Welcome to Britain: Fixing Our Broken Immigration System

by Colin Yeo;

  The main justification for these deliberately harsh policies is that they reduce the supposed pull factors that are said to make the United Kingdom an attractive destination for refugees. Politicians like to talk about these pull factors because they are something ministers themselves can control; legislating to cut off the right to work, reducing benefits and so on, makes it seem as if the politician has some concrete answer to, and control over, the perceived problem of refugee numbers. However, the research shows that country-specific pull factors have very little, if any, influence on refugees. The legislators are kidding both themselves and the public and are therefore setting unachievable expectations. The only real consequence is that refugees like my clients are so traumatised and exhausted by the process that it is no surprise they struggle to adapt to life in the United Kingdom afterwards. The deterrent policies the government has introduced since the late 1990s leave both them and their children deliberately and permanently disadvantaged.

  If politicians were honest and open about the fact that most asylum seekers arriving in the UK are now genuine refugees, this might start to shift public attitudes. The majority will ultimately be allowed to stay in the UK anyway and it is time to start recognising that truth. Once they are allowed to remain, do we want them to be isolated, disadvantaged and perhaps even resentful because of their harsh and inhumane treatment on and after arrival? If we were less hostile and more respectful, it is likely that they would find it easier to integrate and build new lives for themselves when they are allowed to stay, which, in turn, might help to shift negative public opinion.

  NOTES

  1 Alasdair Mackenzie, ‘No Reason At All’, 1995. This is still available online, rather quaintly preserved as a scanned copy of a report typed up on a typewriter: http://repository.forcedmigration.org/pdf/?pid=fmo:3261

  2 ‘Quality Integration Project: First Report to the Minister’, UNHCR Representative to the United Kingdom, August 2010.

  3 ‘Home Office told asylum seeker his claim was “pants”’, The Guardian, 16 December 2000.

  4 ‘Border staff humiliate and trick asylum seekers – whistleblower’, The Guardian, 2 February 2010.

  5 Kenneth Baker, Hansard, House of Commons debate, 2 July 1991, vol. 194, col. 165.

  6 ‘Blair targets huge asylum cuts’, The Guardian, 8 February 2003.

  7 Theresa May speech to Conservative Party conference, 6 October 2015, available at: https://www.independent.co.uk/news/uk/politics/theresa-may-s-speech-to-the-conservative-party-conference-in-full-a6681901.html

  8 See for example William Allen and Scott Blinder, ‘Migration in the News: Portrayals of Immigrants, Migrants, Asylum Seekers and Refugees in National British Newspapers, 2010–2012’, Migration Observatory, 2013.

  9 Helen Baillot, Sharon Cowan and Vanessa E. Munro, ‘Second-hand Emotion? Exploring the Contagion and Impact of Trauma and Distress in the Asylum Law Context’, Journal of Law and Society, vol. 40, no. 4, November 2013, pp. 509–40.

  10 A classic question all barristers have been asked is, ‘How do you represent clients you do not believe?’ Our normal answer is that it is not our job to believe or disbelieve our clients. Our job is to present their case in court. It is the job of the judge or the jury to believe or disbelieve. Where a client actually tells us that they are lying, it is different; we are not permitted knowingly to mislead a judge or jury. In the case I mention here, I had to cease representing the client and he was left without a lawyer.

  11 ‘Myth buster: “memories of trauma are engraved on the brain”’, Centre for the Study of Emotion and Law, Free Movement, 21 June 2016.

  12 Colin Yeo, ‘Questions to a bisexual asylum seeker in detention’, Free Movement, 24 January 2014.

  13 ‘Gay asylum seekers face “humiliation”’, The Guardian, 8 February 2014.

  14 ‘Missing the mark: decision-making on Lesbian, Gay (Bisexual, Trans and Intersex) asylum claims’, UK Lesbian and Gay Immigration Group, September 2013.

  15 ‘Fleeing Persecution: Asylum Claims in the UK on Religious Freedom Grounds’, All Party Parliamentary Group for International Freedom of Religion or Belief, 7 June 2016.

  16 ‘120 leading philosophers say “appalling” Home Office humanism test “makes no sense”’, Humanists UK, 25 January 2018.

