Blog post by Sheona York (Kent Law Clinic, University of Kent), and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
Introduction
After decades of failure to deal with immigration and asylum backlogs, and falling numbers of removals, it is astonishing for the Home Office still to be couching the problem of “illegal migrants” in terms of “enforcement” and “returns.” A 2009 London School of Economics study estimates UK-resident irregular migrants in a range from 525,000 to 950,000. In 2010, Migration Watch estimated the numbers to be closer to 1 million. The 2020 Mayor of London report gave a ‘middle estimate’ of 674,000 undocumented people in the UK for the year 2017, including UK-born children, with 397,000 living in London. It estimates that 215,000 nationally are children, nearly half of whom, 107,000, live in London, with a further 117,000 undocumented young people 18-25, of whom 26,000 live in London. That report suggests that the numbers of undocumented people ‘is slowly increasing, because removals and regularisations account for less than the increase in people becoming undocumented, and babies born to those who are undocumented.’ A 2009 Migrants Rights Network report calculated that on UK Border Agency (UKBA) costs and rates of removals it would take over 30 years and cost £8bn to remove them all. Since then, official figures show that numbers of removals and deportations have fallen year-on-year. The most recent government statistics state:
In the year ending March 2020, enforced returns from the UK decreased to 6,778, 21% lower than the previous year and the lowest number since records began in 2004. The fall was largely accounted for by the fall in enforced returns of people who were in detention prior to their return (down 19% to 4,644).
Over the same period, there were 10,421 voluntary returns … the numbers recorded have fallen since 2015.
The truth, known to the Home Office as well as everyone else, is that most of these people will be remaining in the UK, and humanity and social cohesion as well as good public administration surely require that they be encouraged to regularise and contribute something to British society. On 26 July 2019, Boris Johnson was reported to have repeated his earlier support for an ‘earned amnesty’ for illegal migrants, which he had backed in 2006 as part of his campaign for London Mayor. On 19 May 2020, the Times suggested that this 2006 proposal of an “earned amnesty” ‘may once have been politically impossible. Now, such pragmatic ideas just might work.’ For the writers of the New Plan for Immigration, that moment appears to have passed. But that “pragmatic idea” must be preferable to the waste of time and public money, and the corrosive consequences, of continuing to concentrate on “enforcement” and “returns” as headline policies.
Who are “illegal migrants”?
It is worth looking briefly into what kinds of people are or become “illegal migrants,” and what legal and social forces lie behind their decisions to remain in the UK.
Many are failed asylum-seekers. A significant proportion, especially those who have been in the UK for some time, are not foreseeably removable. We see clients whose asylum claims date back to the early 2000s, who were refused and whose files went into the Legacy,[1] but who were among the 100,000 or so cases which remained undecided in 2011 and have faced further refusals. Both individual Home Office files and official reports reveal mistakes, misfilings, and lost opportunities to engage with many of those applicants. The 2011 decision to subject the remaining Legacy cohorts to the Immigration Rules meant that, instead of regularisation, many of these applicants were effectively forced to remain without leave. The Home Office is famously reluctant to accept difficulties of removal as a perfectly good reason for granting limited leave to remain; let alone adopt a “business decision” and cease wasting money trying to remove or detain unremovable people. Why not grant them leave to remain on the 10-year (human rights) route to settlement, giving a regular opportunity for a genuine look at whether the “removability” issue has changed at all since the date of the last grant of leave?
It may be, as with the proposal to grant “temporary protection” to refugees arriving from Europe, that the government precisely does not want such people to acquire long-term rights. But the alternative is that the people remain in the UK anyway, but with no rights, and so ultimately remain a burden on society (whichever individuals or institutions are ultimately forced to support them) rather than become an energetic, optimistic and productive part of it. The recent Marmot report Build Back Fairer, on health and social inequality in Greater Manchester, surprisingly does not mention immigration status as a factor, but the impact of thousands of individuals and families surviving amongst already poor communities, not able to work, claim benefits or access the NHS, cannot be negligible.
The recent decision to declare “inadmissible” the claims of asylum-seekers arriving from mainland Europe will clearly add to those numbers. Following Brexit, EU Member States have shown little or no appetite for new agreements to take back asylum seekers and process their claims on the continent. These applicants will just remain warehoused in places like Napier Barracks, poor, desperate and unhealthy, and becoming more unremovable by the day.
This is not to suggest that no failed asylum-seekers can be removed, nor to suggest that none should be removed. Simply that “return” cannot sensibly be the main policy towards this cohort, since so few are likely to be returnable, nor, realistically, likely to be forcibly returned.
