Welcome to Britain: Fixing Our Broken Immigration System

by Colin Yeo;

  Critics have warned that no registration or application exercise has ever or will ever achieve 100 per cent success: there will always be some eligible people who do not apply. In this case though, where very large figures are involved, an apparently small percentage of people not applying has the potential to translate as a huge number of individuals, especially given that there are an estimated three to four million EU citizens currently living in the UK. Even if 90 per cent of people applied, which would be far better than any previous comparable exercise around the world, there could still be 400,000 EU citizens left unlawfully resident as a consequence. The final number will probably prove to be higher, although we may never know for sure because there is no register or list of EU citizens living in the UK against which to compare the final tally.

  Oxford-based Migration Observatory researchers identified certain groups of EU citizens to be at particular risk of being left behind by the process.33 Firstly, there may be a significant number of people who do not know that they need to apply: children whose parents do not apply for them, perhaps because they wrongly think they are already British citizens; long-term residents who are elderly or wrongly believe they already have permanent status; those who already have permanent residence under EU law; and people who wrongly believe they are ineligible, for example. There will also be some vulnerable individuals who struggle to complete the process, such as victims of domestic violence, victims of exploitation and victims of modern slavery. Barriers such as lack of English language proficiency, age, disability or lack of computer literacy may well mean that some people do not know they need to apply, or even if they do, they may struggle to complete their application. Lastly, there will be a number of people who fail to prove five years of residency and thus end up with only five years’ permission to stay. Later, they may fail to apply at the end of that period or may accidentally render themselves ineligible as a result of being outside the UK for six months out of any twelve, for example on a gap year, work placement abroad or caring for relatives.

  Comparisons have been made with the Windrush scandal that emerged in 2018. The comparison is apt but there are important differences. As we have seen, the Windrush scandal arose from a decision to confer lawful status automatically on a large cohort of people without issuing them with papers. This was done for the very good reason of ensuring everyone eligible was automatically lawful, but it also meant that they did not necessarily have a way to prove it. This became a major problem following the introduction of the hostile environment. The problem facing EU citizens is arguably worse. Instead of a declaratory system in which everyone is lawful but some people lack proof, EU citizens are being forced to apply. Those who fail to do so will be illegally resident and will also, obviously, lack proof of lawful status. It will not be well-educated professionals who are caught out, but low-skilled workers with poor language skills and other vulnerable groups. There will be no easy route back to legality, either, as the government says that ‘good reason’ will be needed for not applying before the deadline. Not realising that you had to apply is never going to constitute a sufficiently decent reason, I suspect.

  This is where Lilley’s crusade against benefit tourist bogeymen and Johnson’s witty Euromyths have brought us: out of the European Union in which British citizens were one of the biggest national groups benefiting from free movement rights, and into a situation where EU citizens in the UK have to apply to stay in the country they moved to as legal citizens, or else face uncompromising deportation.

  NOTES

  1 ‘Brits abroad: how many people from the UK live in other EU countries?’, Full Fact, 1 February 2018.

  2 Robert Saunders, Yes to Europe! The 1975 Referendum and Seventies Britain (Cambridge: Cambridge University Press, 2018).

  3 Margaret Thatcher, Speech to the College of Europe (‘The Bruges Speech’), 20 September 1988.

  4 ‘The making of blue Peter’, The Independent, 3 April 1994.

  5 ‘The road to Brexit was paved with Boris Johnson’s Euromyths’, The Guardian, 15 July 2016.

  6 With thanks to Kate Lyons, ‘The 10 best Euro myths – from custard creams to condoms’, The Guardian, 23 June 2016.

  7 Consterdine, Labour’s Immigration Policy, pp. 147–8.

  8 See Consterdine, ‘Do Parties Matter? Party Ideology and Party Competition’, in ibid., pp. 119–60.

  9 Michael Howard, speech delivered in Burnley on 19 February 2004, available at: http://news.bbc.co.uk/1/hi/uk_politics/3502573.stm

  10 Dustmann et al., ‘The Impact of EU Enlargement on Migration Flows Home Office Report 25/03’, 2005, available at: https://discovery.ucl.ac.uk/id/eprint/14332/1/14332.pdf

  11 See Chapter 2 on the net migration target.

  12 Robert Ford and Matthew Goodwin, Revolt on the Right: Explaining Support for the Radical Right in Britain (London: Routledge, 2014).

