Immigration Barristers' Blog

Recent research by the National Institute for Economic and Social Research (NIESR) into the impact of immigration on the UK labour market has revealed that increased immigration was not associated with increases in claims for Jobseekers Allowance.

Existing research on the labour market impact of immigration to the UK has generally found little or no impact on average, with at most a generally modest impact on the less skilled. This paper adds to that evidence by using a more comprehensive and reliable data source, and updates the analysis to include the recent recession.

The paper presents initial results on the impact of migration inflows on the claimant count rate using previously unused data on National Insurance number (NINo) registrations of foreign nationals, which researchers regard as superior in a number of respects to data on migrants from the Labour Force Survey (LFS).

In contrast to the LFS, which is a sample survey of the entire population at a point in time, NINo registrations to overseas nationals are complete administrative data on new migrant inflows, largely for employment purposes, giving reliable estimates at much smaller geographies than is possible with the LFS.

The research found no association between migrant inflows and claimant unemployment. In addition, researchers tested for whether the impact of migration on claimant unemployment varies according to the state of the economic cycle, and found no evidence of a greater negative impact during periods of low growth or the recent recession.

The general quality of the UK Border Agency’s decision-making can and must be improved, said John Vine CBE QPM, the Independent Chief Inspector of the UK Border Agency, publishing his global review of entry clearance decision-making.

The global review inspection took place between December 2010 and June 2011, and involved an examination of almost 1,500 visa cases from 84 visa decision-making posts worldwide.

At the time of inspection, the Chief Inspector was pleased to find that: the Agency was meeting its customer service targets in the vast majority of cases; there were examples where entry clearance officers had used their discretion to make additional checks in order to support their decision-making; more action was being taken to verify information that had been provided by applicants; the quality of refusal notices was good and, in the majority of cases, refusal grounds were clearly communicated to applicants.

However, the Chief Inspector was concerned to find that: the overall quality of decision-making left considerable room for improvement; in a third of visa cases sampled, errors were found in the way evidence was assessed by entry clearance officers; visa case reviews undertaken by entry clearance managers were not always effective; and applicants were refused entry clearance for failing to provide information which they could not have been aware of at the time of submitting their applications.

UN Secretary-General, Ban Ki-moon, has published a message for International Migrants Day, which was observed on 18th December.

In his message he said:

“Migration affects all countries — and so do myths and misperceptions about its impact. There are many false assumptions surrounding migration.

One such myth is that migrants are a burden. In reality, migrants make vast contributions to host countries. As workers, they bring skills. As entrepreneurs, they create jobs. As investors, they bring capital. In advanced and emerging economies, they play an indispensable role in agriculture, tourism and domestic work.  Migrants often care for the youngest and oldest members of society.

People view irregular migration as a crime. Many think migrants who lack proper documents are a danger to society and should be detained, or that all women who migrate to take up low-skilled jobs have been trafficked. These and other unfounded beliefs lead to the adoption of migration policies that are irrelevant at best, or even dangerous.

States have the sovereign prerogative to manage their borders. But, they also have the duty to abide by their international legal obligations. Under international human rights law, all persons, without discrimination and regardless of nationality or legal status, are entitled to enjoy fundamental human rights. No migrant should be sent back to a place where he or she will be tortured. Every migrant woman should have access to health care, including reproductive health care. Every migrant child should be able to go to school.

Human rights are not a matter of charity, nor are they a reward for obeying immigration rules. Human rights are the inalienable entitlement of every person, including the world’s 214 million international migrants, as well as their family members.

Forty-five countries have ratified the International Convention on the Rights of All Migrant Workers and Members of their Families. I call on all others to join this important treaty as a concrete affirmation of their commitment to protect and promote the human rights of all migrants on their territories.

When their rights are violated, when they are marginalized and excluded, migrants will be unable to contribute either economically or socially to the societies they have left behind or those they enter. However, when supported by the right policies and human rights protections, migration can be a force for good for individuals, as well as for countries of origin, transit and destination.

Let us give meaning to International Migrants Day by taking constructive steps to leverage this global phenomenon into a force for progress.”

