Welcome to Britain: Fixing Our Broken Immigration System

by Colin Yeo;

  For the past twenty years, the discussion of economic migration has centred around skilled migration. However, with the end of European Union free movement rules following Brexit, the next twenty years may focus more on how to meet the needs of the British economy for unskilled labour. At the time of writing, just as the coronavirus pandemic was starting, the unemployment rate was approaching an historic low of just 3.8 per cent. With workers therefore in short supply, failing to provide a lawful source of labour to fill low-skilled vacancies could result in driving up wages (and therefore prices) or increasing productivity or both. Such an omission would also create demand for unauthorised migrants in the shadow economy. In the 2019 general election, the Conservative Party proposed to meet this demand by introducing temporary worker visas tied to specific employers for specific jobs.8 These would be issued for limited, short periods and would be non-renewable. Such visas are clearly not respectful to migrants and would only cement the perception that migrants are an exploitable natural resource.

  With EU free movement rights and general work visas like those issued under the UK Ancestry route, a migrant who is badly treated by one employer can move down the road and work for another. Tied visas, which do not permit the worker to change employer or even job, encourage abuse by employers. The social impact of significant numbers of temporary migrants continuously passing through areas to which they have no connection, rather than settling down with families, has not necessarily been thought through. It is also inevitable that some migrants issued with such visas will not leave the country at the end of their allotted time. The disparity in available income that led a migrant to apply for such a visa in the first place will be too great a temptation for some. Law-makers will know that this is an inevitable consequence of the system and are therefore responsible for what follows. Temporary tied visas are a good example of an extreme version of the contractual approach to immigration: proponents argue the migrant knows what he or she is signing up to. To my mind, though, the power and wealth imbalance present in such systems makes this arrangement the epitome of imposing unfair contractual terms.

  Shortly before the economic shutdown caused by coronavirus, the government seemed to have changed its mind. It was announced that the temporary work visas would only exist for agricultural workers. The uncertainties of Brexit and the eventual, probably very slow and painful, recovery from the pandemic make it impossible to predict the future. Historically, immigration has been an indicator of economic success: migrants come for the work generated by a booming economy. The converse is also true: an economic crash would normally be expected to reduce immigration, and it may be that there are so many unemployed British citizens that there is a plentiful supply of domestic labour for the foreseeable future, rendering redundant any discussion of a need for low-skilled work visas. It may be that a deep global economic crisis causes increased survival migration, as citizens of some countries feel they have no choice but to seek food or work outside the borders of their own countries. Or it may be that politicians and the public become more cognisant of the vital social and economic role of workers traditionally seen as low-skilled, and therefore become more responsive to the idea that attracting and retaining such workers requires their terms of entry as migrants to be less exploitative than the temporary tied worker scheme the government had previously mooted.

  If temporary work routes are introduced, they should be designed, as far as possible, to recognise that those who apply for such visas are not ‘just’ workers; they are people. As a bare minimum, the ability to switch to alternative employers and other immigration routes should be permitted if the person qualifies.

  DEPORTATION

  When a non-citizen breaks the law, a careful judgement is needed about whether she should lose her right to live in the country and be deported. Public opinion and faith in the immigration system need to be weighed on one side of the scales against the effect on the individual, her family, friends and community and the role of British society in shaping her on the other. At the moment, the law on deportation is anything but careful. The reforms introduced in the wake of the 2006 deportation scandal at the Home Office, and then following Theresa May’s obsession with foreign criminals, have entirely excised judgement from the decision-making process. Instead, we have hard-and-fast rules that, in practice, are almost impossible for anyone to meet. As a result, we see non-citizens who were brought to the United Kingdom as children or who were even born in the country being uprooted from everything they know and exiled to an effectively foreign land.

  The automatic deportation provisions of the UK Borders Act 2007 need to be scrapped, as do the narrow rules imposed by the Immigration Act 2014. These rules were initially introduced for short-term political reasons, but they cause real damage to effectively British individuals and their families, friends and communities.

  STRUCTURAL CHANGE

  In the introduction I outlined what I see as the central defining features of the current system of citizenship and immigration laws: an exclusionary approach to citizenship, a concomitant exclusionary approach to immigration, a secure and external border, extensive deployment of domestic deterrent policies, the growth of a significant unauthorised migrant population and a highly centralised system governed by unchecked executive discretion. The past two decades have also seen two major trends in the operationalisation of immigration laws, which only accentuate these negative defining features. The first is the automation or pseudo-automation of decision-making, for example under the points-based system, Appendix FM family routes, the deportation rules, the ‘risk assessment’ tool used in visa applications and the EU Settlement Scheme algorithm. The second is the reduction in direct contact between officials and migrants through privatisation, whether through the use of detention centres, the outsourced visa application process or, most ubiquitously, indirect enforcement through third parties. All of these approaches fundamentally dehumanise migrants. Officials are isolated from the consequences of their actions and encouraged to see migrants as logistical problems rather than real people, leading to crises like that of the Windrush scandal.

