New immigration fees

The fees for immigration applications made from both inside the UK (often referred to by immigration lawyers as ‘in country’ applications) and outside the UK at visa posts (referred to as ‘out of country’ applications) are going up very significantly on 2 April 2007.

In country application fees were only introduced for the first time in the summer of 2003 and have already been increased once. The current levels are £335 for applications made by post (£225 for student applications by post) and £500 for an on-the-day in-person application made at one of the Home Office Public Enquiry Offices. The new fees are set out in full on the Home Office website, but include the following monstrously high figures:

• Indefinite Leave to Remain postal application: £775 (was £335)
• Indefinite Leave to Remain on the day application: £950 (was £500)
• British nationality application: £575 (was £200)

There are also slightly more moderate increases for student applications (£250 to £295) and general leave to remain applications (£335 to £395). On the day leave to remain applications rise from £500 to £595.

Most lawyers advise their clients to pay for an on-the-day application if they can possibly afford it, to avoid the problems that arise when an application is submitted before expiry of the existing visa but the Home Office make a decision after thevisa has expired. If the new application is granted, there is no problem, but if the application gets returned as invalid or is refused, the applicant is left in a tricky situation and will find it difficult to make another application without becoming an overstayer and committing a criminal offence. There is also still a problem with the Home Office losing documents submitted with postal applications, although this is unusual.

The out of country visa fees are also going up significantly:

• Settlement visa (e.g. spouse): £500 (was £260)
• Work permit visa: £200 (was £85)
• Long term visa: £200 (was £85)
• Student visa: £99 (was £85)
• Visitor visa: £63 (was £50)

The new immigration fees can be seen as part of a trend towards a purely economic and utilitarian rationale for inward migration to the UK. The Home Office don’t want poor migrants coming to the UK, or least don’t want poor migrants coming to the UK on top of those from the expanded European Union. Don Flynn’s pamphlet Tough As Old Boots: Asylum, Immigration and the Paradox of New Labour Policy makes fascinating reading and offers a compelling analysis of immigration policy since 1997. Events since the pamphlet was published in 2003 only serve to reinforce how right Flynn was. Essentially, he argues that New Labour have abandoned any old fashioned notions of rights and the innate desirability of family unity and cultural exchange in favour of a drive towards modernisation of the economy, entailing purely economic, modernising inward migration of highly skilled and entrepreneurial types.

More pragmatically, there’s also the fact that Home Office expenditure on immigration and asylum, as on many other areas of responsibility, has increased enormously in the last few years and the Treasury isn’t handing over enough new cash. Someone has to pay for Home Office failings and pet projects, and in this instance it’s the immigrants.

Judicial clear out

In the not too distant past, the Department for Constitutional Affairs (DCA) advertised for new part-time immigration judges, formerly known as adjudicators. I should explain that there are many different species of immigration judge these days, from the presidential class down through senior immigration judges and designated immigration judges to the common or garden immigration judge. There are then two varieties immigration judge, the full-timers, on a salary, and the part-timers, who have to sit a minimum number of days per year and are paid a daily rate. They all sit within the laughably entitled ’single tier’ Asylum and Immigration Tribunal (AIT), the product of reforms to the old appeal system introduced in 2005.

I probably should use capital letters to describe the judicial titles.

All the existing part-timers had to re-apply. There were many new applicants, though, and quite a few fresh new faces were appointed. It will be particularly interesting to appear before well known characters like Nadine Finch, Melissa Canavan, Gregor Fisher, Ian Lewis, Matthew Davies and Michael Hanley, all of whom are very good immigration lawyers indeed. Whether they follow a liberal path or feel they have a point to prove and follow a more conservative road — far from unknown with immigration lawyers of old appointed to the judiciary — remains to be seen.

Word has it that about 70 new judges were appointed. However, the total number of part-time immigration judges has not increased. It doesn’t take a genius to work out that 70 part-timers probably didn’t all voluntarily and simultaneously walk the plank. Word also has it that some of those who were not re-appointed are not very happy. At all. And are bringing some sort of legal action against the DCA. The new batch of IJs have been given the option of being served with the relevant paperwork being as it concerns them.

