All Change In United Kingdom Immigration Law Effect On The Diaspora And Nigerians

Andrews Solicitors

2008 has turned out to be a significant year in relation to Nigerians emigrating to the United Kingdom. This is because the UK immigration laws have undergone some of the most revolutionary, far reaching, changes in law in the last 100 years. Its potential impact on Nigeria cannot be underestimated. Nigerians have been emigrating to the United Kingdom, for a variety of reasons, over the last century. 10% of Nigerians emigrating from the country in the last 50 years reside in the United Kingdom, second only to those in the United States where the number is some estimated 5 million Nigerians. The United Kingdom issues approximately 30,000 visas to Nigerians every year. The Nigerian population in the UK is and has become established, highly educated, professional and by virtue of our historical make-up, diverse. The prospects of those statistics increasing remain very high, hence the significance of these changes in the law.

The news of the change of the law has been received with mixed feelings. The United Kingdom government has offered a variety of reasons for this position. Commenting through its Home Secretary, Jacqui Smith on 5 December 2007, that Government stated that it accepts that migration brings great socio-economic benefits to their country United Kingdom but that its people expect it to be managed robustly. In introducing the new measures, the Government states that it expects principally to deliver a more secure border, a direct extension of the exclusionist policy that is implicit in United Kingdom Immigration law. Generally, these measures include a new electronic checking system to count people in and out of the United Kingdom; a clamp down on illegal immigration; finger printing of visa applicants around the world before they are allowed to enter the United Kingdom and the introduction of identity cards for foreign nationals.

Rolled out in the Home Office 5 year strategy document entitled “Confident Communities in a Secure Britain”, the key features of the strategy includes creating a transparent Australian-type points system for those coming to study or work in the United Kingdom; financial bonds for specific categories where there has been evidence of abuse in order to ensure that migrants return home; an end to chain migration which, effectively, precludes any immediate or automatic right for immigrants to bring their relatives to the United Kingdom; an end to appeals when applying from outside the country to study or work; ensuring that only skilled workers were allowed to settle long-term, and insisting on English language tests for everyone who wants to remain in the country permanently. In addition, there are now fixed penalty fines for employers for each illegal worker they employ as part of the drive to eliminate illegal working.

The biggest change of the system is the introduction of a 5-tier point base system. Simply, the scheme will consist of 4 new tiers: highly skilled, skilled, low skilled and students/specialists. Points will be offered and adjusted, as required, to respond to changes either in the political climate or labour market, thereby giving the system some flexibility and allowing the government to control it as it decides. This tier system is expected to remove about 80 different immigration routes that are currently available for people wishing to come to the UK to work or study. The first of these tiers, being tier 1 (general) was launched on 29 January 2008, for those wishing to make applications in the UK. Tier 1 effectively replaces the currently popular Highly Skilled Migrant programme. The expectation is that this tier will be introduced across the entire world in the second quarter of 2008. It came into force for people in the Indian sub-continent on 1 April 2008. Tier 2 (skilled workers) will replace the existing Work Permit Scheme and is expected to come into force in the fourth quarter of 2008. Tier 4 (students) will come into force in 2009, but the Home Office has yet to set any dates for tiers 3 and 5 (low skilled and temporary workers and youth mobility).

With these changes come additional obligations imposed on employers. With the exception of tier 1, all applicants will need to be sponsored by a licensed sponsor. This means that everyone who wishes to employ a foreign national will need to be registered as a licence sponsor. It is expected that this will come into force before the introduction of tier 2 in October 2008. The register of employers is now open, this having been made available from 29 February 2008. These procedures has been put in place in order to allow testing circumstances that may develop to be ironed out before it is rolled in, in October 2008.

The United Kingdom government has continued to explain the reason it resorted to the points based system. It explains that with regard to benefits in the United Kingdom, it has adopted this approach in order to plug skilled gaps. The government suggests that the process that has been introduced is a faster, simpler application process which will increase efficiency and offer better customer service and satisfaction. The complimenting benefit to employers is that it will enable them to attract highly skilled migrants where there are gaps in certain sectors in the labour force. As for educational institutions, the government believes that students will be attracted to train and study in the United Kingdom with the added responsibility that genuine educational establishments will now be more obliged to monitor their students’ attendance and progress. For the prospective migrants, its view is that the change imports a transparent, more accountable process which will enable the prospective applicant to be able to assess their eligibility, in advance, before making applications, this being correspondingly complemented by a decision making process designed to be consistent, objective and based solely on points accrued.

Added to these are the implementational aspects of other significantly substantial changes in the law. Section 4 of the Immigration, Asylum and Nationality Act 2006 curtails the rights of appeal. Section 5 of the UK Borders Act 2007 introduces biometric registration. By this provision, the Secretary of State is entitled to make regulations requiring a person subject to immigration control to apply for the issue of document recording information about his external physical characteristics. This document is called a biometric immigration document. The regulations require that the biometric immigration document is to be used for specific immigration purposes. Sections 5-8; 10, 11, 13, 14 and 15 all came into force on 31 January 2008. The effect of non-compliance includes provisions that an application or claim in connection with immigration application may be disregarded or refused; leave granted cancelled or a variation of leave to enter or remain in the United Kingdom denied.

United Kingdom law has since mounted a serious campaign against the use of forged documents to obtain an immigration advantage. The United Kingdom Identity Card Act 2006, specifically enacted to deal, amongst other things, with incidents of identity thefts contained offences covering possession of false or fraudulent identification documents. In particular, the act contains two separate offences, namely, possession of a false identity document and the more serious offence of possession of false identity document with the intention to deceive. Regretfully, some Nigerians have contributed, negatively to the development of jurisprudence in this area. Two of the leading cases, namely R –v- Adebayo (2007) ECWA Crim 878 and R –v- Kolawale (2006) 2 CR. App R (S) 14 were decisions in which the courts imposed quite serious sentences for offences arising out of these sections in circumstances that were distinctly different from the manner in which the courts treated usage of forged documents. Apart from the criminal sanctions, the immigration consequence is that expulsion from the United Kingdom is, in all cases, inevitable.

The jury of public opinion remains out on the consequences of these huge, wholesale changes. There are those who consider that a more transparent system will favour immigrant applicants. This is particularly so because applicants from Nigeria whose credentials general resemble, more closely than most immigrants, those that the new measures are targeted to benefit, are expected to fare better than in the past when they are not always fairly treated by Entry Clearance Officers in considering whether or not their presence in the United Kingdom will be for the collective good of the country. Others say that the complexity of the process – and indeed the new changes are complex – means that the message of transparency can quite easily be lost in the mired of confusion that will prevail, for years to come