Simplifying Immigration Law

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Consultation Response Simplifying Immigration Law Border and Immigration Agency Response submitted by 29 August 2007 5 Cadogan Square,

1 Consultation Response Simplifying Immigration Law Border and Immigration Agency Response submitted by 29 August Cadogan Square, (170 Blythswood Court), Glasgow G2 7PH Tel: Fax: Registered charity no: SC008639

2 About the consultation In July 2006 the Border and Immigration Agency (formerly the Immigration and Nationality Directorate) published a review of the UK s immigration system. The review set out the Agency s key strategic goals and major steps to achieve these goals. One of these steps was the need to overhaul the legal framework in which the Border and Immigration Agency operates by simplifying immigration law, rules and guidance. This consultation, Simplifying Immigration Law 1 is seeking views to inform the scoping, planning and early work of this simplification process. About provides help and advice to those who have fled human rights abuses or other persecution in their homeland and now seek refuge in Scotland. We are the national organisation that leads, influences and coordinates work with refugees and asylum seekers across Scotland. We share with the UK Government a commitment to the 1951 UN Convention on Refugees and participate at every level to support the integration of refugees settling in Scotland. We are also an active member of the European Council on Refugees and Exiles (ECRE), a network of over 80 refugee-assisting organisations across Europe. Introduction welcomes the opportunity to respond to this consultation exercise. We are happy for the information in this submission to be made public and are happy to discuss further the responses we raise. would welcome the consolidation of the plethora of existing immigration law that currently exists. In the last ten years alone there have been six substantive pieces of immigration legislation that have been introduced, each building on and amending the 1971 Immigration Act as well as each other. This is an issue that needs resolved. It has led to a situation where the vast array of Acts must be painstakingly read alongside each other so as to understand how one section of one Act functions in relation to one section of another Act. Consolidating all this legislation into one coherent act would be a significant step to reduce this complexity and confusion. However, we are concerned that the aims of the proposal are not merely to consolidate the existing law but they appear to go much further to develop a legislative framework that will reduce concessions and the use of discretion by decision-makers. We do not consider that the meaning, extent and process of simplification have been adequately explained in the consultation document. For example, we are unsure whether or not it intends to include aspects relating to issues such as the welfare support, education and employment and housing of asylum seekers and refugees which are set out in primary legislation and statutory instruments. Many of these statutory instruments are devolved to administrations in Scotland, Wales and Northern Ireland. Simplification should be seen as an aspiration after the existing immigration legislation has been consolidated. Consolidation alone is a Herculean task which would require time, extensive drafting due care and attention, and detailed scrutiny. It should be regarded in itself as an important 1 2

3 process to simplify current legislation. Moves towards the simplification proposed in the consultation should be seen as a potential second stage process and not the initial goal. Consultation Questions Q1 Are the simplification principles which are set out in the previous section the right ones? 1.1 No. The principles stated in paragraph 3.1 are essentially objectives for the process but should not be viewed as a statement of principles. We are very disappointed that there is no reference made to protection and the international human rights obligations that the UK Government has to provide sanctuary to those fleeing persecution. The rights and principles of the 1951 Refugee Convention and the European Convention on Human Rights and the UK Government s commitment to them must be guiding principles of this process. Their inclusion would be essential markers to assess whether any proposals for simplification are truly necessary. Simplification for simplification s sake will lead to arbitrary, inflexible and officious immigration rules which do not fit with the individual complexities of asylum applications. This would undoubtedly result in increased litigation. Moreover, without such principles it becomes impossible to judge whether minimising the exercise of discretion or minimising gaps in legislation is necessary or not. 1.2 Whilst we welcome the overall objective of transparency, we have concerns that the aim to have a single focussed piece of primary legislation with more flexibility in the immigration rules in actual fact undermines this principle; as such rules would not be subject to the same parliamentary controls and scrutiny. Such scrutiny is necessary to ensure that the UK Government s obligations and commitments to international protection are upheld. 1.3 We are opposed to the aim of reducing the need for advisers to navigate the system. Although we support the aim that the system should be more understandable and clear, this should not be at the expense of the fundamental right to representation to access justice. 1.4 We welcome the use of plain English as a worthy objective to assist in the understanding of the procedures of the UK s immigration system. However, to understand the system, many asylum applicants require translated material and interpreting services. We consider that a commitment to these should also underpin this process. 1.5 Having a fully comprehensible system will not in itself maximise public confidence in the UK s immigration system. Promotion of the UK s commitment to international human rights obligations to provide protection from persecution is a key element in achieving public confidence and understanding 2. 2 See Warm Welcome? Understanding public attitudes to asylum seekers in Scotland 3

