York, S. (2018). The ‘hostile environment’: How Home Office immigration policies and practices create and perpetuate illegality. Journal of Immigration, Asylum and Nationality Law [Online] 32. Available at: https://www.bloomsburyprofessionalonline.com/view/journal_immigration/b-17467632_32-4-0000891.xml?p=emailAW1UlIK5X.51Y&d=/journal_immigration/b-17467632_32-4-0000891.xml.
The UK’s ‘assume illegal unless prove otherwise’ style of immigration control, highlighted in Theresa May’s 2013 announcement to create a ‘really hostile environment’ for illegal migrants, started long before Theresa May, and has affected many more than those here illegally. Not just the well-publicised fate of ‘Windrush’ people, lawfully present for decades, but also lawful migrants facing Home Office mistakes or unable to afford Home Office application fees have found themselves treated as unlawful or even becoming unlawful.
In this article I examine the range of ‘hostile’ immigration measures starting during the 1980s Thatcher regime and continuing through the 1997-2010 Labour government. Access to rights and entitlements in civil society have become increasingly based on immigration status, in relation to which the burden of proof lies wholly on the applicant. This has led to a shift in the meaning and use of the term ‘illegal’ as in the phrase ‘illegal migrant’, etc. As proof of those rights and entitlements increasingly rests on showing increasing numbers of specific original documents in a multiplying set of circumstances to diverse bodies, the very definition of ‘illegal’ shifts from being an objective definition of a person’s status under the law to a contingent relation between the person and whichever private or public entity she faces in order to obtain a right or entitlement. Then, as responsibility for immigration control and enforcement has increasingly been outsourced, migrants have become legally distanced from decisions made about them: deprived of agency and left without remedies. Thirdly, the UK’s ‘hostile’ immigration policies consist in far more than the recent ‘hostile environment’ measures. A combination of decades of Home Office mismanagement, coupled with the more recent deep cuts in Home Office, tribunal and court staff, the increased number, cost and complexity of immigration applications, cuts in rights and grounds of appeal and withdrawal of legal aid leaves applicants both practically and legally precarious. I conclude that far from reducing numbers of ‘unlawful migrants’, as the ‘hostile environment’ policies were designed to do, effectively it is Home Office policies which themselves create and perpetuate illegality.
York, S. (2017). Deportation of Foreign Offenders – a critical look at the consequences of Maaouia and whether recourse to common-law principles might offer a solution. Journal of Immigration, Asylum and Nationality Law [Online] 31. Available at: https://www.bloomsburyprofessional.com/journal/journal-of-immigration-asylum-and-nationality-law/.
York, S. (2017). The Law of Common Humanity: revisiting Limbuela in the ’Hostile Environment’. Journal of Immigration, Asylum and Nationality Law [Online] 31:308-329. Available at: https://www.bloomsburyprofessionalonline.com/view/journal_immigration/JINL-31_4-4.xml.
Introducing an Immigration Bill in 2013, Home Secretary Theresa May famously promised the introduction of a ‘really hostile environment’ for ‘illegal migrants to Britain’. This policy has its predecessors. In 1996, after losing a court battle over the lawfulness of restricting asylum-seekers’ access to benefits, the government introduced primary legislation providing that no migrants apart from specified exceptions would be entitled to mainstream social assistance (income support) or social housing. In particular, this excluded those who claimed asylum after entering the UK, unless they had dependent children. Injunctions were granted for applicants found foraging for food in dustbins and begging outside tube stations. The Court of Appeal decided in MPAX that local authorities had the power, and a duty, to support such applicants under s21 National Assistance Act (NAA) 1948, as they were ‘in need of care and attention’ and moreover were entitled to remain in the UK awaiting determination of their asylum claim. In response to this, Labour introduced a new national asylum support system in the Immigration and Asylum Act 1999. Then, in response to a sharp increase in asylum claims, further primary legislation in 2002 provided that those asylum-seekers who had not claimed asylum ‘as soon as reasonably practicable’ would be refused all access to support. Some hundreds of High Court injunctions, backed up by campaigns, evidence and legal interventions from NGOs, churches and community groups, eventually led to the House of Lords decision in Limbuela that, since a breach of art 3 ECHR was clearly foreseeable, refusal of support was unlawful.
The modern ‘hostile environment’ measures target migrants unlawfully present in the UK. The reality is that these measures are likely to catch families, young people, those in long Home Office and tribunal backlog queues awaiting the outcome of an application or appeal, and failed asylum-seekers and others who cannot return home. This paper explores the political, social and legal contexts for the earlier litigation on behalf of destitute migrants. I then consider the barriers to the achievement of a Limbuela for our time.
York, S. (2015). Revisiting removability in the ’hostile environment’. Birkbeck Law Review [Online] 3:227-257. Available at: http://www.bbklr.org/3-2-3.html.
