July 2020

Q&A: immigration detention in the UK by Charlotte Rubin

What is immigration detention?

Immigration detention refers to the Home Office practice of detaining foreign nationals for the purposes of immigration control. It is supposed to be the final point before removal.

How does immigration detention in the UK work?

The United Kingdom has one of the largest immigration detention systems in Europe, confining over 30 000 people a year in 10 detention centres or immigration removal centres (IRC). The IRCs are run by private, sub-contracted companies. Since they are managed by different companies, they vary immensely in the way they are managed, as some of them are run by charities and others by private security companies.

The Home Office has the discretionary power to detain a person at any point of their immigration process: upon arrival in the UK; upon presentation to an immigration office within the country; during a check-in with immigration officials; once a decision to remove has been issued; following arrest by a police officer; or after a prison sentence.

Once in immigration detention, there is no upper time limit to how long individuals can be detained.

Is the UK truly the only country in Europe without a time limit on how long people can be detained?

The short answer is yes. All European countries except for the UK have statutory time limits on how long someone can be administratively detained and deprived of their liberty, whereas in the UK, that is not the case. Rather, the rule in the UK is that detention with a view to removal is lawful only if there is a realistic prospect of this occurring within a reasonable period. The reasonable period, however, is not defined.

How does immigration detention work in other European countries?

In most countries, asylum seekers can be detained for a time period ranging from four to six weeks. Some countries, such as Spain and Hungary, allow for an initial detention period of only 72 hours. After those 72 hours, continued detention needs to be investigated and approved by the judiciary. In the Netherlands, the time limit is six weeks for asylum seekers. For non-asylum seekers who are placed in immigration detention centres, a longer period of up to six months may be allowed. Generally, the average length of detention is about 3 months before cases are resolved and people are either removed or released. In France, the law does not differentiate asylum seekers from other detainees; instead, there is a general time limit of 90 days.

In Germany, the rules regarding how long individuals can be detained is tiered. The standard rule is that individuals can be held for up to six weeks whilst deportation is prepared. Deportation and detention pending exit can then be court ordered for up to six months, and if the detainee actively sabotages or hinders deportation, it can be extended to 18 months. This extension is only possible in exceptional cases. In comparison, BiD, a London-based charity which helps people get out of immigration detention in the UK, have at least 4 clients at any given time who have been in immigration detention for over 18 months.

Have there been many changes to immigration detention practices in recent years?

On the continent, there have been many reforms to detention centres in recent years. In Germany, for example, the immigration detention system has undergone major changes since 2014, when the Court of Justice of the EU ruled that using prisons for immigration detention purposes was unlawful.

Contrastingly, in the UK, several hundred individuals are still being held in prisons under immigration powers today. In addition, many of the UK detention centres are ex-prisons refashioned as immigration facilities. Most famously, Morton Hall, of which the government announced its closure this week, used to be a female-only prison complex.

What about countries outside of Europe?

Other common law countries such as Australia and the USA don’t have a statutory time limit either. But considering both those systems have been subject to intense criticisms and increased scrutiny of their human rights abuses, maybe the UK should hold itself to a higher standard.



New Guidance on Points-Based System fails to give much new information by Charlotte Rubin

Last Monday, Home Secretary Priti Patel announced more details on the new points-based immigration system, which is set to come into force under six months from now on 1 January 2021. The new system is designed to compensate for the end of free movement of people with the European Union (EU), a system which allowed EU citizens to work in the UK (and UK citizens in the EU) without having to apply for immigration status.

The 130-page document published by the Home Office last week gives more guidance on how this Points-Based System, which in reality is not new, but a rebranding of the system currently in force, might work.

