The Legal 500

This summer the Home Office announced a number of measures designed to rebuild confidence in the immigration system. These initiatives followed a period of bad press for the Immigration and Nationality Directorate (IND) that culminated in the foreign prisoner debacle and the appointment of a new Home Secretary, Dr John Reid. Reid has famously questioned whether IND is ‘fit for purpose'.

The document ‘Fair, effective, transparent and trusted: Rebuilding confidence in our immigration system', published in July 2006, sets out the measures the Home Office deems necessary to meet its stated ambition to create a system that is ‘fair, effective, transparent and trusted'.

 

Objectives

Four objectives will help the Home Office achieve its ‘new purpose' - toughening borders, preventing the abuse of immigration laws and managing migration to the benefit of the UK.

Objective one

The first objective is to strengthen borders and to use tougher checks abroad so that only those with permission can travel to the UK. The Home Office intends to ensure that the government knows who leaves so that it can take action against those breaking the rules. In order to do this, it will:

• have biometric ID requirements in place for foreign nationals from the highest-risk countries by 2008;
• require, by 2011, non-EEA nationals to have unique, secure IDs before they are allowed to travel to Britain so that entry and exit can be tracked, prior criminal activity in the UK can be identified, and permission to travel can be refused;
• perform border checks on people before they travel to the UK, targeting high-risk routes through effective risk and threat analysis;
• extend exit controls and count everyone in and out by 2014;
• enhance the powers and surveillance capabilities of the border service; and
• work jointly with international partners to tackle global migration, including measures to address cross-border criminality.

The aim is to efficiently track those who enter and leave the UK so as to maintain effective immigration controls. It is not current practice for overseas nationals who depart from the UK to receive exit stamps in their passports. Closer scrutiny will be applied to those leaving the country and more detailed records will be kept. Biometric technology should enable immigration officers to be absolutely certain of the identity of individuals entering and leaving the country.

Over the past few years the immigration laws have allowed for ‘the exportation of borders'. Immigration officers are able to examine overseas nationals who are intending to travel to the UK before they depart from their country of origin. The Home Office intends to increasingly check overseas nationals' eligibility to come to the UK before they travel. This will include the increased use of biometric visas, fingerprinting, and ‘authority to carry' schemes with carriers.

The government also aims to undertake extensive risk assessments, so that it can target its activities on high-risk routes and traveller profiles. The aim is to underpin the new arrangements for pooling intelligence - building on current arrangements for sharing information between various immigration and law enforcement agencies. This will be a step in the direction of a unified system, the likes of which has not been seen before in the UK.

The government also remains committed to a national identity scheme, including ID cards. ID cards will be implemented rapidly, starting with biometric residence permits for foreign nationals in 2008. The scheme wil be rolled out to UK nationals thereafter. This is likely to cause considerable political debate before implementation.

Objective two

The second objective is to fast track the asylum process. Initiatives will include:

• removing ‘more failed asylum seekers than make unfounded claims';
• granting asylum to, or removing, 90% of new asylum claimants within six months, by the end of 2011;
• dealing with the legacy of unresolved cases within five years or less; and
• increasing removals and deportation effectiveness.

The asylum process and the number of asylum applicants remains the big political issue in immigration control. It is the Achilles' heel of the Home Office and was a major political issue at the last general election. The government claims to have significantly reduced the number of unfounded asylum seekers, and increased the numbers removed. However, it acknowledges that public perception remains that too many asylum seekers are allowed to remain here illegally when their claims fail.

The new asylum model aims to ensure that asylum cases are resolved expeditiously, with those who do not qualify being removed promptly, while genuine refugees are integrated. The Home Office also aims to get a grip on the legacy of older cases which remain unresolved. It has given a time frame of five years or less in which to achieve this. This would appear to be in line with the five-year plan for the reform of the entire immigration system.

Objective three

The third objective is to ensure and enforce compliance with immigration laws, removing the most harmful people first and denying the privileges of Britain to those here illegally. The government will:

• double enforcement and compliance resource and expand activity by 2009/10;
• require evidence of nationality during contact with the criminal justice system;
• link criminality more clearly to deportation and remove in-country rights of appeal;
• penalise employers who employ illegal workers by implementing fines for employers and seizing the assets of persistent offenders, and disbarring company officers who consent to or knowingly employ illegal workers; and
• shut down fraudulent access to benefits and make immigration a truly cross-government issue with shared targets.

The government acknowledges that the vast majority of migrants abide by the rules and make a positive contribution to the UK. It is clear, however, that a system needs to be created which has ‘more teeth'. The Home Office aims to ‘substantially expand our work to enforce our immigration laws'. This will include increasing deportations. It is thought that ID cards will assist with this process.

The government also aims to change the judgment in Chahal v United Kingdom. This is the judgment that prevents the government from balancing the threat posed by an individual to national security against the risk of mistreatment if the individual concerned is returned to their country of origin. The UK is intervening in the Dutch case of Ramzy, currently pending before the European Court of Human Rights. The government's aim is to be able to take into account the threat to national security and also to be able to rely on assurances given by the returnee country. In addition, the government aims to consult on making it easier to deport people under UK law, thereby limiting as far as possible the ability to stop the deportation of those it considers necessary to deport for reasons of national security.

