The Framework of Immigration Control

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The Framework of Immigration Control

Solution United Kingdom Law

The basic framework of United Kingdom (UK) immigration law - that is, the laws controlling the entry into, residence in and departure from the UK - is still provided by the Immigration Act 1971. This Act has been substantially amended and supplemented by several Acts including the Immigration Act 1988, the Asylum and Immigration Appeals Act 1993 and the Asylum and Immigration Act 1996, the Human Rights Act 1998 (HRA), the Immigration and Asylum Act 1999, and the Nationality Immigration and Asylum Act 2002. Additionally, at the time of writing, the Asylum and Immigration (Treatment of Claimants etc) Bill 2003 is being debated in Parliament. The Bill, if implemented in its current form, will effect further significant changes to the UK immigration and asylum system, particularly with regard to the range of remedies available to those subject to adverse immigration decisions.

There are also several other statutes which affect immigration control: these statutes range from nationality laws, which extend or restrict rights of abode (to the Falkland Islands and Hong Kong respectively), to the Immigration and Asylum Act 1999, which imposes fines on carriers who bring passengers without the required documents into the UK.

While the various Immigration Acts provide the statutory basis for the control of immigration, the powers granted under the Acts are very general. How those powers are to be exercised is set out in much more detail in the Immigration Rules. These Rules attempt to be wide-ranging and fairly precise, and try to cover every conceivable type of application and state the requirements for each. The Immigration Rules are not in the form of legislation or secondary legislation, but they are set out in House of Commons Papers and come into force unless disapproved of by Parliament. They are not, therefore, exposed to detailed, parliamentary scrutiny. The Immigration Rules currently in force are included in House of Commons Paper No. 395.

Situations and applications not covered by the Immigration Rules are dealt with ‘outside the rules’ and are at the discretion of the immigration authorities. In some cases, the immigration authorities have formulated policies to deal with certain categories of applications outside the Immigration Rules. The Home Office issues detailed instructions to immigration officers (including the Immigration Directorate Instructions, Asylum Policy Instructions, and the Operational Guidance Manual) on how they should operate the Immigration Rules. A disclosable version of these Instructions is published on the Internet, as are some of the concessionary policies ‘outside the rules’.

Not all of these policies are published. In some instances they come to public attention only because they have been referred to in Parliament, for example, when a Home Office minister explains the Government’s approach or attitude to an issue. Alternatively, the existence of a policy may be referred to in a court or tribunal in individual cases. Some policies have been set out in letters from the Home Office to certain organisations. Other policies have been leaked. Consequently, in order to have a complete picture of the immigration law as it applies at any time, it is not only necessary to know the current legislative framework and the Immigration Rules, but also to know about the practice of the Home Office.

Since the end of 1996, the use of standard forms in making certain applications to the Home Office has been compulsory (this does not apply to applications governed by European Union (EU) law). The Home Office insists on the completion of all sections of the forms, the provision of answers to all questions and the supply of all original documents or a reasonable explanation offered. An incomplete or improperly completed application will be rejected and this may lead to any complete application being received after the original leave has expired and the applicant becoming an over stayer without a right of appeal. With the exception of those applying for a residence permit under EU law, if the applicant seeks the return of his or her documents, for example, in order to be able to travel, the Home Office will consider the application to have been withdrawn.

European Union Law

The law of the EU has an increasingly significant impact on domestic immigration law. This is not only due to the direct effect of EU laws on the free movement of persons, but also due to the co-ordination and harmonisation of matters of immigration and asylum that takes place at the political and policy level of the EU. Following the amendment to the European Community Treaty (the EC Treaty) by the Treaty of Amsterdam in May 1999, the EC Treaty now also contains a chapter expressly dealing with immigration and asylum matters, which includes the Schengen arrangements between the continental Member States of the EU. This does not, however, apply to the UK, which has opted out of the application of that part of the EC Treaty. The UK has reserved the right to opt into all or any measure adopted under that part of the EC Treaty.

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Article details

Article ID:	34
Category:	Immigration
Date added:	15-02-2009 06:46:16
Views:	53
Rating (Votes):	(3)

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