INTRODUCTION TO THE LAW OF IMMIGRATION

The Immigration Acts (“The Immigration Acts” are defined by section 61(2) of the UK Borders Act 2007. They do not include the Extradition Act 2003 and connected legislation, which is more closely connected to criminal law than immigration law and is outside the scope of this book. As a result, extradition is not included as a purpose of detention under the Immigration Acts) provide powers of detention for the following purposes:

  • in order to examine immigration status;
  • in order to facilitate removal (“Removal”', in the context of this chapter, refers to administrative removal for breach of immigration laws, as opposed to deportation); and
  • in order to facilitate deportation (“Deportation”, in the context of this chapter, refers to expulsion under section 3(5) and (6) of the Immigration Act 1971-i.e. where the Secretary of State has decided it would be conducive to the public good to remove someone from the UK, e.g. because they have committed a criminal offence, or where, on a person being convicted of an offence, the sentencing court has made a recommendation that the person be deported).

These powers of detention come from the following statutory sources:

  • the Immigration Act 1971 (“IA 1971”) (Save where otherwise set out, all references to the Immigration Act 1971 are to the Immigration Act 1971 as amended);
  • the Immigration and Asylum Act 1999 (“IAA 1999”);
  • the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”);
  • the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”) (The EEA Regulations are not an Immigration Act but they are a portal to detention powers under the Immigration Acts); and
  • the UK Borders Act 2007 (“UKBA 2007”).
  • The Immigration Act 2014 (“IA 2014”) has just received Royal Assent. Sections 1 and 5 of IA 2014 propose an amendment to section 10 of IAA 1999 and paragraph 16 of Schedule 2 to IA 1971. Neither amendment has yet come into force and there is no timetable for when they will commence so they are not considered further.

    The fundamental structure of immigration law remains governed by the Immigration Act 1971 (“the 1971 Act”), which came into force on January 1, 1973, and the Immigration Rules made under it. Recent years, however, continue to produce much new legislation in the field of immigration and asylum law. The principal recent activities of primary legislation are the Immigration and Asylum Act 1999 (“the 1999 Act”), the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (“the 2004 Act”), the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”), the UK Borders Act 2007 (“the 2007 Act”) and the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”).

    Most persons who are not British citizens are subject to immigration control: the 1971 Act, ss.1, 2. They need to leave to enter or remain in the United Kingdom: the 1971 Act, s.3. In certain cases, entry clearance is required, either because of the applicant”s nationality or because of the purpose of his coming to the United Kingdom. The details are set out in the Immigration Rules. These are issued by the Secretary of State and laid before Parliament. The Rules set out how immigration control is to be administered: the 1971 Act, s.3(2). The Rules current at the time of writing are HC 395, as amended. The Immigration Rules set out the requirements for obtaining leave to enter or remain, providing generally applicable rules (Pts 1 and 9 of the Rules), as well as rules specific to certain categories of individuals seeking leave to enter or remain, such as visitors (Pt 2); applicants under the Points-based scheme (“PBS”) (Pt 6A); family members (Pt 8); and other categories including persons exercising rights of access to a UK resident child, EEA nationals, retired person of independent means, long residence and HM Forces/Gurkhas (Pt 7). Parts 3 to 5 deal with students, and those seeking leave to enter/remain for training or work. However, these categories are now largely dealt with under Pt 6A and the Guidance now included as part of the Rules in the Appendices. Parts 11-12 deal with those seeking asylum, humanitarian protection or temporary protection and Pt 13 deals with deportation and administrative removal. Appendix 1 of the Rules sets out those countries whose nationals require visas to enter the United Kingdom. Appendixes A to G set out additional requirements for the purposes of the various tiers under the PBS scheme. The Rules and Appendices (and much of the relevant legislation) are subject to regular changes but the current version of the Rules is available on the UK Border Agency website: http://www.ukba.homeoffice. Government.uk. The UK Border Agency is a full agency of the Home Office and was formed in April 2008. It deals with all matters that arise at the UK borders, including customs matters at the border formerly dealt with by HM Revenue and Customs and visa matters at the border formerly dealt with the Foreign and Commonwealth Office.

    It is important to note that not all the relevant information is contained in the Immigration Rules themselves. Other sources provide an explanation of how some of the terms are interpreted and what processes and procedures are generally required, for example Entry Guidance, Immigration Directorate Instructions and Asylum Policy Instructions. It is essential to consider the relevant Guidance alongside the Rules. The Guidance may be found within the UK Border Agency website (above).