Evidence shows that there may be more than 800,000 migrants living unlawfully in the UK, of whom a significant proportion, especially those who have been here a long time, may find it difficult to obtain national documents and return to their country of origin. The 2000’s saw extended delays in Home Office casework and growing backlogs in several categories of migrant, especially asylum-seekers, but also foreign national prisoners targeted for deportation. However, inspection reports and evidence in leading cases show that the increasingly shrill pronouncements about removing unlawful migrants, and in particular foreign prisoners, is not being matched by any significant increase in numbers removed. The recent Home Office measures aimed at ensuring a ‘hostile environment’ for unlawful migrants such that they will make a voluntary departure cannot achieve that aim unless those migrants can be documented and there is a country willing to accept them. Since the law provides only a limited basis for granting leave to remain in such circumstances, the effect of such policies can therefore only be the further immiseration of those migrants.
York, S. (2015). Immigration Control and the Place of Article 8 in the UK Courts - an update. Journal of Immigration, Asylum and Nationality Law 29:289-307.
Propelled by the commitment to ‘reduce net migration to the tens of thousands’ and a decision to expel all ‘foreign national criminals’, the coalition government took steps to reduce the reach of article 8 ECHR. Following the 2012 introduction of the new family migration and private life rules most of the early leading cases concerned deportation appeals of foreign national prisoners, and considered to what extent the new rules provided a ‘complete code’ for balancing the individual’s right to family life against the Secretary of State’s view of the public interest. Alongside that litigation, the High Court and Court of Appeal considered the lawfulness of the new financial requirements for family migration, and the Court of Appeal decided in July 2014 that those were not incompatible with the Convention, and briskly clarified the ‘complete code’ issue.
However, many decisions by the Secretary of State and the FTT maintained that in the absence of any ‘exceptional or compelling circumstances’ there was no need to consider article 8 at all. Further litigation appeared to re-establish that if an applicant unable to meet the rules could point to circumstances engaging art 8, and where such consideration would not simply arrive at the same answer, then those circumstances should be considered, following Huang and Razgar as before.
In July 2014 the Immigration Act (IA) 2014 introduced a new Part 5 into the Nationality, Immigration and Asylum Act (NIAA) 2002, headed Article 8 of the ECHR: public interest considerations, placing the government’s view on article 8 firmly in primary legislation. While the Upper Tribunal, considering the new ss117A-D, quickly decided that even where the rules appear to provide a ‘complete code’, there was still room for the exercise of discretion, a series of Court of Appeal cases on deportation of foreign criminals stress the need to consider article 8 ‘through the lens of the rules’, and emphasise the ‘great weight’ to be given to the Secretary of State’s expression of the public interest. Meanwhile, in April this year the Inner House of the Court of Session (in Mirza and other cases) handed down judgments appearing to follow the ‘previous caselaw’ approach.
This article examines the main cases and considers the constitutional and practical implications.
York, S. (2013). The end of legal aid in immigration: A barrier to access to justice for migrants and a decline in the rule of law. Journal of Immigration, Asylum and Nationality Law 27:97-194.
The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 declared the end of legal aid in immigration in England and Wales except for a few strictly specified exceptions. Access to justice will be denied for large numbers of migrants and their families. The changes will also mean the large-scale removal of effective legal checks on UK Border Agency decision-making in immigration matters, a significant increase in litigants in person in the Tribunals and the High Court, an inevitable drop in quality of legal argument, and, arguably, in judicial decision-making. Immigration is of course not the only area of law in which this decline is likely to take place, but is the only area in which the loss of legal aid is likely to lead directly to the break-up of families and the removal of long-term residents from the UK in breach of their human rights.
However, before we simply blame the recession, or the present government, we should look back over the years to see how the management of legal aid and legal advice in the broadest sense in the areas of immigration and asylum has been littered with unintended consequences including the chaos of perverse contractual incentives and the driving out of excellent, committed and brilliant lawyers, exhausted by the attempt to make quality pay. In this analysis we can see the declining quality of provision of publicly-funded legal services in immigration and asylum as a paradigm for a wider problem of how to maintain and improve standards in a public service delivered by a profession but controlled by price.
York, S. (2010). Challenging ‘Dublin’ removals to Italy in the UK Courts. Journal of Immigration, Asylum and Nationality Law 24.
York, S. and Fancott, N. (2008). Enforced destitution: impediments to return and access to section 4 ‘hard cases’ support. Journal of Immigration, Asylum and Nationality Law 22:5-26.
York, S. (2019). Global Compact on Migration December 2018 - can a people-centred approach solve the migrant crisis?. In: Socio-Legal Studies Association Conference 3-5 April 2019.
On 11 December 2018 a UN conference celebrated the adoption of the “First-Ever Global Compact for safe, orderly and regular migration”. This Compact’s strategic intention is to confine global migration to regulated and controlled flows.
