UK Illegal Immigration

Introduction

Illegal immigration is described in the Immigration and Asylum Act 1999, section 115 as entering the UK without leave to enter the territory. Seemingly simple, the defining of illegality of migrants is in reality a complex process, not just in the UK but other western democracies as well. As this essay will argue, the legal and policy based environment towards immigrants in the UK is hostile and the current approaches to defining of illegal immigrants blurs the distinction between immigrants and refugees as well as leads to implications for the way in which human rights of the immigrants are approached in the UK. This essay critically analyses the approach to illegal immigration in the UK. The essay explores whether there is hostile environment in the UK to immigrants and whether the laws and policies in the UK are designed to tackle “illegal” migration and whether the current approach is effective.

Law related to illegal immigration in the UK

At the outset, it would be useful to understand how illegal immigration is defined in the law of the UK. As mentioned at the outset, illegal immigrants are defined in the Immigration and Asylum Act 1999, section 115 in terms of the process by which people enter into the UK, that is, they are defined as persons who have entered the UK without leave. Additionally, there are other persons who may come within the definition of illegal immigrants. Thus, individuals may be defined as illegal immigrants because they have entered into the UK without leave as under Immigration Act 1971, section 24. Even if people entered the UK with leave, they could be defined at a later point at illegal immigrants like if they obtained leave to enter the UK by deception, as under Immigration Act 1971, Section 24A (1). Similarly, Immigration Act 1971, section 24(1)(b)(i)) provides that persons once granted leave will be termed as illegal immigrants if they remain beyond time limited by leave. Similarly, Immigration Act 1971, section 24(1)(b)(ii) provides that persons given leave to enter will be still called illegal immigrants if they fail to observe a condition of leave granted. Therefore, it can be seen that from a legal point of view, illegality can be related to different ways in which the person’s entry into the UK is compromised in terms of permission to enter. However, illegality can also be constructed in other specific ways in western democracies like the UK; an example can be seen in how as De Genova writes about the construction of illegal immigration on par with criminalization in the western democracies. In other words, illegal immigration can be constructed as criminality and this essay will consider how the UK law and policy has indeed managed to link illegal immigration with criminality as depicted in its policies like immigration detention.

There are two obvious problems that can be noted here with respect to the construction of illegal immigration in the UK and other western countries, and the next part of this essay will put forth arguments to support these contentions. First, there is a tendency to equate illegal immigration with criminality; second, the immigration law itself “irregularises” people by making it difficult to attain regularization of immigrant status and it is aided by economic measures that tend to otherise the immigrant. With respect to the first point, an example can be given of the immigration detention policy under the Immigration Act 2016 to make the UK less attractive to illegal immigration.

Historically, there are many laws and rules that may also be considered here to understand how law has been used to control or even criminalise immigrants, although many of these laws are no longer relevant. Immigration Act 1971 and the Immigration Rules are relevant to the administration of immigration and these outline the practices to be followed for applications for entry. Considerable powers are given to the Secretary of State and the Entry Clearance officers for making immigration decisions. There are other laws in which similar powers are given to specified authorities in the UK. The UK Borders Act 2007 gives the power to automatically deport foreign workers imprisoned for specified offences or jailed for more than a year; immigration officers also have the power to detain illegal immigrants. Immigration officers also have been given powers to search and entry into residence of suspected unlicensed foreigners. The Act also mandates compulsorily deportation of foreign criminals over the age of 17 who are sentenced more than a year in prison except in cases where such deportation would be contrary to rights under UN Refugee Convention 1951 or the European Convention of Human Rights under Section 33. As this is a mandatory requirement, the Secretary of State was obliged to make deportation order unless ECHR rights were engaged by deportation.

