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UKBA refuse to remove overstayers

In asylum cases it is still referred to as The Legacy, as if it were a second rate Spagetti Western. In immigration cases it has the more prosaic title of the ‘migration refusal pool’. The UK Border Agency’s inspectorate has today [update: link to report here] unveiled yet more cases abandoned by immigration officials, this time of complex spouse and marriage cases dating back as far as 2003. The files were sitting unopened in boxes until the inspectors asked what was in them. How has this well publicised backlog arisen?

Well, even if you ASK the UK Border Agency to remove you they STILL won’t do it. The relevant instruction to immigration officials for a lot of these backlog cases reads as follows:

You must not make a removal decision at the same time as refusing leave to remain in these cases, other than in asylum cases. The applicant is expected to leave the UK voluntarily when the application is refused.

The instruction goes on to tell officials that it is only in exceptional cases that a request to be removed should lead to a removal decision. The criteria for making one of these rare removal decisions is said to be:

  • the refused application for leave to remain included a dependant child under 18 who has been resident in the UK for three years or more
  • the applicant has a dependant child under the age of 18 who is a British citizen
  • the applicant is being supported by the UK Border Agency or has provided evidence of being supported by a local authority (under section 21 of the National Assistance Act 1948 or section 17 of the Children Act 1989), or
  • there are other exceptional and compelling reasons to make a removal decision at this time.

For immigration lawyers trying to help clients understand the topsy turvy world of the UK immigration ‘control’, this perhaps explains why some applications for judicial review intended to secure a removal decision do so and others do not. It is a topic that the blog has covered several times previously and which has repeatedly troubled the higher courts. The reluctance of the UK Border Agency is perhaps partially explicable by the fact that a removal decision would trigger a right of appeal. If the appeal was unfounded or raised repeat points it can be certified, though, and avoiding conferring an ability to challenge a decision through the tribunal system hardly seems like a sound reason for failing to take action against those the Agency purportedly would rather were somehow, miraculously, gone from these shores.

It would seem that the government quietly abandoned attempts to enforce immigration control some time ago. Instead a private company, Capita, using nothing more than the faulty data held on UK Border Agency systems, have now been contracted as bounty hunters to do what immigration officials could or would not do.

Thanks to ILPA (again) for highlighting the policy.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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