All at sea

Sir Mo Farah, Commander of the Order of the British Empire, gold-winning UK Olympian, bucks an antique imperial trend identified by the historian Benedict Anderson.

Anderson, author of the seminal work on the origins of nationalism Imagined Communities, noted that while it was possible for people from an empire’s outposts and spheres of influence to rise to positions of respect and authority away from an imperial ‘motherland’, parallel positions for them could not be attained at the latter. That distinction defined empire, and this preclusive condition produced the nationalisms and nation states that define the current world order. Many nation states were a reaction against exclusion.  

For a former imperial power like the UK the search for a new identity – a nice, good post-colonial purpose – lay in absorbing – celebrating even – what formerly barred talent and industry could now achieve here.

Observe the number of candidates, when nominations opened for the election to lead the Conservative party, and therefore be the next UK prime minister, who were black, Asian or minority ethnic.  

These candidates for PM did not spring from nowhere. Like the first women solicitors, they arise from a combination of intent, skill, knowledge, networks and support, whether that is acknowledged or not. This embodied, at least until recently, the settled and increasingly successful notion that the UK and its body politic have progressed.  

But in parallel to this plan – a tryst with inclusive destiny partially redeemed – has run another idea. This is that the UK is a soft touch on immigration, and that guilt-driven post-imperial obligations are surely spent. According to this argument, such obligations cannot be unlimited, and the general obligations the UK holds to the international community have been put under enormous stress by the fact that it is now much easier, in an interconnected world, to reach the UK.

This view of a ‘soft touch’ UK finds its expression, and a policy response, in the Nationality and Borders Act 2022.

Sir Mo’s revelation that he came to the UK illegally, trafficked from ‘Somaliland’ as a child to work as a modern day slave for a family in Hounslow, breaks like a wave on the unresolved contradictions of these two narratives. The Queen knighted Mo Farah in 2017. In 2022, her Jubilee year, the act would make his entry to such polite society and national acclaim more problematic.

Home Office approval

The Home Office has been quick to state this week that no action will be taken against Sir Mo. But his position shines a light on the act, and how a future possible Olympian might be treated.

The act created two tiers for asylum applications – ‘Group 1’, people who arrive in the UK by a ‘legal’ route; and ‘Group 2’, who arrive in the UK by ‘illegal’ routes. Controversially, they will be treated differently, regardless of coercion being involved in their arrival in the UK, or the persecution they faced in their country of origin. This compartmentalisation has been in force from 28 June.

A future Sir Mo, Dr Bernard Andonian, consultant solicitor at Gulbenkian Andonian and a former part-time immigration judge, tells the Gazette, would now be placed in a difficult position. The act’s criteria, he says, ‘fail to take into account exactly those circumstances that brought a… child such as Mo Farah to the UK’.

Classed as a ‘Group 2’ person, his route to citizenship, given his past, would be longer. This would be ‘with temporary asylum status under the 10-year route’, Andonian says, ‘no account having been taken of the fact that as a child he had no control over his actions’. 

Group think

Among the most controversial principles contained in the act is this distinction drawn between ‘legal’ and ‘illegal’ arrivals in the UK. Fall into Group 2, as most applicants do, and under the act your path to leave to remain, and the right to have close family members join you, is longer.

Diana Baxter, partner at Wesley Gryk Solicitors, explains: ‘Group 2 refugees also now need to meet an additional test for family reunion as they will have to show that there are “insurmountable obstacles” to their family life continuing without it.’ This, she says, ‘is a rather odd amendment as, in practice, it is difficult to think of many examples where this would not be the case for refugees who, by definition, cannot return to their country of origin’.   

‘Those unable to satisfy this threshold test,’ Matthew Wills and Grace Matthews at Laura Devine Immigration tell the Gazette, ‘will be faced with the difficulty of deciding whether to depart the UK in order to reunite with family members, or remain separated from their families’.

Individuals granted settlement may be able to bring family members to the UK via alternative avenues, Wills and Matthews say, ‘however refugees granted temporary refugee permission as Group 2 refugees are unable to qualify for settlement solely on this basis. Although they may eventually qualify for settlement on an alternative basis – such as following 10 years’ lawful residency – delaying any application naturally prolongs familial separation and runs the risk of children turning 18, which in the majority of circumstances precludes them from applying to join the refugee once they finally have settlement’.

Prison and sanctions

With the act in force, those identified as having entered the UK illegally can now be imprisoned for up to four years (five years if in breach of a deportation order). The maximum previous sentence was set at six months. ‘Although it is practically unlikely that routine prosecution of the offence will be pursued,’ Wills and Matthews say, ‘those that are imprisoned could face long-term implications if seeking to return to the UK, as under the majority of categories applicants convicted of a criminal offence for which they have received a custodial sentence of 12 months or more will be permanently excluded from the UK.’

The legislation becomes still more involved.

'The impact of a visa penalty could cause serious disruption to businesses should they be unable to obtain a work visa for a national of an affected country'

Sundeep Rathod, Edwin Coe

‘Part 6 of the act sees the introduction of a new “Visa Penalty Provision”,’ Sundeep Rathod, senior associate at Edwin Coe, tells the Gazette. ‘The act allows the Home Office to take a tougher stance on countries that may pose a risk to international peace and security and those countries that are deemed to be uncooperative with deportations and removals. Nationals of a country specified under sections 71 and 72 may find their entry clearance applications suspended, treated as invalid or put on hold until the end of a specified period. Nationals of that country may also be required to pay a surcharge of £190 on top of the regular fees being paid for the type of application.