A recent European Parliament resolution has said that all EU Member States should lift labour market barriers to Bulgarians and Romanians. It states that there are no real economic justifications for restricting their fundamental right to work and reside in any EU Member State.

EU countries may prolong a temporary ban on Bulgarian and Romanian workers for two additional years, i.e. until December 2013, only if they notify the Commission, by 31st December 2011, of a "serious threat" to their labour markets.

MEPs say that no negative effects have been reported in those Member States that have allowed workers from Member States that joined the EU in 2004 and 2007 onto their labour markets.

Nevertheless, a number of Member States have decided to continue applying restrictions to Romanian ad Bulgarian workers, due more to political pressures than to any justified fear of negative effects on their economies or labour markets, says the resolution.

Recent Eurostat data also show that workers from Romania and Bulgaria have had no significant effect on wages and unemployment rates of the host countries. At the end of 2010, workers from Bulgaria and Romania residing in another EU country represented 0.6% of the total EU population.

The European Parliament asks the European Commission to propose a clear definition of the "serious disturbances of labour markets" required to justify restrictions. Member States that maintain restrictions without "a clear and transparent socio-economic justification of a serious labour market disturbance", in line with Court of Justice rulings, are in breach of the treaties, MEPs say, calling on the Commission to ensure compliance with the principle of free movement.

Austria, Belgium, France, Germany, Ireland, Italy, Luxembourg Malta, the Netherlands and UK all still restrict the access of Bulgarian and Romanian workers to their labour markets. Spain is also restricting Romanian workers' access, with the Commission's approval, until 31st December 2012, due to serious disturbances on its labour market.

The UK Border Agency has announced that the Ministry of Justice is to introduce appeal fee charges for some asylum and immigration appeals from 19th December 2011.

People who want to appeal against a decision notice dated 19th December 2011 or later will need to pay a fee. The appeal fee will apply to most categories of visas and decisions. Any exemptions to the fees will be outlined by the Ministry of Justice. This will not affect any decision notices that are dated before 19th December.

Also, from 19th December people will need to lodge their appeals at the tribunal in the UK. The UK Border Agency will no longer accept appeals at any of its overseas visa application centres.

The Court of Justice of the European Union has ruled in a case involving the ‘return directive’, which establishes common standards and procedures applicable in Member States for removing illegally staying third-country nationals from their territory.

The directive provides for the adoption, in respect of any illegally staying third-country national, of a return decision which, in principle, opens a period for voluntary return, followed, if necessary, by forced removal measures.

If there is no voluntary departure, the directive requires Member States to carry out forced removal using the least coercive measures possible. It is only if there is a risk of the removal being compromised that the Member State may place the person concerned in detention, the duration of which may in any case not exceed 18 months.

The Court of Justice case concerned an Armenian national, who entered France in 2008. He was the subject of a prefectoral decision, in 2009, requiring him to leave French territory and setting a one-month deadline for voluntary departure. Following his refusal to leave France, a new return decision was adopted in June 2011, in the form of a deportation order not accompanied by a time-limit for voluntary departure. In addition, the French authorities ordered his placing in police custody and then detention for illegal staying, measures which he challenged before the French courts.

The Cour d’appel de Paris (France), which is currently hearing the dispute, asked the Court of Justice whether the 'return directive' precludes French legislation which punishes a third-country national who stays illegally in France, beyond three months, without the required documents and visas, particularly a residence permit, by a one-year sentence of imprisonment and a fine of €3,750.

The Court of Justice ruled that the ‘return directive’ precludes national legislation imposing a prison sentence on an illegally staying third-country national during the return procedure. That directive does not preclude criminal penalties being imposed in accordance with national rules and in compliance with fundamental rights on third-country nationals to whom the said procedure has been applied and who are staying illegally with no justified ground for non-return.

Third country migrants working legally within the EU should enjoy certain comparable rights to those of EU nationals under a new "single permit" directive agreed by Parliament and Council and backed by the Civil Liberties and Employment committees.

The "single permit" directive - which complements other measures on legal migration - is designed to facilitate such migration where it meets the needs of the EU labour market.

The proposed directive would simplify administrative requirements for third-country nationals by enabling them to obtain work and residence permits via a single procedure and grant them a standard set of rights comparable to those enjoyed by EU workers, such as decent basic working conditions, recognition of educational and professional qualifications and access to social security.

