Author: Grania Langdon-Down
THE LOW DOWN
The government’s efforts to promote ‘Global Britain’ are built on the foundations of the hostile environment policies Theresa May introduced as home secretary, which continue to permeate every area of immigration policy and practice. While the scandalous treatment of the Windrush generation was a wakeup call for ministers, only two payments have been made under the Home Office’s interim emergency funding scheme. Arbitrary decisions and routine rejection of right-to-remain applications which contain only minor errors are tarnishing the UK’s reputation, just as 3.5m EU citizens consider their future in the UK. As Brexit looms, immigration law is yet one more area in which inconvenience is testing the commitments foreign nationals have made to this country.
It is nearly a year since the full scale of the Windrush generation scandal broke – and dismay is palpable among practitioners who say the ‘callousness’ of Home Office policies is seeping into all areas of immigration.
With 3.5 million EU nationals being brought into the immigration regime post-Brexit, they warn the potential for Windrush-style errors, coupled with the negativity created around migration, is damaging the government’s aspirations for a ‘Global Britain’.
When Sajid Javid became home secretary last April, he disowned the ‘hostile environment’ approach championed by Theresa May when she was home secretary, rebranding it as the ‘compliant environment’.
A Home Office spokesman tells the Gazette it is ‘resolute’ in its determination to ‘right the wrongs’ of Windrush and prevent them happening again. He stresses the department’s commitment to a ‘fair and humane’ immigration policy which ‘welcomes and celebrates’ people who are here legally but also tackles illegal immigration.
But practitioners working across the sector say the legacy of ‘hostile environment’ policies has permeated the whole sector and led to a ‘culture of disbelief’ among Home Office decision-makers.
The hostile measures have harmed the UK’s reputation as a migrant-friendly nation open for business
Laura Devine, Laura Devine Solicitors
Buoyed by success in overturning the ‘right-to-rent’ checks on the immigration status of tenants, Nicola Burgess, legal director of the Joint Council for the Welfare of Immigrants (JCWI), says: ‘We intend to dismantle the hostile environment, repugnant policy by repugnant policy.’
Laura Devine, managing partner of Laura Devine Solicitors and a Gazette columnist, says the Home Office appears keen to soften its language around immigration. She says some proposed changes in the December white paper suggest ‘genuine improvements’, including making the new immigration system more streamlined, easy to access and low-cost.
But she adds: ‘The hostile environment measures have, in many ways, damaged relations within communities, harmed the UK’s reputation as a migrant-friendly and outward-looking nation open for business, and, ironically, helped to create a hostile environment for many of the very migrants who would benefit the UK.’
For Alison Stanley, joint head of Bindmans’ immigration, asylum and nationality team, the ‘callousness of the Home Office’s approach and the negativity created around migration is seeping through every aspect of immigration and asylum, including areas where we need to encourage people to come to fill gaps in our own workforce’.
Net EU immigration is at a six-year low. ‘I have had a lot of people tell me they are packing up and going home,’ Stanley says, ‘because they don’t feel wanted here.’
Philip Trott, a partner in Bates Wells Braithwaite’s immigration team, also questions where business is going to ‘magic up’ workers wanting to live and work here. The hostile environment has ‘permeated the entire profile of immigration’, he says, with ‘totally genuine, ordinary folk’ being caught by policies such as the right to rent.
He describes a client whose biometric residence permit was stolen. It is taking months to get a replacement and, in the meantime, their tenancy ran out and they would have been homeless with their baby if a landlord had not been prepared to take the risk of being fined.
Business immigration is also becoming increasingly mixed up with personal issues. ‘If you can’t get the answer through the business route because of Brexit, what can you get?’ says Trott.
‘You won’t be able to get a work permit if you aren’t earning enough. The only thing left is for people to rely on “love” as they increasingly turn to human rights arguments that they have built relationships here. It is skewing people’s personal lives.’
Since November, people making in-country applications for further leave to remain do so mostly online. While it is a ‘good system’ that asks questions in a simple format, Wesley Gryk, senior partner of Wesley Gryk Solicitors, says there are some ‘nasty stings in the tail’. These include applications being refused because one piece of supporting evidence is missing.
