New Plan For Immigration
PCS Takes A Look At The Government’s Consultation Document
PCS summarises the online consultation that ended on 6 May 2021 that details the Government’s ‘New Plan For Immigration’ proposals; details some of the changes that will impact most on our members, and provides comment on those proposals.
Online Consultation
The Government’s ‘New Plan for Immigration’ can be accessed via the following link: Project • Introduction to the Consultation (newplanforimmigration.com) and is a consultation document detailing Governmental proposals for re-vamping Asylum and Immigration legislation and processes. The consultation ran for 6 weeks from 24 March 2021 and ended on 6 May 2021. This briefing will look at the proposals and seek to identify areas that will impact on PCS members in the Home Office as well as those our members come into contact with as part of their jobs.
Objectives
The stated objectives of these proposals are as follows:
Firstly, increase the fairness and efficacy of our system so that we can better protect and support those in genuine need of asylum.
Secondly, deter illegal entry into the UK, thereby breaking the business model of criminal trafficking networks and protecting the lives of those they endanger; and
Thirdly, remove more easily from the UK those with no right to be here.
The proposals are detailed in a 43-page document (plus reference pages) so this briefing will simply look at the ‘highlights’ of the proposals, and those that will most affect our members.
Asylum System
The language in the proposals should be deeply troubling for members particularly an attempt to split asylum seekers into legal and illegal asylum seekers.
A key principle of the convention is that there is no such thing as an illegal asylum seeker and it is a matter of international law that anyone has the right to apply for asylum in any country (that has signed the 1951 Convention) and to remain there until the authorities have assessed their claim. There is no legal way to travel to the UK for the specific purpose of seeking asylum and the 1951 convention covers that people may have to use irregular means in order to escape and claim asylum in another country.
Furthermore the attempt to establish a two tier system that will see asylum seeker’s means of arrival to the UK determining whether they should be entitled to asylum and the level and length of protection they receive goes beyond the pale.
Changes to the immigration rules were already made at the turn of the year meaning applications of those who have passed through ‘safe’ countries en route to the UK are to be automatically considered inadmissible; and that the government will seek their rapid removal to that country or to a ‘third safe country’. Asylum seekers already in the UK have been served such notices despite no agreements with any third countries currently existing to effect their removal. Other changes include lower protection status, the loss of a right to settlement, and limited rights to family reunion for those who do not arrive in the UK via a resettlement programme, all which will make it increasingly difficult, near impossible, for the applicant to integrate into the UK.
It is unclear from the plans put forward how much of the proposed changes will require a new Immigration Act (primary legislation) as legislation cannot be amended by secondary legislation unless delegated powers were provided for in the passing of the primary legislation, or how much of these plans will be in the Queens speech in May, or how much will be enacted through Statutory Instruments and by pass Parliamentary scrutiny completely.
Appeals
The changes to appeals appear to be centred around a desire to have everything done quickly and to only give one chance whereby if matters are not brought up early enough they will not be considered. Introducing an expedited process for claims and appeals made from detention and a new fast-track appeal process for cases that are deemed to be manifestly unfounded or new claims, considered to have been made late. It would appear this would impact on the Further Submissions workstreams as well with appeals on further submissions being limited to the Upper Tribunal only.
This is a concerning move as very few further submissions are simply repeat applications as the majority have a clear change of circumstances either on Human Rights grounds due to time, family and connections made in the UK due to ineffective removal systems, or through sur place activities and change of country situations.
Illegal Entrants
The proposals detail that on arrival, anyone who has arrived ‘illegally’ will be informed immediately that they are inadmissible, before any substantive consideration is given to their application. They also include plans to amend the Immigration Act so removal can be enacted before an asylum decision has been made. If an applicant can be removed to a safe third country then this will occur as soon as possible, before a decision has been reached. The document proposes the use of reception centres for asylum applicants, and that the use of hotels to detain applicants will cease. This does however mean that perfectly genuine applicants may be removed from the UK before their applications are even considered and requires our members to take a far more aggressive line on how they deal with applications.
Age assessments
The document proposes to:
‘Legislate so that front-line immigration officers and other staff who are not social workers are able to make reasonable initial assessments of age. Currently, an individual will be treated as an adult where their physical appearance and demeanour strongly suggests they are ‘over 25 years of age’. We are exploring changing this to ‘significantly over 18 years of age’. Social workers will be able to make straightforward under/over 18 decisions with additional safeguards;’
This will require officers to make off the cuff and very unscientific decisions on the age of an individual based upon very superficial guesswork, and on a subject that could have a very large impact on how an individual’s claim is dealt with.
