The Border and Immigration Agency

LGA Asylum and Refugee Task Group / Item 4
10 April, LGA

The Border and Immigration Agency

THE PATH TO CITIZENSHIP: Next Steps in Reforming The Immigration System

Green Paper - February 2008

A briefing of key points – Vicky Williams – National Migration Co-ordinating Team

Purpose

The purpose of this briefing is to provide an overview of the key points of the governments proposals regarding

reforms to the pathway to citizenship: including qualification criteria and the stages of the journey;
reform of benefit access rules: including access to benefits, education and healthcare; the rights and responsibilities of EEA Nationals; and
the simplification of the immigration system and reforming the law: including the simplification principles; receiving and registering applicants; protection; managing the border; establishing purpose of entry and stay; enforcement and compliance; biometrics information; and appeals.

Key Principles

The key principle of this green paper runs consistently throughout all aspects of the reform proposals, of simplifying the structure, process and legislation governing current immigration law and practice. The paper draws together some of the issues drawn out from The Commission on Integration and Cohesion, which was established by the Department for Communities and Local Government in June 2006, and links closely to the wider Government agenda to increase the cohesiveness of our communities. It also references feedback from nine public listening sessions that were held across the UK throughout 2007, and to the Simplification Consultation which was also conducted in 2007.

Strengthening our borders
Maximising the economic benefits of migration
Strengthening our approach to prevent illegal immigration
Holding newcomers accountable for their behaviour
Maintaining a compassionate system which honours our asylum obligations

Goals

The paper outlines three primary goals:

To bring to the UK the skills and talents, assets and ideas needed to stay one of the worlds leading nations
To reunite UK citizens and permanent residents with their loved ones
To honour the UK tradition of providing a safe haven to those fleeing torture and persecution

Objective

“ …to make our immigration system clearer, more streamlined and easier to understand, in the process reducing the possibilities for abuse of the system, maximising the benefits of migration and putting British values at the heart of the system.”

Ten Point Deal – delivery for 2008.

Britains border protection programme

Introduce a single border force to guard ports and airport
Introduce police-like powers for frontline staff
Check fingerprints before the issue of a visa anywhere in the world
Count foreign nationals in and out of the country
Introduce compulsory watch-list checks for all travellers before they take-off for Britain

Maximise the economic benefits of migration

Introduce a new Australian style ‘points based system’ (PBS) so business can bring-in the legal migrants our economy needs.

Strong steps to prevent illegal immigration

Introduce compulsory ID cards for those foreign nationals who want to stay
Major on the spot fines for employers who don’t make the right checks to ensure migrants they employ have the right to work

Holding newcomers accountable for their behaviour

Introduce automatic deportation for serious criminals and build more detention spaces to help

But a compassionate system

Honour UKasylum obligations but make – and enforce – decisions much faster, and with a more sensitive treatment for children

Developing the ‘architecture’

The goals, objectives and ten point deal outlined above provide the architectural framework for the development of what is proposed to be a much more cohesive and simplified system of immigration, that promotes cohesion, positive benefits to the UK and British values.

Citizenship – qualification and stages

The green paper identifies three key problems with the current citizenship process:

Complexity
Lack of process clarity
Lack of incentive

The government is keen to increase the number of people entering the citizenship process as a means to increasing cohesion and a sense of belonging. To encourage this increase the government is developing a number of incentives for citizenship applicants, including linking the new staged process to benefit availability and shortening the length of time it takes to become a citizen upon proof of community activity and in comparison to permanent residence.

In future there will be three key routes to naturalisation as a British citizen:

Highly skilled and skilled workers who have entered under the points based system (tiers 1 and 2) and are working and contributing taxes;
Family members of British citizens and permanent residents;
Those in need of protection and their dependants (refugees and those granted humanitarian protection)

There will also be three stages in the journey through to citizenship or permanent residence

A period of temporary residence – initial time-limited period during which economic migrants will contribute taxes; where family members will be sponsored by their families or prove self-sufficiency; and those in need of protection will be allowed to stay. Those who do not qualify for the probationary period i.e. workers entering under tiers 4 and 5 of the PBS – students and temporary /seasonal workers and visitors – will be required to leave at the end of their period of temporary residence.

Those economic migrants who qualify to proceed into the probationary period, will have been temporary residents for five years. Those who have gained temporary residence as family members will be able to proceed to probationary citizenship after two years. Those who are refugees or have been granted Humanitarian Protection will have temporary residence for five years. Providing the circumstances in their country of origin have not improved to the point whereby they are no longer deemed to require protection, after five years they will qualify to proceed onto the probationary period.

