT HUG SKYPE
Kylie and Ryan have been married for nearly ten years and have three children together. The last time I spoke to them, Flynn was six, Foster was three and Donovan was eleven months old. Kylie is a British citizen, Ryan is a citizen of the United States and the children are citizens of both countries. Kylie lives with the children in Omagh in Northern Ireland. She and Ryan had lived together for nearly ten years in the US, after meeting at a hostel in Ocean Beach, San Diego when Kylie was travelling. When they decided to move to the United Kingdom, they had thought it would be straightforward for a genuine couple with children, like them, to live together. But they were wrong. Ryan is still in Wisconsin and at the time of writing they had been involuntarily separated for just over a year. They have no idea how they will be able to live together as a family in the future and their upcoming ten-year wedding anniversary will be spent apart. As things stand, the children will grow up knowing their father only as a face on a screen.
When new rules on family immigration were introduced in 2012, the Home Office estimated that there could be as many as 140,000 families affected in this way by 2020.1 But the government went ahead anyway. If a family member could be prevented from coming to the UK, then this was a contribution towards meeting the net migration target. If a British citizen was forced out of Britain, all the better, as this was an even greater contribution towards the net migration target, given that net migration counts both immigration and emigration. As we will see, separated families and exiled British children are not some sort of accidental by-product of the policy; they are the policy. Breaking families or forcing them abroad is exactly what policy success looks like under the net migration target.
THE PRICE OF LOVE
The reforms to family immigration routes introduced by Theresa May in 2012 have exiled or separated thousands of British families in which one partner has the lack of foresight to be a foreign national. The key reform was a massive increase to the minimum income that a British citizen needs to earn in order to sponsor a foreign spouse. Previously, the level had been set at around £5,500 per year, not including highly variable accommodation costs. It was more than trebled to £18,600 in 2012 and the money now has to be earned for a minimum period of six months before an application can be made. If you are fortunate to have significant savings, you can instead rely on those, but you have to demonstrate a bank balance of as much as £62,500 held in cash for a period of at least six months; this is completely unattainable for most British citizens with a low income.2 On top of that, the reforms stated that the period before a spouse or partner can qualify for settlement was increased from two to five years; the language requirements were toughened up; the cost of visa applications more than doubled; and devilishly complex new rules were introduced that virtually forced applicants to hire expensive immigration lawyers.
A salary of £18,600 is a lot of money, particularly if you are young or female or a carer or work part-time or live outside London and the south-east or are from an ethnic minority. Or if you are two or more of these things. On average, all these groups are likely to earn lower incomes. The figure is also considerably higher than the national minimum wage, which at the time of writing worked out at about £17,000 per year for those fortunate enough to receive holiday pay. The
past or potential future earnings of the foreign partner themselves do not count towards meeting the total unless he or she is already living and working in the UK. Overall, around 40 per cent of British citizens working full- or part-time do not earn enough to be able to sponsor a foreign partner.3 And all this has consequences.
In 2015, the Children’s Commissioner estimated that there were, after only three years of the new system, already as many as 15,000 children growing up in ‘Skype families’, where one of the parents was ineligible to live in the UK and instead had to stay in touch via Skype or similar technology.4 The number can only have grown since then and a simple extrapolation of the Children’s Commissioner estimate would suggest around 40,000 children affected by 2020. The Home Office’s own advance prediction of the number of couples affected was in the range of 108,000 to 142,000 by 2020.5 And in 2018, the expert number-crunchers at Oxford University’s Migration Observatory looked at whether it was possible to calculate the number of affected families, concluding that it was likely to be ‘in the tens of thousands’.6
