Forty years of ILPA

BY ADRIAN BERRY, ELSPETH GUILD AND ALISON STANLEY

As ILPA marks its 40th anniversary, Patrons Adrian Berry (AB), Elspeth Guild (EG) and Alison Stanley (AS), reflect on some of ILPA’s key achievements over the years and explain why ILPA’s intense mix of policy work and service to members makes it distinct among professional membership organisations.

EG: In the early 1980s when ILPA was first established, there was some scepticism about the purpose or need for such an association among legal practitioners who did not consider themselves primarily practitioners of borders, immigration or asylum law but rather practitioners in administrative law. On contacting those whom the initiators of the project knew who did a significant amount of immigration work, one practitioner who went on to a stellar legal career, said: “Well, perhaps it is not a bad idea but I doubt you will ever have more than 40 members,” (or words to that effect). As ILPA marks its 40th anniversary, it now has over 800 members and more than 4,000 member contacts.

AB: Generations of immigration practitioners owe their skill and expertise, not only to ILPA’s training courses and the knowledge exchange – via what was the monthly mailing and is now our online updates and databases – but also to the collegiality and collaborative character of us all as colleagues, across the work that we do. All of us are better lawyers because of the work we do together and share, and our clients are better served because of the way we are with each other.

AS: ILPA is the exemplar of what a practitioners’ organisation should be: it is member led, and the members’ experiences of working in what is frequently a difficult and highly politicised area have always dictated the areas of policy the organisation has taken up.

Immigration as a field of law

EG: Very few practitioners viewed immigration as a field of law in the early 1980s. This was particularly so in the Home Office where there was a common attitude that dealing with immigration questions was a matter of good (or not so good) administration which officials carried out in pursuit of their understanding of the national interest. The administrative tribunal was, at that time, still a new element and its independence was not yet assured as it depended on its master, the Home Office. ILPA, through its work and that of its members, pushed for the recognition of immigration as a field of law subject to the same principles of rule of law as any other field of administrative activity. It worked with the Home Office and the tribunal to incorporate into decision-making the necessary legal elements to ensure fair processing and justiciability of the process and outcome of applications.

One outstanding example of this change regarding the legal status of immigration was the publication of the Home Office guidance in respect of the application of the Immigration Rules. This was strongly resisted by the Home Office for many years on the basis that confidentiality was necessary to the operation of the system. But eventually a change of government and successful litigation led to the change. With the publication of the guidance came the gradual acceptance by the courts of the legal impact of the guidance, resulting in much greater transparency and predictability for those seeking immigration and asylum status.

Immigration and human rights

AB: Our clients are, generally speaking, unenfranchised: they do not vote in general elections, nor are they courted by politicians. Indeed, they are very often the butt of populist crowd-pleasing policies that cause real harm and put them in danger. ILPA members put their clients back as agents of their own destiny, ensuring their rights, and upholding the rule of law.

EG: ILPA and its members have been crucial actors in the establishment of human rights as effective and justiciable individual rights on which persons in borders, immigration and asylum procedures can rely and which can be upheld by the UK courts. After ILPA’s creation, the European Court of Human Rights (ECtHR), in the landmark judgment of ACB v UK, held that the European Convention on Human Rights (ECHR) was applicable to the field of migration and the treatment of migrants. According to that court, migrants were entitled to rely on those rights to overcome obstacles placed in their way by national legislation and administration. The case was in respect of family reunification (Article 8 ECHR) and was followed by another case from the UK in 1989, Soering v UK, which confirmed the applicability of the ECHR to expulsion (and extradition on the facts of the case). Numerous ILPA members were involved in the ECtHR cases which followed, establishing the primacy of the principle of non-refoulement for those in need of international protection.

A change of government and a change of perspective led to the passing of the Human Rights Act 1999, which extended to national courts and tribunals the power to take into consideration ECHR rights in their judgments. ILPA was among the most important actors who trained practitioners on how to use the ECHR as a way to establish rights for their clients notwithstanding national rules and guidance to the contrary.

The incorporation of international law into UK law

EG: The UK has a dualist system as regards international law – the executive must seek the sanction of Parliament in the event that a proposed action on the international plane will require domestic implementation. This is considered necessary to give effect to the principle of parliamentary sovereignty. Yet, the UK has ratified many international agreements which have implications for persons caught up in immigration and asylum procedures. ILPA has long supported the position that the UN Convention on the Status of Refugees 1951 and its 1967 Protocol are applicable to the treatment of those seeking international protection in the UK.

In 2021, in G v G, the Supreme Court held that UK legislation has been closely assimilated to the Convention (though it did not go so far as to state that the Convention was directly applicable, but it brought the principal rights of the Refugee Convention firmly into the scope of the national judge). The Refugee Convention is not a single exception of the applicability of international law to national decision-making in the field of migration and asylum. In ZH (Tanzania), the Supreme Court recognised that, in regards to immigration, the ECHR is not to be interpreted in a vacuum. It must be interpreted in harmony with the general principles of international law. As such, the provisions of the United Nations Convention on the Rights of the Child 1989 (UNCRC) were fundamental to the proper interpretation of the domestic provisions. This was particularly so following the long overdue lifting by the UK in 2008 of its general reservation to the UNCRC concerning immigration matters.