Given the indisputably very poor quality of many determinations churned out by immigration judges (just see the appeal rates), it is hard to have much sympathy. It also appears that el Presidente Mr Justice Hodge has been quite cunning. He must despair at the high successful appeal rate, the regular legal tickings off his tribunal receives from the higher courts and the appalling amount of time his tribunal decisions are absorbing in the Court of Appeal. The new batch can hardly fare worse than the old.

Desperate times

There was some sort of riot at Campsfield Detention Centre last week, as anyone following the news more carefully than I will know. I’ve been attending a training course all week and am therefore a bit out of the loop. The BBC cover the story, and there’s also a statement in Hansard by Liam Byrne, the relevant minister.

Campsfield probably has the worst reputation of all the immigration detention centres, although it certainly has close competition. The relationship between detainees and screws is appalling, which is why Charles Clarke, the previous Home Secretary, was proposing to close it down some years ago after a review of what is euphemistically called the ‘immigration detention estate’. The atmosphere at Harmondsworth is also pretty bad. Strangely, most lawyers and visitors find that the staff at Colnbrooke detention centre, literally across the road, are far more humane and co-operative than at Harmondsworth. At Harmondsworth, no opportunity to obstruct or obfuscate is left untaken.

Off the top of my head, I can remember two major riots at Campsfield, one at Harmondsworth and one at Yarl’s Wood, all resulting in extensive damage and several injuries. The reasons for the behaviour of the detainees are not hard to imagine and are explored in the reports of Her Majesty’s Chief Inspector of Prisons, currently the indominatable Anne Owers (she has been brilliant and definitely lived up to the billing she received on her appointment in 2001). Essentially, the detainees have nothing to lose, they are desperate to avoid being returned to their countries of origin for various reasons, their detention is often for a prolonged period but is of unknown duration and their treatment within the centres is often darkly Kafka-esque. Time and time again any visitor will hear detainees complain with frustration and confusion that they haven’t done anything wrong. The sense of injustice and grievance is acute and all pervading.

To reinforce this point, the horrifying statistics on self harm attempts by immigration detainees recently obtained by the National Coalition of Anti Deportation Campaigns (NCADC) show that there is roughly one reported self harm attempt every two days.

This leads me to another cheerful and related topic. In 2005 the Court of Appeal held in the case of J v SSHD that a removal cannot take place if it would cause the removee to commit suicide or attempt to commit suicide. However, if the Home Office can put in place measures that would prevent the removee from commiting suicide, the removal can go ahead. This has led to a number of cases being brought where there is medical evidence, sometimes very strong, to suggest that the person concerned has a serious suicidal ‘ideation’. The Asylum and Immigration Tribunal has proven very keen to avoid allowing appeals on this basis, probably because the judges believe that this would lead to asylum seekers threatening and actually attempting to commit suicide more often than they already do - which it turns out is quite a lot.

There’s an interesting difference of approach and terminology between the medical profession and the courts on this issue, as on many others. The medical professionals are concerned with suicide risk in the sense of the feelings and emotions that would cause a person to reach such a state of mind where he or she wants to commit suicide. As far as the medical professionals are concerned, any risk factors likely to cause that level of mental suffering should be alleviated. It is not the mere manifestation of self harm that is damaging and must be treated, it is the underlying causes and mental illness that must be addressed. The courts are concerned purely with whether the person can be removed without actually attempting to commit suicide. This is what the courts mean by ’suicide risk’.

As an aside, I, in common with all other immigration lawyers, have become accustomed to immigration judges rejecting such medical evidence on the basis that:

(i) the clinical diagnosis is based on self-reporting by the subject, but

(ii) it is for the immigration judge to decide whether the subject is telling the truth, therefore

(iii) the clinical diagnosis isn’t worth the paper on which it is written and should be ignored.

Examples abound, but see the case of SSHD v AE and FE for one of the least celebrated. I’d be very interested to know whether this happens in other areas of law, such as personal injury. I strongly suspect not.

Denied entry: Can we build a more progressive consensus on immigration?