In this Compact, the majority of the world’s nation states have put their names to what amounts to a detailed description of what social, political, cultural and legal life should be like, in every part of the world, albeit seen through the prism of “migration as a global problem”. Sustainability policies are directed to assist ‘sending’ countries develop ‘resilience strategies’ to protect against slow and fast-acting disasters, and provide economic, social, health and educational programmes sufficient to ensure that their nationals are not impelled to emigrate in order to seek a better life. Countries both of ‘transit’ and ‘destination’ are encouraged to provide accommodation, subsistence, health care, educational and work opportunities for migrants, as well as reducing bureaucratic barriers to applying for visas. ‘Destination’ countries are encouraged to facilitate family reunion for temporary migrants, reduce precariousness, and encourage integration.
What is being proposed here is effectively the most highly-regulated and public-spirited management of the global capitalist system to provide a healthy, safe and fulfilling life for everyone, though here with the spotlight on migrants. Yet there is no mention at all of politics, economics, religion, or culture, (and only a bare whisper of a reference to climate change) and therefore no recognition or assessment of the different, ideas, beliefs, forces and processes at work in the world which drive migration.
Drawing on my own casework for asylum-seeker clients from one ‘sending’ country (Eritrea) and one ‘transit country’ (Italy) and for asylum and family migrants in one ‘destination country’ (the UK), I examine whether the Compact’s application of a people-centred approach to all migrants can transcend the forces of global capitalism.
York, S. (2018). Can only victims win? – how UK immigration law has moved from consideration of rights and entitlements to assertions of vulnerability. In: Society of Legal Scholars.
Looking at two prominent moments in UK immigration law, I assess how UK political changes have affected immigration law and practice.
In 1968, the newly-independent Kenya’s ‘Kenyanisation’ policies had a catastrophic impact on those ‘Kenyan Asians’ who had elected to retain British passports rather than take Kenyan citizenship. As growing numbers fled to the UK, the Labour government rushed the Commonwealth Immigrants Act (CIA) 1968 through Parliament. This deprived the Kenyan Asians of the rights flowing from their citizenship. The debates in Parliament, in the media and in wider society confronted head on the UK’s arguable breach of international law, and the political and practical difficulties of arguing for a multiracial society with equal rights for all, in circumstances in which many migrant communities faced poor housing, inadequate school provision and discrimination at work.
In contrast, the 2012 introduction of new Immigration Rules on family migration, considered in the House of Commons on 19 June 2012, had engendered little public debate beyond lawyers and NGOs. Virtually ignoring the underlying aim of reducing net migration to the ‘tens of thousands’, and the likely effect of the rule changes on ordinary families, the Commons debate concentrated on how judges’ interpretations of art. 8 ECHR rights had prevented deportations of ‘foreign national criminals’, requiring a clear statement in the Rules of how art. 8 would be applied in future.
Since then, Home Office policy and practice and applicants’ legal strategies and public campaigns have focused on vulnerability. Courts struggle over definitions of ‘exceptional circumstances’, ‘unduly harsh’ consequences, ‘insurmountable obstacles’ and the ‘precarious’ migrant, while campaigns focus on unfortunate individuals, children, trafficked and other abused victims. I suggest that this apolitical resort to assertions of vulnerability, analogous to Samuel Moyn’s ‘last utopia’ of human rights, is a blind alley, and that instead we need to start, or re-start, a political debate about ‘belonging’ and migrants’ rights and entitlements.
York, S. (2016). The unravelling of ’administrative justice’ in immigration and asylum. In: Society of Legal Scholars Annual Conference.
Since the 70’s UK immigration law and procedure have changed significantly. Recent changes have limited the categories under which people may enter or remain in the UK, and, by way of procedural and other policy changes, made it more difficult for people to make applications or challenge refusals. Rights of appeal and access to appellate tribunals and courts have been reduced and even abolished. Application fees have increased and fees introduced for appeals. Because of the specific ways in which procedures and controls affecting migrants are delivered, access to appeals and public law remedies have become less effective. The specific statuses granted to migrants have been limited, and ‘routes’ to settlement and citizenship have been lengthened and for some categories excluded altogether. Migrants accepted into ‘routes’ to settlement face ever longer periods legally defined as ‘precarious’ before acquiring permanent residence. These changes have served to distance those migrants, and the processes to which they are subject, from standard norms of public administration. This paper explores aspects of immigration control contracted out to private bodies, and procedures in which private bodies and individuals are recruited to carry out immigration checks, in order to examine the nature of that distancing, and consider to what extent the rule of law can be said to apply in this new world in which the migrant is less and less a party to legal operations affecting them.