  If there is one thing that might gradually mitigate and perhaps gradually reverse some of this, it is a proper role for Parliament in the making and oversight of immigration law and policy. If the government was forced to allow meaningful votes on new rules by Members of Parliament this would, for one thing, preclude frequent changes to the law and therefore require more care when changes are made. The associated increased oversight and accountability would also, hopefully, introduce a wider range of considerations into the policy-making process and improve both citizenship and immigration law over time. Yet, even aside from the fact the Immigration Act 1971 would need to be replaced, which is unlikely for the foreseeable future, the British parliamentary system does not lend itself to meaningful scrutiny. Immigration and citizenship issues can cut across party lines but a government with a strong parliamentary majority (as we currently have with Boris Johnson’s Conservative leadership) is essentially able to do what it wants. However, governments rarely surrender executive powers voluntarily, and drastic changes to the architecture of immigration law seem far-fetched at present.

  The current system has developed because migrants have consistently been regarded as a threat by politicians and policy-makers. There is a significant strand of thinking that sees migrants as an opportunity, but too often proponents of this view discuss those migrants as if they were a natural resource to be exploited, whose rights, if they have any at all, only flow from their economic utility. Neither view of immigration is conducive to treating migrants with respect or as future citizens. It is unrealistic to expect politicians, who owe their position to the portrayal of migrants as a threat, to climb down significantly from that position. I do wish that they would, but realistically it just is not going to happen, at least not in the short or medium term. Nevertheless, mainstream politicians of any political persuasion could bring about useful changes by simpl
ifying the system, revisiting family immigration rules, reviewing citizenship laws and reconsidering the effectiveness and long-term consequences of deterrent policies. Ultimately, migrants must be treated as humans. Seeing them as citizens-in-waiting would be a good start.

  NOTES

  1 Motomura, Americans in Waiting and Immigration Outside the Law.

  2 I should add for legal readers that the courts in the United Kingdom have declined to analyse immigration from the perspective of actual contract law. Immigration is considered a matter of public law, not contract law. See for example R (on the application of HSMP Forum (UK) Ltd) v Secretary of State for the Home Department [2009] EWHC 711 (Admin). Judges at times lean on broad, popular notions of contract in expressing their reasons, but this is more as a matter of rhetorical flourish.

  3 See Introduction.

  4 ‘Between a rock and a hard place: AVR 2.0: the case for rebooting Assisted Voluntary Return in the UK’s immigration control regime’, Social Market Foundation, December 2019.

  5 ‘Review of the minimum income requirement for sponsorship under the family migration route’, Migration Advisory Committee, 16 November 2011.

  6 ‘Tier 1 (Investor) route: Investment thresholds and economic benefits’, Migration Advisory Committee, 2014.

  7 Home Office quarterly statistics, year ended September 2019.

  8 ‘The Conservative plan for immigration after Brexit’, Free Movement, 13 December 2019.

  ACKNOWLEDGEMENTS

  This book is the product of experience. Not just my own experience but the experience of my clients and their friends and families, of my fellow lawyers who over the years generously took the time to train me and explain to me, of the contributors to my immigration law website freemovement.org.uk and of all those whose articles and books I have drawn on in my own writing. I am very grateful indeed to all those who knowingly or otherwise helped me in these ways.

  I want to single out CJ McKinney, Caroline Wintersgill, Helena Wray, Bridget Anderson and my wife for their comments on an earlier draft and their support and encouragement during the writing process. David Owen is to blame for the idea of writing this in the first place and I am very grateful to Olivia Beattie and the team at Biteback for taking the book on. Lucy Stewardson’s editorial comments were invaluable, and the final draft is very much improved as a result. I am profoundly grateful to all of them. I also want to thank Denny Pencheva and Lara Farrell for their help with some of the research on the asylum and detention chapters; Nick Nason for his, as ever, entertaining original write-up of the case with which I open the chapter on work migration; Diego Acosta for recommending Hiroshi Motomura’s work; and the couples who agreed to be interviewed for the chapter on family migration. Some of their names have been changed. Simon Cox’s information on the origins of the benefits tourist was illuminating, as was Amelia Gentleman’s full account of the evolution of the Windrush scandal in her own book.

  I cannot sufficiently thank my wife for keeping the show on the road when I took time out to write this, and my parents for their support and love over the years.

  Flaws in this book, of which there are many, are my own. I have tried to steer a course between academic writing, for which I am not qualified, and accessible writing, for which I am not trained. Researching and writing the book has been a voyage of discovery for me and I am acutely conscious there is much about race, policy and advocacy that I only partially understand. I am only a lawyer, when it comes down to it.

  You can follow Colin at @colinyeo1 on Twitter

  and read more of his writing on immigration

  law and policy at freemovement.org.uk.

