The change in UK immigration Law
One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order and good government, or to its social or material interests.
Therein lies the sovereign right of every nation state to put in place the immigration controls it deems fit to regulate its borders. The vortex of opinions continues to swirl, almost uncontrollably, when it comes to discourse on asylum and immigration matters.
Immigration laws have gone through a metamorphic transition in the UK , perhaps as a reflection of successive governmental efforts to grapple with the difficult issues thrown up by this emotive topic.
Indeed, quite recently a former employee of the Home Office, Steve Moxon, almost single-handedly brought about the resignation of a Minister with his revelations on the chaotic state of immigration practices within the Immigration and Nationality Directorate of the Home Office.
Immigration control refers to the framework of statutes, secondary legislation, rules and practices which regulate the entry into, residence in and departure from the United Kingdom. The Immigration (Leave to Enter and Remain) Order 2000 [the Order] nestles within this framework.
The Order came in force in two parts – much of the Order came into force on the 28th of April 2000 while the rest came into force on the 30th of July 2000.
It introduced a number of changes to the law such as providing that a visa or other entry clearance may have effect as leave to enter the United Kingdom and that, in certain circumstances, leave to enter or remain is not to lapse on travel outside the common travel area (Ireland, the Channel Islands and the Isle of Man).
The Order alters the nature and substance of UK immigration law by further crystallising processes relating to the giving and refusing of leave to enter and remain in the country. This therefore has a direct and significant impact on immigration controls.
When one considers that more than ninety million people pass through the UK immigration controls every year , the significance of the Order on overall immigration related statistics cannot be overemphasised.
Leave to enter the United Kingdom is required by:-
• Any person who is not a person entitled to enter or remain in the United Kingdom by virtue of the provisions of the Immigration (European Economic Area) Regulations 2000 or Commission Regulation 1251/70
Under the Immigration Act 1971, an Immigration Officer had the power, when admitting to the United Kingdom a person subject to immigration control, to give leave to enter for a limited period and impose certain conditions therewith.
The Tribunal stated that:
We note in passing the Immigration (Leave to Enter and Remain) Order 2000 SI 1161 which provides in Part II for entry clearance in certain common circumstances to operate as the grant of leave to enter. Otherwise, leave to enter is granted at the point of entry into the United Kingdom of those previously granted entry clearance
As observed by the Tribunal, it is now possible for an entry clearance to operate as (and be take to be) the grant of leave to enter. The Order has thus streamlined the process for gaining entry into the UK.
Article 7 of the Order provides that an Immigration Officer (whether or not in the United Kingdom) may give or refuse a person leave to enter the United Kingdom at any time before his departure for, or in the course of his journey to, the United Kingdom. This provision was supplemented by a new rule 17A of the Immigration Rules, which provides:
Persons outside the United Kingdom:
Where a person is outside the United Kingdom but wishes to travel to the United Kingdom an Immigration Officer may give or refuse him leave to enter. An Immigration Officer may exercise these powers whether or not he is, himself, in the United Kingdom. However, an Immigration Officer is not obliged to consider an application for leave to enter from a person outside the United Kingdom.
As will be set out later in this paper, article 7 and rule 17A work together to empower Immigration Officers to actually handle applications for leave to enter the UK offshore and therefore potentially reduce numbers of people coming into the UK, if need be.
Entry Clearance
Whilst Immigration Officers still have an overriding power to revoke a person’s right to enter the UK, new arrivals will already have a presumptive right to enter the country if they have a proper entry clearance.
A person seeking to enter the country (for a purpose for which prior entry clearance is required) is required to produce a valid passport which has been endorsed with a United Kingdom entry clearance issued for the purpose for which the entry is sought.
If the entry clearance satisfies the requirements specified in article 3 of the Order it will have effect as leave to enter the United Kingdom. The holder of such an entry clearance will not require leave to enter on arrival in the United Kingdom and will thus be treated as a person who has arrived in the country with leave to enter which is in force but which was given to him before his arrival. Decisions relating to the suitability of persons to have access to the country will potentially be moved offshore with the empowerment, so to speak, of entry clearance officers.
The Order further introduces some flexibility to the system by providing for the granting and refusing of leave to enter otherwise than by notice in writing, and the granting or refusing of leave to enter by notice to a responsible third party.
As a result the granting or refusing of leave to enter otherwise than by notice in writing now includes notice by facsimile or email and in the case of granting or refusing leave to enter as a visitor, ‘orally including by means of a telecommunications system’.
Purpose and effects of the Order
The vast majority of those passengers were (and continue to be) law abiding individuals presenting no threat to the UK. Prior to the Order, a potential visitor to the UK would apply for an entry clearance in their originating country and accordingly would be interviewed by an entry clearance officer. They would thereafter (if successful) be interviewed again on arrival in the UK by an Immigration Officer. The Foreign Office also introduced a new format for entry clearances so that they now bear the conditions of entry on the face of the entry clearance, to make them compliant with Article 3 of the Order.
There has therefore been more responsibility imposed on entry clearance officers by the Order though Immigration Officers still retain their powers to check passports and entry clearances to verify that they are genuine, presented by the rightful holder and that the purpose for which the entry clearance was issued remains the same.
The implications of the power to grant or refuse leave to enter before a person arrives in the UK were eruditely set out before the House of Lords by Lord Bassam of Brighton . For example, with the use of advance passenger information we could pre-clear certain low-risk school groups and recognised reputable tour groups, thereby speeding their progress through the immigration control and so removing the need for detailed, individual examination on arrival.
Alternatively, we might wish to send immigration officers overseas, with the agreement of the government concerned, to address particular pressure points. It also allows us to take advantage of any future developments in technology such as biometrics, electronic storage of a person’s physical characteristics – for example hand geometry and eye scanning – encrypted into a card, that will enable the holder to pass through electronic controls. We believe that these measures will be to the benefit of the travelling public, the carriers and the Immigration Service alike.
Tags: immigration and nationality directorate, immigration control, immigration laws, nation state, uk immigration
