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Free Movement review of the year 2019

Free Movement review of the year 2019

Welcome to my review of the immigration law events and themes of 2019. I have written one of these reviews every year since 2013. It is a chance to stand aside from the rush of updates and news, try to reflect on what has really happened during the year and consider what might be coming over the next year.

You can see my previous reviews for 2018, 2017, 2016, 2015, 2014 and 2013 if you would like to turn back time. Looking back at them, there’s been a lot of change both on this website and in the world of immigration law over those years.

Last year I wrote that the defining immigration law event of 2018 was the Windrush scandal. Not a great deal has changed because of it, sadly. A few hundred people have been provided with immigration papers they should have been able to get anyway in a functional system. No compensation payments have yet been made. The Lessons Learned Review remains unpublished. A massive exercise in removing citizenship rights from millions of lawful residents continues apace with Brexit and the EU Settlement Scheme. However, awareness of the hostile environment and what it is and does is much wider now, as is awareness of the history of British immigration law. If I’m trying to be optimistic, this awareness is an essential precondition to proper reform.

EU Settlement Scheme

The defining event of 2018 was surely the EU Settlement Scheme.

In many important ways, the scheme looks like a success so far. Technical difficulties have been few and far between and even iPhone users can now apply. The application process is free and it is infinitely better designed and more user friendly than any other UK immigration application process.

The number of applications has been high, although it turns out that the Home Office is only revealing the number of applications rather than the number of applicants. There are two main reasons why a person might apply more than once and thus be double counted. One is because he or she was granted pre-settled status but now qualifies for (or perhaps now has the evidence needed for) settled status. The other is that the earlier application was abandoned or refused and the person is re-applying.

One problem emerging from the scheme is that more people are being granted pre-settled status than ought to be the case, and the Home Office is withholding the data on how many people are affected in this way. The problem was exacerbated by the decision not to ask applicants how long they have lived in the UK, although that question has now been added into the process.

The main problems with pre-settled status are:

  1. Some people will accidentally render themselves ineligible for settled status by leaving the UK for six months or more, meaning they will have to leave the UK at the end of their period of pre-settled status; and
  2. A certain proportion of those granted pre settled status will omit to apply for settled status when they are eligible. This is just an inevitable consequence of an application-based system. Some people will fail to apply.

This leads us to the most fundamental problem underlying the whole scheme, which will not be apparent until after it closes: it is inevitable that not all those eligible for the scheme will apply. Those who do not apply will become unlawful residents the day after the deadline. They will be subject to normal immigration laws, the hostile environment and will be at risk of detention and removal. Leaks suggest that there will be no easy way for EU citizens in this situation to regularise their position.

The settled status scheme has always been a disaster waiting to happen. The nature of the disaster, though, is that it probably will not be clear what has happened for several years. The politicians and civil servants who designed the whole system will no doubt have moved on and received their knighthoods by then. The groups most likely to be affected are vulnerable and might not attract as much public sympathy: the young, old, those who do not speak good English, those who are afraid of the authorities, those in low skilled and/or occasional work, the disabled and others.

Immigration law

I counted six Supreme Court judgments on immigration law issues in 2019, which I think is a new record. In KV (Sri Lanka) we saw the Upper Tribunal being tutored on the inherent unlikelihood of ‘self inflicted torture by proxy.’ In contrast, Robinson saw the Tribunal’s interpretation of the appeal provisions of the Immigration Act 2014 being confirmed. In Gubeladze the Supremes held that the Government had in 2009 unlawfully extended the EU Workers Registration Scheme, affecting hundreds of thousands of EU citizens. The Franco Vomero case on the deportation of EU citizens returned briefly to the Supreme Court for the second time en route to the Upper Tribunal. In Hemmati their Lordships confirmed that refugees detained for removal to other EU states under the Dublin system had been held unlawfully, a decision thought to affect thousands of detainees. Finally, in Patel and Shah the court clarified/confused* the law on Zambrano derived rights of residence under EU law.

As with the year before, the less said about the Court of Appeal the better.

Meanwhile, the reported decisions of the Upper Tribunal seem to have degenerated into ramblings about obscure procedural issues or otherwise Country Guidance cases. The severe curtailment of rights of appeal may be partly to blame, but I do not believe there are no longer any interesting or important issues out there in statutory appeals. Why did it take until 2019 for the Upper Tribunal to take a serious look at the 2014 rules on Surinder Singh and ‘centre of life’, for example?

I’ve heard nothing more on the Law Commission’s immigration rules simplification project but their website says a final report is due in early 2020.

* delete as appropriate

Refugees

1,246 refugees drowned trying to cross the Mediterranean to reach Europe in 2019. This was a fall compared to the year before but it is still a lot of unnecessary deaths. However, the number of refugees who died within Europe increased in 2019, rising to 123. That number included the 39 who suffocated in the back of a lorry here in the UK.