In relation to other long-term unlawfully-present migrants, it is submitted that, for many, it is Home Office policies, and in particular the “hostile environment” measures, which create and exacerbate illegality. The residence requirement for an application for regularisation on grounds of private life was lengthened in 2012 from 14 years’ residence leading to a grant of indefinite leave, to 20 years’ residence leading only to entry to the 10-year route to settlement.[2] Since 2012, access to Article 8 ECHR has been significantly restricted by the Immigration Rules. Threshold requirements such as ‘very serious obstacles to reintegration’, ‘insurmountable obstacles’, ‘unduly harsh consequences’, or ‘very compelling reasons’ all show a rush to the exceptional. This, in turn, has led to appellate judgments such as those deciding that a person near death did not face ‘serious obstacles to reintegration’, and that the effect on a foreign criminal’s children would be ‘no worse than the average child whose father was deported.’ We are now seeing a tightening of the test of whether it is ‘reasonable’ for a child meeting the 7-year residence requirements of the Rules to be allowed to remain in the UK.
None of this has led to increased returns, or diminished the number of unlawfully-present migrants in the UK. Consider an unlawfully-present family with no “exceptional” characteristics and not meeting either the private life or family life rules: neither parent has leave to remain, they have been in the UK 17 or 18 years, no child is over 7, nobody is ill. They would probably lose an appeal, but, without much stronger enforcement policies, which most people would find unacceptable, will carry on surviving here, somehow. Neither can the “hostile environment” be acceptably made truly hostile enough to encourage such people to return voluntarily to certain destitution abroad.
The threat of falling into irregularity
The New Plan’s “returns” graph shows on its face the forlorn hope of placing all its efforts on pursuing “illegals.” Better to offer a straightforward regularisation programme based on the administrative success of the EUSS, which was itself based on:
- Shared burden of proof; Home Office facilitation of evidence-gathering
- Enough resources to make right-first-time decisions
- A “business decision” about eligibility, i.e. a broad brush approach to grant settled status on the basis of residence, absent criminality, rather than requiring lengthy form-filling, piles of original documents and a nit-picking attitude to small periods without work or proof of residence.
Many of those regularised would become properly economically active and likely to pay more in taxes than the money wasted on trying to remove them, or charging them in application fees. Thus, regularisation for irregular migrants in the UK is a desirable alternative to the New Plan’s focus on removal. Offering regularisation is also in line with the Global Compact for Safe, Orderly and Regular Migration (Marrakesh Compact), which requires states to provide irregular migrants with an individual assessment that may lead to regular status on a case by case basis and with clear and transparent criteria’ (para 23(i)).
Yet, for family migrants and workers on time-limited visas, the Covid-19 pandemic revealed and exacerbated the expensive “snakes and ladders” of remaining lawfully in the UK and reaching settlement without falling into the hostile environment. Around 1.5 million people living and working in the UK are present on time limited visas. These include those on work visas, international students (who have limited permission to work), family members, and those with refugee status or humanitarian protection (HP). Apart from refugees and those with HP, most of these, estimated at 1.376 million, are subject to ‘no recourse to public funds’ (NRPF), meaning no or very limited access to state benefits or social housing. During the pandemic, the Home Office emphasised that some (but not all) categories of people with NRPF were allowed to apply to change their visa conditions to gain access to public funds – but this relegates them into the 10-year ‘human rights’ route to settlement, stretching out the years of dependence on time-limited visas.
At the same time, the enormous increase in Home Office application fees has added another heavy financial commitment, which often cannot be afforded. The fees for visa applications should shock. A family migrant must currently pay £1033 for an extension of stay, plus £1560 Immigration Health Surcharge (£1175 for a child), for each member of the family needing to renew their visa, for a visa which lasts 2.5 years. Thus, a woman with 2 children must pay £3910, amounting to having to save £130 pcm over the 2.5 years from the previous visa, from an income which cannot be topped up by any social benefits. Such a family applicant, if not earning the minimum income requirement of £18,600 pa, plus additional significant amounts for each applicant child, may only join the ‘ten-year route’ to settlement, requiring 5 applications over 10 years or nearly £23000 at current fee rates, and savings of around £230 pcm over the whole 10 years. Many children become unlawfully present as their parents cannot afford the visa renewal fees for the whole family.[3]
The issue of fees and the legal restrictions of people to the same circumstances through their 10-year ‘route to settlement’ multiply the chances that applicants will fail or be unable to afford their applications. This results in parents having to decide to renew their own leave while leaving children unlawfully present, and individuals and whole families falling in and out of the hostile environment over years and decades.