The Asylum and Immigration Appeals Act 1993 was relevant to the asylum applications and it provides the conditions on which a such applications can be made for the purpose of asylum. It may be noted here that the United Nations Refugee Convention 1951 and the Status of Refugees Protocol 1967 is also applicable to defining who refugees or asylum seekers are and under the Refugee Convention, individuals with well-grounded fear of persecution in their country due to their nationality, race, religion, or political opinion can make such applications. Although, the Asylum and Immigration Appeals Act 1993 is meant to regulate asylum seeking applications in the UK, and in that sense, it may be expected to provide aid to the asylum seekers as per the provisions of the Refugee Convention, there is a deliberate attempt in the law to reduce the financial liability on the government as can be seen in the provisions of section 4 that reduces the obligation of housing authorities under the homelessness legislation concerning the people granted asylum. Indeed, there are other provisions in the law that suggest the deliberate attempt to reduce the burden on the government to provide benefits to refugees; an example can be seen in the Immigration and Asylum Act 1999 which removed benefits given to asylum seekers and established the National Asylum Service to accommodate them.

Applications for asylum can also be rejected and section 8 is provided in that context which allows the asylum seeker to file an appeal before a special tribunal before deportation. An accelerated appeals process has been provided under the Asylum and Immigration Act 1996, however, the problem is that section 2 of this Act mandates such right of appeal against removal to safe third countries in the European Union and Canada, Norway, Switzerland, and the USA, only from abroad. This is particularly emblematic of the approach of the law and policy makers to tighten immigration rules, irrespective of the impact of such restrictions on human rights. To require people to leave the UK in order to apply for leave to enter can prove especially difficult for those with family in the UK as happened in one case where the individual questioned the proportionality of the order of the Secretary of State; however, the Tribunal held that the applicant would have to establish that leaving the UK to make an application for entry clearance would place ‘insurmountable obstacles’ to their family life in order to allow permission to make an application from the UK. To go back to the argument made by Calavita, where she says that immigration law itself “irregularises” people by making it difficult to attain regularization of immigrant status and it is aided by economic measures that tend to otherise the immigrant, it can be said that the order of the tribunal is an example of such approach. When the tribunal demands that nothing short of ‘insurmountable obstacles’ in family life would allow the applicant the relief of making an application from the UK, it is a manifestation of the approach to immigration.

The construction of legality has also become more deterministic on the basis of desirable characteristics of immigrants, as is seen in the National, Immigration and Asylum Act 2002 which requires that English test and citizenship exam is to be administered to immigrants to determine their suitability for immigration into the UK. Finally, as noted above, there has been a tendency of the immigration law and policy to make it difficult for immigration status to be regularised, meaning that the irregularisation of immigrant status is more easily constructed. An example can be seen in the Borders, Citizenship and Immigration Act 2009 which provides that for naturalisation, a person must have been living in the UK for 8 years or more and naturalisation through marriage can only be considered after five years of marriage before application could be considered. It may be noted here that British nationals were able to circumvent the otherwise restrictive rules on family migration by having recourse to free movement rights under the EU law; however, Brexit would change that situation for citizens of the EU nations. It may also be noted that construction of illegality with regards to family migration is not significantly different in terms of treatment under the law and the UK law has been restrictive in this context as well. For instance, the Immigration Act 1971, section 1(4) obliges the Secretary of State to make rules governing certain kinds of entry into the UK but does not exclude the admission of a resident’s family members into the UK from this obligation and the Human Rights Act 1998, section 6 (3) provides immunity from action in a court in such cases for the authorities.

Thus, a British resident’s family member also need to meet the requirements of the Immigration Rules although some recourse has been found under article 8 of the ECHR on the basis of human rights considerations. Cases like MM (Tier 1 PSW; article 8-private life), have followed the ECtHR jurisprudence that Article 8 applies to “the totality of social ties between migrants and the community in which they live.