  17 MST and Others (national service – risk categories (CG)) [2016] UKUT 443 (IAC).

  18 For references see Nick Nason, ‘The Curious Case of the Eritrean Country Guidance’, Free Movement, 14 February 2017.

  19 ‘An inspection of family reunion applications’, Chief Inspector of Borders and Immigration, 14 September 2016.

  20 Asylum and Immigration (Treatment of Claimants etc.) Act 2004, Sections 2 and 8.

  21 Vaughan Robinson and Jeremy Segrott, ‘Understanding the decision-making of asylum seekers’, Home Office Research Study 243, July 2002.

  22 ‘Figures at a glance’, UNHCR, available at: https://www.unhcr.org/uk/figures-at-a-glance.html

  23 Anderson, Us and Them?

  24 R v Immigration Officer at Prague Airport, ex parte European Roma Rights Centre [2005] 2 AC 1.

  25 ‘The man who fell to earth’, The Guardian, 18 July 2001.

  26 ‘The final episode of a stowaway’s story’, BBC News, 7 January 2014.

  27 ‘Heathrow stowaway who fell to death identified as Mozambican migrant’, The Guardian, 10 January 2016.

  28 ‘Kenya Airways stowaway: Mystery of the man who fell from the sky’, BBC News, 15 November 2019.

  29 ‘Lonely death of migrant who tried to swim the Channel’, Sunday Times, 22 September 2019.

  30 ‘“We were not as brave”: Woman drowned in Channel trying to save baby and fellow migrants’, Sky News, 8 October 2019.

  31 See https://missingmigrants.iom.int/

  32 See more at www.lastrights.net. Catriona and Syd do amazing work.

  33 See for example David Blunkett speech to Labour Party conference on 2 October 2003, available at: https://www.theguardian.com/politics/2003/oct/02/labourconference.labour9

  34 Speech by Theresa May to Conservative conference on 6 October 2015, available at: http://www.ein.org.uk/news/home-secretary-use-conservative-party-conference-speech-warn-uk-needs-have-immigration-limit#speech

  35 Sunder Katwala, Steve Ballinger and Matthew Rhodes, ‘How To Talk About Immigration’, British Future, 2014, p. 17.

  36 See for example Jonathan Portes, ‘And so the appalling human consequences of the austerity experiment become clear’, Prospect, 25 March 2020.

  37 ‘David Cameron: The prime mover behind Britain’s hostile environment, who escaped the blame’, The Independent, 8 June 2019.

  38 ‘UK Public Opinion toward Immigration: Overall Attitudes and Level of Concern’, Migration Observatory, 20 January 2020.

  39 Rob Ford, ‘Acceptable and Unacceptable Immigrants: How Opposition to Immigration in Britain is Affected by Migrants’ Region of Origin’, Journal of Ethnic and Migration Studies (2011), vol. 37, no. 7, pp. 1017–37.

  40 Helen Dempster and Karen Hargrave, ‘Understanding public attitudes towards refugees and migrants’, Overseas Development Institute and Chatham House, 2017.

  41 ‘Global Views on Immigration and the Refugee Crisis’, Ipsos MORI, 2016 and 2017.

  42 Don Flynn, ‘“Tough As Old Boots”? Asylum, immigration and the paradox of New Labour policy’, Joint Council for the Welfare of Immigrants, 2003.

  43 Robert Maclennan, Hansard, House of Commons debate, 2 July 1991, vol. 194, col. 171.

  44 Michael Howard, Hansard, House of Commons debate, 20 November 1995, vol. 267, col. 335.

  45 ‘Migration to the UK: Asylum and Resettled Refugees’, Migration Observatory, 8 November 2019.

  46 See Anthea Vogl, ‘Telling Stories from Start to Finish: Exploring the demand for narrative in refugee testimony’, Griffith Law Review (2013), vol. 22, no. 1, pp. 63–86.

  47 Section 8 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 is the most notorious example of this
wishful thinking made law.

  48 William McLennan, ‘Are migrants who cross the Channel sent back?’, BBC News, 20 January 2020.

  49 Colin Yeo and Susan Reardon-Smith, ‘The Impact of Brexit on UK Asylum Law’, Journal of Immigration, Asylum and Nationality Law (2018), vol. 32, no. 3.

