The ‘hostile environment’ can and should no longer be tolerated. Here are 7 urgent immigration issues requiring quick decisions for rapid relief for many desperate families
- The suspension of the ‘hostile environment’ measures contained in Immigration Act 2014 Part 3 Access to Services and intensified in the Immigration Act 2016 Part 2 Access to Services (which prohibit, and in some cases criminalise:
Renting private property
Holding a bank account
Driving a car
These ‘hostile environment’ measures do not only affect single ‘unlawful migrants’ with no conceivable claim under art 8 ECHR or otherwise. They affect thousands of people, including children, who have made meritorious applications for leave to remain under the family life ‘routes to settlement’ in the Immigration Rules Appendix FM or under the private life rule.
However because the Home Office takes many months to consider such applications; because they are generally refused; because appeals are taking over a year to be heard; and because the Home Office often appeals against decisions favourable to the applicant migrant, many such families, with arguable and meritorious cases, remain for months and years in poverty and uncertainty. A prompt decision to suspend the ‘hostile environment’ measures, even if only for people with outstanding applications and appeals, would significantly ameliorate the difficult conditions these families are suffering. It should be noted that Theresa May introduced those ‘routes to settlement’ in 2012, explicitly to enshrine the article 8 family and private life rights within the Immigration Rules,[1] so it makes no sense to make it hard for people with family and private life rights to survive while such applications are being considered.
2. A right to work after waiting 6 months for a decision, for any migrant with an outstanding application or appeal under the family migration rules or private life rules.
Such a decision would concentrate the minds of Home Office policy officers, and the MOJ, whose cuts in decision-makers, immigration judges, Court staff, buildings etc have contributed to a situation where large numbers of migrants, whether unlawfully present and at the beginning of the ‘ten-year-route’ to settlement, or those making their second or subsequent application, wait months if not years for an outcome to their application, often without being able to work to support their families – or even volunteer to do something useful while waiting for a decision.
3. An immediate moratorium on any further increases in application fees for family and private life applications (in fact a reduction of application fees back to a reasonable proportion of the cost of processing that particular application)
The Home Office has decided to use the immigration application process as a means of raising money for the operation of immigration control.[2] To do this, application fees are several times higher than the actual cost to the Home Office of processing an application. This is clearly unjust and unacceptable. It cannot be right that, where a family member is on a published formal ‘route to settlement’ under the Immigration Rules, the family find that they are expected to pay a share of the cost of dealing with completely unrelated migration issues, over which they can have no control. For example, the cost per person for applying for indefinite leave to remain is now £2297. Many families with members who have completed many years of lawful residence and who are now entitled to apply for this simply cannot afford it. They may not apply for a fee waiver for this particular application. Instead they must apply for a further limited period of leave, facing further expensive[3] applications every 2 ½ years until they can afford the fee for indefinite leave to remain. This is creating a large and growing number of families including children who can never consider themselves ‘settled’ in the UK however long they live here.[4]
4. An immediate moratorium on making any further changes to immigration application forms
For example, last year, the standard application form for a family member wishing to apply for leave to remain on the basis of their family life changed 4 times, with the couple of changes only a couple of weeks apart. Using the wrong form can lead to a rejection of the application and the applicant becomes unlawfully present. These forms are between 60-80 pages, and take a few hours to complete. Applicants in person often do not know to check the validity of a form; those paying for lawyers find the charges for filling in repeat forms prohibitive. Sometimes the changes are barely perceptible, but the effect of rejection on an applicant can be devastating.
5. A moratorium on any further immigration legislation or changes which tighten the Immigration Rules, beyond what is strictly necessary in the course of Brexit. (For example, whatever is decided about Brexit, the family migration and private life rules do not need to be made harsher).
6. No increase to the Minimum Income Requirement for partners in the family migration rules. In fact, despite the Supreme Court’s recent ruling[5] that the MIR is not itself a breach of art 8 ECHR, urgent consideration should be given to reducing it. The court recommended that entry clearance officers should consider art 8 in cases where couples do not meet the MIR. But in reality these applications will continue to be refused, leaving spouses waiting abroad for many months before their appeal is heard.
7. No increase to the Immigration Health Surcharge (currently amounting to a fee of £200 for every year of any visa applied for). In fact, urgent consideration should be given to abolishing this charge for those migrants applying under the family and private life rules, as those rules were introduced explicitly to give clear guidance to the regularisation of unlawful migrants with arguable art 8 rights. Once a migrant has been accepted onto a ‘route to settlement’ the assumption should be that they will become settled, not forcing them to re-argue their case over and over again at great expense.
Sheona York
28 June 2017
Background: I am the immigration and asylum solicitor at the Kent Law Clinic (after over 35 years of legal practice at Hammersmith & Fulham Community Law Centre and the Immigration Advisory Service), acting mainly for family migration clients including overstayers, ‘foreign criminals’ and those with ‘no recourse to public funds’ who face Theresa May’s ‘hostile environment’.
[1] Immigration Rules Appendix FM, para GEN1.1
[2] R(Williams) v SSHD [2015] EWHC 1268
[3] Further leave to remain applications currently cost £993 per person plus £500 Immigration Health Surcharge
[4] Solicitors are encountering clients who are faced with considering making an application for themselves but not for their children, leaving the children unlawfully present while their own application is dealt with.
[5] R (on the application of MM (Lebanon)) (Appellant) v Secretary of State for the Home Department (Respondent) [2017] UKSC 10