However, even in cases involving family, there may be little scope for regularisation of immigration or even leave to enter the UK unless the strict norms of immigration law are not found in the case, even if human rights aspects are involved; this can be seen in the case of Lagos v Imoh, where the tribunal in the UK refused to apply article 8 to give leave to enter to a 4 year old orphaned niece of a British woman, on the ground that the niece had met her aunt only once before. Another case that reflects on this position of the courts in the UK is seen in MB (Somalia) v ECO, where the Court of Appeal refused to allow leave to enter to an old woman who was the mother of a naturalised British citizen on the ground that because there was a ten year separation between the son and the mother family life is not established for the purposes of article 8. This decision seems perverse considering that many individuals spend years trying to get naturalised and are not able to visit their home countries in that time for different reasons and to deny such individuals to bring their family to the UK would mean that they are either faced with the prospect of leaving UK to be with their family or not live with them altogether.

There is a distinction between refugees and other illegal immigrants, which is not appreciated in the law and policy of the UK. This is a serious criticism of the current approach to immigration in the UK and is to be seen in the light of the Immigration and Asylum Act 1999, section 115 which says that illegal immigrants do not have the right to stay in the UK. A person’s illegal immigration status can also be due to the fact that such persons could not have applied for leave to enter because they are refugees. Research shows that due to the complexity and lack of clarity associated with the defining of illegal immigrants in the context of refugees, these individuals have certain disadvantages attached to their status. Moreover, Home Office is also known to be slow to act on applications for asylum which just pushes the status of illegal immigrant indefinitely at times for many of these individuals. The problem with this approach is that despite being some of the most vulnerable groups coming from home countries to escape armed conflict, or persecution, such individuals are not provided the needed protection of the refuge.

Hostile environment

Recently, in their report on the ‘Handling of the Windrush situation’, the National Audit Office has explained what hostile environment is by noting that hostile environment involves the limiting of access to benefits and services and tightening enforcement activities and applying a ‘devolved approach’ that places duty on landlords, employers and public service providers to check and report on immigrants being illegal or they do not have documents. The National Audit Office goes further to note that the Home Office has not adequately prioritised the protection of those who suffered distress through being wrongly penalised and instead chose to adopt a target-driven environment for its enforcement teams.

Hostile environment with regard to Windrush generation is also explained by the Equality and Human Rights Commission under a Section 33 report in which they find that the Home Office did not comply with section 149 of the Equality Act 2010 which refers to their Public Sector Equality Duty with respect to the Windrush generation. These two reports are useful in contextualizing what hostile environment means for the immigrants by using the Windrush generation as the example for what hostile environment is. What can be surmised is that in order to not provide a hostile environment, the government and its agencies should avoid limiting of access to benefits and services, tightening enforcement activities and applying a ‘devolved approach’. However, hostile environment can be more than this and can also include social aspects as the experience of the Windrush generation shows.

The reputation of hostility to immigrants in the UK goes back most recently to the Windrush generation. The ‘Windrush generation’ is a moniker given to immigrants from different parts of the empire like West Indies, such as, Jamaica, Trinidad and Tobago, who came aboard the Empire Windrush in 1948. Ironically, while the immigrants came in response to shortage of labour in the Post war British economy, they were faced with a hostile environment. Literature on the political and social experiences of the Windrush generation reflects generally on the theme of disillusionment as noted by Macphee who reflects on the racism and alienation experienced by the Caribbean immigrants in London and other cities where they went to work in factories. As seen in these early experiences of what hostile environment may mean, it can be said that there are two very important aspects of hostile environment: the first is the economic aspect, which may make it difficult for immigrants to survive in the UK, and the second is the social aspect which relates to alienation caused by different race, religion, or ethnicity than the local communities. For instance, for the Windrush generation, such overt racism, discrimination and social deprivation as well as demands for assimilation were part of the hostile environment.

There are many other manifestations of a hostile environment and the Immigration Act 2014 has introduced a number of such measures that can be said to be hostile as per the government’s stated intention that it desired to deny illegal migrants access to public and other services and benefits to which they were not entitled by virtue of their immigration status. Some of these measures include refusal of UK driving licence, revocation of existing licences, and the requirement placed on banks and building societies to refuse an application from ‘disqualified person’. The Immigration Act 2016 also requires the landlords to check the immigration status of the prospective tenants, which has been found to be not contrary to the ECHR, Article 8 by the court. However, the same scheme has been found to be in breach of ECHR prior to this case, showing that there is some lack of clarity in the law which also opens space for judicial interpretation. In the 2019 case, it was held that right to rent scheme leads to racial discrimination in provision of housing and that this could not be justified by aims of policy, especially since outcomes were not being evaluated.