  13 David Cameron, Bloomberg speech on 23 January 2013, available at: https://www.gov.uk/government/speeches/eu-speech-at-bloomberg

  14 ‘David Cameron: we will keep out EU benefit tourists’, Daily Telegraph, 6 January 2013.

  15 ‘Benefits Britain here we come! Fears as migrant flood begins’, Daily Express, 1 January 2014.

  16 ‘We’re building an immigration system that puts Britain first’, Daily Telegraph, 28 July 2014.

  17 David Cameron, Chatham House speech, 10 November 2015, available at: https://www.gov.uk/government/speeches/prime-ministers-speech-on-europe

  18 ‘We’ll halt EU dole tourists: David Cameron set for showdown over new immigrant arrivals’, The Sun, 18 February 2013.

  19 Figures quoted by Lord Russell, Hansard, House of Lords debate, 30 April 1996, vol. 571, col. 1545.

  20 ‘Speak English or lose benefits: Cameron to stop payouts to immigrants who use taxpayer-funded translators’, Mail on Sunday, 18 January 2014.

  21 Ahmad v Secretary of State for the Home Department [2014] EWCA Civ 988.

  22 ‘Using the minimum earnings threshold to determine who is a “worker”’, Free Movement, 18 March 2014.

  23 See St Prix, C-507/12 and Dakneviciute, C 544/18.

  24 Charlotte O’Brien, Unity in Adversity: EU Citizenship, Social Justice and the Cautionary Tale of the EU (London: Hart, 2017).

  25 See Chapter 3 on the hostile environment.

  26 Home Office quarterly statistics, year ended December 2019.

  27 ‘Why we lost the Brexit vote’, Politico, 20 October 2016.

  28 Sources abound for this point, but for a recent and comprehensive analysis see ‘The Fiscal Impact of Immigration on the UK: A report for the Migration Advisory Committee’, Oxford Economics, June 2018.

  29 ‘The inside story of how David Cameron drove Britain to Brexit’, Prospect, 25 November 2017.

  30 ‘Why we lost the Brexit vote’, Politico, 20 October 2016.

  31 O’Brien, Unity in adversity. Names were changed in this work.

  32 Michael Gove, Boris Johnson, Priti Patel and Gisela Stuart, ‘Restoring public trust in immigration policy – a points-based non-discriminatory immigration system’, Vote Leave, 1 June 2016.

  33 ‘Unsettled Status? Which EU Citizens are at Risk of Failing to Secure their Rights after Brexit?’, Migration Observatory, 12 April 2018.

  CHAPTER 10

  DEPORTATION, EXILE AND MODERN TRANSPORTATION

  Shannoy McLeod grew up and attended primary and secondary school in Lewisham in south London. He committed a handful of minor non-violent offences and in 2017, aged twenty-one, he was caught by police carrying enough cannabis to trigger an intent to supply charge, as well as driving a moped while disqualified. He was given a fifteen-month prison sentence. To his horror, he then also received a letter from the Home Office declaring that they had decided to deport him. Unluckily for Shannoy, he had come to the UK from Jamaica at the age of four. He could barely remember his life there, and he had lawful, settled status in the UK alongside his three siblings, all of whom were British. He himself had been eligible to apply for
British citizenship but had not done so because it was expensive and seemed unnecessary at the time; this turned out to be a terrible mistake.1

