10 Years: A Long Time in Immigration Law
I joined Latitude Law on Monday 12 April 2010 and since then I’ve seen governments and Home Secretaries come and go, and immigration law change with them.
My eleventh year with Latitude begins in very different circumstances to when I started in 2010; we’ve grown from a team of 6 to 16, we having large and beautiful offices on Oxford Street rather than a basement in the Northern Quarter, and at the time of writing we’re working remotely, adapting as a firm to the impact of Covid-19 on our daily lives and on the business.
As I can’t celebrate my 10 year anniversary with my work family, instead let’s all of us take a look at 10 big changes I’ve seen in UK immigration policy and practice since April 2010.
- What’s in a name?
When I joined Latitude Law we made applications to the UK Border Agency (UKBA). In April 2013 that changed; UKBA was superseded by UK Visas and Immigration (UKVI), UK Border Force and Immigration Enforcement. Rather than straightforward correspondence with one organisation, individuals might now find themselves having to deal with all three. If there is difficulty when entering the UK, that is dealt with by UK Border Force. If the individual wants to apply for permission to remain in the UK, that application is made to UKVI. If the person is subject to reporting requirements while the application is under consideration, Immigration Enforcement manages that. For the lay person, it can be very confusing.
Of course, it wouldn’t be right to say that practicing immigration law was easy in 2010, but certainly it is true to say that some aspects were less complicated in the ‘old days’. Rebranding existing organisations/immigration routes/rules is a theme we will revisit below.
- If it ain’t broke…continue trying to fix it?
The Immigration Rules set out the specific requirements for leave to remain in the UK in any of the available categories. The rules are not primary legislation, meaning that they do not require parliamentary approval to be amended. As a result, they can be tweaked or totally re-written at any time, and in the past 10 years the government has made a lot of changes.
Since 12 April 2010 there have been 58 statements of change to the Immigration Rules. The highest number was in 2013 when 12 changes were made. So far in 2020, there have been two published amendments to the rules.
The regularity of these changes (it averages one every 2-3 months) can be a problem. When they are significant they are easy to spot and to remember. When they are slight (such a minor amendments to documentary requirements), it can be a minefield. Successive changes to the same route is similarly problematic, with multiple people ostensibly all in the same immigration category but in reality subject to very different rules to each other.
- Money, money, money
One of the starkest changes I have seen since 2010 is the price of applying to come to the UK and to remain living here. Take a look at the increases in a few selected categories:
Application Fee in April 2010Fee in April 2020% increaseShort-term visitor £68£9540%Settlement visa (eg a spouse application)£644£1,523 plus £1200 Immigration Health Surcharge (IHS), total £2723422%Sponsored worker in-country extension for 3 years, plus partner£475 + £92, total £567£704 + £704, plus IHS of £1200 per person, total £2,808495%Settlement (indefinite leave to remain)£840£2,389284%Naturalisation£735£133081%
Clearly the introduction of the IHS in 2015, has made a huge difference. Initially charged at £200 per year of visa, that increased to £400 per year in 2018. In October 2020 the surcharge is due to rise again, to £628 per year. There are discounts for students and the increase later this year will be less for children.
Even leaving the IHS aside, increases in some categories are just staggering. An 81% increase in naturalisation is bad enough, but 284% increase for settlement is just eye-watering. These fees are only going to rise again in future, making it harder and harder for migrants to afford the repeated applications they are required to make.
- Money can’t buy me love?
Applications for partner visas in April 2010 were not easy, but they were relatively straightforward. The assessment of the sponsor’s available income was based on what was adequate for the family, and could include third-party support, such as extra payments from other family members.
Since July 2012, those applying to bring a non-EEA partner to the UK must meet a minimum income requirement of £18,600 per year before tax. The figure rises if there are non-British children to be included in the application. There are other options for those with non-employed income or savings, but these do not assist low earners.
There has been widespread criticism of the policy since 2012. It disadvantages women, who are less likely to reach the earning threshold, and that threshold remains more than £500 over the income of a person on minimum wage working 40 hours per week. The figure of £18,600 appears to be completely arbitrary, something compounded by the requirement relating to partial reliance on personal savings, which discounts a person’s initial £16,000.