I went to a debate and discussion at the Royal Society of Arts on Tuesday and it proved interesting. The politicians, John Denham, Jon Cruddas and Barbara Roche, all Labour, were fairly predictable and followed the normal approach of politicians everywhere: there’s a problem and action must be taken by politicians like me in order to solve it. They just don’t seem to understand that constantly characterising immigration as a problem creates an incredibly negative agenda. Denham reckons one in ten workers in Southampton are Polish, which I imagine to be plain untrue, and immediately assumed that they were costing the ratepayer money rather than contributing to the local economy and taxation. Cruddas was barely better, but at least he seemed genuinely worried that the far right are a genuine threat. Roche, as usual, had some sensible, liberal things to say.

The star of the show was Professor Nigel Harris, however, who had a number of interesting things to say about long term prospects and circulation of population around the world.

You can, if interested, listen to the whole thing on the RSA website or on the website of the co-organiser, Compass.

Sympathy for the AIT

I went for a drink last night with a couple of immigration lawyer friends and they had a lot less sympathy for the AIT than myself. Their line was that the AIT should stop making such politically inspired and illiberal decisions, and that the latest incarnation of AA (Zimbabwe) is just plain wrongly decided. I pointed out that research a couple of years ago on this at the Immigration Advisory Service suggested the proportion of Country Guideline cases that favoured the claimant was actually slightly higher than the general rate, which suggested a certain amount of generosity. Their reposte was that where Country Guideline cases favour claimants, it is always a very restricted class or group of claimants that benefit. Wherever a case affecting a large group of claimants is heard, the decision is always against the claimant. This is certainly the case with Sudan as well as Zimbabwe. 

On reflection, my friends have definitely got a point.

Definitive Zimbabwe case overturned again

The Court of Appeal has yet again overturned the Asylum and Immigration Tribunal’s attempt definitively to establish whether a failed asylum seeker is at risk of ill-treatment by the Zimbabwe secret service at Harare airport following a forced removal there.

That’s a sentence and a half. But it’s a case and a half too, with a long and convoluted history. It was first decided back in July 2005. The appeal was allowed by an immigration judge on the basis that the asylum seeker concerned was making his whole story up but that he would still be suspected of being a political opponent if removed to Zimbabwe, which would lead to his being mistreated and tortured, which in turn meant he could not be removed. The Home Office appealed, which is when the case was turned into a Country Guideline case. This means that, whatever the outcome, it would be followed in all similar future cases.

This appeal was decided by the Deputy President of the Asylum and Immigration Tribunal (AIT) in October 2005 in a case called AA (Zimbabwe) v SSHD [2005] UKAIT 00144. The Home Office appeal was dismissed, so they appealed again, this time meaning the case went up to the Court of Appeal. The case of AA was joined with another case, called LK. Letters are used instead of names in order to preserve the anonymity of the asylum seekers to avoid them feeling repercussions of any sort when their cases get reported on the internet. The Court of Appeal allowed the Home Office appeal in a case now called AA v SSHD and LK v SSHD [2006] EWCA Civ 401. However, the Court of Appeal did not reach a final decision, they merely sent it back to the AIT for them to hear the case again.

In a decision now back to being called AA (Zimbabwe) v SSHD [2006] UKAIT 00061, the President of the AIT allowed the Home Office appeal. However, unsurprisingly, the asylum seekers weren’t too happy about this and decided to appeal to the Court of Appeal. It is this decision that has just been reached, called AA (Zimbabwe) v SSHD [2007] EWCA Civ 149. In it, the Court of Appeal find that the AIT had failed to consider the importance of evidence given by former Zimbabwean secret service agents that violence was relatively commonplace in airport interrogations. The Court has again sent the case back to the AIT for it to be reconsidered yet again.