‘People are losing thousands of pounds in fees – it’s a system which hopes you fail and one which lacks accountability,’ he says.
This approach is affecting not just the rights of foreign nationals but British citizens as well. Gryk has a British client who wants to move back to the UK with his American wife of 35 years and she has only been given five years’ tracked leave.
‘She is effectively here on trial – it is not a welcoming system,’ he says. ‘In the past, I would tell people that having a lawyer is a luxury. But I now think you would be mad to make an application to come here as a partner of a British citizen without a lawyer. If it is refused, the appeal waiting list for entry clearance from abroad is more than a year so my advice would be to make a new application and pay a new set of fees.’
‘When you tell people you do immigration and asylum work, the temperature drops,’ says Clare Hurst, senior solicitor at the Newcastle-based North East Law Centre. ‘We do a lot around public education as this area is a constant battle. But you are beginning to see a real change in public opinion because it is becoming harder and harder to rationalise the way the system works.
‘The public sympathy around Windrush, for instance, was heartening. There is so much negativity around immigration and you may not change everyone’s minds. But using real-life examples can change that dynamic.’
After 13 years of the centre riding the rollercoaster of funding challenges, Hurst is passionate about inspiring the next generation to follow her path.
The centre ‘cobbled together’ funding for a part-time traineeship, with trainee Tristan Smith qualifying into the immigration and family teams in May.
Smith decided to become a lawyer after a year volunteering at the London charity Bail for Immigration Detainees – an ‘eye-opening experience’ helping people terrified about being removed from the UK.
Trainee April Hall started in January as a Justice First Fellow, funded by the Legal Education Foundation. Her second seat will be in immigration. She says: ‘This is such a rewarding area of law where you can help vulnerable people experiencing life-changing events such as Brexit and the ongoing migrant crisis.’
Immigration is a complex area. The Law Commission’s current consultation on simplifying the Immigration Rules points out that their volume has quadrupled in the last 10 years to 1,133 pages.
But immigration is also a specialism where small charities, represented by Public Law Project and leading law firms, can derail government policies. The Home Office ploughed ahead with its right-to-rent policy in England in 2016, despite being warned by the Immigration Law Practitioners’ Association, among others, that it would catch British and EU nationals alike in a scheme that would be ‘intrusive, bullying, ineffective and expensive, and likely racist and unlawful to boot’.
In the High Court last month, Mr Justice Spencer concluded the scheme was incompatible with the Human Rights Act and it was ‘wholly predictable’ that landlords would discriminate when faced with potential sanctions and penalties for getting things wrong.
The Home Office spokesman says the law is clear that landlords and letting agents should not discriminate on racial grounds when conducting checks; it was ‘disappointed’ by the judgment and has been given permission to appeal because of the important points of law raised by the case.
Burgess says the Home Office repeatedly ‘doubles down’ after a defeat. It can take years of further litigation, public expense and human suffering before cases are resolved, particularly when it involves a flagship government policy.
Securing costs against the Home Office for unreasonable conduct in litigation, she adds, has become a developing area in the immigration jurisdiction. Last month, the Law Society supported the judicial review, brought by the charity Medical Justice, against the Home Office’s removals policy. This provides a removal ‘window’ where the individual is notified of an open period of either three months or 21 days in which they can be removed without further notice.
Mr Justice Walker said there appeared to be grounds for ‘real concerns about access to justice’ and suspended the policy until the full hearing in June or July.
Pressure is also on the Home Office to publish its Windrush compensation scheme, given the latest figures show just two payments have been made under the emergency funding scheme, despite people having lost their jobs, homes and health.
Leigh Day has about 30 clients with Windrush compensation claims, with a register of interest of a further 10-20 potential clients. The firm is waiting to see the final form of the scheme before deciding whether to advise their clients to make a claim or bring a legal action against the Home Office.
Partner Jamie Beagent says: ‘If I was a politician, I wouldn’t want the announcement to drift past this month’s anniversary of the scandal breaking. But with Brexit going on, all bets are off.’
The proposed scheme has drawn eligibility ‘pretty broadly’, he says. But there are issues such as no money for legal or expert costs, and, ‘most worryingly’, a cap on the maximum award.