These deaths are the price our societies here in Europe are willing to pay to keep people out.

The data and chart are from the IOM’s Missing Migrants Project.

Here on Free Movement

We had a big year on Free Movement, with readership climbing again, this time from 2.2 million page views in 2018 to nearly 3 million in 2019. We published 471 blog posts and a total of 450,000 words. All of them were really good words, obviously. The best, in fact.

The total number of page views since I first started the blog is now just shy of 17 million.

The email list now stands at just over 19,700, so we’ve picked up about 2,000 new email subscribers this last year. Membership continues to rise and we now have coming up on 2,800 active paying members, up from around 2,300 this time last year. My own Twitter account @colinyeo1 has 22,600 followers and @freemovementlaw has 4,858.

Looking ahead

We thought Brexit was going to happen in 2019, but it was not to be. It really will happen in 2020, though. We think…

Rumour has it that the White Paper published in late 2018 has been shredded. I am sceptical of that claim. The end of free movement for EU citizens will be a massive change when it happens (at the end of the transition period, we presume) and therefore a LOT of new people are going to experience the UK immigration system. My own expectation is that any changes to the way that system operates will be relatively slight, with the notable exception of the reintroduction of temporary low skilled labour routes. All the talk of a new Points Based System before and during the election was surely just a (successful) device to avoid committing to any real detail, but it seems likely that some sort of points based (re)labelling will be deployed. We do already have a points based system, of course.

The outline Conservative immigration plan distributed to journalists was for there to be three categories in the new ’Australian style’ system: (i) exceptional talent or contribution, (ii) skilled and (iii) sector based. We might therefore expect to see some adjustment and re-badging of the existing Tier 1 and 2 routes and might conceivably even see the reintroduction of a genuine points-based route akin to the old Highly Skilled Migrant route. The language of “tiers” may go, and good riddance to it if so. If the new government is serious about attracting entrepreneurs and business investment, the new system provides an opportunity to re-think the approach of the current Start Up and Innovator routes, which were effectively closed earlier this year. I’m not holding my breath for that. Students and the rag-bag of temporary routes under current ‘Tier 5’ might be taken outside the nomenclature of the points system altogether, which could easily involve absolutely zero changes to all those routes other than their titles.

The reintroduction of temporary low skilled labour routes would be a reversion back to the old Seasonal Agricultural Workers Scheme (SAWS) and the sector based schemes launched by New Labour in the early 2000s. There are some very serious problems with such schemes.

Firstly, visas are often tied to specific jobs and employers, creating conditions perfect for the exploitation of those workers. At the moment a farm or food processing worker can move to a new farm or factory up the road to improve his or her conditions or pay or escape an abusive or exploitative employer. Not so under tied visas. Some employers will be keen to see these schemes reintroduced.

Secondly, it is inevitable that some temporary workers will disappear into the shadow economy. It is an inevitable feature of any scheme of this nature. A system that increases the chances of labour exploitation of even the lawful migrants and also leads to an increase in the size of the unauthorised, easily exploited population is not a good system. Lawmakers will know that this is an inevitable consequence of the system and are therefore responsible for what follows. It will be the migrants who pay the price, though.

Thirdly, on a more moral and ethical level, bringing in temporary migrant labour to do our dirty work on tied visas and not even allowing them any route to achieve equal citizenship status is simply exploitative. It is unfair and it reinforces the notion, so prevalent in the New Labour years, that immigrants are some sort of natural resource to be managed, mined and exploited. Some will defend such systems as being simply contractual: the migrant knows what he or she is signing up to. But to my mind the power and wealth imbalance makes this arrangement the epitome of imposing unfair contractual terms.

Related to this, I have been thinking a lot about how migrants’ rights activists might respond to the 2019 election result. I’m pretty sure what we’ve been doing so far has not worked very well, although I may be overlooking some underlying successes. I plan to write more on this in the new year, although I am very nervous of doing so. Opinions and voices in our field are passionate. One thing I’m certain of is that there is room for different people and groups to campaign differently and on different issues. Migrants rights campaigners can and must continue their long term work but if we want to see improvements or even mitigation in the short term then I suspect the rubric of rights is not going to yield results.

Finally, I am due to hand in my draft manuscript at the end of January 2020 to publishers Biteback for an as yet untitled book about the UK immigration system. In theory it will be published in the summer but I still have about 15,000 words to write. And the ones I have written may be the right ones but they aren’t necessarily in the right order. When I started Free Movement I wrote that “one of my hopes for the blog is that it will help me reach a more coherent view”. I’ve failed in that because of the blizzard of news and updates with which we are constantly bombarded. The book is in part my attempt to put that right. More details about it when the time is right.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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