Off track

‘Change’ was the core pledge of Labour’s 2024 election campaign. The landslide that took it into power on 5 July means there are no policy obstacles in its path, unless they are self-imposed. Now there is cautious optimism among some lawyers that this new government will take a fresh approach to asylum and immigration.

On day one of his premiership, prime minister Sir Keir Starmer delivered a coup de grâce to the Conservatives’ Rwanda scheme. Described as a ‘gimmick’ by Starmer, it was certainly a distraction from the dysfunction and failures of the wider asylum system. Labour’s first King’s speech promised to ‘fix the broken asylum system’ by clearing the backlog of asylum claims and fast-tracking the return of refugees from safe countries.

The following week home secretary Yvette Cooper set out the scale of the task facing the new government. She branded the UK-Rwanda Migration and Economic Development Partnership, which had sent just four volunteers to the East African country at the cost of £700m, as ‘a costly con’ and ‘the most shocking waste of taxpayers’ money I have ever seen’.

Cooper said the backlog of asylum cases – which stood at around 83,000 in April – waiting for an initial decision was caused by the ‘unworkable’ Illegal Migration Act 2023. The act automatically ruled claims made by some migrants who arrived in the UK after March 2023 as inadmissible. She went on to accuse the Conservative government of creating a taxpayer-funded ‘Hotel California’ as ‘people arrive in the asylum system and they never leave’, despite the act requiring the home secretary to deport migrants who arrive unlawfully to a safe country.

Cooper used a statutory instrument to end the retrospective nature of the Illegal Migration Act 2023, to enable officials to process the cases they had been prevented from handling. She said the government would replace the Rwanda migration partnership with a ‘serious returns and enforcement programme’, to return people who have no right to stay in the UK to their home countries instead of Rwanda. A ‘new border security, asylum and immigration bill’, announced in the King’s speech, will bring in the new arrangements.

Cooper also pledged greater cooperation between the UK and European countries. A new border security command with ‘counter-terror-style powers’ would tackle people-smuggling gangs, who she said ‘are operating with impunity’. Signalling closer Anglo-French cooperation, last month a British Border Force vehicle transported 13 asylum seekers rescued from the Channel back to Calais.

In summary, however, Cooper stressed that there ‘are no quick fixes to the chaos created over the last 14 years’.

‘Nasty’ and ‘unworkable’

The government does not need to repeal the Illegal Migration Act 2023 or the Safety of Rwanda (Asylum and Immigration) Act 2024 to press ahead with these new policies and has not signalled that it intends to do so. But some lawyers are pushing for repeal nevertheless.

Like many others working in immigration law, Diana Baxter, partner at London law firm Wesley Gryk Solicitors, is pleased the Rwanda scheme has been scrapped. She brands it a ‘colossal waste of time, money and energy’.

Baxter says the Illegal Migration Act 2023 was ‘nasty and completely unworkable’, and that focusing on ‘processing asylum claims rather than leaving people in interminable administrative limbo’ is a welcome first step.

But she stresses that asylum claims need to be processed ‘competently by experienced caseworkers’ rather than continuing the ‘rush of poor decision-making at the end of last year to meet Sunak’s target of clearing the last asylum backlog’. This  has clogged up the Asylum and Immigration Tribunal’s docket with lengthy and expensive appeals.

Sonia Lenegan, a solicitor and editor at Free Movement, an immigration law information and training provider, is more cautious. While she welcomes the ‘small’ steps made by Labour, she is ‘not overwhelmed with optimism’. Her concerns centre on the government’s language, and focus on border security and tackling people smugglers. What is absent is detail on how it will provide safe and legal routes to enter the UK in order to claim asylum as a positive alternative.

‘Just focusing on the security of borders risks pushing people into making more risky journeys,’ she says.

Lenegan is also concerned about the plan to use the planes chartered to take asylum seekers to Rwanda to send migrants to other countries, such as Vietnam. She argues that some will be refugees and others will have been trafficked and so will be entitled to remain, for example to help with their recovery.

