On the afternoon of the 24th November, ILPA held its 2020 Annual General Meeting and Conference as a virtual event. In addition to the formal AGM business, which saw the election of the new Committee of Trustees and Hazar El-Chamaa’s appointment as Chair of Trustees, invited keynote speakers and ILPA members presented on a wide range of issues across the immigration law spectrum. Their contributions illustrated some of the key challenges which the immigration sector faces going forward and highlighted key aspects of the work which ILPA and its members engaged in throughout the previous year. We are extremely grateful to all those who attended and presented at the AGM.
The Future of the Immigration System and the New UK Points-Based System: A View from UKVI
George Shirley, Head of Work, Study, Family and Citizenship at UKVI, opened the conference with a presentation on the future of the UK’s immigration system and UKVI’s operational situation. His contribution was followed by a Q&A session in which he fielded queries which addressed a broad range of issues. In his presentation, George provided an overview of the key routes in the Points-Based Immigration System from a policy perspective and then went on to outline UKVI’s current operational position, contextualised against the ongoing challenges raised by the COVID-19 pandemic.
George noted that the new UK Points-Based System was designed to deliver on the UK Government’s commitment to a fair, firm and skills led global immigration system. Once the Immigration Social Security Coordination (EU Withdrawal) Act 2020 provided the legal basis for ending free movement with the EU, the immigration routes for those wishing to come to the UK from 1st January 2021 open in December 2020, (the student routes opened in October). Amongst the key changes, he noted that for some of the main economic routes, the principal change would be the inclusion of EU citizens within their scope. In the longer-term, UKVI planned that these, together with the Points-Based System, would be underpinned by simplified rules and guidance which makes the best use of technology and implements the Law Commission’s recommendations to streamline and simplify the immigration system. Through its international media campaign, UKVI engaged in ongoing efforts to inform employees and migrants about the upcoming changes, in a bid to facilitate the transition to the new system. To this end, he referred to UKVI resources, including the ‘Employers Guide to become a licensed sponsor of skilled migrant workers’, as crucial to the task. He encouraged ILPA members to peruse them and signpost clients accordingly.
George illustrated this simplification and streamlining of the existing process through the skilled worker route where fundamental changes included the suspension of a cap on numbers, the removal of the Resident Labour Market Test, the removal of the 12-month ‘cooling-off period’ and a six-year maximum length of stay in the route. He clarified how this would work in practice through case study examples and indicated that the changes would result in efficiency gains for employers. He further highlighted the ease with which most migrants would be able to apply to switch from one immigration route to another without having to leave the UK. He acknowledged that the current design and user interface needed reform, with UKVI set to revise this in the longer term, following engagement and testing with stakeholders.
The Global Talent route, designed to attract global leaders and the best and the brightest from specific sectors, including the sciences, humanities, and digital technology, would now be open to EU citizens. In the longer term, UKVI will explore the creation of a new broader unsponsored route which would allow a small number of the most highly skilled workers to come to the UK without a job offer. At the same time, it was clear that the system does not contemplate a route for those who do not meet skills and salary thresholds. This was in line with the UK Government’s previously expressed position to shift the economy away from a reliance on labour from Europe and pivot towards greater investment in the UK labour force. The expectation was that employers would adjust accordingly with the new system meant to allow employers greater flexibility in terms of changes to salary and skills thresholds.
For students, the new system remained mostly akin to the previous study route with no limit on the number of international students who can study in the UK. The launch of the new Graduate route in summer 2021 would allow international students the opportunity to stay in the UK to work or look for work, after their graduation. In the case of visitors, the rules have been simplified to permit study of up to six months under the standard visit route and to remove the requirement for volunteering to be incidental to the main reason for the visit. EU and Swiss citizens will not require visas to visit the UK.
