Controlling Immigration Into The United Kingdom: A Further Avalanche Of Changes

By

Andrew Onyearu

aokonyearu@yahoo.com

 

June 2008 represents a significant watermark in the development of immigration jurisprudence in the United Kingdom.  On 30 June 2008, Tier 1 of the new Points based System, replacing the hitherto much publicised and successful Highly Skilled Migrants Programme came into force.  On 25 June 2008, the United Kingdom Border & Immigration Minister, Liam Byrne announced a number of changes which he suggested would help create “... a fairer Britain with fair treatment for those who play by the rules, but tough action against those who break the law”.  He further stated that “we want the UK to stay open and attractive for both business and visitors, but at the same time, we are determined to deliver a system of border security which is among the most secure in the world”.  Alongside the details of the previously announced Australian-style New Points Based system introduced earlier in the year, the United Kingdom government has now brought in a number of new rules.  First, it has introduced two new business visas for sports people and entertainers, extracting this from a group forming the omnibus category of visitors.  For sports visitors, a range of sport persons will now be able to enter the United Kingdom under the specific categories for a period of 6 months.  These include sports people, both amateur and professional, and their support staff who are coming to the United Kingdom to take part in a specific event or series of events, or a specific one off charity sporting event or exhibition match as either an individual or member of a team.  Amateur sports people joining UK amateur teams will also be able to enter the United Kingdom provided they are able to join a club that is made up wholly, or predominantly, by amateur players and they are not being paid by the club other than board, lodge, and reasonable expenses. 

 

The entertainment visa covers a range of individuals who, hitherto, been able to enjoy a concession allowing them to come to the United Kingdom to work without a work permit. Of this new category, professional entertainers coming to the UK to take part in a music competition; amateur entertainers either as individuals or members of a group such as orchestra travelling to the United Kingdom for a specific engagement and professional entertainers coming to take part in a charity concert or show where the organiser is not making a profit and no fee is paid to the entertainer are now entitled to visit the United Kingdom for periods of up to 6 months.  Professional and amateur entertainers coming to the United Kingdom to perform at a permit free festival will also enter the United Kingdom on an entertainer visitor visa.

 

However, by far the biggest changes appear in the category of visitors. Under the categories of family visitors, some of the toughest regimes and sanctions have now been announced.  Under the current system, those seeking to visit family members in the United Kingdom generally apply as visitors.  Although the application form seeks confirmation as to whether or not a member of the family is being visited, there is not, in existence, a separate category for family visitors.  The United Kingdom government now believes that additional responsibility ought to be imposed on those family members who are receiving the visitors in the United Kingdom especially if those individuals are responsible for sponsoring such visitor.  With this belief in mind, the government has introduced an extremely demanding regime which is anchored on the following premises.  First, the narrowed the category of those who may act as sponsors to those who are British Citizens and those with Indefinite Leave to Remain in the United Kingdom.  Constituting an “esteemed” category of  licensed sponsors, they will be expected to vouch for their family visitors.   The government proposes to vet individuals for eligibility and suitability, indicating that it proposes to incorporate a regime that will exact sanction against licensed sponsors where their “charges” breach immigration rules following entry.  As a result, those identified sponsors will be required to accept and sign up to liability to a penalty as part of a process for sponsoring a relative to visit the United Kingdom.  The government envisages that before accepting an individual as a sponsor, it will make thorough checks as to who those individuals  which, it envisages, will coincide with the roll out of a National Identity Card for British Citizens and Identity Cards for foreign nationals.  Second, in consequence upon this framework, the United Kingdom government indicates that it will take action against sponsors who do not comply with the duties now imposed to ensure that those who are sponsored return as they have indicated.  A range of responses following non-compliance is to be created.  These will include a sponsorship ban for a specified period, the issue of a financial penalty on a sponsor informed by penalties currently enforced in relation to negligent employers (with liability ranging up to £5,000) and ultimately, prosecution where it is considered that such a sponsor is assisting unlawful immigration which will lead to an unlimited fine or event a prison sentence of up to 14 years in relation to the most serious cases involving facilitation. 