  INDEX

  Acevedo, Isabella (cleaner) 1

  Acts of Parliament 1, 2

  ‘Adult Dependent Relatives’ 1

  Against Borders for Children 1

  agricultural workers 1, 2, 3

  airports 1, 2

  Akinyemi, Remi (facing deportation) 1, 2, 3

  Aliens Act (1905) 1

  amendments, to Acts of Parliament 1

  Amin, Idi 1

  amnesty, immigration 1, 2, 3, 4 definition 1

  Amnesty International, ‘Get it Right: …’ 1, 2

  Anderson Prof Bridget 1, 2

  Anelay, Joyce, Baroness 1

  Applications cost 1, 2, 3, 4, 5, 6

  quotas 1

  Arendt, Hannah, The Origins of Totalitarianism 1

  Assisted Voluntary Returns programme 1

  asylum 1, 2 based on sexuality 1, 2, 3

  Christian converts and 1

  country information 1, 2

  credibility 1, 2

  life-or-death cases 1

  meaning of persecution 1

  number of claims 1

  policy 1

  standard of proof 1

  Asylum Aid ‘Still No Reason At All’ 1, 2

  ‘Unsustainable: …’ 1

  Asylum and Immigration Act (1996) 1

  asylum seekers 1 ‘bogus’ 1

  deaths of 1, 2

  definition 1

  ‘dispersing’ 1

  Home Office and 1

  media and 1, 2

  ‘real’ 1, 2

  rejected claims 1

  perception of 1

  treatment of 1

  Asylum (Treatment of Claimants etc) Act (2004) 1

  Bail for Immigration Detainees 1, 2

  Baker, Kenneth 1

  Baker, Mr (Windrush) 1, 2

  bank accounts 1, 2, 3

  bank statements 1, 2, 3

  Bawdon, Fiona, ‘Chasing Status’ report 1, 2, 3

  Beatson, Jack, Lord Justice 1, 2

  Begum, Shamima (citizenship deprivation) 1

  benefit tourism, euromyths and 1, 2, 3

  Benn, Tony 1

  Bevan, Nye 1

  Bhutto, Benazir 1

  Bingham, Tom 1

  birth-right citizenship (jus soli) 1, 2, 3, 4, 5

  black and ethnic minority (BEM) 1, 2

  black, Asian, and minority ethnic (BAME) 1, 2, 3

  Blair, Tony on asylum claims 1, 2

  on deportation of foreign criminals 1, 2

  EU expansion 1

  and foreign students 1, 2

  on migration system 1

  speeches 1, 2

  blood citizenship (jus sanguinis) 1

  Blunkett, David on asylum legislation 1

  citizen rights 1

  citizenship test 1

  and East African Asians 1

  ‘inclusive citizenship’ 1

  ‘managed migration’. 1, 2

  ‘removal’ centres 1

  resettlement programme 1

  boat, crossing by 1, 2, 3

  Bolt, David 1

  Border Agency, UK 1, 2

  Borders, Citizenship and Immigration Act (2009) 1, 2

  borders, UK 1, 2, 3, 4

  Bosworth, Mary 1, 2, 3

  Brexit 1, 2, 3, 4, 5, 6 transition 1, 2, 3

  post- 1, 2, 3, 4, 5, 6

  British citizen/ship 1 acquisition of 1

  free movement 1, 2

  ‘inclusive’ 1

  loss of 1

  policy 1

  rights and responsibilities of 1, 2

  terrorism and 1, 2

  ‘British’ (definition) 1

  British Future, ‘How To Talk About Immigration’ report 1

  British National and Status of Aliens Act (1918) 1

  British National Party (BNP) 1

  British Nationality Act (1948) 1, 2, 3, 4

  British Nationality Act (1981) 1, 2, 3, 4, 5, 6

  Brixton, London 1

  Brokenshire, James 1, 2, 3

  Brook House detention centre 1, 2, 3

  Brown, Gordon 1, 2

  Bulgaria 1, 2

  Bulman, May 1

  Byrne, Liam 1

  Byron (burger chain) 1

  Callaghan, James 1

  Cameron, David EU membership 1, 2

  ‘family friendly government’ 1

  ‘hos
tile environment’ 1

  on immigration 1, 2

  immigration focus 1, 2, 3

  net migration target 1, 2, 3, 4, 5

  ‘Right to Rent’ scheme 1

  speeches 1, 2

  student visas 1, 2

  Campsfield House detention centre 1, 2

  Capita 1

  Carey, George 1

  Carswell, Douglas 1

  Cave, George 1

  Cedars detention centre 1

  Chadha, Rita 1

  Channel crossings 1, 2

  Channel ports 1, 2

  Chief Inspector of Borders and Immigration 1, 2, 3, 4, 5, 6, 7, 8, 9

  children birth-right citizenship 1, 2, 3, 4, 5

  deportation of parents 1, 2, 3

  detention of 1, 2

  EU 1, 2

  Jewish 1

  legal status 1, 2, 3

  migrant 1, 2

  nationality data 1

  and parents 1, 2, 3

  in poverty 1, 2, 3

  refugee 1, 2, 3, 4, 5, 6

  ‘Skype families’ 1

  ‘sole responsibility’ rule 1

  taken into care 1, 2

  ‘unauthorised migrants’ 1

  Children’s Commissioner 1, 2