Therefore, it cannot be said that these measures effective in achieving their stated objective of deterring people from entering the UK illegally or even responding to those who have entered without documents but remain in the UK for indefinite periods because of the time taken to dispose of their applications. The case of Rabah V SSHD is instructive of the ineffectiveness of the law as it is today to deal with the significant number of people in the UK indefinitely because the law is wanting in efficiency, morality or even clarity; in this case hundreds of Palestinians were allowed to remain in the UK to make their applications for entry instead of being deported for the purpose.

Finally, the one of the hostile aspects of the existing laws is that it leads to a grey labour market in the UK where illegal immigrants are exploited for their labour under threat of exposure and deportation. The perception of ineffectiveness of the immigration policies was most strongly reflected in the Brexit referendum in which the immigration emerged as major deciding factor for the British voters to vote for Brexit. Interestingly, this is also reflective of the hostile environment in the social sense because the public voted to leave EU with one of the grounds being immigration. Therefore, Clayton argues that this ‘public opinion’ remains a critical factor in immigration law and policy being the way it is.

Conclusion

The immigration law and policy in the UK is an extension of the political and social dimensions of hostile environment making for immigrants. Although aimed at illegal immigrants, the same law and policy also affects refugees, asylum seekers, and family members of British citizens. The purpose for this policy is to deter illegal immigration but the regularisation process involving the authorities and agencies extends the irregularisation and makes it difficult for individuals to be regularised. At the same time, this policy has decided aim of selecting those desirable for regularisation on the basis of language with fluency in English being mandatory for this. Ultimately, the immigration law does not even succeed in limiting immigration, but rather it uses a targeted approach to immigrants and engenders a hostile environment particularly through the Immigration Acts 2014, 2016.

Books

• Clayton G, Textbook on Immigration and Asylum Law (Oxford University Press 2016).
• Clayton G, Textbook on Immigration and Asylum Law (Oxford University Press 2018).
• Fryer P, Staying power: the history of black people in Britain (University of Alberta 1984).
• MacPhee G, Postwar British Literature and Postcolonial Studies (Edinburgh: Edinburgh University Press 2011).
• Petch H, Perry J and Lukes S, How to improve services for destitute migrants (Joseph Rowntree Foundation 2015).
• Peutz N and De Genova N, The deportation regime: sovereignty, space, and the freedom of movement (Duke University Press 2010).
• Torrance D, EU Referendum 2016: A Guide for Voters (Luath Press 2016).
• Weedon C, Identity And Culture: Narratives Of Difference And Belonging: Narratives of Difference and Belonging (Berkshire: McGraw Hill Education 2004).

Journals

• Athwal H and Bourne J, ‘Driven to Despair: Asylum deaths in the UK’ (2007) 48(4) Race and Class 106.
• Calavita K, ‘Law, citizenship, and the construction of (some) immigrant “others’ (2005) 30 (2) Law & Social Inquiry 401.

Reports

• Equality and Human Rights Commission, ‘Assessment of hostile environment policies’ (November 2020).
• Independent Chief Inspector of Borders and Immigration, An inspection of the ‘hostile environment’ measures relating to driving licences and bank accounts January to July 2016 (2016) accessed here.
• National Audit Office, Handling of the Windrush Generation (NAO 2018).
• TUC, Hard Work, Hidden Lives: The Full Report of the Commission on Vulnerable Employment (TUC: London 2008).

Online sources

• Vargas-Silva C, Briefing: Migrants and Housing in the UK: experiences and impacts (Migration Observatory 2015) accessed here.