Since 2010 my colleagues and I have had countless conversations with families who just cannot find a way to meet the requirement, whether that’s because the income is too low or simply because they cannot satisfy the onerous documentary requirements without delay for 6 (or sometimes 12) months. There’s no denying then that over the past decade, the Immigration Rules have introduced more obstacles for families, and have raised existing barriers higher.
- If the cap fits…
Managed migration is a term often applied to the UK’s existing Points Based System. This is the part of the Immigration Rules focusing mainly on workers and students. In truth, all migration to the UK is managed in some way, but the Points Based System tends to have more requirements than some of the other options available.
Workers are sponsored for UK visas under Tier 2 of the Points Based System. This is split into 2 types of sponsored worker. Unrestricted workers are those already living in the UK in the Tier 2 route or an alternative route which allows switching to Tier 2. These unrestricted workers are able to change their jobs and/or their employers in the UK without the need to return to their home nation to make a new visa application. The number of unrestricted workers in the UK is not subject to an annual cap, giving employers and workers some flexibility about who is sponsored and when. Restricted workers are ‘new’ migrants applying to the come to the UK from outside. Their number is capped each year at 20,700 people, split into monthly allocations.
For the most part, the cap operates as nothing more than a mechanism which slows down the sponsorship process. The need to enter a monthly ballot for an allocation of restricted Certificates of Sponsorship can add several weeks onto the processing time for sponsorship overall, which can be very costly for an employer. It is a rare occurrence for the cap to be exceeded in any given month, but in late 2017/early 2018, this happened repeatedly, and it caused major issues. Organisations such as the NHS found themselves unable to recruit vital staff, and other employers were forced to raise wages above market rates to have a chance of qualifying in the monthly ballots. The Government response was to take NHS doctors out of the cap altogether; a measure which eased the pressure on the system, but somewhat undermines the argument for having a cap at all.
- As one door closes…
The past decade has seen the closure of several immigration routes aimed at those in employment or business. The first major route to fall by the wayside after I joined Latitude Law was Tier 1 Post Study Work. This allowed graduating students to remain living in the UK for a up to 2 years, giving an opportunity to gain work experience and perhaps even transition to a full-time role sponsored under Tier 2. The route was closed to new applicants in 2012 and Tier 2 was slightly amended to allow students to more easily transition in. After this, Tier 1 General closed in 2015. Before its closure, the route had allowed migration to the UK under a traditional points-based approach, with points awarded on a sliding scale for attributes such as age, education and previous earnings.
The issue with both of these routes was that UKVI considered them to be ripe for abuse, and so the response was to shut them down. We saw this happen again in 2019 with the closure to new applicants of Tier 1 Entrepreneur (and Graduate Entrepreneur). Long considered by UKVI to a route which could be exploited, Tier 1 Entrepreneur saw continuous amendments, moving away from the objective nature of the Points Based System to a completely subjective and unpredictable option for applicants. Other options that have seen closure include those for domestic workers, a tightening (and reduction) of options for permanent residence for an Intra Company Transfer sponsored worker, and more recently, closure of the Tier 1 Exceptional Talent option. However, Exceptional Talent is not a true example of closure of a route, for the reasons explained below.
- …another door opens?
In some cases, when UKVI has closed an immigration route, the introduction of a replacement or otherwise similar route has coincided, reducing the impact of the original route’s closure. The ‘new’ Global Talent route is an example of this. Introduced on the same day that Tier 1 Exceptional Talent was closed, this was just another example of rebranding being touted as a major change. The global Talent route does widen the scope of its predecessor, and creates opportunities for accelerated settlement that were not there before, but it is not truly a new option.
Other routes that closed did not fare so well with their successors. When Tier 1 General closed, there was absolutely nothing to replace it. The closure of Tier 1 Entrepreneur ushered in the introduction of the new Start-up and Innovator options, but these routes have flopped. The Innovator route saw just 4 applications in its first 3 months of operation and the numbers haven’t improved much in the past year. The Start-up route performs better, but this is because it effectively replaced the Graduate Entrepreneur option, and applicants can rely on the support of their existing UK universities. This is in contrast to Innovators, who need the backing of one of a smaller number of endorsing bodies with whom they may have no prior relationship.
While the Tier 1 Post Study Work route was not replaced at the time of its closure, the Tier 2 route was expanded to better accommodate those who were leaving education, and later this year we should see the introduction of a new Graduate Immigration route, which appears to be a return to the old PSW option (again, with a little rebranding).