The case is a very good example of the problems the AIT creates for itself in trying to lay down supposedly definitive factual guidance on a given country situation, i.e. a Country Guideline case. The volume and quality of the evidence considered by the AIT in the different incarnations of the case were both very considerable. This makes it very hard for the AIT to deal properly with absolutely all the material before it. Yet the Court of Appeal has said in the past that if the AIT is going to establish a Country Guideline case, it must do so only after a comprehensive examination of all the available evidence. This was made abundantly clear by Lord Justice Laws in the case of S and Others v SSHD [2002] EWCA Civ 539 and is discussed at some length in the Immigration Advisory Service report Country Guideline Cases: Benign and Practical?). I do feel sorry for the AIT, as they have been receiving pretty mixed messages from the Court of Appeal. The Court has encouraging the AIT to follow this course, most notably in the cases of Shirazi v SSHD [2003] EWCA Civ 1562 and, perhaps a little reluctantly, in S and Others. However, in this most recent case (see paragraph 37 especially) and in S and Others the Court has imposed standards of rigour that it is proving impossible to meet in practise.

It will be interesting to see where the AIT goes from here both in this specific case, on which many, many other Zimbabwean claims depend, and on the whole issue of factual precedents. Despite the problems, it seems highly unlikely that the Country Guideline system would be abandonned. The AIT almost certain take the view that the additional control over individual immigration judges afforded by the system of factual precedents makes these occasional high profile set-backs worthwhile.

Overstayers and illegal entrants

Oh dear, another crackdown has been announced by the good Dr Reid. Read all about via the Home Office press release, or here if you prefer the BBC version. I won’t bother with links to the major papers, they are easy to look up. The press release is moderately worded and stresses positive contributions by immigrants and immigration. In contrast, the Marxists at the BBC lead with some rather intemperate and unfortunate language by Reid: “It is unfair that foreigners come to this country illegitimately and steal our benefits, steal our services like the NHS and undermine the minimum wage by working.” Reid must know that these sorts of phrases will end up in the headlines, as opposed to the less sensationalist positive contribution stuff. It’s so damaging in the long term. The public is being trained to associate immigrants with crime, benefit fraud and illegal working, just as they have been trained to associate asylum seekers with terrorism. The juxtapositioning of these distinct issues, whether it is accidental or deliberate, inevitably forges links in people’s minds. I often wonder what the statistics are on the proportion of immigrants against natives who commit crimes and defraud the public purse, and terrorism seems be more of a problem with home grown nutters than asylum seekers.

Returning to the crackdown, there can be no doubt that the Home Office has consistently proven absolutely hopeless at removing overstayers or illegal entrants. But there is a difference between the two groups.

Overstayers come here legally but then overstay their visas, sometimes more or less by accident, sometimes cynically. The Home Office does not keep records of who has left the UK as there are no exit controls at UK borders. These were abolished in the 1990s, although the Home Office plans to reintroduce them in the next few years alongside biometric passports and the like. If an immigrant overstays his or her visa, therefore, the Home Office will simply not know, nor can they know at present. Some immigrants will need to inform the Home Office of their planned address in the UK or may even need to report to the police or immigration authorities, but most do not have these conditions attached to their permission to enter the UK. The Home Office is also therefore ignorant of their address.

Illegal entrants come to the UK illegally in the first place. Many asylum seekers are illegal entrants. There is no such thing as an ‘asylum visa’ to permit or authorise travel to the UK to claim asylum and most countries that produce asylum seekers have had visa requirements imposed on them, meaning that a national of that country needs to apply for a visa before travelling. A refugee suffering persecution is therefore faced with an invidious choice: try and lie one’s way to a visa by pretending to be a visitor or student, or break the immigration laws and face prosecution on arrival by seeking to evade immigration control entirely.

If an asylum seeker’s claim is unsuccessful, government support and accommodation is automatically withdrawn after 14 days. This makes the asylum seeker homeless. The intention is presumably that this will encourage the asylum seeker to return to his or her home country voluntarily, without the fuss, bother and expense of a forced removal. Very, very few failed asylum seekers will actually follow this course, however. Instead, they are effectively forced to disappear from the radar, relying on illegal working or friends, family or charity to sustain themselves. Once kicked out of their accommodation, the Home Office of course has no idea where the person is, making forced removal all but impossible. They could try and call round on failed asylum seekers within the 14 day period, but I guess this is too resource intensive or organisationally beyond the Immigration and Nationality Directorate.

It is no surprise to note that there’s no acknowledgement that the root cause of the ‘problem’ is that the Home Office simply can’t keep track of either overstayers or illegal entrants because their systems are so hopeless.