In referring to UKVI’s current operational position, George spoke to the impact of the COVID-19 pandemic. In particular, lockdowns within and outside the UK earlier on in the year had significantly affected UKVI’s ability to process applications. Demand for travel to the UK had collapsed. However, an increase in those within the UK who needed to protect their leave and extend their stay had contributed to pressure on UKVI operations. In response, UKVI had brought forward the use of technology initially foreseen for use within the Points-Based Immigration System, such as the ability to ‘rewash, reuse and reinject’ biometric data. George acknowledged clients’ frustration at the delays in the process and attributed this partly to the technology’s early rollout. Nonetheless, he was confident that future lockdowns within the UK and internationally were unlikely to have a disruptive impact. Sopra Steria’s biometric collection was now designated as a key service, and a similar classification, according to the national context, had been secured for most overseas Visa Application Centres. In his comments on normal service standards, George recalled that while these were suspended in the earlier stages of the pandemic, they were now back in place and mostly rolled over to the new system. At the same time, while Priority and Super Priority Services had become available in most overseas territories, in the UK, their reintroduction would be staggered. Priority processing for work and study routes would potentially be reintroduced before the end of 2020, with others likely to be in place in early 2021.
As the end of the transition period approached, UKVI had prepared for an anticipated spike in sponsor licence applications. The process for existing sponsors was adapted and simplified, and there was increased automation of post-licence processes. Moreover, additional staff were recruited with staff at overseas posts which had experienced a fall in demand on standby to step in on a contingency basis. George then recalled that UKVI continued to operate a Coronavirus immigration team, with a helpline and email function and an assurance process. In conclusion, he noted how, for those affected by the pandemic, a period of assurance protects them from any immediate enforcement action or repercussions of overstaying their leave in the future.
News from the Working Groups
In the second part of the Annual Conference, ILPA members heard from representatives from selected thematic Working Groups who provided an overview of the work which the groups had engaged in throughout the previous year, supported by the Secretariat. Throughout, members were encouraged to attend the relevant Working Groups and engage in their work.
Andrea Als, ILPA trustee and trustee liaison for the BAME Working Group, set out how the murder of George Floyd, which had captured international attention, had also galvanised ILPA into action on anti-racism. She noted how, although practitioners were quick to identify systemic racism within the immigration system itself, there had been limited engagement with the pervasiveness of racism within the profession and the workplace. Members’ experiences illustrated otherwise. As a result, the BAME Working Group was set up. The Working Group had provided a safe space where practitioners shared their experiences of racism within the profession and discussed the form of anti-racism action to be engaged in by ILPA. This work included the creation of an Anti-Racism Resources Hub and the organisation of a series of roundtable sessions which addressed issues such as microaggressions within the workplace. The findings from the ILPA Explores Racism in the Immigration Sector Survey illustrated the extent to which racism pervaded the sector, with practitioners expressing their experiences of racism towards them and their clients from colleagues, clients, and decision-making bodies, including the Home Office and the Tribunals. Respondents further identified their discomfort in raising these issues when witnessing or experiencing racism, partly because of previous experiences where reporting had resulted in inaction or had adverse ramifications for them. Members were reminded of the need to educate themselves on the matter and consider what anti-racism action they could take in response. To that end, members were invited to peruse the resources on the issue on the ILPA website, participate in the Working Group’s activities and learn how to engage in conversations with colleagues, friends, and others to take the first step in stamping out racism within the sector.
Kat Hacker, co-convenor of the Well-being Working Group, then set out how 2020 had proven a challenging year for collective and individual well-being. The Working Group had risen to the challenge and started the year by appointing twelve Well-being Ambassadors. These were tasked with raising the profile of the Working Group to amplify the importance of mainstreaming well-being considerations within the immigration sector and members’ professional lives. She referred to the ILPA Well-Being Resources Hub, which provides a comprehensive overview of suggested reading, audio-visual resources, academic literature and available support addressing well-being, as an invaluable source for members. The Working Group had also organised multiple webinars on the topic, which included a guided meditation session. Members’ attendance and participation in meetings and events indicated the extent of interest on the subject. They reinforced how the challenges presented by the pandemic had focused attention on why well-being needed to be taken seriously. Looking ahead, Kat highlighted how the ongoing work from home setup was likely to prove challenging, especially when coupled with the uncertainty around its duration. In 2021, the Group would continue to organise training, including that around vicarious trauma and burnout. There would be exploratory discussions with professional regulatory bodies to mainstream considerations around well-being in working practices and advocate for its serious uptake at a broader level within the profession.