  Perhaps even more stark was the case of Remi Akinyemi. He was born in the United Kingdom in June 1983. As we will see when we turn to British citizenship laws in Chapter 12, had he been born a few months earlier, in 1982, he would have been a British citizen, and indeed his elder brother was British from birth. Like Shannoy, Remi was eligible to be registered as a British citizen or could later have naturalised as British, as his father and younger brother had. Everyone already thought he was British, so there seemed to be no need. His mother died when he was fourteen and he struggled with mental health problems and depression from a young age. After a series of suicide attempts, now on anti-depressants and anti-epilepsy medication and belatedly receiving counselling, he settled down with a partner. The problem was, he was by now classified as a ‘foreign national offender’. A Nigerian national by descent, he had committed a string of criminal offences, some of which were very serious. In 2007 he was sentenced to four years in prison for causing death by dangerous driving and in 2013 he was sentenced to three and a half years for Class A drugs offences. The Home Office decided to deport him in 2014. He fought the case through the courts, but because judges kept making legal mistakes on his case, he was still going through the courts as this book went to press.2

  In the United Kingdom, ‘deportation’ means the exclusion of a foreign national from the country. Not only is the person physically removed but he or she is also banned from returning. It is a legal power that is most often used against foreign criminals, though it can also be used both against a person who does not have permission to stay in the UK and against somebody who does. Even someone with settled status can therefore be deported. Lawyers get hung up on the difference between deportation and mere removal, where a person who does not have permission to stay in the UK is physically removed but can sometimes apply to come back again. The distinction only really matters to lawyers. In public discussion, ‘deportation’ and ‘removal’ are generally considered to be interchangeable terms. But deportation feels like a more evocative, meaningful word.

  Shannoy grew up in the UK, he was educated here, all of his friends and everything he knew was here, he had strong family links with his mother and three siblings living here, his offending was non-violent and he seems to have been rather unlucky to get a sentence as long as fifteen months. He could remember nothing about Jamaica and had no idea how he would live there. And even if his conduct was serious enough to justify deportation, why should it be Jamaica that hosts him in the future, given he is very much a product of the United Kingdom? Similarly, Remi was born in the United Kingdom and had never left the country. He could and should have been British, except that his parents had not paid to register him as such. His offending was serious, but he also came from a very disturbed background for which he was not at fault. Furthermore, his only link to Nigeria was a legal inheritance of citizenship through his father; he did not know Nigeria at all and had never even been there. These are examples not of deportation but of exile.

  THE GREAT DEPORTATION SCANDAL

  Deportation was a niche area of immigration law until, on 25 April 2006, then Home Secretary Charles Clarke publicly admitted that the Home Office had failed to consider the deportation of over 1,000 foreign criminals who were coming to the end of their prison sentences, that this had been going on for years, that some of the offenders were rapists and murderers, that some had re-offended after their release and that the Home Office had lost track of most who had been let go. Even very serious criminals who had committed awful crimes and served long sentences were being released into the community without any consideration for whether they could or should be deported; they were simply allowed to stay. Prisons were failing to inform the Home Office that foreign nationals were due to be released, and even where they were, the Home Office was doing nothing about it. A subsequent report by the House of Commons public accounts committee blamed a ‘parochial culture’ within different teams at the Home Office and ‘a lack of leadership and strategic oversight, a failure to acknowledge that departmental procedures were not keeping pace with demand for the service, and the tacit acceptance of backlogs and delays’.3 It is hard to imagine more damning criticism, although similar things continue to be said about the Home Office today.

  The fault was arguably that of officials at the Home Office, who were failing to operate the machinery of government. Ultimately, though, the doctrine of ministerial accountability means that a minister is responsible for the actions of their officials. In this case, perhaps the responsibility was real as well as theoretical. The New Labour government was obsessed with asylum and economic migration and it turned out that this was almost to the exclusion of all else. The number of officials working on deportation cases rose from 100 before the foreign criminals scandal to 550 by 2010 and then, during a period when the overall headcount at the Home Office fell, to over 900 by 2014.4 Even today politicians continue to manage a crisis at the Home Office by reallocating resources from one area to another. As the chief inspector of borders and immigration puts it, ‘The response to the latest priority or crisis is typically at the expense of performance elsewhere.’5