ILPA was among the organisations which lobbied the government to lift the general reservation on UNCRC in immigration matters which made possible the Supreme Court’s decision regarding its impact on national law. ILPA has also provided extensive training for practitioners on the applicability of international law to borders, migration and asylum matters, promoting a coherent and consistent interpretation of UK law with its international commitments.

Influencing policy

AB: Arguably, ILPA’s greatest strength is the ability to turn issues from casework and practice into informed positions for the reform of immigration law and policy, with the aim of its improvement and transformation into something just and equitable. As an organisation, ILPA advances the concerns of practitioners together with the concerns and rights of our clients. The insight we take from practice makes us expert interlocutors with the Home Office, MPs, and Peers.

AS: The skill with which ILPA has operated in the policy arena was, for me, epitomised when Susan Rowlands retired after many years as ILPA’s General Secretary and was, in 2008, nominated for an OBE, the citation being for Services to Human Rights. What was surprising about this was not the fact of the award, but that she was nominated, not by the likes of us, but by the Home Office. It was a testament both to her skills in making links with Home Office officials, and also to the organisation as a whole, and to the quality of contributions by members whose direct experience gave, and continues to give, authority and force to the numerous interventions ILPA makes at all levels of government.

AB: The Home Office is better off for having ILPA in their world – though they may not know it! We have an institutional memory better than theirs when it comes to remembering what immigration law was and the promises they made in the past; we make their legislation better through amendments; we improve their policies and procedures in everything from asylum to economic migration; and we remind them that persons subject to immigration control have a dignity and worth deserving of respect, and one that we will continue to uphold. In all that we do, be it advice, applications, representations, or tribunal and court hearings, ILPA members are there leading the way in immigration law.

AS: One very personal example of member-led policy work is the contribution of the Refugee Women’s Legal Group (RWLG). The group was not started by ILPA, but very early on in its work ILPA hosted us physically, with our drafting group meeting in the ILPA office, and provided both support and encouragement, and of course, endless cups of tea! The RWLG drafted the first gender guidelines published in the UK: guidelines which proved highly influential, with many sections subsequently being cut and pasted into the Tribunal gender guidelines, and into UKVI policy. This example of members working together, giving time and knowledge to ensure that the specific concerns of women seeking asylum were met in the asylum process, is just one of ILPA’s numerous policy initiatives, which frequently have met with great success.

EU Law and Brexit

EG: Perhaps the saddest of ILPA’s significant contributions over the past 40 years is in the area of EU law. ILPA has been a very important actor in helping practitioners use EU law to promote the rights of their clients. Through training courses, conferences and other activities, ILPA has supported its members’ work for their clients to present their entitlements under EU free movement law. This has included analysis of treaty rights, association agreements and all aspects of free movement of persons. Many of the cases which have been essential to the correct application of EU free movement law have been on references from UK courts. It has also included close cooperation and development of a network of like-minded associations across the EU and continuing participation in the European Council on Refugees and Exiles. Brexit brought a rupture to free movement of persons between the EU and the UK.

Looking ahead

EG: The protection of the rights of over 6 million EU nationals in the UK has been an important feature of the EU’s work, and ILPA and its members have worked with the European Commission and other bodies to shape the delivery of rights for these nationals and champion their entitlements. In the current political and economic climate internationally, it may well be that this work will have important impacts in the future as the UK explores, with increasing urgency, a new relationship with the EU.

AS: Through its training programme, ILPA has ensured that each generation of immigration lawyers learns from experienced colleagues, who willingly give up their time and energy, sharing their knowledge to ensure that we all can give our clients the very best service and outcomes. The training programme reflects demands from members, so once again, members are feeding into the work of the organisation. I cannot think of a more comprehensive continuing education training scheme for lawyers and it is a part of ILPA that we should all be proud of.

Despite ILPA’s successes, not all our concerns have been welcomed by the government. The climate towards migrants has worsened in recent years. It was no surprise to read that the Runneymede Trust’s recent research has shown that in UK parliamentary debates over the past 25 years, the word “illegal” has been one of the most strongly associated terms with migrants. This framing of migration as inherently unlawful has been echoed in the media, online, and in the hateful racist riots of last summer. ILPA has its work cut out to contest this framing. It is needed all the more to train up the next generation of excellent and imaginative immigration lawyers and to continue to play a vital role in positive migration policy.

AB: It is truly incredible how much ILPA has achieved as a result of its combination of extremely able legal officers and staff, along with members who serve on working groups and the trustee committee, who provide training, who brief Parliamentarians, and who undertake the hard slog of meetings and contact with the Home Office.

As we gear up for yet another Immigration Bill, we reflect not only on our achievements but also on our readiness for the work that is to come. Our membership is ready for that challenge.

ILPA invites members and other leading experts to contribute articles to its monthly blog. The views expressed in all blog posts are the authors’ own and are not necessarily those of ILPA.

Related articles: A Brief History of ILPA

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