Victims of Modern Slavery
One of the most vulnerable groups of all get some of the following proposals:
‘Identify victims as quickly as possible and enhance the support they receive, while distinguishing more effectively between genuine and vexatious accounts of modern slavery and enabling the removal of serious criminals and people who are a threat to the public and UK national security;
Improve the training given to First Responders, who are responsible for referring victims into the NRM;
Clarify the definition of “public order” to enable the UK to withhold protections afforded by the NRM where there is a link to serious criminality or a serious risk to UK national security;
Strengthen our operational processes for considering Reasonable Grounds decisions and consult on clarifying the Reasonable Grounds threshold to ensure decision-makers can properly test any concerns that an individual is attempting to misuse the system.
Our concern is that these proposals risk undoing all the good work done by Home Office staff in a race to identify claims that can be deemed not genuine as quickly as possible and withholding protection from them.
Disrupting Organised Crime
‘Introduce tougher criminal offences for those attempting to enter the UK illegally including raising the penalty for illegal entry;
Widen existing powers to tackle those facilitating illegal immigration, through acts like piloting small boats, including raising the maximum sentence for facilitation to life imprisonment;Chapter 7: Disrupting Criminal Networks Behind People Smuggling 37
Provide Border Force with additional powers to:
Search unaccompanied containers within the port or freight environment for the purposes of immigration where they believe people are seeking to conceal their entry to the UK;
Seize and dispose of any vessels, including donating any seaworthy vessels to charity;
Stop and redirect vessels and those on board away from the UK where persons are suspected of seeking to enter the UK illegally. This requires agreement from the receiving port or country if the redirection is to land;
Increase the penalty to a maximum of 5 years in prison for Foreign National Offenders who return to the UK in breach of a deportation order;
Overhaul the Clandestine Civil Penalty Regime process by consulting on:
Increasing the maximum penalty, currently £2000, to ensure that it provides enough incentive to comply with the requirements of the schemes;
The introduction of a new penalty for failure to secure a vehicle, regardless of whether an illegal migrant is found on board or not;
Expanding the scheme to entail levying a penalty on all hauliers where a migrant is found in their vehicle, regardless of load security;
Reviewing accreditation for hauliers who are repeatedly found in breach; • Implement an Electronic Travel Authorisation’
Whilst the proposals do refer to increasing the penalties against those facilitating illegal entry they also penalise those who have been facilitated into the UK; thus potentially penalising the victims of people trafficking, who may be some of the most vulnerable people seen by Home Office staff.
Enforcing Removals
‘Consult with Local Authority partners and stakeholders on implementing the provisions of the Immigration Act 2016 to remove support from failed asylum-seekers who have no right to remain in the UK;
Consider whether to more carefully control visa availability where a country does not co-operate with receiving their own nationals who have no right to be in the UK;
Increase the early removal provision for Foreign National Offenders who leave the UK from 9 months to 12 months to encourage departure and also add a new ‘stop the clock’ provision so that they must complete their sentence if they return. This would be in addition to any sentence for returning in breach of a deportation order; 28 Home Office, 2021b 29 Home Office, 2021b 30 Home Office, 2021c 31 Home Office, 2021 l Chapter 8: Enforcing Removals including Foreign National Offenders (FNOs) 41
Amend the list of factors for consideration of granting bail and the conditions of bail;
Place in statute a single, standardised minimum notice period for migrants to access justice prior to removal and confirm in statute that notice need not be re-issued following a previous failed removal, for example where the person has physically disrupted their removal.’
Again this seems to entail a reduction in the rights of individuals to statutory rights of appeal in favour of making quicker decisions, and with consequent greater potential for error.
British Nationality Act
Amendments include:
‘Introducing new registration provisions for children of British Overseas Territories Citizen (BOTC) to acquire citizenship more easily;
Fixing the injustice which prevents a child from acquiring their father’s citizenship if their mother was married to someone else;
Introducing a new discretionary adult registration route to give the Home Secretary an ability to grant citizenship in compelling and exceptional circumstances where there has been historical unfairness beyond a person’s control;
Creating further flexibility to waive residence requirements for naturalisation in exceptional cases.
This will mean Windrush victims are not prevented from qualifying for British Citizenship because they were not able to return to the UK to meet the residence requirements through no fault of their own’
PCS Comment
In a bid to appear as tough on illegal immigration as possible the consultation document does make some positive changes but potentially sacrifices effective and accurate decision-making at the altar of fast decisions and the wish to remove illegal entrants and other ‘inadmissible’ applicants as quickly as possible. The changes to legislation and process remove many existing checks, balances and statutory rights from applicants in order to achieve rapid decision-making.
The proposals as a whole will require our members to make quicker decisions, often on the most vulnerable cases (minors and victims of modern slavery) without access to substantive information, so these will in effect lead to off the cuff, non evidence-based decisions, that could have a direct and potentially adverse impact on the lives of the most vulnerable. The consultation closed on 6h May 2021. Having also read the comments made on the consultation document from groups such as Amnesty International and the Refugee Council PCS has real concerns that nothing has been learnt from the Windrush affair.
In a rush to make fast decisions that make the Government appear tough on Immigration they run the risk of returning to the very ‘hostile environment’ that led to the miscarriage of justice for the Windrush cases.