Member States would have four months within which to decide on a single permit application. These rules do not affect EU countries' power to decide whether or not to admit non-EU workers or how many to admit.

The agreed rules would apply to non-EU nationals who wish to reside and work in a Member State, or who already legally reside or work in a Member State. The new law would not cover long-term residents, refugees and posted workers (who are already subject to other EU rules), seasonal workers or intra-company transferees (who will be covered by other EU directives). Au pairs and seafarers sailing under the flag of a Member State are also excluded.

Parliament as a whole is to put the agreed text to a vote in the next plenary session. Member States will have two years in which to transpose the directive into their national laws.

The European Commission has adopted a communication on "Enhanced intra-EU solidarity in the field of asylum" which seeks to reinforce practical, technical and financial cooperation, move towards a better allocation of responsibilities and an improved governance of the asylum system, and to contribute to the finalisation of the "Common European Asylum System" (CEAS) by 2012 (a deadline set by the Stockholm Programme).

The CEAS aims to set up a common area of protection and solidarity based on a common asylum procedure and a uniform status for people who have been granted international protection.

The Commission has proposed to reform the legislative framework which will form the basis of the CEAS - it consists of three Directives and two Regulations. The European Parliament and the Council have recently adopted the first of these proposals, the Qualification Directive, on 24th November 2011.

The other instruments (the Asylum Procedures Directive, the Reception Conditions Directive, the Dublin II Regulation and the EURODAC Regulation) are still under intense negotiations with the European Parliament and the Council.

Controls to restrict how Bulgarian and Romanian nationals access the UK labour market are to be extended until the end of 2013. This means Romanian and Bulgarian (EU2) nationals seeking to work in the UK will continue to require permission from the UK Border Agency before they can work in the UK.

A report from the independent Migration Advisory Committee looked at the impact on the domestic labour market if the transitional controls were removed. It found that lifting the current restrictions could cause more EU2 nationals to come to the UK to work, particularly in lower skilled occupations where there is greater risk of displacement of resident workers and a negative impact on wages.

Permission to work will normally be given only where the worker has a specific job offer and the work is in skilled employment for which the employer has been unable to find a suitably qualified resident worker. There are also quota-based arrangements for lower skilled jobs in the agricultural and food processing sectors which will stay at the same level for 2012 and 2013.

The extension of the restrictions does not affect the position of those who have already been authorised to take employment in the UK.

The Court of Appeal has ruled that migrants have the right to insist on taking legal advice before consenting to removal by the UK Border Agency [UKBA] at less than 72 hours notice.

The case of ‘Medical Justice v the Home Secretary’ related to a UK Border Agency argument that migrants who consented to removal from the UK were in effect waiving their right to legal advice.

The Court of Appeal decided that removal at less than 72 hours notice was insufficient for access to effective legal advice. In doing so it upheld important principles about an individual’s right of access to legal advice and to the courts when facing State action.

Responding to the ruling Law Society Chief Executive Desmond Hudson said the Court of Appeal stood above the criticism by politicians and elements of the media about the courts’ intervention in immigration cases.

“This case shows the need for the courts to protect the rights of the individual, whether an immigrant or anyone else, to have access to legal advice.

The Law Society provided two witness statements to the court. The Society stated that consent has to be real and therefore properly informed by legal advice, particularly when it means that the individual is withdrawing outstanding court challenges.

The Society pointed out that it is simply unsafe for the UKBA to rely upon that consent unless it is properly informed. It is therefore in the UKBA’s own interest to ensure that consent is properly given and recorded. The failure of the UKBA to take steps to ensure that this happens, the failure to contact migrants legal representatives in these cases and the failure to keep proper records of ‘consent’ led to the court challenge.

The European Commission has proposed to strengthen dialogue and operational cooperation with non-EU partner countries in the area of migration and mobility, deepening the proposals contained in the Communication on a Partnership and Shared Prosperity with the Southern Mediterranean, of 8th May.

The new approach is detailed in a renewed 'Global Approach to Migration and Mobility' which places mobility of third country nationals at its centre and which makes partnerships more sustainable and forward-looking. Mobility of third country nationals across the external EU borders is important as it applies to a wide range of people, such as short-term visitors, tourists, students, researchers, business people or visiting family members and linked to visa policy.

Priority will now be given to two main operational frameworks:

Firstly, Mobility Partnerships will be offered to the EU's immediate Neighbourhood and to Tunisia, Morocco and Egypt in the first instance. Mobility partnerships offer a concrete framework for dialogue and cooperation between the EU and non-EU countries. These partnerships are focused on facilitating and organizing legal migration, effective and humane measures to address irregular migration, and concrete steps towards reinforcing the development outcomes of migration. Concluding visa facilitation and readmission agreements are to be part of these partnerships.

For other countries, the Commission proposes to set up Common Agendas on Migration and Mobility that will constitute an advanced level of cooperation, based on a number of common recommendations, targets and commitments for dialogue and cooperation.

Migration and Mobility Resource Centers will be set up to provide resources and support to individuals and partner countries in the areas of skills and labour matching. The recently launched online EU Immigration Portal will, in addition, help migrants to make more informed choices about migration and mobility towards the EU.

A Global Approach Report will now be prepared every two years, starting from June 2013, in order to monitor implementation and ensure progress.

The European Commission has launched a public debate on the right to family reunification of third-country nationals living in the EU. Depending on the outcome of the consultation, the Commission will decide whether any policy follow-up is necessary – such as setting up clear guidelines, modifying the current rules or leaving the legislation as it is.

According to data available, in the early 2000s, family migration seemed to make up more than 50% of the total legal immigration. Today, this share has fallen to about one third of all immigration to the EU. The share is even smaller when singling out the migrants targeted by the family reunification Directive (i.e. only third-country nationals joining non-EU citizens): 21% of the overall permits are released to this category of migrants, comprising roughly 500.000 people in 2010. During this year, Italy issued the most family related permits for third county nationals joining non-EU citizens (160,200), followed by the UK (103,187) and Spain (89,905).

Non-EU citizens who are family members of legally residing third-country nationals have the right to enter and reside in the EU if the sponsor has resided "for one year or more" with "reasonable prospects of obtaining the right of permanent residence". Member States may require the fulfilment of other conditions such as sufficient resources, adequate accommodation and sickness insurance, as well as "integration measures".

The consultation focuses on a number of questions arising from the application of the family reunification Directive, including:

•To whom the directive should apply: How to best define the migrants who benefit from the EU rules; whether the right to family reunification should be extended to other family members, outside than the core family; the problems experienced with forced marriages;
•The conditions for family reunification: Whether the integration measures that Member States are allowed to introduce need to be further specified; whether safeguards should be foreseen to ensure that such measures really foster integration and are not used as barriers to family reunification;
•Ways of tackling possible fraud and marriages of convenience;
•The functioning of certain obligations for Member States, such as taking the best interest of children into account when examining an application.

The Commission intends to organise a public hearing after it has received written contributions.

Minimum annual pay is the best way to select which highly skilled migrant workers should be eligible for settlement, the Migration Advisory Committee (MAC) has recommended.

The International Organisation for Migration (IOM) and the European Commission have agreed to strengthen their cooperation in the area of migration and mobility.

The UK Border Agency has issued new policy guidance following the judgment of the Supreme Court in the case of Quila and Bibi v Secretary of State for the Home Department [2011] UKSC 45.

Tough new rules and enforcement action to stop abuse of the student visa system mean that over 450 education providers will no longer be able to sponsor new international students.

The European Parliament has approved the Commission's proposal to amend the Qualification Directive which will enhance the rights granted to refugees and beneficiaries of subsidiary protection in the EU. The Directive guarantees uniform rights when it comes to health care and access to the labour market.

The Independent Chief Inspector of the UK Border Agency, has published a thematic inspection report of how the UK Border Agency manages foreign national prisoners.

The European Commission has recently adopted a Communication which sets out the main options for using new technologies to simplify life for foreigners frequently travelling to the EU and to better monitor third-country nationals crossing the borders.

Specialist jobs that are no longer required in the UK will be removed from a government-approved list that helps to ensure the UK only accepts migrant workers that the country needs.