To deal with those perceived as posing the greatest threat, the proposals are to:

1) seek to limit obstacles to deportation and removal resulting from the European Convention on Human Rights (ECHR);

2) step up work on memoranda of understanding and the use of personal assurances with other governments to ensure that it is possible to return those who threaten security in accordance with obligations under the ECHR;

3) change the law to make deportation the presumption for foreign national prisoners and to make their appeals non-suspensive - the Home Office is immediately streamlining the immigration rules on deportation to remove requirements which go beyond the ECHR; and

4) strengthen, extend and renegotiate prisoner transfers.

Pressure will be maintained on other governments to redocument their nationals, and the UK will develop country-specific strategies to ensure co-operation on redocumentation. Furthermore, new protocols for judicial review are to be published and the government will endeavour to ensure that judicial review is not abused. It will also extend non-suspensive appeals - where asylum and human rights' applicants can only appeal overseas - to more countries where it can make an assessment that there is no ‘general' risk of persecution. A full review of the law on deportation and removal is underway.

Part of the five-year plan for a new managed migration system includes an intention to work with employer organisations to ensure that employers know their responsibilities and have robust systems in place to prevent the employment of illegal workers. The government proposes to develop more efficient support mechanisms to help employers check that people are working legally. It will penalise those who employ illegal workers by implementing fines for rogue employers and seizing the assets of persistent offenders.

A new verification system for foreign students will result in educational institutions taking responsibility for ensuring compliance with immigration laws.

Objective four

The fourth objective is to boost Britain's economy by bringing people with the right skills here from around the world, and ensuring that the country is easy to visit legally. Key initiatives include:

• implementing the points-based system to attract the workers and students that the UK economy needs;
• introducing a new migration advisory committee to advise the government;
• exploiting biometrics to help trusted travellers enter and leave the UK faster; and
• requiring legitimate migrants who want to settle here to develop their English language skills to ease their integration.

Structure of the Home Office

For many years, the Home Office has suffered a reputation as being too large, slow and inefficient. The July paper acknowledges that urgent organisational reform is needed. Key areas of reform include:

Strengthening and simplifying the complex legislative framework

A root-and-branch overhaul of the legal framework for immigration is proposed. The government wishes to introduce an early Bill to take new powers, including those ensuring that foreign national prisoners automatically face deportation, and that borders are strengthened. It also aims to radically reform and simplify immigration laws, rules and guidance. This is in line with the tier system under the five-year plan. It aims to create a strong framework for delivery and accountability. A new immigration regulator is proposed. The regulator will rationalise the existing range of inspection and regulation processes and provide a transparent and independent assessment of IND and its services, including those at regional level. A single body reporting to Parliament on IND could help drive improvement and simplify the existing fragmented regulation and inspection regimes.

Establishing a new migration advisory committee

The government is also considering establishing a new migration advisory committee, composed of independent experts. The committee would publish recommendations for the government on where in the economy migration can fill skills gaps. The aim would be to inject an informed and non-partisan view of the way in which migration ought to be managed.

IND operating as an agency

The government plans that IND will operate as an agency on a shadow basis from April 2007. It is thought that IND will benefit from the disciplines that agency status will bring. The desire is to improve frontline delivery and processes within a new performance framework. This should provide greater clarity on overall objectives and more accountability and trust through a framework for delivery and performance. It is hoped that it will provide a better service through a variety of service mechanisms and tailor-made structures and systems.

Leadership and management skills

The government also plans to develop strong leadership and management at all levels within IND. The aim is to improve all skills at all levels within the business and to overhaul performance management. The government wishes to put in place clear lines of accountability and responsibility, and to create a new performance management framework to create a high-performance business. A review of pay and grading will coincide with the move to agency status.

Overhauling and simplifying

IND wishes to radically overhaul processes to simplify and standardise activity, and to use a risk-based approach to target activity in all areas of the business. Increased emphasis is to be placed on new technology, with the establishment of an electronic case-working system and knowledge-management system. IND will overhaul how it collects, analyses, shares and uses management information across the department and beyond.

Improving confidence and visibility

The aim behind these changes is to build confidence in the system. It is clear that public perception of IND's ability to successfully manage immigration control is low. The government acknowledges the need to change IND's culture. It will introduce new, visible branding and uniforms at borders and other key areas of contact with the public so that staff have a clear and distinct public presence. As part of IND's move to agency status, the Home Office will set out a tough performance contract for service delivery that reflects public expectations.

Conclusion

It remains to be seen whether the colossus that is the IND will indeed enter into a new era of success and efficiency.

Case reference

Chahal v the United Kingdom [1996] ECHR 54

By Ben Sheldrick, partner, Magrath & Co. E-mail: ben.sheldrick@magrath.co.uk.

For more information please visit www.magrath.co.uk.