From the outset, the document states it sets out the main “economic migration” routes for post-Brexit Britain. Indeed, the document solely addresses immigration issues which bring some type of direct economic gain to the UK – from high-skilled workers and investor visas to student and seasonal visas. It does not deal with other (problematic) aspects of the immigration system, be it the insanity of indefinite detention, the abysmal amount of asylum support for asylum seekers during the pandemic, the cruelty of the hostile environment or the many faults of the EU Settlement Scheme (EUSS). There is no mention of the stringent family requirements, or extortionate visa fees, except to say that the Immigration Health Surcharge is here to stay. It may be refunded or cancelled for NHS and social care workers, and wider health workers.

As known from previously released guidance, the points-based visa system takes different factors like skills and language into account when awarding visas which allow foreign nationals to work in the UK.

As such, workers need to score 50 points from the general requirements (meaning they need to have a job offer for a job at the “appropriate” skill level from an approved employer). In addition, they need to speak English, and then score an additional 20 points based on the salary level, job type or, alternatively, by possessing a PhD. The general minimum starting salary for a job offer is £25,600, unless it is a job on the shortage occupation list, or if the applicant has a PhD relevant to the job. In those cases, the salary threshold may be lowered to £20,480.
Hoping to live up to their promise to take back control, the government has previously said it hoped Britons would fill a shortfall of around 120,000 workers, equating to 10% of all vacancies. In addition, the cap on the amount of migrant workers allowed to come to the UK is removed to allow employers to recruit more from overseas.

Initiatives like the much-awaited NHS visa, are also supposed to plug one of the main gaps in the labour market. Branded the new “Health and Care visa,” NHS clinical staff applicants will enjoy reduced visa fees and fast-track processes. Despite the name, however, the visa does not actually extend to care workers, as salaries and/or skill-levels for care jobs are often below the required threshold. Considering 17% of care jobs are currently filled by foreign citizens, there would still be a shortfall of at least 7% even if the ambitious Home Office goal of 10% is met. A solution to this shortfall could be to put these carer jobs on the shortage occupation list – but, in Home Office organisational tradition, that list has not been published yet.

So, not only is it unknown which jobs will qualify as shortage occupations, leaving people guessing at which jobs they may apply for and at which rate, but the logic of such a lowered threshold also seems flawed – if these positions are hard to fill, then how would offering lower salaries help attract more applicants?

A similar problem arises when it comes to seasonal (agricultural) workers. Whilst the government has made arrangements for seasonal harvest workers, the cap et on foreign harvesters falls below what the National Farmers’ Union recommended. The updated guidance fails to address this, instead stating that the farming sector will be reassessed at the end of this year after the end of a pilot scheme. In the meantime, crops are left to wither as the looming end of free movement is compounded by pandemic-related border closures, and seasonal harvesters fail to make it in time.

For businesses, the Immigration Skill Charge levied on employers remains unchanged, meaning that in addition to third-party nationals, ‘new’ EU/EEA/Swiss citizens from 1 January 2021 will cost businesses £1,000 per employee, per year. There is a reduced charge of £364 per employee, per year for small or charitable organisations. There will also not be a charge levied on EU citizens with status under the EU Settlement Scheme.

For students, the old ‘Graduate Route’ reopens in summer 2021, allowing students to stay in the UK for two years after their graduation to work or look for work. If they want to stay beyond those two years, they will have to switch into another visa category. The updated guidance focuses on working visas, rather than other options such as spousal or family visas.

As promised, the new guidance focuses on economic migration, wilfully overlooking other, more humane visa routes such as family or asylum. The focus of the guidance is on jobs, economic worth and border security. Yet, even for workers and economic supply chains, it fails to deliver, as it lacks overall detail on who will and won't be able to work in the UK once the points-based system actually takes effect.

The harsh reality of family applications in the UK by Charlotte Rubin

Appendix FM of the immigration rules sets out the rules for non-EU citizens who want to come and join previously settled family members in the UK. Those eligible to apply for family visas under Appendix FM are non-EEA nationals related to or in a relationship with either a British citizen, a person settled in the UK with indefinite leave to remain, or a person in the UK with limited leave as a refugee or someone granted humanitarian protection.