‘I don’t think it’s safe to put a planeload of people on their way to Vietnam unless we know they’ve had a proper opportunity to put claims forward – and I’m not remotely confident that has happened,’ she says.

Plans to fast-track cases of individuals from ‘safe countries’ are also problematic, she adds. She argues that there must be ‘more interrogation of what “safe” means’, as not every safe country is safe for everyone, highlighting the danger posed by returning gay and bisexual people to Ghana.

Lenegan is pleased that the Bibby Stockholm barge will no longer be used to house migrants from January (the government has said the contract to lease the vessel will not be renewed) but she wants other unsuitable detention centres to be closed too.

Scandal-in-waiting

Away from the headline-grabbing issues of asylum seekers and migrants arriving by small boats, one of the most pressing issues in immigration is the replacement of physical immigration documents with the eVisa system – a change that will affect millions of legal migrants.

By 31 December 2024, all overseas nationals in the UK will need to use an online eVisa instead of their existing physical documentation, such as biometric residence permits, which will no longer be issued. Employers, landlords, airlines and government bodies will then check online if individuals have the right to enter, live or work in the UK.

Baxter predicts that the transition will create difficulties for her clients regarding employment, rent, accessing mortgages, bank accounts, international travel and public funds. It has uncomfortable echoes of the Windrush scandal, in which many people who emigrated to the UK from the Carribean during the 1950s and 1960s but lacked documentary proof of British citizenship were wrongly deported or refused permission to re-enter the UK after travelling abroad.

'The recent global IT outage placed a spotlight on fears that a future outage could make it impossible for overseas nationals to prove their immigration status'

Kerry Garcia, partner, Stevens & Bolton

The eVisa was launched in 2018 but the transition is incomplete. Many people have yet to create their eVisas, says Kerry Garcia, head of employment, immigration and pensions at Stevens & Bolton. She predicts there will be a ‘last-minute rush to register’, as many migrants do not realise they need to act.

Garcia warns that from January, those who do not have an eVisa will face difficulties re-entering the UK after travelling overseas to visit family over Christmas.

‘The recent global IT outage in July has also placed a spotlight on fears that a future outage could mean it is not possible for overseas nationals to prove their immigration status, risking their ability to re-enter the UK, or to obtain a job, or rent a property here,’ she adds.

The wider immigration system is broken, Garcia adds, with onerous red tape and sky-rocketing costs for employers sponsoring visas.

Increased salary thresholds for sponsoring workers introduced by the last government, coupled with the costs of sponsorship, has led to a reduction in the number of skilled workers coming to the UK. Small and medium-sized businesses, and those based outside London and the south-east, have been particularly affected.

The cost for a large business (turnover of more than £10.2m or at least 50 employees) of sponsoring an immigrant for five years is more than £11,000, Garcia notes. If that person has a spouse and two children, the fees rocket to more than £27,000, with additional fees payable five years later if the family wants to apply for indefinite leave to remain.

Working problems

Employers are waiting to see if the new government will change anything in relation to business immigration and sponsorship.

Labour’s 2024 manifesto offered little guidance, Garcia says. It states only that the party plans to reform the immigration and skills system to ensure Britain is developing home-grown skills with workforce plans to meet the needs of industries and the economy, instead of relying on overseas labour, and reform of the points-based immigration system.

In April 2024, as part of the previous government’s plans to reduce net migration, the Home Office raised the minimum income requirement (MIR) – the combined income a British or settled individual and their partner must have to receive a family visa – from £18,600 to £29,000 per year.

James Cleverly, then home secretary, proposed raising the threshold to £34,500 later in 2024 and then to £38,700 in spring 2025. He justified these hikes by saying those immigrating to the UK under this route should be self-sufficient and must not rely on public funds.