  The fault was certainly not that of the law. The failure was an administrative one. It was not that deportation was legally difficult or that there were insuperable legal barriers; foreign criminals were not even considered for deportation by immigration officials in the first place. The Immigration Act 1971 had given the Home Secretary a huge level of discretion when deporting foreign criminals when he or she considered it to be ‘conducive to the public good’. There was no real statutory limit or definition to this power, meaning the Home Secretary of the day could interpret ‘conducive to the public good’ as widely or as narrowly as he or she chose. The Immigration Rules included several paragraphs on deportation, but these also imposed no real restriction on the power to deport, being instead just a list of relevant and common-sense considerations, such as the seriousness of the offence, length of residence and family connections. The Human Rights Act 1998 and the European Convention on Human Rights might impose some restrictions on deportation because a criminal’s right to a private and family life had to be considered before he or she was deported. But most cases had not been reaching that stage, and human rights laws certainly do not prevent the deportation of serious criminals or those with weak connections to the United Kingdom.

  The media narrative meant that the scandal needed to be somebody’s fault. A crisis of this scale demanded a scalp. The government could have collectively admitted that it had been distracted by the increase in asylum numbers and the growing backlog that came as a result, but this would have put Prime Minister Tony Blair in the frame. Charles Clarke was the current Home Secretary and had been for a year and half. The problems at the Home Office went back further than that, but Clarke was, after some initial prevarication, sacked by Blair on 5 May 2006.

  AUTOMATIC DEPORTATION

  To try to show something was being done beyond the defenestration of Clarke, Blair had rather unwisely pledged at Prime Minister’s Questions on 3 May that he would radically overhaul the existing system, ‘so that those who are convicted of a serious criminal offence are deported automatically’.6 On the face of it, this sounded like it would actually deal with the problem that had arisen, which was the failure even to initially appraise foreign criminals for deportation. Blair went further, though, pointing out that even where foreign criminals were considered for deportation, they were not necessarily removed from the country as a result. He implied that the law was at fault and attempted to deflect blame onto previous governments for failing to legislate properly. He wanted to move the discussion on from poor management of the Home Office. But pledging to deport foreign criminals automatically, come what may, no matter what their links to the UK, was to pledge the impossible. The law protecting criminals from deportation was n
ot strong, but it did exist. The pledge soon morphed instead into a commitment to introduce a rebuttable presumption of deportation; the law would assume that a person would be deported unless they could persuade officials or a judge otherwise.

  The resulting legislation was the UK Borders Act 2007, which remains in force today. Section 32 is entitled ‘Automatic Deportation’. It states that a deportation order must be made against any foreign national who is convicted and sent to prison for twelve months or more. But any lawyer reading the Act will immediately see that Section 33 is entitled ‘Exceptions’. In reality, deportation is anything but automatic. The exceptions include recognised refugees, certain EU citizens and cases in which human rights laws would be breached by deportation. Oddly, this legislation did not replace the original Home Office power to deport foreign nationals contained in the earlier mentioned Immigration Act 1971. Instead, it supplemented the original power and in effect defined some of those whose deportation the Home Office would in future consider to be conducive to the public good.

  If anything, though, the original 1971 power to deport foreign nationals was wider and more draconian than the new legislation. What about foreign nationals who committed a string of offences, receiving a sentence of less than twelve months on each occasion? Or a foreign national who was not actually convicted of a crime but where there was some other compelling reason to deport him or her? In these cases, the Home Office still needed to rely on 1971 powers rather than the new, quite complex scheme of 2007. Meanwhile, the Home Office often found a way not to apply the theoretical exceptions. Recognised refugees had their asylum status revoked on the basis it was now safe for them to return, for example. Those with long residence in the UK since birth or childhood, and even those with British children, were told that their private family life was outweighed by the public interest in their deportation. They could maintain their relationships from afar by (that phrase again) ‘modern means of communication’, they were told, over and over again.