    The Secretary of State retains a prerogative power to grant leave outside the Immigration Rules. When taking decisions on leave to remain outside the Rules, the Secretary of State is (as in any decision) required by s.6 of the Human Rights Act 1998 not to act incompatibly with the individual”s rights under the European Convention on Human Rights (“the ECHR”). Section 55 of the 2009 Act provides that the Secretary of State must make arrangements for ensuring that immigration, asylum or nationality functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom – see ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 W.L.R. 148.

    Leave to enter is granted by immigration officers or the Secretary of State, and may be granted on or before arrival in the United Kingdom. Leave to remain is granted by the Secretary of State: the 1971 Act, ss.3A, 3B, 4. If a person who has current limited leave applies for it to be varied, that leave continues until: (a) the application for variation is decided or withdrawn; or (b) during the period in which an appeal under s.82(1) of the 2002 Act can be brought against the decision on the application for variation; or (c) while an appeal under that section is pending: the 1971 Act, s.3C, as amended by s.118 of the 2002 Act. It is absolutely essential that when making applications the correct specified form is used and the correct fee paid, otherwise the application will be invalid: Immigration Rules, r.34.

    Since the previous edition there have been some significant changes in the Tribunal structure pursuant to the Tribunals, Courts and Enforcement Act 2007 (“TCEA 2007”). On February 2010, the Asylum and Immigration Tribunal was abolished and its functions transferred to the Immigration and Asylum Chamber of the First-tier Tribunal (“FIT”) and the Upper Tribunal (“UT”). Where an “immigration decision” (this is defined at s.82(1) of the 2002 Act) is made in respect of an application for leave to enter or remain in the United Kingdom, the person generally has a right of appeal to the FTT under s.82 of the 2002 Act, on any of the grounds set out in s.84 of that Act, although this is subject to exceptions (see below). Those grounds include that the decision refusing leave to enter or remain is not in accordance with the Immigration Rules (s.84(1)(a)); is unlawful under s.6 of the Human Rights Act 1998 (s.84(1)(c)), that the decision is otherwise not in accordance with the law (s.84(1)(e); or that a discretion conferred under the immigration rules ought to have been exercised differently (s.84(1)(f)). Appeals to the FTT need to be made on the correct form. This will usually be Form IAFT-1, but for appeals against an entry clearance officer”s decision Form IAFT-2 must be used and this will be issued at the same time as the refusal decision. Important categories of exceptions and limitations to the right of appeal are contained in ss.88 to 98 of the 2002 Act, as amended.

    The time limit for appealing against any decision or action of an immigration authority varies according to whether the appellant is in the United Kingdom or abroad when served with notice of the decision and, if the appellant is in the United Kingdom, whether he is detailed under the Immigration Activities, and if so whether the fast track procedure. The Notice of the immigration decision must be served in accordance with the Immigration (Notices) Regulations 2003, in order for time to begin to run against the appellant. The appellant has 10 days in the case of an in country appeal (although there are detailed provisions to when the 28 days starts to run): Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230), r.7. There is a right of appeal to the UT on a point of law, with the permission of the FTT or UT, from decisions of the FTT which are not excluded decisions: TCEA 2007 s.11. The time limit for making an application for permission to the FTT is five working days from deemed service of the FTT”s decision for an in country appeal, or 28 days for an out of country appeal: SI 2005/230, r.24, An application for permission to appeal to the UT may be made to the UT only if the FT has refused permission to appeal or has refused to admit an application for permission to appeal because it was made out of time. An appellant in the United Kingdom has seven working days after the FTT”s decision was sent (Five working days if the decision was delivered personally or sent electronically) or, if the appellant is outside the UK, he has 56 days (28 days if the decision was delivered personally or sent electronically). The Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) governs the practice and procedure to be followed by the UT. If the UT finds that the making of the decision with which the appeal is concerned involved the making of an error of law it may, but need not, set aside the decision of the FTT. If it does, the UT will generally re-make the decision itself. The UT also has a judicial review jurisdiction. The First-tier Tribunal and Upper Tribunal (Chambers) (Amendment) Order (SI 2011/2342) and the Tribunal Procedure (Upper Tribunal) Amendment) Rules 2011 (SI 2011/2343) add and regulate a new function to the Immigration and Asylum Chamber of the UT. It enables the UT to deal with a “fresh claim” judicial review applications made either directly to it or transferred from the High Court. A “fresh claim” judicial review is one which calls into question a decision of the Secretary of State not to treat submissions as an asylum claim or a human rights claim on the basis that they are not significantly different from material that has previously been considered. Any part to an appeal to the UT has a right of appeal to the Court of Appeal or Court of Session on any point of law arising other than an excluded decision (excluded decisions include a decision of the UT on an application for permission to appeal from the court to which the application is made considers that the proposed appeal would raise some important point of principle or there is some compelling reason for the appellate court to hear the appeal: TCEA 2007 s.13(6). The ambit of this additional requirement has thus far been interpreted narrowly and “compelling” has been held to mean legally compelling as opposed to compelling because of breaches to ECHR and International Convention Rights: PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988.