  50 Jonathan Portes, What Do We Know and What Should We Do About Immigration? (London: Sage, 2019).

  51 ‘Home Office policy leaving refugees homeless within days of being granted asylum, report finds’, The Independent, 5 June 2018.

  CHAPTER 7

  ECONOMIC MIGRATION: POINTS MEAN PRIZES

  Mohammed Imam plied his trade as a chef at a restaurant called Alishaan in Sompting on the south coast of England. He was from Bangladesh, so needed a visa to live and work in the UK. Having entered lawfully in 2010, in 2016 he applied to extend his visa for a further five years and his application was initially granted. But to his surprise – and his employer’s chagrin – a year and a half later, the Home Office wrote to him out of the blue and cancelled the visa. The reason was that ‘under SOC code 5434 in Appendix K of the Immigration Rules it is stated that the job must not be in either a fast food outlet, a standard fare outlet or an establishment which provides a take-away service’. Someone at the Home Office had evidently been googling restaurants, presumably on what lawyers call a ‘fishing expedition’ to try to catch out chefs. ‘There is evidence available on the internet’, the refusal went on, ‘that your prospective employer does offer a take-away service.’

  KAFKA WOULD BLUSH

  The jargon in that cancellation letter alone tells you a lot about the complexity of the rules Mr Imam and his employer were trying to navigate. A ‘SOC code’ is a reference to the Standard Occupational Classification, which is basically a list of all conceivable jobs and occupations, compiled and published every ten years by the Classification and Harmonisation Unit at the Office for National Statistics. This includes everything from ‘3239. Adviser, cessation, smoking’ to ‘9244. Warden, patrol, crossing, school’. There are 28,749 entries on the list. The SOC code for chefs in particular includes several different roles, such as ‘Chef, development’, ‘Chef, head’, ‘Chef, pastry’, ‘Chef de cuisine’, ‘Chef de partie’, ‘Chef-manager’ and then just plain ‘Chef’. A ‘Chef de rang’ has a different SOC code altogether, of course, being essentially a fancy name for a waiter.

  Perhaps surprisingly, Appendix K of the Immigration Rules is not a reference to the protagonist of Franz Kafka’s The Castle. That K finds himself summoned by bureaucratic error to an unfamiliar environment, where he struggles to gain access to the mysterious authorities governing a village, with copious, contradictory paperwork from an inaccessible, impenetrable castle. Although it was unfinished at the time of his death, Kafka had written to a friend that The Castle would end with K being informed by the authorities, while on his deathbed, that his ‘legal claim to live in the village was not valid’. No, Appendix K is the official ‘Shortage Occupation List’ issued by our own beloved Home Office. This is the list of jobs for which employers do not need to advertise a role and which fall outside the general cap on the number of skilled workers who can be recruited from abroad. The list consists of certain SOC codes, often with additional provisos attached. For example, the entry for code 5434 at the time of Mr Imam’s application stated:

  Only the following job in this occupation code:

  Skilled chef where:

  The pay is at least £29,570 per year after deductions for accommodation, meals etc; and

  The job requires five or more years relevant experience in a role of at least equivalent status to the one they are entering; and

  The job is not in either a fast food outlet, a standard fare outlet, or an establishment which provides a take-away service; and

  The job is in one of the following roles:

  Executive chef – limited to one per establishment

  Head chef – limited to one per establishment

  Sous chef – limited to one for every four kitchen staff per establishment

  Specialist chef – limited to one per speciality per establishment

  Unusually, Mr Imam’s employer stood by him and challenged the decision in the courts. Good, experienced chefs are not easy to come by, after all. Curry houses were particularly hard hit by this otherwise obscure rule and in 2017 the Asian Catering Federation told the Telegraph that 50 per cent would be forced to close within ten years.1 Mr Imam and the restaurant argued in court that the rule against foreign chefs working ‘in an establishment which provides a takeaway service’ was perverse and outdated given the growth of delivery services such as Deliveroo. They noted that some Michelin-starred restaurants also offered a take-away service and Mr Imam’s restaurant was primarily an eat-in establishment, making only around 10 per cent of its earnings from take-aways. The arguments were hardly unfounded, but the challenge failed both at the High Court and, eventually, in late 2019 at the Court of Appeal (and it is from that judgment I draw these facts).2 Mr Imam and the restaurant were then left to pay not only for their own legal bills but also for the legal costs that the Home Office incurred in defending the claim. We lawyers do not come cheap and the cost of unsuccessful litigation against the Home Office would have come to tens of thousands of pounds.