- Some unappealing changes
Not content with reducing the immigration routes available to applicants, the government has also not been shy about restricting migrants’ opportunities to challenge decisions made by UKVI. The reduction of appeal rights has been achieved by various amendments to law, mainly via the introduction of the Immigration Act 2014.
The effect of the Immigration Act 2014 is that many types of UK immigration applications have no right of appeal against their refusal, this includes visit visas and work/study applications. In fact, for decisions made from 2014, an appellant may only appeal against refusal of a human rights or protection claim, EEA decisions, and some cases involving deprivation of citizenship.
Grounds of appeal are also restricted; for example, since 2014 it has not been possible to appeal a Home Office decision on the basis that an error has been made by the decision maker; the appellant must be able to show that this error has led to an infringement of their human rights in some way.
The changes to appeals go further still. The Immigration Act 2014 also introduced new provisions to the Nationality, Immigration and Asylum Act 2002, setting out how the tribunal must assess the public interest in immigration cases, and controlling the weight that can be given to relationships between appellants and their family members. These changes are profound and can be the deciding factor in many appeals.
However, not all Government changes work successfully. In 2017 the controversial “deport first, appeal later” provisions were found by the Supreme Court to be unlawful, as they deprived appellants of a proper opportunity to appeal against the refusal of their human rights claims. No doubt this measure will be revisited in future if the Government believes it can be supported; we need only look at the removal of suspected Windrush victims for proof.
- Brexit strategy
It would be impossible not to mention Brexit, a topic has dominated debate and my job for 4 years, and yet it will not be until 2021 that we start to see the effects of the UK’s departure from the European Union. Brexit has huge ramifications for UK immigration law. As free movements ends we will see not only a completely fresh immigration system (I’ll have to remember to re-set my counter for changes to the rules…) but also the continuation of the existing policy to document over 3 million EU nationals already living in the UK.
The EU Settlement Scheme has been operational since 2019 and – on the whole – has worked well. The vast majority of applicants have seen positive outcomes to their applications, but there remain some difficulties experienced by those with complicated work histories, criminal records, and those without the means or understanding of the online application system. A positive aspect of the scheme has been UKVI’s embracing of the use of tech to make applications less invasive and quicker to process. We hope to see the roll out of remote ID checking to other nationalities in future, for example.
The 2021 planned immigration system has less than 8 months to come to fruition. There are major changes for sponsoring workers, hopefully seeing relaxation of irritating and generally pointless requirements such as the Resident Labour Market Test. The success of the new system – in terms of its operation and its ability to meet the needs of the UK – remains to be seen, but 2021 will certainly be an interesting year for immigration lawyers.
- It’s all in the tech-nique
Let’s end on a positive, kind of! Since 2010 UKVI has made great improvements in application submission procedures, mainly in the past 2-3 years. Application forms are now available online, documents can be uploaded to the Home Office system in digital format (rather than sending huge bundles of valuable data by post), and where using in-country priority processing, the decision is communicated by e-mail, often within a few hours of biometric enrolment.
All of these measures have been very welcome, and we look forward to seeing how future innovations will make the immigration system even more user friendly. However, a less welcome change has been the introduction of Sopra Steria to the in-country application process. Sopra Steria is a company employed by the Home Office to run the UKVCAS system; the new method for enrolment of biometric information and document uploads. There is nothing wrong with the system itself, but with restricted access to biometric enrolment slots unless applicants are willing to pay extra to travel to premium centres or attend at premium times, there are issues. This is unacceptable additional expense about which applicants are not warned in advance. The delay to wait for a free biometric enrolment can be many weeks, which delays the processing of the application and can disadvantage the applicant. People pay enough for these applications (just see point 3), and these extra charges are unfair.
I have no certainty what my next decade at Latitude Law will bring. In some ways the world has never felt smaller, and changes coming in 2021 to lower the skill and salary level for sponsored employment seems to point towards greater recognition of the talents of migrants and how much they can enrich the UK. Despite this, the Government chose last week to double-down on its commitment against a route for ‘low skilled’ workers, ruling out future sponsorship for many roles currently dubbed ‘key workers’ as the UK tries to navigate the Coronavirus crisis. Perhaps we will emerge from this year with a different perspective on work and the breadth of skills which are necessary in our society, but only time will tell.