‘To put the implication of Part 6 into context, given the current Ukraine/Russia conflict, the secretary of state could take the decision to place Russia on the specified list as Russia has taken action that “results in armed conflict”.’ This is clause 71(1)(b). ‘The impact of a visa penalty,’ he adds, ‘could cause serious disruption to businesses should they be unable to obtain a work visa for a national of an affected country. Likewise universities would be unable to welcome students from that particular country and family settlement applications would be seriously affected.’

Hotel Rwanda

The Rouge by Desir Hotel, close by Rwanda’s capital Kigali, has rooms with a view that differs markedly from the English Channel, a body of water that is among the world’s most risky maritime crossings. Tens of thousands have made the dangerous crossing from France to the UK in the past year, and the number has increased even as draconian measures to deter them have been introduced.

Many of the 72 rooms of the Rouge by Desir Hotel have, instead, a view of a swimming pool. This is the hotel held up by the home secretary Priti Patel and current prime minister Boris Johnson as the pre-reserved destination asylum to which applicants would be removed pending a decision on their cases.

Of course, not a single asylum applicant from the UK has arrived in Rwanda. While the act allows for asylum claims to be processed ‘offshore’, removal to Rwanda – the only offshore location with which the UK has an agreement – has been frustrated by the courts.

On 14 June, refusing a judicial review application, the Supreme Court, in line with decisions by the High Court and Court of Appeal, declined to block removals to Rwanda. But with the plane on the tarmac readying for departure, a dramatic eleventh-hour ruling by the European Court of Human Rights (ECtHR) prevented the deportation of one of seven asylum seekers set to be deported. This opened the way for lawyers to make last-minute applications for the other six.

The legality of the ‘offshoring’ policy was due to be tested in the High Court this month through a claim against Patel. In fact, the ECtHR blocked removals based on the understanding that the courts had yet to determine the legality of the offshoring policy.

But on 11 July the court put off the hearing. The divisional court (effectively the High Court sitting with two or more judges) agreed to an adjournment sought by the claimants until September.

Writing on his blog the next day, Gazette columnist Joshua Rozenberg said: ‘If it had not been for the current political uncertainty, the Home Office might have appealed against yesterday’s ruling or asked the human rights court in Strasbourg to reconsider… The Home Office has not confirmed reports of the adjournment or said how it intends to proceed.’

It is considered unlikely that removals will take place before this case is heard.

Targeting lawyers

Following the adjournment, a Home Office spokesperson said the Rwanda deportations were ‘vital to prevent loss of life in the Channel and break the business model of people smugglers’.

There is very little in the act that relates to people smugglers. But the act does focus on the role of another group: solicitors.

The words ‘solicitor’ and ‘lawyer’ do not appear in the act. But the relevant section is headed ‘Tribunal charging power in respect of wasted resources’. The power to fine specifies ‘a relevant participant’ who ‘has acted improperly, unreasonably or negligently’.

Ellie Cumbo, the Law Society’s head of public law, tells the Gazette: ‘There will be consequences for solicitors.’ She is critical of these ‘additional measures’ (clauses 80 and 81) that set up a ‘real world conflict of interest’ between lawyers’ duties to their clients and the risk of sanctions being applied to them for representing a client challenging an immigration decision. This aspect of the act received ‘little scrutiny’ in its passage through parliament, she points out, and no evidence has been produced to show why ‘improper’ conduct by a solicitor should not instead be dealt with by the Solicitors Regulatory Authority.

The Tribunal Procedure Committee is now charged with creating provisions that will realise the intention set out in the act.

Another uncertainty is the effect that the Bill of Rights would have on contested asylum and nationality cases. If the Bill of Rights Bill published in June becomes law, it has the potential to radically restrict the use of judicial review, a key tool in contesting decisions made by officials and ministers.

Cumbo says the Law Society is concerned the bill undermines ‘the rule of law’. She points to the way the bill targets ‘interim measures’. The bill says that Article 39 of the ECHR – which provides for interim measures in cases where applications have been brought to the ECtHR– do not have to be taken into account.

And of course, such interim measures have recently seen action. When the ECtHR stayed the Rwanda removals, pending the now-postponed claim testing the legality of the government’s policy, it was an interim measure.

'Many claimants, for whom there is already an asymmetry of power against the state, may be disadvantaged by bearing the burden of proving this higher threshold is met in UK courts'

Zoe Bantleman, Immigration Law Practitioners’ Association

The bill also seeks to impose a ‘permission’ stage on any cases brought under the Human Rights Act, a further relevant limit. The permission stage is designed to prevent what the government terms ‘trivial’ cases proceeding.

‘The introduction of this test is based on a false dichotomy between “trivial” and non-trivial human rights matters,’ Zoe Bantleman, legal director at the Immigration Law Practitioners’ Association, tells the Gazette. ‘We are concerned that this will indicate to public authorities that less severe human rights violations can be tolerated. We are firmly of the view that a human rights violation is not a trivial matter.’

The test, Bantleman argues, ‘should not be how much harm is suffered, but whether harm is or would be suffered. Therefore, we, and 90% of the respondents to the government’s consultation on the issue, rejected the suggestion that “significant disadvantage” must be suffered.

‘Many claimants, for whom there is already an asymmetry of power against the state, may be disadvantaged by bearing the burden of proving this higher threshold is met in UK courts. The procedural barrier of this permission stage will make it more difficult and more time-consuming for them to access justice.’

Litigation

Read in isolation, the Nationality and Borders Act 2022 seems set to remove legal obstacles to the government’s intended approach to dealing with refugees and asylum applicants. It is based on the simple assumption that the way to damage the business of people smugglers is to degrade and frustrate the settlement and asylum chances of the people they bring to the UK.

In truth, Andonian concludes, it does anything but end legal conflict. ‘Undoubtedly,’ he says, ‘there will be much litigation in the coming months and years over the unfairness of the two-tier system. Supreme Court rulings could bring amendments to the act.’