York, S. (2016). Undesirable, Unreturnable and no effective remedy. In: Undesirable and Unreturnable: POlicy Challenges Around Excluded Asylum-Seekers and Other Migrants Suspected of Serious Criminality But Who Cannot Be Rmoved.
The Immigration Act 2014’s measures respecting foreign criminals and those unlawfully present on UK territory represent a fundamental attack on the rule of law. The Act declares that the deportation of foreign criminals 'is' in the public interest, presaging revocations of leave and new refusals for those previously granted leave after their criminal convictions. Such would arguably amount to the imposition of retrospective criminal penalties in breach of art 7 ECHR and/or denial of a fair trial in breach of art 6 ECHR. Section 17 removes appeal rights against deportation for foreigners convicted (or suspected) of criminal conduct until they have left the UK, unless they would face ‘a real risk of serious irreversible harm’. However, many migrants, lawfully or unlawfully present, cannot obtain national documents and are therefore unable to leave the UK. Unless removal is ‘simply impossible’ (the 'Hale threshold’, as set out in Khadir) such people will remain indefinitely on temporary admission. To be unable to leave the country to exercise a right of appeal accessible only from outside the UK amounts to a denial of an effective remedy under art 13 ECHR. Similarly, to be unable to leave the UK but have no access to accommodation, support, work, benefits or healthcare unless meeting legally-demanding tests must be challengeable. The exclusion of immigration law from the scope of Arts 6 and 7, confirmed by Maaouia and barely challenged since, rested on an acceptance that immigration control is a purely administrative matter, amenable only to public law challenge: and on there being other remedies for 94bthose facing expulsion. Both the changing legal character of immigration control, and the diminishing access to other remedies, demand a detailed review of that judgment.
York, S. (2015). Rehabilitation or transportation - what now for ’home-grown’ foreign national prisoners?. In: Annual Conference of The Society of Legal Scholars.
Deportation, and immigration control generally, are held not to enjoy the protections of article 6 ECHR (right to a fair trial in a civil or criminal matter) or article 7, which outlaws retrospective criminal penalties. However, the Immigration Act 2014 declaration that ‘deportation of a foreign criminal “is” in the public interest’ has opened the way to retrospective measures against foreign criminals, even long residents with leave to remain. The Act’s formal limits on access to article 8 ECHR and curtailed appeal rights for foreign criminals mean that the ‘effective remedy’ available to ‘aliens’ under article 13 barely applies. This paper argues the need to consider how the current position measures up to the standards of certainty and finality formally protected by the ancient concepts of double jeopardy and res judicata, and consider whether a blanket exclusion of immigration issues from articles 6 and 7 can still be justified. I examine how autrefois convict and autrefois acquit may be applicable where the criminal sentence discussed but did not include a recommendation for deportation, and how res judicata may be applicable where a foreign criminal has already won an appeal on art 8 grounds, or, by analogy, where leave to remain has been granted subsequent to the criminal conviction. I look at whether deportation appeals for unconvicted suspects facing unsupported police evidence amount to a ‘determination of a criminal charge’ despite being neither a criminal or civil trial, and whether deportation as a result of such must amount to a ‘penalty’, so as to engage articles 6 and 7 ECHR.
York, S. (2015). Fresh claims for asylum since Rahimi - legal consequences and procedural barriers. In: Socio-Legal Studies Association Annual Conference.
An asylum claim in UK law, and the right to have that claim determined inside the UK, both rest straightforwardly on the UN Convention on Refugees and the prohibition of refoulement to the country of persecution. More problematic, and more contested, are the procedures applied to asylum-seekers, and the conditions under which they are forced to live. Driven by the significant increase in asylum-seeker numbers in the late 90’s, major new legislation dealt with the asylum process, with legal aid for asylum appeals, and with housing and social assistance for asylum-seekers. Lengthy delays in processing claims, along with rapid changes in country conditions, new wars, internal strife and genocides, led to the phenomenon of the ‘fresh claim for asylum’.
In 2005 Kent Law Clinic’s case of Rahimi , confirmed on appeal in WM(DRC) , determined that the threshold of ‘realistic prospect of success’ for a fresh claim was low, and that that ‘prospect’ referred to success before an adjudicator in an appeal.
The legal and practical importance of that judgment cannot be understated. The ‘recording’ of a claim as a fresh claim attracted a fresh in-country right of appeal, provided a passport to asylum support and, for some, the right to work. For many asylum-seeking communities and many representatives, a ‘fresh claim’ came to be seen as simply the next stage in their ‘case’. Government responses include controlling the instigation of a fresh claim and its consequent entitlement to housing and social assistance, the decision to hive off ‘fresh claim’ judicial reviews to the Upper Tribunal, and, from 26/1/2015, to require all ‘further submissions’ to be lodged in person in Liverpool.
This paper examines developments in the law on fresh claims, the impact of Home Office defensive measures, and legal challenges in response.