Matthew Wills, a partner at immigration specialist law firm Laura Devine, says that the increase was ‘far in excess of the realistic income threshold required not to be a burden on public finances’. He believes the changes will have a disproportionate impact on certain groups, including younger families, those living outside London and the south-east, and women.

Wills hopes the Labour government will review Cleverly’s policy, in line with a pledge made by Stephen Kinnock during a Commons debate in April when Kinnock was shadow minister for immigration.

Ross Meadows, partner at Oury Clark Solicitors, wants to see a ‘comprehensive overhaul of the immigration system’ that will support UK business growth and innovation, and reduce red tape.

Ministers should streamline the visa application process by reducing the complexity of documentation and providing clearer guidelines, says Meadows. He also calls for a single digital, user-friendly portal for all immigration services to enhance efficiency and cut processing times.

Echoing Garcia, Meadows calls for simplified sponsorship requirements and lower financial thresholds to make it easier for small businesses to hire ‘international talent’.

Establishing fast-track routes for high-demand sectors and creating a robust, transparent appeal process for rejected applications, he adds, would also build confidence among businesses.

After the UK left the EU in 2020, the European Settlement Scheme (EUSS) was set up to enable EU citizens to remain living in the UK. For most applicants, the scheme has been positive. But Jackie Penlington, a managing associate at Stevens & Bolton, says the application process is complicated and contradictory for those who do not fit ‘squarely’ into its expectations.

EEA and Swiss nationals residing in the UK had until 30 June 2021 to apply to the scheme. But the Home Office routinely accepted late applications up until last August. Since then, says Penlington, applicants have had to show ‘reasonable grounds’ for delay or face rejection. These ‘restrictive’ grounds are the subject of a pending judicial review.

Windrush fallout

The fallout of the Windrush scandal, which erupted in 2018, is still affecting the lives of many. Some British citizens who arrived from the Caribbean between 1949 and 1971 have been wrongly detained, threatened with deportation or deported, despite having the right to live in the UK. Many have been denied healthcare and access to benefits, and lost their jobs and homes.

On 19 June, the High Court ruled that the Conservative government’s decision to drop key recommendations from an independent review into the scandal had been unlawful.

In March 2020, the Windrush Learned Lessons Review, which was overseen by solicitor Wendy Williams, published its report on how a similar scandal could be prevented from happening again. Priti Patel, home secretary at the time, accepted all of the report’s 30 recommendations.

But in January 2023 the Home Office, now led by Suella Braverman, announced that three of the recommendations had been dropped.

In R (Donald) v Secretary of State for the Home Department, the High Court ruled that Braverman was ‘not justified’ in breaking Patel’s promise to create a migrants’ commissioner, and increase the powers of the chief inspector for borders and immigration.

Mrs Justice Heather Williams said that Braverman had failed to consult properly before making the changes and could not justify the discriminatory impact upon Windrush victims. She had failed to comply with the public sector equality duty, given the ‘adverse impact on migrants and future migrants more generally’.

The judicial review was brought by Trevor Donald, with the support of Unison and the Black Equity Organisation. A Windrush immigrant, Donald arrived in the UK from Jamaica in 1967, aged 12, and was granted indefinite leave to remain in 1971. But in 2010, he was prevented from re-entering the UK after attending his mother’s funeral in Jamaica. He spent nine years in exile, only returning to his home in the UK after the scandal came to light in 2018. He was granted British citizenship in 2022.

Christina McAnea, general secretary of Unison, wants full redress for the harm inflicted on the Windrush generation.

‘The hope is the next government will act quickly to make amends to this disgraceful chapter in our history,’ says McAnea.

During the election campaign, writing in the Guardian, Yvette Cooper said Labour would appoint a ‘Windrush commissioner’ to ‘oversee the delivery of the [Windrush]compensation scheme’. But so far the new government has not said when, or if, this will happen.

 

Catherine Baksi is a freelance journalist