A period of probationary citizenship – this is a new stage in the process that is time-limited to encourage migrants to proceed to citizenship and integrate into UK society. It is time in which migrants can demonstrate that they have earned the right to become a British citizen by developing their command of English language, being law-abiding and contributing economically and through community activity. Whilst the probationary period is time limited – a minimum of one year for those wishing to proceed to full citizenship, and a minimum of three years for those seeking permanent residence – the period can be reduced to the minimum if evidence of community activities and participation is submitted. Likewise, it may be increased if elements of the criteria have not been sufficiently met, or if some element of abuse has occurred i.e. minor offences. These criteria have yet to be decided and form part of the current consultation questionnaire.
British citizenship / permanent residence – People who choose to pursue permanent residence can remain in the UK indefinitely and can progress to citizenship if they meet the criteria. Attaining British citizenship is seen as completion of the journey with the concurrent acquisition of full rights and benefits.

Benefits

The government is keen to:

Clarify which benefits and services migrants can access at each stage of the process;
Assess how they can simplify often complex, cross-departmental legislation:
Consider whether migrants should be required to pay an additional fee to help alleviate the transitional pressures migration can bring

Benefit Access

Temporary Residents

Those entering under economic or family routes should be able to support themselves without access to social security benefits or social housing. Those migrants from outside the EEA have no eligibility for social housing unless they are:
An asylum seeker granted refugee status, or an asylum seekers or other vulnerable person granted humanitarian protection or discretionary leave;
A person granted Indefinite Leave to Remain

(Workers from A8 countries are required to register with the Home Office under the Worker Registration Scheme (WRS). Registration under the WRS makes workers eligible for certain in-work benefits such as tax credits, and social housing. Other benefits become available when they have the right to reside – after a twelve month registration period has been completed.
A2 workers, i.e. Bulgarian and Romanian nationals, need to hold an accession worker card or a Seasonal Agricultural Workers Scheme work card in order to be legally employed in the UK. Once an A2 worker has been legally employed on a continuous basis for 12 months, they no longer have to register and attain a full right to reside in the UK as a worker and have an unrestricted right to access the labour market. During their first twelve months in the UK, Romanian and Bulgarian nationals are eligible for certain in-work benefits and social housing.)

Refugees and those granted humanitarian protection will continue to be entitled to all benefits and services, including access to FE at home student fee rates,subject to meeting the relevant requirements. In view of the special circumstances that lead refugees to come to the UK and seek protection, and in order that the government can meet its international responsibilities, this group of people (and those recognised as having a temporary need for our protection) will retain full access to benefits whilst in the UK.

Probationary Citizens

This is a new stage in the process.

[Whilst the green paper makes clear that those with refugee status, humanitarian protection or recognised as having a temporary need for protection will continue to be able to access full benefits whilst in the temporary leave category, it is unclear whether this entitlement is retained as a probationary citizen. There is no reference to a withdrawal of this entitlement to full access, but it is perhaps a point which needs further clarification.]

Those that can move on to the probationary citizen stage are:

Tier 1 and 2 workers from the PBS; family route; and refugees
Expectation will continue to support themselves (no clear distinction made here for refugees) until such time as they become British citizens or permanent residents.
Probationary citizens will not therefore be entitled to access mainstream benefits or local authority housing.
Requirement to send children to school
Entitlement to NHS care
ESOL access at home rates
HE access only available at home rates once either full citizen or permanent resident

British Citizens / Permanent Residents

Upon becoming the above attain full access rights to mainstream benefits and services.

A cross-departmental review of all legislation governing migrants’ access to benefits and services will be undertaken to ensure it is as clear and consistent as possible.

Transitional Funding

The concept of the provision of some transitional funding to assist communities which might be subject to particularly rapid change is something which the Local Government Association have supported for some time. However, the government’s position of raising this transitional fund through contributions from migrants themselves is relatively new.

The green paper states that the government would aim to raise tens of millions of pounds, with the fund operating from April 2009, by increasing the fees for immigration applications. The government are also keen to make a distinction in charging, between those migrants that make small demand on public services, and those, such as children and the elderly, that make more of a demand on public services. The proposal is that children and the elderly will be expected to pay more into the fund than other migrants.

