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Six year rule for asylum seekers?

Six year rule for asylum seekers?

The Daily Telegraph has claimed that there is a new policy that asylum seekers may be granted settlement after a wait of four to six (or possibly eight) years following a quiet change to immigration policies.

The policy is allegedly set out in a memo The Telegraph claims to have seen from Matthew Coates, a very senior figure at UKBA, which was signed off by still Immigration Minister Phil Woolas. It concerns Legacy cases and asylum seekers from countries such as Zimbabwe and Somalia to which it is almost impossible to enforce removals. The Telegraph reckons that Coates rejects the idea of an sort of formal amnesty but:

Instead, he recommends changing the current guidance to make it easier for immigration officials to allow the 40,000 to stay in the UK.

He suggests they could be allowed to stay here after having been here for as little as four years, in the most difficult cases, or around six to eight years – rather than 10 to 12 years as the rules stated.

He adds: “We do not believe the rule itself needs amendment. We do, however, need to make some amendments to the underpinning operational guidance to give caseworkers the necessary latitude to deal with this cohort.”

A rather incoherent article has followed the story in The Daily Mail but it really only confuses the issue. It is an appalling piece of writing.

There has been no formal change to Immigration Rule 395C, which lists compassionate circumstances to be considered in removal cases. However, there was a change in the summer to the Enforcement Guidance and Instructions on rule 395C (chapter 53.1.2), which now includes the following examples of cases that should be considered sympathetically:

• An initial application or an ‘in-time’ application for further leave (an application made before the individuals leave to enter/remain had expired) was submitted some time ago. A significant delay in such cases considered as being between 3-5 years.
• ‘Family’ cases where delay by UKBA has contributed to a significant period of residence (for the purposes of this guidance, ‘family’ cases means parent as defined in the Immigration Rules and children who are emotionally and financially dependent on the parent, and under the age of 18 at the date of the decision). Following an individual assessment of the prospect of enforcing removal, and where other relevant factors apply, a 3 year period of residence may be considered significant, but a more usual example would be 4-6 years. Family units may be also be exceptionally considered where the dependent child has experienced a delay of 4-6 years whilst under the age of 18.
• Any other case where delay by UKBA has contributed to a significant period of residence, Following an individual assessment of the prospect of enforcing removal, and where other relevant factors apply, 4-6 years may be considered significant, but a more usual example would be a period of residence of 6-8 years.

These passages are probably the source of the story (or perhaps reflect the implementation of the Coates memo) but they do not seem to bear out the spin given in The Telegraph and The Mail, neither of which mentions that the guidance applies to family cases where there has been significant delay. However, it does explain the occasional strangely liberal, compassionate looking decisions that lawyers may have seen recently.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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