Immigration lawyers have been shocked by Government proposals to introduce from 1 April 2008 a re-entry ban on immigrants who have previously breached UK immigration laws.
The ban was debated in the House of Lords last night. This is very rare for changes to the immigration rules, which are usually adopted into law by the scrutiny-lite means of the negative resolution procedure. Unless someone objects, the law is simply tabled by the Government and will automatically become law. Finding parliamentarians willing to make such an objection is a tall order, at least amongst the cowering Commons.
The new rule, the elegantly designated paragraph 320(7B), includes a sort of tariff system:
- Overstayers who leave within 28 days of the end of their visa and pay for their own departure can come back immediately
- Those who otherwise breach immigration laws but leave voluntarily and pay for their own departure can return after 12 months
- Those who breach immigration laws, leave voluntarily but whose departure is paid for by the Home Office can return after 5 years
- Those who breach immigration laws and are removed involuntarily at the expense of the Home Office can return after 10 years.
An important concession was announced last night: the new rule will only apply to those who have not departed the UK before 1 October 2008. There is therefore a grace period before this comes into effect, which will enable overstayers to take legal advice and make arrangements to leave in the knowledge that there is no immediate disincentive to their doing so, as long as they leave by 1 October 2008. This is sensible, otherwise no overstayer currently in the UK would have any reason to make a voluntary departure at all.
Still, not to put too fine a point on it, the new rule sucks. For a tragi-comic explanation of why a blanket re-entry ban that depends on one’s ability to pay for departure is a bad idea, read the comments of the then Immigration Minister Tony McNulty in evidence to the House of Lords European Union Committee in 2006:
“…at the risk of being intemperate, that was probably one of the most outrageous suggestions in the whole Directive, that somehow if you paid for your own return, you would be treated in a different way to if you did not. I just cannot see the public policy call of that at all”.
I also recommend the “answers” given by Liam Byrne to the Joint Human Rights Committee in evidence about the new rule.
This change is a really significant one and raises all sorts of interesting issues about proportionality under Article 8 of the European Convention on Human Rights. Until now, the Home Office and often the courts have said that removal is perfectly proportionate because the person jumped the visa queue and, if the system of immigration control is to have meaning, it is reasonable to expect them to return home and make an application from there just like everyone else. Now, they won’t even be able to make an application, and will be separated from partners and even children for five years in many cases if they are removed from the UK.
The Home Office is presumably hoping that this will encourage voluntary departures, which will save them the effort and expense of forcibly removing people. I haven’t actually seen this rationale expressed anywhere, though.