Jonathan Kingham, co-convenor of the European Migration Working Group, then outlined how in the face of a challenging year marred with uncertainty the Group had continued to navigate the shifting landscape. Early on in the year, ILPA published a report by a panel of experts, chaired by Professor Bernard Ryan, which addressed the continuing legal protection of residence rights flowing from EU free movement law, after Brexit. The focus then shifted to Appendix EU, the EU Settlement Scheme, and the introduction and changes to legislation which arose because of the looming end of the transition period. In tandem, the Working Group continued to issue the European Update quarterly and contribute to training sessions. The Annual Free Movement Seminar had also brought together an impressive list of speakers, which included representatives of the European Commission long involved in issues on citizens’ rights. Jonathan noted that as the end of free movement approached and as recognised elsewhere, it was worth recalling the contribution which British immigration practitioners involved in the Working Group had made to the advancement of EU free movement law.
Members then heard from Allan Briddock, co-convenor of the Courts and Tribunals Working Group. He noted how, in light of the procedures introduced by the judiciary as a response to COVID-19, the Working Group had addressed various challenges throughout the year. He noted that, at the onset of the pandemic, the Administrative and Higher Courts had been quick to coordinate their response. They shifted to remote hearings relatively seamlessly and convened user groups where they actively encouraged stakeholders to share experiences and identify areas of concern. In contrast, the Tribunals adopted a markedly different approach and only allowed minimal engagement. The Upper Tribunal introduced Presidential Guidance which did away with oral hearings for error of law hearings. The First-Tier Tribunal struggled to resume hearings and had limited engagement with stakeholders. The introduction of a pilot scheme which frontloaded most work for which no legal aid funding was available proved problematic. However, coordinated action by members alongside stakeholders, including the Law Society, had led to successful challenges to multiple elements of the procedure which had threatened to have a significant deleterious impact on access to justice.
As co-convenor of the Refugee Working Group, Beya Rivers shared how although there continued to be delays in asylum interviewing and decision-making, COVID-19 had merely exposed the extent to which these issues were entrenched within the system. At present, the Working Group was monitoring the Home Office’s rollout of remote video interview. It was working with organisations which were collecting evidence on potential safeguarding issues for vulnerable clients. Throughout 2020, the Working Group had engaged in considerable lobbying around the Government’s attempts to push for amendments to legal aid for appeals. Looking ahead, the end of the Dublin III Regulation’s applicability from January 2021 would remove this option of family reunification to the UK for those seeking asylum in Europe. Attempts to preserve this right in law had proved unsuccessful. However, the Government had committed to a review of safe and legal pathways for unaccompanied asylum-seeking children, to which practitioners could contribute. The Government’s response to the Channel crossings by asylum seekers, their push for third country removals, and the use of army barracks for detaining migrants and refugees were other issues of concern which the Working Group would continue to monitor and address through its ongoing work.
Tom Brett-Young, co-convenor of the Economic Migration Working Group, then noted that despite the challenges of 2020 the Working Group had continued its regular meetings and activities. He welcomed how the transition to virtual meetings had led to an increase in member attendance and participation, particularly from those based outside of London. In the future, the Working Group would explore how this level of engagement could also be maintained in the post-COVID world. In addition to the work done concerning the new immigration system, the Working Group had continued its engagement with UKVI. This engagement included regular calls with George Shirley and other members of his team to discuss the COVID-19 arrangements in place and feed through the issues which clients and their representatives were facing on the ground. Throughout the year, the Working Group had contributed to training and all-day conferences, including well-attended ones on sponsor licencing and the Business Immigration Conference, where the transition to the online format had also proved successful.