The Appendix states that it aims to “strike a balance between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic well-being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others.”

In practice, striking the “balance” between what is essentially an inalienable human right under Article 8 of the European Convention of Human Rights and national or domestic conditions of life has led to strict rules and requirements for applicants trying to join their family.

Basic requirements for eligibility depend on the applicant’s relationship to the family member they are trying to join in the UK, and are often related to age, knowledge of English and self-sufficiency. More complicated, and often problematic, is the Minimum Income Requirement (MIR), which was introduced together with the 2012 hostile environment rules by then Home Secretary Theresa May. Under the Minimum Income requirement, the British or settled family member who wants to reunite with their non-EEA national family member has to prove that they can financially support themselves, the family member, and any dependent children where applicable.

Concretely, the British or settled sponsor needs to show a proof of income of £18,600, with an increase of £3,800 where they are applying with one dependent child, and an extra £2,400 for each additional child after that. This is in addition to the cost of the Home Office visa application process and English Language test fees which applicants have to incur independently, and which are amongst the highest in the world.

Bearing in mind that 40% of workers in the UK do not reach this threshold, the minimum income requirement has often been criticised as unduly harsh on family units. Today, at least 15,000 children are growing up without one of their parents, just because their family doesn't earn enough to meet these strict Home Office income rules.

The Appendix is also the framework under which a British or settled person can bring their spouse or partner into the UK. For partner applications, additional non-financial requirements, which are not required for blood-related family members, can be tricky. Primarily, the requirement to prove that the relationship is “genuine and subsisting” can be hard to fulfil, and often is at the base of reasons given for refused applications.

Granted, Appendix FM makes provision for “exceptional circumstances” under which an applicant may be relieved of the Minimum Income Threshold, or where the Home Office will approach “genuineness” of the relationship with more flexibility. For the MIR, examples include if a strict application of the rules will result in unjustifiably harsh consequences, and thereby render refusal of entry clearance or leave to remain a breach of Article 8. In those scenarios, the Home Office will not only take other income sources such as cash savings into account to see if an applicant can reach the threshold alternatively, but they may also exercise discretion in granting the family visa if the money is not readily available. Unsurprisingly, the threshold to qualify for these “exceptional circumstances” is extremely high, and the execution is at the Home Office’s mercy.

Not only is there no motive – political, economical or humanitarian - that justifies the minimum income threshold, it has also still not been proven that the hostile environment policy works at all. As Reunite Families UK, a charity fighting the unfairness of the minimum income requirement, writes in their open letter to the PM the COVID-19 pandemic has exacerbated the policy’s harmful effects, and the upcoming recession will only make things worse. Write to your MP today to fix this broken system, and reunite families that have been teared up for years for no other reason than purely financial distress.

You can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp if you need help reuniting your family.

Legal Aid in the UK: A Depressing Timeline by Charlotte Rubin

In 1949, the Legal Aid and Advice Act introduced the first form of free legal aid schemes for those who found themselves in front of a judge but could not afford a lawyer. Before that, free legal advice was only available through schemes run by volunteer lawyers.

At a basic level, the Legal Aid and Advice Act ensured that people who could not afford legal costs could apply for legal aid and receive money provided by the government to cover those costs. The idea was that a welfare state should safeguard legal protection for everyone, and that lawyers should not be working for free for that to be the case. Initially, aid was almost unlimited, covering about 80% of British people. Unfortunately, this extensive coverage did not last.

In the 1980s, the growing cost of the legal aid budget became a political issue. In 1986, total legal payments had risen to £419m a year. The net cost was a lower, at £342m after contributions were recovered, but still a significant sum. That same year, rising taxpayer concerns over this budgeting led to the first cuts to legal aid entitlements.