  There was a twist. By the time the Court of Appeal handed down its decision, the take-away rule, which was indeed perverse and outdated, had been scrapped. The Migration Advisory Committee of economists and academics, which offers guidance to the Home Office on labour market shortages, had advised that the rule should be abolished in May 2019. Home Secretary Priti Patel announced that she would accept this recommendation and, in a piece in the Sun newspaper in September 2019, styled her decision as the creation of a ‘vindaloo visa’, intended to ‘save the nation’s curry houses’. The change was implemented in new rules on 6 October 2019. Mr Imam’s case was heard in the Court of Appeal on 8 October 2019 and was dismissed two weeks later. Yet, because the case concerned an application made in 2016, the fact that the rule had been scrapped three years later was of no avail to Mr Imam and his employers. In fact, changes to the status of migrant workers wrought by the Immigration Act 2014 meant that Mr Imam had been unlawfully resident all the time that he brought his legal case. And once a migrant becomes unlawfully resident, there is usually no way back.

  Applying for a work visa in the UK can be a capricious lottery, as Mr Imam discovered to his cost. The rules are insanely complicated, the cost of applying is huge and while one hand of the Home Office actively seeks innovative ways in which to defeat applications, another hand simultaneously recommends that the same applications should succeed. Not only that, but Mr Imam was actually on one of the easier points-based routes to navigate.

  ENDING IN TIERS

  The five-tier points-based system was first announced in 2006 as the culmination of attempts to modernise and reform the immigration system. After decades of the United Kingdom being a ‘zero immigration’ country, Tony Blair’s Labour government of 1997 to 2007 had introduced an active economic immigration policy for the first time since the immediate post-war years.3 With incoming new ideologies of globalisation, modernisation and evidence-based policy-making, the idea that immigration might be economically desirable spread from the Treasury and Department for Trade and Industry, to the Cabinet Office, to the Home Office.4 Certain migrants would be actively sought and recruited, it was decided.

  The revolution began with the Innovator Scheme, which was launched as a pilot in 2000 to attract high-tech entrepreneurs. The Highly Skilled Migrant Programme followed in 2001 and, separately, work permit criteria were loosened. The number of permits issued every year more than doubled, from around 63,000 in 1997 to over 135,000 by 2005. By then the Highly Skilled Migrant Programme was attracting over 17,000 entrants annually. What had become a messy hodgepodge of different routes into the UK was eventually deemed to lack modernity and plans for an amalgamated system were drawn up. The purpose of
the resulting points-based system would be ‘to admit people selectively in order to maximise the economic benefit of migration to the UK’. The consultation paper heralding its introduction stated that the new system should be simpler and easier to understand than the old routes it replaced. The key tests of success would be whether it was ‘operable, robust, objective, flexible, cost effective, transparent, usable’.5

  Each tier includes several different immigration categories and some of those include different sub-categories. In reality, though, none of the sixteen groupings operate on a meaningful points-scoring system, allowing for different combinations of attributes to add up in order to secure a visa. The only genuine points-based route, the successor to the previous Highly Skilled Migrant Programme (which awarded different points for different attributes or qualifications), was scrapped by Theresa May at the end of 2010. Even before that, calling the system ‘points-based’ was always more about branding than reality. Apparently, members of the public in focus groups liked the sound of an ‘Australian-style points-based system’ because it evoked images of refugees in boats being turned around at gunpoint by the Australian navy.6 The fact that the actual Australian points-based system had nothing to do with refugees and was actually a way of increasing economic immigration was irrelevant. The Conservative Party then revived use of the phrase during the 2019 general election campaign, despite the fact the UK system was literally already called the ‘points-based system’.