Independent Chief Inspector of Borders and Immigration, David Bolt
David Bolt, the final speaker for the day and outgoing Independent Chief Inspector of Borders and Immigration, addressed ILPA members to share his reflections now that he was coming to the end of his term. With his successor due to take over in 2021, he noted that since his appointment, he had concluded 76 inspection reports which contained 420 recommendations out of which the Home Office had accepted 307 and partially accepted a further 95. At the same time, it was clear how the acceptance of a recommendation did not necessarily entail its implementation. Instead, David noted how, as illustrated by the Windrush Lessons Learned report, recommendations on systemic issues, such as stakeholder engagement or the proper evaluation of the impact of policies on different groups of people, tended to be left unresolved. On this basis, the Home Office seemed keener to close the recommendation rather than learn from it.
David highlighted the issue of delay in the publication of his reports as a specific challenge, to note how in the previous year, only one of his twelve inspection reports was published within the agreed eight weeks. In general, most reports take considerably longer, as in the case of the first annual inspection of Adults at Risk in Detention and the one on complaints against UKVI immigration enforcement and border force. The delay in publication compounds the frustration which arises from the limited substantive engagement with the recommendations. Here, David referred to the Wendy Williams report and its recommendation that the role and remit of the ICIBI should be reviewed. The Home Secretary accepted this recommendation, with an independent review scheduled for 2021.
However, the Home Office Improvement Plan failed to acknowledge the criticism of the publication arrangements and the Home Office’s responses to ICIBI reports.
The Home Office’s reluctance to share commercially sensitive information about its outsourcing contracts were identified as an additional issue. David noted how, initially, his access was precluded unless he agreed not to refer to the details in his report, which was problematic. Since then, the Second Permanent Secretary within the Home Office has decided that any refusal to share information will need her approval and will include a justification of refusal. In response to member queries, he highlighted his interest in investigating the issues in the increasing use of outsourcing of front-end services and the need for the Home Office to assume responsibility for their delivery. To this end, ICIBI was involved in regular engagement with the National Audit Office.
David noted he remains optimistic that the Home Office can make improvements in its asylum, immigration, nationality, and customs functions with the issue being more of the limited willingness to embrace change. Indeed, in crucial areas, such as the hostile environment, fees and charges for services, as well as immigration detention, the Home Office has made it clear that it is averse to change, and any changes implemented have been limited and on its terms. Nonetheless, the events of 2020, including the response to the Windrush report, indicated a window of opportunity for such change to be embraced. To that end, the ICIBI has been working with the Equality and Human Rights Commission to better identify issues with equality, diversity and inclusion in policymaking, guidance, operational practices, and decisions.
A significant barrier to effecting these changes remains the limited corporate and institutional memory, which resulted from the consistently high turnover in Home Secretaries, Immigration Ministers, Permanent Under-Secretaries and UKVI Directors-General. Moreover, he acknowledged the limited capacity to engage in reform at a time when the Home Office was meant to implement a new immigration system, address the growing issues within the asylum system, and deal with the consequences of Brexit while working under COVID-19 restrictions. To this end, the Home Office needed to focus on elementary issues. These include the creation and maintenance of accurate and retrievable records, quality-assurance of decisions, the generation and use of reliable data and information to inform policies, priorities and performance together with the need for clear and effective communication to both staff and service-users.
David highlighted his office’s achievements over the years and referred to the consistently high standard in the quality of evidence gathering, analysis and insights of inspection reports. In key areas, it was possible to see the direct impact of his office’s influence, such as in the move to decision making on refugee family reunion applications from entry clearance officers to asylum caseworkers. There was added value to ICIBI’s work. The persistence of the inspection programme provides oversight and sets expectations for the work of the borders and immigration systems. In recent months, ICIBI had concluded inspection reports on the disruption and prosecution of perpetrators of modern slavery, a thematic review of country of origin information which addresses sexual orientation and gender identity, the Home Office’s use of sanctions and penalties, and a report on the work of Home Office Presenting Officers. Additional inspections were also due to address the use of the passport gates, the second annual review of the Adults at Risk and Detention policy as well as the inspection of asylum casework.
David concluded by thanking ILPA members for their continued contribution to his work, through both individual and collective input. He encouraged members to continue this collaboration with his successor, which was of invaluable assistance to the work of the ICIBI. The afternoon ended with David being warmly thanked for his work and engagement with ILPA over the years.