What is immigration control?
Immigration control is the system of identifying who can enter the United Kingdom (‘UK’) and on what terms. Different groups of people are subject to different forms of control. For example, people are subject to different criteria according to the reason they want to enter the UK, and the length of time they want to remain. An immigration solicitor will require knowledge of all of these types of control.
The main governmental body responsible for these matters is UK Visas and Immigration Agency (‘UKVI’) (previously called the UK Border Agency – you may find references to that, or even to the older Border and Immigration Agency, in older case law).
Sources of immigration law
An immigration practitioner must be familiar with a wide range of sources of applicable law in this area. It may be useful to break down the areas of work as follows:
- Immigration law: applications to enter and remain in the UK for a variety of purposes, from temporary (e.g. visitors) to permanent (e.g. joining a spouse or partner).
- Nationality law: who is entitled to British citizenship, either by birth or by descent; and who can apply for naturalisation or registration as British citizen.
- Asylum law: applications for refuge from persecution.
- Human rights law: rights under the European Convention on Human Rights (‘ECHR’) and the Human Rights Act 1998 (‘HRA 1998’);
However, particular clients’ cases may involve more than one area, and so a broad knowledge is useful even if one’s practice is predominantly in one area.
Legislation
The main piece of legislation dealing with immigration law is the Immigration Act 1971 (‘IA 1971’). However, the IA 1971 has been substantially amended by subsequent statutes to arrive at the current system of control and appeals and it should therefore be read in the light of these amendments.
British nationality law is set out mainly in the British Nationality Act 1981 (implemented on 1 January 1983). This has since been amended by various provisions, notably the Nationality, Immigration and Asylum Act 2002 (‘NIAA’), Immigration, Asylum and Nationality Act 2006 (‘IANA 2006’) and the Immigration Act 2014 (‘IA 2014’).
Since the implantation of the HRA 1998, human rights have played a significant role in immigration law. A breach of human rights will occur where an authority (such as the UKVI) acts in a way which is unlawful under the HRA (i.e. acts in a way which is incompatible with a Convention (ECHR) right).
The law in relation to appeals is now mainly governed by the NIAA, as amended by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and by the IANA 2006.
The IANA 2006 abolished some rights of appeal – particularly against entry clearance decisions for students and employment categories. These have come into effect gradually in line with the Points Based System.
The Race Relations (Amendment) Act 2000 extends the scope of the Race Relations Act 1976, making it unlawful for public authorities to discriminate on grounds of race or colour or ethnic origin, when carrying out their functions. (Note that discrimination on grounds of nationality or national origin may be allowed in respect of some UKVI functions where specifically authorised at ministerial level. For example, it is possible for immigration authorities to subject persons of certain nationalities to more detailed scrutiny in relation to fingerprints/photographs where specifically authorised at ministerial level (Race Relations (Immigration and Asylum)(Comparison of Fingerprints and Photographs) Authorisation 2006)).
The Immigration Act 2014 (‘IA 2014’) introduces a vast range of substantial changes to UK immigration law, the majority of which either significantly limit rights or simply remove them. Most provisions have been enabled via secondary legislation which at times creates a complex web of legal rules including transitional provisions for certain categories of applicants.
The IA 2014 was quickly followed by the Immigration Act 2016 (‘IA 2016’). The Government stated that the purpose of the IA 2016 is to tackle illegal immigration by making it harder to live and work illegally in the UK. The IA 2016 introduced some significant provisions, including a new offence of illegal working, a new immigration bail regime and a new skills levy for those hiring skilled workers from overseas. The IA 2016 not only made changes to immigration law and practice, but also extended immigration control into other areas such as housing, social welfare and employment. For example it introduced criminal offences for landlords and agents who rent to persons without leave to remain in the UK.
A considerable number of statutory instruments have also been made which provide guidance on procedure such as at appeals e.g. The Tribunal Procedure (First Tier Tribunal) Immigration (Immigration and Asylum Chamber) Rules 2014.
The Immigration Rules
The Secretary of State for the Home Department (‘SSHD’; commonly known as the Home Secretary) is empowered under the IA 1971 (ss1(4) and 3(2)) to make Immigration Rules (the ‘Rules’).