Practitioners also fear there could be a Windrush-style scandal when EU nationals are brought under the immigration regime post-Brexit. This could see the development of a new class of people who are undocumented after living and working in the UK legally for decades.
The £30,000 minimum threshold would have a huge impact in Wales, given the size of the economy, particularly in rural areas, and with average salaries of around £20,000
Nicholas Webb, NLS
Around 3.5 million people will have to apply for settled or pre-settled status if they want to stay beyond June 2021.
Devine notes that employers are subject to ‘compliant environment’ policies, with the possibility of criminal liability and fines of up to £20,000 per illegal worker. Many are concerned about the logistics, legality and potential risks associated with hiring EU nationals in the face of Brexit.
Many of these concerns are unfounded, she says, as the European Union Settlement Scheme and future skills-based immigration system will provide for EU nationals to live, work and study in the UK regardless of whether a deal is struck.
‘But they have already led to some employers inadvertently discriminating against EU employees,’ she warns. ‘This raises concerns of discrimination and, potentially, human rights issues.’
Like many employers, the Law Society has EU nationals as employees. ‘We are aware that the uncertainty they currently face is stressful,’ a spokesman says, ‘and we will be providing support and assistance as the Home Office’s 2021 deadline approaches.’
Gryk is concerned about the online scheme’s accountability. Using an Android telephone, applicants are asked to upload a picture of the identity page of their passport and two selfies. They are then asked to close their passport and put the phone on top so it can tap into linked data, such as HMRC tax records.
‘You are then told you have proved your settled status or you need to provide further evidence,’ he says. ‘But they don’t tell you on what basis they have reached that decision. It is scary – you have to have faith the system is working properly.’
Trott says clients, including some law firms, who are ‘desperate not to lose their staff are asking us to provide advice and one-to-one help. But I am not sure law firms in general are on top of this. We offer our staff a free service to apply because we don’t want to lose them. Some employers aren’t prepared to spend the money but they will suffer later’.
There are also questions over the proposed skills-based immigration system, which sets salary thresholds for skilled workers seeking five-year visas.
Nicholas Webb is a partner with boutique immigration practice NLS. Primarily a legal aid firm, it also does some sponsorship work for charities and SMEs. NLS has offices in Wales and Bristol.
‘The £30,000 minimum threshold would have a huge impact in Wales,’ he says, ‘given the size of the economy, particularly in rural areas, and with average salaries of around £20,000.’
Immigration is not devolved. ‘The white paper has a line about speaking to devolved administrations to see if there is potential scope for having different lists of shortage occupations, with different salary thresholds, as happens in Scotland,’ he notes. ‘It has always been a bugbear of mine that the Welsh government hasn’t been asking for something similar.’
Practitioners also criticise the way the Home Office implements policy changes. Nichola Carter is head of immigration at boutique firm Carter Thomas and a member of the Law Society’s immigration law committee. She says the firm was expecting the Home Office to close the tier one entrepreneur route, which saw 1,160 entrepreneurs given entry clearance and 2,720 given leave to remain last year – but not at such short notice or with a four-month gap before the replacement ‘innovator’ visa (which the Home Office says is for more experienced business people with £50,000 to invest in their business) is up and running.
‘We thought the Home Office was trying to put on a shinier coat and wanting to be internationally facing,’ she says. ‘It has some really ambitious projects on the one hand but then makes changes brutally with little warning. We want them to calm down a bit and take more time.’
Other concerns, says JCWI’s Burgess, include the Home Office’s ‘extortionate’ applications fees, which despite being frozen for 2019/20, deny access to justice and force individuals into overstaying.
So, in such a fast-moving area, can the Home Office balance all sides of the immigration equation?
Carter fears the Home Office is building a ‘two-tier system’ where the regime is very open, attractive and efficient for people who are seen to contribute to the UK economy, but where family routes continue to be really difficult and asylum-seekers continue to have a hard time.
‘A lot of innocent people will get caught in the middle on the wrong side of the rules,’ she says. ‘The Home Office is trying to achieve a system which is tough where they want it to be, but also attractive where they want it to be. It remains to be seen if they can pull that off.’