As the decades went by, cuts became almost routine by consecutive Tory and Labour governments. When fixed fees replaced hourly fees for legal aid cases, law firms were forced to choose between taking on a high quantity of fixed fee legal aid applications and lowering the time spent on each application, or limiting legal aid work to ensure that each caseworker would actually be able to manage their cases, deliver high-quality advice, and make a proper living. As a consequence, many legal aid providers started avoiding more complicated areas of the law like immigration and asylum, or at the very least limit the types of applications for which they provided legal aid, leaving migrants with less options to get the advice and the representation they so desperately need.

Thus, legal aid became progressively more limited, and eligibility requirements more stringent, until before the 2008 economic crisis, only 29% of people were eligible. In the aftermath of the banking crisis, the coalition government then passed the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), which was supposed to reduce legal aid spending by £350m by 2015. Criminal and family law aid, the former of which at one point accounted for 80% of the legal aid budget, were hit heaviest by the cuts, but funding for immigration cases also crippled, as almost all matters unrelated to asylum were removed from the scope of legal aid. For the very few immigration applications (human trafficking, asylum, domestic violence and immigration detention) that remained within its scope, the pay was cut even further.

Inevitably, these developments caused a wreckage in legal aid practices across the country. Half of all law centres and not-for-profit legal advice centres in England closed down since LASPO made it into law, and more people than ever are forced to represent themselves in court.

Yet again, Britain is failing the most vulnerable members of society. Asylum seekers’ access to justice and immigration law practitioners’ financial viability are dually strained, and a decrease in funding paired with an increase in demand has led us to where we are now: operating within a failing system, on the brink of collapse. The risk of collapse is more acute in some sectors such as family courts, just as conceivable in immigration tribunals. Like many other aspects of the welfare state, the legal aid process has been marketised, commercialised and as a consequence, dehumanised. We should aim to do better.

You can search for legal aid firms using the search tool on the Immigration Law Practitioners' Association here.

With less than 12 months left until the EU Settlement Scheme deadline, it is still failing vulnerable applicants by Charlotte Rubin

Six months after the EUSS was piloted in November 2018, the Migration Observatory published their initial report analysing which EU Citizens were at risk of failing to secure the rights to which they are entitled after Brexit through the EU Settlement Scheme (EUSS). As time passed, it became increasingly clear that the EUSS process had many flaws, including the double-counting of applications, inaccurate estimates of the number of EU nationals living in the UK, and the Home Office’s inability to ensure vulnerable communities actually know about and apply to the Scheme. Now, with less than 12 months left before the closure of the Scheme on 30 June 2021, many cracks in the EUSS system still remain. Vulnerable applicants especially, whether at risk of missing the deadline due to their age, language abilities, technological abilities, health issues, home circumstances or something else, are still not applying in as great of a number as they should be.

The lack of outreach to certain vulnerable communities, and the challenge the EUSS in its current form poses to them, is a real problem for many individuals who have been living in the UK for years. One example of such a vulnerable community is the Roma people, of which it is it is estimated that there are at least 200,000 living in the UK, the vast majority in England.

The Roma community is made up of people from different sub-communities, from different countries and nationalities across Europe. They speak different languages and often interact mainly with people from their known, relatively closed network. Combined with a low literacy level within their community, this makes it hard to spread information about external issues like Brexit and the EU Settlement Scheme into their circles.

As such, the Roma Support Group reported that the vast majority of Roma people they interviewed knew about Brexit, but were unaware of specific information on how to apply for immigration status after Brexit. The ones that did know about the EUSS did not acquire that knowledge through the traditional channels of Home Office communication outlets such as adverts, radio, social media, etc. Rather, they get their information from trusted individuals within their community.

Of the Roma people that have already applied to the EUSS, which is only a minority, a significant amount required additional support and time to submit applications; in fact, only 3% of Roma people who have applied to the scheme to date were able to do so completely independently. These extremely low numbers are not surprising when considering that Roma people are less likely to be IT proficient, and more likely to need language support, than other EEA nationals in the UK.

