A New Plan for Immigration
It looks like Immigration solicitors will be busy again getting to grips with yet more proposed immigration law changes. This time the focus isn’t on skilled migrant workers and the new UK points-based Immigration system but asylum seekers and those who enter the UK illegally and outside the Immigration rules. In this blog we take a look at the Home Office ‘New Plan for Immigration’.
UK Immigration solicitors
A new Immigration plan
- Asylum seekers (for example, those who enter the UK on resettlement schemes from refugee camps) and
- Those who enter the UK outside the Immigration rules – including those who then go onto make an Asylum claim.
Not only does the Home Secretary, Priti Patel, think that the UK needs a new Immigration plan for the UK asylum system, the Home Office has produced a forty-nine-page document setting out details of the plan and inviting consultations.
The reasons for the plan and its main objectives were summarised by the Home Secretary as:
- To increase the fairness and efficacy of the Asylum system to better protect and support genuine Asylum seekers.
- To deter illegal entry into the UK to reduce the operation of people smuggling networks and to protect the lives of those who use them to try to enter the UK.
- To more easily remove people from the UK that the Home Office say have no right to be in the UK.
The two-pronged plan
The plan is to treat the two types of Asylum claimants differently. Many may think that approach is odd when the Home Office has only just streamlined and unified the points-based Immigration system for non-EEA and EEA migrants seeking UK entry clearance. However, the Home Office plans to treat the two routes to Asylum, and therefore the Asylum seekers who resort to seeking asylum in the UK , differently.
If you are an Asylum seeker who enters the UK through what is referred to as a ‘safe and legal route’ you may receive :
- Indefinite leave to remain on entry into the UK for resettled Asylum seekers.
- Possible improved family reunion rules so unmarried dependent children under the age of twenty-one (rather than the current age of eighteen) can enter the UK if both of their parents are already in the UK with refugee or Asylum status.
- Additional monies to support integration programmes to help with English language learning and Employment support.
The above may be thought of as the ‘carrot’ but what about the ‘stick’ for those who don’t enter the UK under resettlement programmes but either come to the UK direct but enter illegally or come to the UK by travelling through a country that is deemed to be safe. The proposed deterrents are:
- An increase in the maximum sentence for entering the UK illegally. The maximum sentence currently is six months. The offence of assisting unlawful Immigration will have the maximum penalty increased to life in prison, instead of the current maximum sentence of fourteen years.
- Those entering the UK illegally and who could reasonably have claimed Asylum in a safe third country won't be eligible to enter the UK Asylum claim system.
- Subject to the UK negotiating return agreements with other countries, a rebuttable presumption that claimants can safely be removed to EU nations and other specified countries before determination of an Asylum claim or appeal.
- For those who didn’t come directly to the UK or who delayed a claim or who can't show cause for their presence, the plan is that they won't get refugee status but ‘temporary protection‘ for up to thirty months. There will be no recourse to public funds during those thirty months and, of course, they will be at ongoing risk of return through the Home Office looking at whether removal can be achieved.
A one stop appeal process
Immigration solicitors have been pilloried for protecting asylum seeker’s rights through full use of the appeal process. That can result in new legal points being raised at different points of the Asylum seeker’s appeal journey, especially where an Asylum seeker has been referred to a specialist immigration and asylum solicitor after the Asylum seeker has already started the legal process and the expert Immigration solicitor is able to reassess the best routes to a successful Asylum claim or appeal and action it.
That thorough approach may be under threat as the Home Secretary says that to ‘ tackle the practice of making multiple and sequential (often last minute and unmeritorious) claims and appeals which frequently frustrate removal from the UK, we will introduce a 'one-stop' process to require all rights-based claims to be brought and considered together in a single assessment upfront.’ That may sound logical but in practice many asylum claims aren’t straightforward, and immigration solicitors will no doubt ask the question why Asylum seekers should be singled out for this approach when there is a degree of flexibility in amending claims or bringing fresh court proceedings in other types of claim, such as civil or corporate law or in other areas of immigration practice. Robust adherence to a new policy could potentially result in yet more Asylum litigation as Asylum seekers apply to judicially review the procedural fairness of a one stop appeal process.
- Changes to the test of whether a claimant has a well-founded fear of persecution so that claimants will have to prove ,on the balance of probabilities, their identity and that they are experiencing genuine fear of persecution. The Home Office will then consider if there is a reasonable likelihood that the claimant is likely to face persecution if they have to return to their country of origin. This proposal is subject to consultation.
- There will also be a statutory definition of the meaning of persecution.
- A National Age Assessment Board will provide processes and standards to determine Asylum seekers ages when an Asylum seeker says that they are under the age of eighteen. It is said that these age assessments will be ‘science based’.
- Immigration officers, rather than social workers, will be given the authority to carry out reasonable initial assessments of age. The policy of considering an Asylum seeker as a child if they say they are under eighteen and look as if they are under the age of twenty-five may be reviewed and reduced from twenty-five to eighteen. In addition, the intention is to reduce the number of judicial review claims on age by creating a speedy appeal process where there are Asylum age claims in dispute.
- When making an Asylum appeal or bringing an Asylum related judicial review the claimant and their immigration solicitorwill need to act in good faith at all times. Again, many may question why this is considered necessary and why such a requirement should be restricted to Asylum, Immigration or judicial review claims. Surely all solicitors ,and indeed all claimants, should act in good faith.
- The potential for cost orders to be made in favour of the Home Office if a judicial review fails – placing the claimant or their advisor at increased cost risk if it is determined that a case was promoted that was deemed as bound to fail.
- Working with overseas countries to increase the removal and return of those Asylum seekers who are held to have no right to stay in the UK. One option canvassed to improve returns is to control UK visa availability where countries are thought to be uncooperative on returns.
- The early release scheme will be amended so if a failed Asylum seeker has served a quarter of their prison sentence, the early release and return opportunity will be increased from nine to twelve months at the end of their prison sentence.
- The maximum sentence for an offender who returns to the UK in breach of a deportation order will be increased from six months to five years.
Consultation – have your say on the new Immigration plan
A consultation on some of the proposed measures will be available for comments until the sixth May 2021. Immigration solicitors hope that both successful asylum seekers and those in the Asylum system will have their say as well as those charities and organisations who understand, all too well, the current system failings and the need for change that is both fair and equitable.
UK Immigration solicitors