The Home Office this week published a new policy setting out the terms of a 12 month immigration “amnesty” for survivors of the Grenfell Tower fire. In short, the Government is offering a grant (or extension) of 12 months leave to enter or remain with access public funds included as well as the right to work.
Applications must be made before 31 August 2017. There is no formal application form that must be used and no fee is payable, nor is the Immigration Health Surcharge.
This policy is additional to the Government’s previous assurance that immigration checks will not be carried out on Grenfell Tower survivors, an assurance reiterated in the policy document.
I would strongly advise anyone considering making such an application to take legal advice before doing so. Accepting a 12 month grant of leave may actually cause problems for some individuals by disqualifying them for settlement. At the end of the 12 month period there is no route to remain beyond that unless the individual qualifies under one of the existing immigration rules, which is unlikely for many. Failin that, the person will have to leave the UK or will face removal.
Who can apply?
Anyone for whom 12 months leave with recourse to public funds and with permission to work would be an improvement — at least in the short term — on their existing immigration status can apply. This includes:
- Those with no immigration status at all, including illegal entrants, overstayers and failed asylum seekers
- EEA nationals in the UK who are not exercising treaty rights (a group the UK Government considers unlawfully resident)
- Those with limited leave due to expire within 12 months
- Those with a status which is subject to a “no recourse to public funds” condition
The policy does not apply to an asylum seeker with an outstanding appeal or further submissions:
This policy does not apply to failed asylum seekers with an outstanding appeal against their refusal, or who have lodged further submissions which are outstanding, as they may qualify for asylum support.
Given that asylum support is far, far less than full access to public funds and does not include the right to work, the policy is to treat asylum seekers with outstanding claims worse than those whose claims have already been rejected. Note that the policy also says merely that failed asylum seekers with further submissions may be entitled to asylum support; they may end up with nothing at all. This is utterly inexplicable.
A connection with Grenfell Tower is also obviously required to qualify under the policy. The policy says a those who will qualify are those who:
- were a resident of Grenfell Tower on the date of the fire, whether or not they were there at the time of the fire. This includes those who were renting unlawfully through an illegal sub-let or informal arrangement; or
- were living close to Grenfell Tower and have been significantly affected by the fire because they have been displaced from their place of residence, which was destroyed or made uninhabitable by the fire. We anticipate that those living close to the Grenfell Tower that are significantly affected in this way are those residents living in Grenfell Walk at the date of the fire.
Dependants of these two groups will also qualify if they were “ordinarily residing” with a qualifying individual (not in the legal sense of “ordinary residence” I suspect, but rather in the everyday sense of “normally residing”).
Actually proving this connection is obviously going to be rather hard, especially with Home Office officials schooled in the “guilty until proven innocent” approach to case work. The policy is helpful in this respect, reminding officials that “those directly affected by the fire are unlikely to be able to provide documentary evidence of their address” and that officials should note “the difficult circumstances in which survivors and others directly affected by the fire find themselves.”
A non-exhaustive list of possible types of evidence is set out, which includes a redacted section:
- checking any evidence held by the Home Office to establish the last recorded address on a previous immigration application;
- official correspondence with the address, e.g. from DWP, HMRC, the local authority or from an energy supplier;
- evidence that individuals have been receiving support as a result of the fire;
- evidence that individuals were living close to Grenfell Tower and the fire has resulted in their home being destroyed or made uninhabitable;
- Official sensitive: start of section: The information on this page has been
- removed as it is restricted for internal Home Office use. Official sensitive: end of section
- checking with other agencies, such as the police, the local authority and the Department for Communities and Local Government as to whether they can confirm whether a person has provided information about their links to Grenfell Tower or Grenfell Walk;
- evidence of a payment from the Grenfell Fire Emergency Fund such as a bank statement or BACS transfer;
- evidence provided on their behalf by a leading member of the community or recognised support group setting out what they know about the person;
- evidence they were hospitalised as a result of the fire; and
- evidence from a local school or GP records.
Many unlawfully resident migrants would be unable to provide any of this evidence anyway, even if their homes had not just been burned down. Living in Theresa May’s “hostile environment” means living without footprints. It may be that those who might benefit from the policy are unable to do so simply because they cannot prove their residence, never mind any fears they may have about later immigration enforcement.
What status is granted?
Essentially, the policy offers an optional “upgrade” to any affected person who does not have limited leave with access to public funds and permission to work. This could either be in the form of a grant of leave or in relaxation of conditions on an existing grant of leave.
For example, a person with no immigration status will be granted 12 months limited leave with no bar on access to public funds and permission to work. A person whose leave will expire within the next 12 months can immediately apply for an extension on these terms (but may by doing so lose out, see below). A person whose current leave includes a “no recourse to public funds” condition and/or is prohibited from working can apply to have those conditions lifted.
Are there any disadvantages to applying?
Those with no status
For those with no existing status, the offer of a 12 month grant of leave with access to public funds and a right to work must be a very tempting one. There are no disadvantages I can see in the short term and there are lots of advantages. When the 12 month grant of leave is coming to an end, though, the individual concerned will either have to apply for status under one of the existing very tough routes in the Immigration Rules, lapse back into illegality or leave the country. The options for lawful status are extremely limited, being either racking up 20 years of unlawful residence (and even then it takes a further 10 years to achieve settlement) or applying under the very restrictive parent or partner rules.
Whether this offer of 12 months temporary stay is sufficient to persuade people to come forward is unknown.
Those with existing leave
Those with an existing status should be extremely cautious. Individuals who have current leave but which will expire within 12 months or which includes “no recourse to public funds” and no employment conditions face choices and should seek legal advice. They can:
- ask for their current leave to continue but for the conditions to be changed to allow access to public funds and access to employment, if they do not already have such access; or
- accept instead a grant of leave of 12 months with access to public funds and permission to work.
The policy goes on:
Individuals with leave on an existing route to settlement under the Immigration Rules should consider the impact of switching to a grant of leave outside the Immigration Rules on the length of time it will take to reach settlement. Individuals cannot hold more than one type of leave to remain.
Imagine a person is on a route to settlement as a spouse and can work but has no access to public funds. It normally takes 5 years to achieve settlement and he or she is approaching the half way point, which means that he or she must soon apply for an extension. An extension application for a spouse normally costs £993 and involves completion of a 79 page complex form that probably requires the assistance of a lawyer. A 12 month grant of leave with no form, no fee and no complexity and with access to public funds may seem attractive.
However, this would have the extremely unfortunate effect of preventing the person qualifying for settlement. The rules for spouses and partners are set out in the alphabet soup in Appendix FM. The settlement rules include paragraph E-ILRP.1.3.:
The applicant must at the date of application have completed a continuous period of at least 60 months with limited leave as a partner under paragraph R-LTRP.1.1.(a) to (c)…
Note “with leave as a partner under paragraph…” If a person wanting to apply for settlement has a 12 month grant of leave outside the rules not as a partner under this Grenfell Tower policy, that person will not qualify for settlement. The grant of leave under the Grenfell Tower policy will re-start the clock.
A similar provision exists for those on the 10 year route under Appendix FM. Similar provisions also exist, I think, for other immigration categories. In short, a grant of leave under the Grenfell Tower policy will restart the clock for achieving settlement and is therefore a significant disadvantage for migrants with existing leave.
This is not because of the Grenfell Tower policy as such but because of the highly restrictive nature of the UK immigration rules and the Home Office phobia of migrants who switch status. In Home Office World a migrant has to decide what class or category into which he or she fits and then stay there. That said, it would be simple to have stated in the policy that grants of leave under the policy would not prejudice future qualification for settlement, for example on the spouse and partner routes. The Home Office always has a discretion to waive requirements of the Immigration Rules.
Who is excluded?
There are several groups of people who are excluded from benefiting from the policy:
- any Foreign National Offender (FNO), i.e. those subject to deportation proceedings or whose continued presence in the UK has been determined by the Home Office to be not conducive to the public good;
- any person who, if they were to apply for asylum, would fall for exclusion under Article 1F of the Refugee Convention;
- any person subject to Terrorism Prevention and Investigation Measures – TPIMs;
- any person currently subject to a Deportation Order (including those appealing a Deportation Order);
- any person for whom there are concerns about criminality, character or associations, including extremist behaviour;
- any person who has failed security checks; and
- any person who has refused to supply their biometrics.
One way of looking at this is to say that any person, even a bad person, who survived the Grenfell Tower fire should be entitled to help. It does not diminish their suffering and their need for help that they have themselves done bad things in the past. If they are a really bad person they could always be deported later, I suppose. But this is not the approach of the Home Office, which excludes them entirely from the policy.
Challenging a refusal
The policy states that there is no right of appeal against a refusal. That is not necessarily true. There is a right of appeal against refusal of a human rights claim and it is certainly conceivable that an application under this policy would be regarded by the tribunal as a human rights claim, depending on the circumstances of the case. Where there is no right of appeal, an application for judicial review might potentially be attempted instead. The chances of success would very much depend on the individual circumstances, but it would be fair to say that challenges to decisions under discretionary policies like this do not often go well for the claimant.
The policy states that while an application is under consideration a person will not be referred to Immigration Enforcement. There is a clear implication that if a person applies and is refused, though, they WILL be referred to Immigration Enforcement. This reveals the limited nature of the pledge not to ask questions about immigration status; where a person puts themselves forward it is seemingly a different matter.
The policy also states that those who make false claims WILL be referred to Immigration Enforcement. It is not clear in the policy what distinction is made between a claim that is merely refused, for example because the person cannot prove their Grenfell Tower connection, and a false claim. Past experience with the Home Office suggests that anyone refused on the basis of lack of evidence of connection to Grenfell Tower will be accused of making a false claim. If so, the policy explicitly says that they face prosecution for attempting to obtain leave by deception.
In conclusion, the offer of a 12 month grant of leave with no conditions will be useful to some, may be actively detrimental to others and will be considered too short term by others. There is also a risk in making an application; proving connection to Grenfell Tower will be very important and failure to do so may lead to prosecution.