The Rules set out specific and detailed criteria to be satisfied by any person who seeks permission to enter the UK, or to remain in the UK. The current rules, Statement of Changes in Immigration Rules 1994 (HC (House of Commons paper) 395) are consolidated and incorporate a number of amending statements since 1994. The rules are most readily available on the UKVI website.
What is the precise legal status of the immigration rules?
The Rules have a sui generis status. As the power to create them stems from the IA 1971, they appear at first to be secondary legislation. However, they are approved by a different procedure to other secondary legislation. They are, in fact, laid before Parliament; but they are not routinely debated by Parliament. Instead, they remain before Parliament for forty days; if no Member raises anything to debate, they pass automatically – a procedure known as negative resolution.
In Pearson v Immigration Appeal Tribunal [1978] Imm AR 212, the Court of Appeal stated that although the immigration rules are not delegated legislation or rules of law, they are rules of practice laid down for those administering the Act and have the force of law in some immigration appeals and judicial review proceedings.
From the point of view of clients – and, largely, of practitioners – the unusual legal status of the Rules makes very little difference. Whatever the fine detail of the resolution procedure, the consequence is that the Rules contain criteria that must be met to succeed in an application (and in any consequent appeal or judicial review action).
In general, when making decisions, the UKVI will look to the Rules. The UKVI should not act more restrictively than the Rules allow. However, the SSHD does have a residual discretion – stemming from the 1971 Act – to depart from the Rules by acting more generously than the Rules permit.
Advice to clients will often concern whether they fulfil the terms of the Rules (which may sometimes be a matter of interpretation).
Where it is alleged that the UKVI has failed to follow the Rules, a right of appeal may exist; or there may be a possibility of judicial review action.
The Rules are subject to frequent amendment, and practitioners should make sure they have the most up to date version available.
Concessions, policies and practices outside the Immigration rules
There are some concessions and policies operated by the UKVI in its discretion, outside the Rules. For example, there is a concession for visitors who wish to enter or remain to care for a sick relative. Some policies and concessions are operated on a time-limited basis, while others are ongoing.
In situations covered neither by the Rules, nor by existing policy or concession, the SSHD (and his/her officers) may make a decision on the particular facts of a case outside the immigration rules on a discretionary basis.
Some of the practices used by the UKVI officials in deciding cases can be ascertained from the internal guidance to staff, some of which is available on the UKVI website. This guidance is extremely useful to practitioners and should be regularly referred to when assisting clients. It includes Immigration Directorate Instructions (‘IDIs’), Entry Clearance Guidance (‘ECGs’) and Asylum Policy Instructions (‘APIs’).
Decisions of the courts
Case law has been important in the development and interpretation of immigration and asylum law. Immigration cases have in recent years formed the largest single category of applications for judicial review. These, and other cases reaching higher courts by way of appeal, have generated some important principles.
1951 UN Convention relating to the Status of Refugees
The Convention, to which the UK is a party, provides the broad definition of a refugee. Domestic law requires that decisions taken by the immigration authorities are not contrary to the UK’s obligations under the Convention.
European Convention on Human Rights
Articles of the ECHR had played a role in immigration and asylum cases for some years; but the implementation of the HRA 1998 gave effect to those articles in domestic law by requiring public authorities (including the UKVI) to act in a way which is compatible with ECHR rights (s. 6 HRA 1998).
Following the HRA, when passing legislation the government is required to confirm that that legislation is compatible with the ECHR. If the courts find that the legislation is incompatible with the ECHR, they can make a declaration to that effect requiring Parliament to consider whether to take further action. (See Ullah and Do [2004], in which the House of Lords held that the Court of Appeal had gone too far in restricting the potential extent of human rights decisions in removal cases and stated that it was not for the British courts to be limiting the direction of travel of the ECHR.)
Other international treaties and obligations
Other international treaties, such as the Convention on the Rights of the Child, may also be relevant in particular cases.
European Community Law and EU agreements
Nationals of the European Economic Area and their families had previously benefitted from freedom of movement under European Union law (‘EU law’) expressed in Treaty articles, regulations, directives and case law from the Court of Justice of the European Union. EU law took precedence when there was a conflict with domestic law.
Following the UK’s decision to leave the EU in the July 2016 referendum, EU law no longer applies directly in an immigration context. Free movement provisions no longer apply.
Aside from EU law, there are also agreements between European partners on a number of immigration and asylum matters.