To make matters worse, Roma people’s applications are often amongst the most complex ones. Roma people often encounter difficulties when trying to obtain ID cards, which is one of the requirements when applying under the EUSS. The Roma Support Group reports that Slovak Romas, for example, have difficulties in obtaining passports, especially for their children born in the UK. The waiting times for appointments at the Slovak Embassy is approximately 3 to 4 months, the Embassy operates only in London and due to financial and time restrictions, many Roma are not able to obtain their passports in the UK. Some Slovak Roma have already travelled to Slovakia to apply for passports for their children because that turned out to be easier than obtaining them in the UK.

Even if they do have ID cards, Roma people often have a harder time proving their residency due to their community lifestyle and culture. Examples of complicated applications include Roma rough sleepers and Roma women, who are less likely to be employed, making it harder for them to prove their residency. As a consequence, many of them end up receiving the wrong status. In fact, 15–25% of Roma women and elderly Roma the Roma Support Group engaged with had to apply for pre-settled status despite having lived in the UK for more than 5 years, to avoid the difficulties that they face in providing the documents needed to obtain settled status.

Coram, a legal charity founded in 1981 that works to promote children's rights both in the UK and abroad, states that the Home Office is also failing to recognise a particular gap in applications coming from children in the UK. With more than 900,000 eligible EEA citizen children thought to have been living in the UK in 2017, less than half had been granted status under settlement scheme by 31 March 2020. Of eligible children in the care system, the number of which is estimated at 9000, only about 500 had secured status by that same date.

Many of these children will be British citizens either by birth or through registration, but are not aware that they need to register in order to confirm their citizenship. The children who fail to do so are at risk of losing both their citizenship and their EUSS status after 30 June 2021, warns Coram.

Additionally, Coram highlights the issues that arise form granting vulnerable children pre-settled status, stating that vulnerable children should not be granted short-term forms of immigration status, as these do not offer adequate levels of protection. Short-term immigration status such as pre-settled status not only pose challenges for local authorities seeking to plan for children’s futures, but also very immediate challenges for young people who must undergo a probationary period before being able to settle in the UK. Additionally, children granted pre-settled status may not always understand that they will need to re-apply in order to remain in the UK lawfully. If they fail to do so in time, they are at risk of hundreds of thousands of people falling out of the EU settlement scheme and losing their residency rights.

No child or young person who previously held pre-settled status should fall off their route to settled status in the event that they do not make the settled status application at the right time. To prevent this, Coram asks that the Home Office should at the very least commit to prompting holders of pre-settled status before their status expires and telling them what they need to do to remain lawfully in the UK. Ideally, it would go beyond that and introduce a provision to grant settled status to all looked after children and care leavers who apply to the EU settlement scheme, because grants of pre-settled status are simply not in these children’s best interests.

This is something immigration experts on all sides of the political spectrum have warned for ever since the EU Settlement Scheme was introduced. No matter how much funding the government provides to help vulnerable people apply to the Scheme, it will not reach everyone it needs to, and vulnerable people who fail to apply in time will bear the consequences.

That is why practitioners and third-party organisations campaigned to make the EUSS a declaratory scheme instead of an active application process, in order to ensure that vulnerable groups such as Roma people and children would not be penalised unnecessarily and get the status they are eligible for. These efforts were in vain, as the Home Office reiterated only a few weeks ago that all EU citizens wishing to secure status in the UK will have to apply under the EUSS in its current format in order to remain lawfully resident and not become subject to the hostile environment rules.

EU support groups have since scaled back their recommendations. Coram, for one, have advised that in order to avoid EU children becoming unlawful residents in the UK, the £1012 citizenship fee currently charged to children, which prevents many children from accessing their rights, should be scrapped, vulnerable children to be identified more accurately across the country, and the EUSS deadline should be extended. Disappointingly, the Home Office, on their behalf, has clarified that the government does not plan on extending the deadline, even in light of the COVID-19 pandemic and all the consequences that flow from it. It has not proposed any other clear changes to accommodate children at risk, except clarified that social workers have an explicit duty to apply help children in their care apply under the Scheme.