EEA Nationals

The government is clear throughout the green paper that migration should be of benefit to the UK, and whilst most of the reforms that are outlined will have little or no effect on EEA Nationals, there is a clear intention by the government to ensure that EEA Nationals obey the law, contribute positively to the UK economy and develop appropriate language skills to facilitate integration.

The paper outlines the governments intention to set up two cross-departmental teams to look at these issues and develop proposals to put to EU partners.

Simplifying the System and Reforming the Law

Key Simplification Principles

Simplification should maximise:

Transparency
Efficiency
Clarity and predictability
Plain English
Comprehensive = public confidence

Simplification should minimise:

The need for further legislation
Reliance on concessions
Discretion
Inconsistency
Duplication
Gaps in powers to resolve complex cases

These principles are expected to underpin the three basic agency functions, which are identified as:

Register – all applications to stay in the UK
Decide – those applications
Conclude – implementing those decisions

These functions will operate within a three tier framework:

Single piece of legislation;
More flexibility below that level with clear and consistent immigration rules, which are capable of quick adjustment to changing circumstances, alongside any other necessary secondary legislation;
Shorter and sharper operational guidance that limits but retains an element of discretion

Simplifying the legal architecture

Propose the new law should provide:

Everyone who is not a British citizen requires “permission” to be in the UK – this will amalgamate several separate concepts such as entry clearance, leave to enter and leave to remain.
Some are “entitled” to such permission automatically i.e. EU Citizens, but may be required to demonstrate the entitlement.
Others must “apply” for permission. This may be before travel or on arrival or after entry.
Anyone who requires permission but doesn’t have it must leave and is liable to expulsion.
A person is “in the UK” if physically present here, including port of entry and in transit airside.

Receiving and registering applications

The context of simplification must be set in the wide-ranging changes already implemented such as the end-to-end casework model and the PBS.

In the future, the Immigration Case Work programme (ICW), is a far reaching change programme that will focus upon improving business processes and renewing supporting IT systems, to develop better ways of working and link processes to the person.

ICW will take account of lessons learnt as well as good practice from other areas of business.

Propose the new law should provide that:

Applicants will need to comply with application procedures which will be set out in the immigration rules.
The requirements may include the provision of specified evidence and biometric data.
Specified categories must be accompanied by a fee.
Permission will be demonstrated by a sticker or stamp in the applicants passport and/or the issuing of residence permit or another document. This will include purpose and conditions of entry.
There will be a number of general grounds for refusal and the cancellation of permission
There will be clearly defined scope for discretion to grant permission in exceptional circumstances

Protection / Asylum

Propose the law should provide that:

A person requiring permission to be in the UK may, while in the UK, apply for protection. The substance of an application will not be considered should it be determined that the applicant is returnable to a safe third country. When an application is considered and it is determined that the applicant does not qualify as a refugee, eligibility for humanitarian protection will automatically be considered.
The criteria for qualification for protection and the procedures for consideration will accord with the relevant EC Directives.
The criteria should be brought together in the immigration rules.
Minimum standards under the Reception Conditions Directive will continue to underpin support arrangements but the legal framework in this area will also be streamlined.

The Border

Propose the law should provide:

Applying the concept of “permission” to be in the UK, with a visa being permission given outside the UK
The various procedures for cancellation and revocation will be simplified into cancellation of permission
Will look further at the best approach to temporary admission

Purpose of entry and stay

Propose the law should provide:

That details of all managed migration route will be set out in the immigration rules, setting out clearly how migrants may qualify for permission in the different routes.

Enforcement and compliance

Propose the law should provide:

Single power to enforce departure
Consideration for single terminology for departure, to expulsion
Automatic time-limited bar to return after expulsion, subject to reason for expulsion.
Electronic monitoring as an alternative to detention, and as a condition of bail
Review and simplify current bail provisions

Biometric Information

Propose the law should provide:

One comprehensive power to obtain and use biometric information
Development of gateways to share this information with other bodies for other purposes
Review time limits for retaining biometric data.

Appeals

There are no plans to review the current one-stop appeal system, although there are a couple of points where the law may be simplified or clarified. However, the government will be looking at the current right to apply to the High Court for reconsideration of the Asylum and Immigration Tribunal (AIT) decision, and the increasing number of judicial reviews. Currently the High Courts are facing an increasing burden from this challenges and the government is to look at ways in which that burden can be reduced.Specific proposals regarding the above will be issued at a later date.

Consultation proforma can be found at: