A right to work?

The new immigration bill has the potential to bring great change but perhaps it is actually not radical enough. For many years there was talk of a single consolidating bill for Immigration. Indeed from this authors time in the UK Border Agency he remembers a specific unit charged with the creation of a single consolidating bill. In fact he attended a jazzy presentation about it at Marsham Street Home Office headquarters in around 2006 or 2007. So in the words of the Home Secretary 'I am not making this up'. Despite there definitely being some progress to the goal of brushing away all of the previous complex and labyrinthine legislation, the new bill simply jumps on top of the existing legislation, further complicating an already complex system. Indeed despite the Home Secretary's clear target of reducing the need for immigration lawyers, by making the system more complex she is only likely to increase reliance on a qualified individual to assist in this difficult area.

This post is to focus on one specific area; the dreaded '3c' leave. Section 3C of the Immigration Act 1971 (now a 42 years old statute) operates to avoid prejudice to an individual when despite the ostensible expiry of their visa or biometric card they are awaiting a decision from the Home Office or pursuing an appeal. It continues leave in the same format as before until a decision is reached or the appeal finally determined. It is a sensible provision but it is one which individuals can find increasingly difficult to rely upon.

The author has it on good authority that things were better back in the 1970s. Decisions from the Home Office did not take 2 years and the appellate system would not be seized of an appeal for so long that the law changed 5 times while waiting for a hearing. Yet that is the reality of today. A person making a relatively straightforward application to the Home Office (not that anything is really straightforward now) can expect a decision time frame running into months and often years. Add in a touch of complexity, like a variation of an extant application, a request for some pragmatism from the decision maker (the horror!) or an assertion that the Home Office has an obligation to respect rights under the ECHR and this time frame is extended to ridiculous levels. Appeals were previously dealt with in a reasonable time, but even a First Tier appeal is taking several months to be listed and if its necessary to go to the Upper Tribunal then we are again talking years to resolve.

So what you have then is a visa which may have expired two years ago but an individual who despite that possesses under statute the same rights to work and reside as they originally held. This is the law. The difficulty is that employers are so scared of penalties and the means of proving entitlement are limited so often they will not take the risk and terminate employment.

This can be even further complicated when the existence of 3c leave is in dispute. 3c leave can depend on an application being proven to be sent on a particular date or in proving that the Home Office were at fault when a payment (and therefore the application) was rejected. Individuals seeking to rely on the case of Basnet for example often need the tribunal to decide as a preliminary issue whether the Home Office were at fault. If so then 3c leave exists, if not then it doesn't. The anomaly is akin to Schrödinger's cat. Until the matter is determined by the tribunal the existence of 3c leave is a matter of dispute. The actual burden of proof is on the Home Office and 3c leave must be said to exist until at least the tribunal determines the matter otherwise the tribunal would lack jurisdiction in the first place to convene. If the tribunal finds against the appellant 3c leave never existed in the first place. All very confusing. Yet legally an individual in this position has protection. It is the difficulty in explaining that to any employer.

This whole situation is exacerbated by the Employer Checking Service provided by the Home Office.  This department appears to rarely engage with the fact that 3c leave will exist or that there is a pending appeal. The difficulty in Home Office record keeping and the necessity to often prove an appeal has been lodged with a tribunal which now takes months to respond means that often an employer is told that no right to work exists when it does.

The consequences can be devastating for an applicant. They often have a legal right to work but an inordinate delay by either the Home Office and the Tribunal can result in the loss of their employment. This makes the long wait extremely difficult.

So what does the new bill purport to do? Well we already know that the Home Secretary is determined to reduce rights of appeal. The level of disinformation from government has been staggering. The Home Secretary has spoken repeatedly of 17 appeal rights as if someone could ever appeal that number of times. The fact is that there are 17 types of decision someone could appeal against. They are contained at sections 82 and 83 of the Nationality, Immigration and Asylum Act 2002. But no individual would have 17 types of decision in their lifetime. Theoretically they would have to be refused leave to enter, then leave to remain, then asylum, then have ILR revoked, then removed, then deported, and finally not have their deportation order revoked (and some more). To spout about 17 appeal rights as if they pertained to an individual is patently absurd. It is false information. Most individuals could expect 2 or 3 types in their lifetimes. Multiple decisions at the same time attract one appeal that considers everything. There are even provisions to prevent you from raising new things that you could have raised earlier. Of course there can be further appeals to higher courts, but these only exist when an error of law has been made. Moreover the Home Office frequently take advantage of further appeals to challenge decisions which fell against them.

Nevertheless this idea of the abuse of the appeals system has taken root. It is likely appeals will be reduced to only considering breaches of core rights. The effect of that in terms of complex immigration rules is the subject of another upcoming post. However for today's post the important issue is that many individuals will no longer have the ability to appeal a refusal of an application made under the immigration rules. This includes students and workers. The bill proposes to replace appeals with an option to request an administrative review. The new bill seeks to further modify s3c of the Immigration Act 1971 to extend the protection offered to times when someone is awaiting a result on an administrative review.

What is most concerning about all of this is the link to proving a right to work. It can be difficult enough to prove 3c leave exists to an employer. Often though a nice official letter from the tribunal with a hearing date can be very persuasive. Now however applicants will need to rely on proof from the Home Office that despite a refusal of a visa extension an administrative review is pending. In theory not so bad. But historically to date the Home Office has shown it is unable to process applications never mind administrative reviews in anything approaching a reasonable time frame. Their record keeping is poor. They ignore correspondence and rarely acknowledge letters. They frequently get things wrong. Are we to believe that the decision making process is going to improve when in effect administrative review applications will significantly increase that caseworking burden?

The Home Secretary has talked of making life difficult here in the UK for illegal (whatever that means) migrants. The real fear though is that by further stretching a tired and weary provision the changes will also make life difficult for people who have suffered an unjustified refusal of leave. People who during an excessive period of limbo now risk losing their employment. The inability of the Home Office to cope with caseworking demands now does not indicate that this will be a fair, efficient or reasonable process. It risks introducing a system that causes real unfairness and distress for many people here legally working for employers that need them.

Actually the Home Secretary had a real opportunity to simplify the law. The Immigration Bill could have swept away the old law and made steps to introduce an efficient and clear system. Instead we have a badly thought out, reactionary and vote chasing hodgepodge that will cause real distress and harm to millions. It will also cause an unconscionable waste of public money pursuing objectives that are entirely lacking in substance.