To avoid a political and moral disaster when it turns out that members of these vulnerable groups have not applied to the Scheme in time, the Home Office will have to give and do more – more outreach, more time, more flexibility, and more humanity.







Briefing: Does Your Relationship satisfy the Home Office “Genuine and Subsisting” test? by Charlotte Rubin

It is no secret that many couples and immigration practitioners have long been growing frustrated with the requirements to evidence family relationships when applying for a family visa in the UK. Every year, a significant amount of family applications are rejected on the basis of the applicant not providing the adequate documents to evidence relationship requirements.

For Spouse visas, the Home Office guidance states, “an applicant and their partner must provide evidence that they are in a genuine and subsisting relationship.” This is to avoid marriages of convenience or “sham marriages.” But what is a “genuine and subsisting” relationship and worse yet, how does one prove it?

Appendix FM-SE of the immigration rules deals with evidencing all the requirements set out for family visas in the UK. For married couples, it specifies that a marriage certificate is a mandatory requirement to prove the marriage. This is confirmed in the the Home Office guidance on family relationships for partners, divorce and civil partnerships. Unfortunately, neither the Appendix or the guidance specify what evidence is needed to satisfy the “genuine relationship” test.

Since the criterium is vaguely worded, and there is little clear guidance on the subject, it is only logical that applicants often do not realise how much evidence they are expected to present to fulfil the requirement. As a general rule, it is up to the person filling in the application form and, in this case, relying on the existence of a relationship, to prove any assertion made about it. The caseworker who looks at the application will not do their own investigatory work on an applicant’s behalf.

Unsurprisingly, when spouse visa applications get refused, lack of a “genuine and subsisting relationship” is therefore often cited as the reason for refusal. Almost always, the refusal does not mean that the relationship is not genuine, but rather that the applicant failed to give adequate or enough information (in the view of the deciding caseworker) to prove that it was genuine. This is a subjective factor, which depends on the caseworker reading your application. That is why the general advice is to prepare all your immigration applications for the most cynical caseworker on a bad day, to ensure that any caseworker who reads it will view it favorably.

So, what are examples of good evidence? Some of them are obvious – children or stepchildren for which both partners have cared, for example, are an example of strong evidence of a subsisting relationship. If a couple has been living together for a while, the requirement can be relatively easy to fulfil. Joint tenancy agreements, joint bills or mortgage deeds are good examples of proof the Home Office would most likely accept as evidence of the relationship. Any other correspondence, especially from government departments or local government, sent to the applicant at the same address as their partner would also get the applicant brownie points.

Home Office guidance specifies that cultural and external factors must be taken into account when evaluating the genuineness of a relationship. If for cultural or religious reasons, the applicant couple did not live together before they got married, for example, or did not know each other very well, that should not mean that their relationship does not satisfy the requirement.

Thus, if a couple has been living apart for a lengthy period of time, or have never lived together before making the application, the situation might be a bit more complicated, and the evidence needed a bit more creative. Good examples of evidence include joint holiday bookings, visits to each other’s home countries, shared financial responsibilities (e.g. bank accounts, savings, utility bills, membership accounts, …), and plans for the future in the UK (think accommodation, finances, etc.) Witness statements from the couple, their family members or neighbours can also be useful.

As ever, this briefing this is not a substitute for legal advice. Fulfilling the “genuine and subsisting relationship” requirement for the purposes of a UK spouse visa application can be one of the most challenging aspects of the process.

Couples who have received a refusal on such grounds could benefit from legal advice to strengthen their evidence in order to submit a subsequent successful application. If you would like an experienced immigration lawyer to talk about your specific application, you can book our one-off video consultation service here. If you have a question about this service you can contact us here or send us a question on WhatsApp.

We use cookies on this site to improve your experience. We only use anonymous cookies so we'll assume you are OK with this. Read our 'Extras' section for more details.