 

These changes follow what the government says was an extensive consultation to determine how it should, at the same time as changing the framework of immigration practice in the United Kingdom, bring about changes that will ensure that its objectives are accomplished.  The Immigration Minister asserts that the consultation was not just a routine one, but community-based and indeed, in one particular aspect, drawing from a delegation that he led to the Indian sub-continent.  There is some concern about the nature and reach of the consultation suggested.  Certainly, some of the responses received from the consultation, it is known, were wholesomely ignored.   It is useful to cite, as an example, the substantial recommendations made in relation to changes of the law and practice in response to the consultation, by the Immigration Law Practitioners Association, a professional association with over 1000 members who are barristers, solicitors and advocates, practising in all aspects of immigration, asylum and nationality law.  Several of the changes suggested were opposed by that body, with informed, well articulated reasons, yet all the suggestions made appear to have been roundly and inexplicably ignored. 

 

Of particular importance is the premise upon which the government is now pursuing the imposition of sponsorship with regards to visits.  The introduction to sponsorship in relation to visits is not new. First promoted and opposed in 1999, the reasons for objection then remained the same as now.  Sponsors and visitors are normally adults who make their own decisions.  It is impossible to imagine a situation where a sponsor will physically drag a visitor who was remaining in breach of the immigration rules to an airport to enforce departure.  It is quite clear that all that a sponsor can do in those circumstances is to impose, at best, moral pressure and when this does not work, it is difficult to imagine how this could ever be the sponsor’s fault or how it is that he could not have done everything legally possible in order to achieve the visitors return to the home country.  Often this may include the sponsor informing the immigration authorities that a person invited has not returned.  What is disturbing about this is that such a sponsor is precluded in the future, from inviting any other member of his family to visit the United Kingdom. There is no indication that any system of sureties or bonds as expected to be set up, will provide or afford the sponsor an opportunity to make representations to an independent decision maker about why these sanctions should not attach.  Indeed, there is nothing in their announcement that suggests that the reach of these changes and the practical issues associated with its implementation has even been clearly thought out.  Or, even more significantly, that there can be foreigners whose presence in the United Kingdom, beneficial to the country by the substantial contributions that they continue to make to the growth of the UK economy but who are neither British nor have indefinite leave to remain, can sponsor or invite family members to visit them

 

The extent of the alleged consultation is questionable as is any suggestion that people of the foreign communities were consulted.  Secondly, there is nothing to suggest that the Nigerian community either formally or informally were consulted and their views sought.  In 2006, the two main missions in Nigeria handled 246,500 for entry clearance, this constituting more than 10% of the entire total of the applications for entry clearance handled into the United Kingdom from her 146 posts all over the world. 

 

The United Kingdom government has published its proposed timetable for implementation.  By the end of 2008, it will begin sponsored family visitor pilots.  Within the same period up to the early part of 2009, it will introduce appropriate legislation in the form of the Citizenship, Immigration and Borders Bill into Parliament. It is envisaged that this legislation will be passed in or about April 2009 with the possible introduction of some of the visa categories.  By July 2009, it intends to publish the statement of intent on sponsored family visitor’s arrangements and to achieve full implementation by the end of 2009. 

 

Quite clearly, these rule changes are designed to impose additional obligations on foreign nationals seeking to continue to maintain family life with those outside the United Kingdom.  Nigerian nationals constitute a very large proportion of this population and, historically, will constitute some of the most affected.  Parts of these changes represent some of the most draconian, blinkered and one-sided reform ever contemplated of UK Immigration espoused whilst seeking to attract ostensibly skilled foreigners. Nigerians from within and outside the United Kingdom are obliged to consider how these circumstances may adversely affect them especially in an area of immigration that is heavily policed by complex Human Rights including, in particular, Article 8 of the European Convention of Human Rights regulating the right to private and family life.   There is still sufficient time to organise and articulate sufficient resistance to the negative aspects of these rule changes.  Nigerians – indeed other foreign nationals – must do come together and resist the retrogressive effect of policies that will clearly undermine the quality of life in the United Kingdom.