Again, it is surprising that these issues are not mentioned in the recent wide-ranging and critical health and social inequality reports. But it should be clear to a government which wishes to ‘build back better’ that keeping a cohort of 1-2 million people living and working in the UK on a long-term, expensive, inferior and legally precarious[4] status is making a big contribution to the disproportionate outcomes, in terms of health, education, housing and work, overwhelmingly affecting ethnic minority communities. Against this background, it should be noted that the Marrakesh Compact calls on states ‘to prevent migrants from falling into an irregular status in the country of destination, to reduce precariousness of status and related vulnerabilities, as well as to enable individual status assessments for migrants, including for those who have fallen out of regular status, without fear of arbitrary expulsion’ (para 23(h)).
The case of “foreign national offenders”
The most forlorn of all policy hopes concerns the deportation of foreign offenders. Enforced returns are expensive, especially of foreign offenders, and not (as the New Plan for Immigration suggests) just because of legal challenges. A 2014 National Audit Office (NAO) report assessed the spending of £850m on ‘managing’ the presence of 12,250 foreign offenders present in the UK – a sum of nearly £70,000 per prisoner exclusive of their accommodation and subsistence costs – asking ‘whether the bodies involved are achieving value for money for the taxpayer.’ The report describes failures of file-keeping, poor information management, poor coordination with other government departments and lost documents, all familiar from House of Commons Home Affairs Committee and ICIBI reports. Highlighting how many foreign offenders are ‘living in the community’ until deported, the NAO report nowhere asks whether they have committed any offences during that time, or what other harm they cause, other than the fact of their presence in the face of Home Office obduracy. The NAO noted that ‘the Department and the Ministry [of Justice] do not use cost data to manage FNOs, and do not have a good understanding of the costs involved’. This was the case despite Home Office policy having moved from giving ‘considerable weight to those with family ties in the UK’ to, by 2013, seeking to deport any FNO serving 12 months or more …,’ and ‘despite … toughening powers, by 2013 the number of FNOs in prison and those deported from the UK remained broadly unchanged from 2008.’
The question must be asked what is the purpose, or benefit, of deporting someone who is living in the community and who has committed no further offences? Again, this would appear to be purely reputational, or performative, as in ‘The deportation of foreign criminals is in the public interest’ (s117C(1) Nationality, Immigration and Asylum Act 2002). This may be the law, but surely no government can seriously believe that it is right to pursue this regardless of financial cost.
It is submitted that pursuing returns in the ways critiqued by the NAO and ICIBI is a waste of public money and, insofar as it is considered to show that ‘Britain cannot control its borders’ is largely self-inflicted. A better policy would be to apply the updated Rehabilitation of Offenders criteria to foreign offenders as well as British, and, apart from those judged likely to reoffend, leave them be.
It is not suggested that no one should be deported, but that the Home Office should concentrate on removing and deporting those who present a real current risk to the public.
Conclusion
Obviously, a strict immigration control regime requires efficient policies and procedures for enforcing the removal and deportation of those with no leave to remain and who cause a genuine threat to society. But let such policies concentrate precisely and effectively on those who have not been here very long, with no ties to the community, who can be readily documented, and who constitute a genuine risk. For the vast majority of unlawfully present migrants, and for those on time-limited visas, a return to the rules and policies of even only 10 years ago would make an enormous difference. Neither common humanity, nor practicality, nor considerations of good public administration, can support the continued prioritising of “enforcement” and “returns” against millions of people living and working in our midst, in the face of several decades of evidence of failure. What is needed instead are policies which can bring real hope and solidarity to beleaguered communities battered by the hostile environment.
[1] The Legacy, or Case Resolution programme, was set up by the Home Office to deal with the 450,000 unresolved asylum applications discovered in 2006. Many were granted indefinite leave to remain.
[2] Colin Yeo in his book Welcome to Britain: Fixing Our Broken Immigration System refers to this as the 30-year route.
[3] The Home Office has now started accepting applications for a partial fee waiver, where a parent can afford their own fee but not the fees for their children.
[4] The Supreme Court case of Rhuppiah [2018] UKSC 58 defines all migrants without indefinite leave to remain as ‘precarious’ and thus subject to the ‘public interest’ criteria set out in s117A and B Nationality, Immigration and Asylum Act 2002, deeming their residence to be of ‘little weight’ in an appeal.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.
Trackbacks/Pingbacks