    A person appealing against refusal of leave to enter has to leave the United Kingdom before he can appeal, unless he has entry clearance or a work permit, is in the United Kingdom at the time of refusal and certain other conditions are met: see s.92 of the 2002 Act, as amended. An applicant will generally not be able to avoid the inconvenience of pursuing an out of country appeal by bringing an application for judicial review: R. v Home Secretary Ex P. Swati [1986] 1 W.L.R. 477, CA; although a person cannot be required to leave the United Kingdom if this would be incompatible with his rights under the ECHR.

    Immigrants who are liable to removal include: those refused leave to enter; illegal entrants; overstayers; those in breach of their conditions of stay; those using deception and family members of those liable to removal. The fact that a person is liable to be removed does not mean that he should be removed. In the case of those liable to removal under the 1999 Act, s.10, the Immigration Rules set out the factors the Secretary of State must take into account at para.395C.

    Deportation is the process whereby a non-British citizen can be compulsorily removed from the UK and prevented from returning unless the deportation order is revoked: Immigration Act, s.5(1) and (2). Persons who are not British citizens or not within an exhaustive list of exemptions (including diplomats) may be deported on certain grounds: if the Secretary of State deems their deportation to be conducive to the public good; if a member of their family is being deported; if a Court recommends their deportation; or if they are subject to the automatic deportation provisions in the 2007 Act, s.32. This section allows for automatic deportations under certain conditions where the individual is a foreign criminal. Automatic deportation is a separate immigration decision and distinct from other forms of deportation (from which there can be an appeal under the 2002 Act, s.82(2)(j)) and there is a right of appeal under s.82(3A) of the 2002 Act. There is an appeal right against a refusal to revoke a deportation order (s.82(2)(k)). Such an appeal will normally be out of country. However, where a fresh asylum or human rights claim is made as part of the application for revocation, this qualifies the claimant for an in country right of appeal under 2002 Act, s.92(4), unless the claim is certified as clearly unfounded under s.94 or excluded under s.96. This is similar where the claimant asserts that the decision breaches his EEA rights, in which case the appeal is in country.

    Citizens of Members States of the European Union do not need leave to enter: Immigration Act 1988 s.7. However, they may be refused entry, or removed, on public policy grounds: Immigration (European Economic Area) (Amendment) Regulations 2009 (SI 2009/1117), rr.19-21. The Regulations make provision for persons claiming to be qualified persons and family members (as well as former family members) of qualified persons. Where the UK fails to implement the Citizens Directive (Directive 2004/38/(EC)) correctly, the individual will be able to rely on the provisions of the Directive for direct effect.

    Claims for asylum are determined by the Secretary of State in accordance with the United Kingdom”s obligations under the United Nations Convention and Protocol relating to the Status of Refugees: (HC 395) r.328. Article 1A(2) of the Refugee Convention, as amended, defines a refugee as any person who:

    “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence … is unable or, owing to such fear, is unwilling to return to it.”

    Where the Secretary of State decides the asylum application on substantive grounds (as opposed to deciding to send the asylum-seeker to a third country, as to which see below), he will generally make an immigration decision such as a refusal of leave to enter, against which there will be a right of appeal to the FTT under ss.82-84 of the 2002 Act. Those provisions also provide a right of appeal where the individual contends that removal from the United Kingdom would be unlawful under s.6 of the Human Rights Act 1998. An appeal against an immigration decision on asylum or human rights grounds may be exercised from within the United Kingdom unless the Secretary of State proposes to remove the individual to a “safe third country” and has issued a certificate under Pts 2 to 5, Sch. 3 of the 2004 Act, or where the Secretary of State is satisfied that the asylum claim is clearly unfounded and issues a certificate to this effect under s.94 of the 2002 Act. Similarly, the right of appeal in relation to a human rights claim may be exercised from within the United Kingdom unless the Secretary of State issues a “clearly unfounded” certificate under s.94 of the 2002 Act. The decision of the Secretary of State to certify an asylum and/or human rights claim as clearly unfounded can only be challenged by judicial review. A further or fresh human rights claim may be accepted if it meets the requirements of the Immigration Rules, r.353: see WM (Democratic Republic of Congo) v Secretary of State for the Home Department [2006] EWCA Civ 1495. A refusal to treat an asylum or human rights claim as a fresh one can only be challenged by way of judicial review.

    In cases of national security, there is a special procedure: Special Immigration Appeals Commission Act 1997.