4 Q2 What specific problems would you hope that the Simplification process can resolve? 2.1 As mentioned above, consolidating existing immigration law into a single piece of legislation would reduce the complexity interpreting the current provisions in the UK and lead to increased understanding. Q3 What particular issues need to be addressed in reducing reliance on concessions and the exercise of discretion? 3.1 Having due regard to the particular circumstances of an individual s case and exercising proportionality are fundamental aspects of making a lawful decision. We believe that reducing discretion and concessions run counter to these. Q4 Do you agree with the proposed three-tier structure of primary legislation, immigration rules and operational guidance? 4.1 As stated above we are concerned by the suggestion to create essentially a piece of primary legislation with the aim of deferring wide-ranging powers to the immigration rules which would not be subject to the same parliamentary checks and balances as primary legislation. The purposes of powers, their extent, limitations and restrictions should be set out clearly in primary legislation. 4.2 We are also concerned with the proposal that operational guidance may only be produced where it is deemed necessary. There is no explanation of when or in which situations this would happen. Furthermore this would seem in opposition of the principle of ensuring transparency in the system. Q5 Are there particular models for simplification, internationally or in other regulatory areas which have been successful and could provide a model? 5.1 We are not aware of any. Q6 Nationality law is largely separate from immigration law. The gateway from migration processes to citizenship is clearly part of this project. But should the technical details of nationality law be included in the present simplification process, or left alone? Or would it be better to consolidate nationality law separately? 6.1 Consolidating Nationality Law separately has merit. As the extent of different Acts and provisions is not as great, it may be a solution to initially consolidate this legislation first. We would stress again that this should be a consolidation process and not a simplification process. Q7 Can we use the simplification process to help make clear the distinction between temporary residents in the UK, those seeking settlement, those settled here with no time limit on their stay and those who go on to become British citizens? Can we make clearer their respective obligations and rights, and how these different statuses need to be earned? 7.1 We would reiterate our point in 1.1. Which key principles does this question relate to? We would wish further detail and clarification of the specific reasons for this before commenting. Q8 Do you have any other comments on, or suggestions for, the process? 4

8.1 believes that there is too little detail at the moment to comment substantially. We understand that more detailed proposals will be issued later in the year.

5 8.1 believes that there is too little detail at the moment to comment substantially. We understand that more detailed proposals will be issued later in the year. We would stress the importance of clear proposals and full and meaningful contact with stakeholders. In particular, whilst the focus of the process is on the simplification of the array of UK immigration legislation, due attention must be paid to how these changes will interact with devolved powers and legislation in Scotland, such as criminal justice, as well as legislation in the other devolved administrations. This should be seen as intrinsic to the process and should be mapped out at the earliest opportunity. 8.2 We would also be keen to know how BIA expects this process to interact with the Common European Asylum System (CEAS) as defined in the Tampere programme and confirmed by the Hague Programme to establish a common European Asylum Procedure and a uniform status valid throughout the EU. The process of evaluating the first stage instruments and initiatives is still underway, but given the need to come forward with the proposals for the second phase for their adoption in 2010, the Commission will publish their proposals on the future architecture of the CEAS in early We would also urge BIA to reflect on whether an immediate step to simplification is the best option and whether the most appropriate first step is consolidating the existing legislation into one coherent Act. Contact: Gary Christie Policy and Research Manager Tel: gary.christie@scottishrefugeecouncil.org.uk 5

Consultation Response

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