Image: Dave Crosby/Flickr, CC 2.0.
The Windrush scandal has yet to subside but another set of similar injustices are already piling up in Sajid Javid's inbox.
Let us take the example of Owais Raja, from Pakistan. Owais trained British engineers from the Ministry of Defence at Davenport Dockyard in Plymouth, for eight years. His profession is on the government’s “shortage occupation” list. Because of a minor tax amendment on his tax return of 2012-13, which was settled with the HMRC, his application for ILR in 2016 was turned down under on the grounds that his character is “a threat to national security”. Owais’ right to work, his right to rent and to receive treatment under the NHS was removed in 2016. He was forced to withdraw his son and wife from life-saving NHS treatment because he could not afford to pay for the treatment despite paying taxes and NI during his employment. He has spent £20,000 on Home Office fees and legal advice.
Experts and some MPs are saying that at least 1000 highly skilled migrants seeking Indefinite Leave to Remain (ILR) are facing wrongful deportation under regulation 322(5) of the Immigration Act 1971. The rule was designed in part to tackle individuals who are a threat to national security and terrorists. But these highly skilled workers – including teachers, doctors, lawyers, engineers and IT professionals – are being refused leave to remain after being accused of lying in their applications – either for making minor and legal amendments to their tax records, or having discrepancies in declared income.
Highly Skilled Migrants is a support group that represents over 600 workers. It says it is in contact with over 400 more, most of whom are facing deportation under section 322(5), with the rest still waiting for a decision by the Home Office. Of the ten members of this group who took their case to the first tier tribunal over the use of regulation 322(5), nine won their cases, with the appeal judge ruling that the government’s had used the rule incorrectly.
The notorious regulation 322(5) comes with devastating conditions putting the wellbeing of individuals and families in jeopardy through fear, anxieties and insecurity. Applicants immediately become ineligible for any other UK visa and are banned from returning to the UK for 10 years. Many are given just 14 days to leave the UK with their families after having lived here for decades, while others are allowed to stay and fight their cases but not to work, rent or use the NHS. In addition, people deported under the terrorism-associated paragraph will have that permanently marked on their passports, making it highly unlikely they will ever get a visa to visit or work anywhere else in the world.
The heart of the issue is the immense power arrogated to the Home Secretary. That Minister is required to lay before Parliament a statement regarding any changes in the rules about entry into and stay in the United Kingdom. However there seems very little scrutiny by MPs of these rules – and poorly drafted rules can lead to terrible injustices.
The wording of regulation 322(5) as it appears in the Home Office guidance to case workers for refusal to leave to remain is, “A person may be refused under this paragraph if it seems right to do so for the public good in the light of his character, conduct or associations or the fact that he represents a threat to national security.”
The judgements whether the rule applies to an applicant or not is left to the discretion of a case worker. But unless there are well defined criteria against which to make a judgement, they are likely to be subjective and arbitrary.
According to the guidance to the case workers on the use of section 322(5), case workers must give specific reasons for refusal and must not include vague generalisations about a person’s character, conduct and association. Nor should they refer to a threat to national security in the refusal notice.
In practice, though, a case worker may have prejudices based on race and class. Such prejudices are part of the culture in the Home Office, with its pressure to meet the targets set for deportations. The government’s own survey of its employees revealed institutional racism, finding that the immigration agencies are “rife” with discrimination and harassment.
With the political pressure mounting, the home secretary, Sajid Javid, in his letter to the Yvette Cooper, Chair of the Home Affairs Committee, has admitted that at least 19 highly skilled migrants have been forced to leave the country under the rule. Javid has announced a review of the use regulation 322(5) and has put on hold all refusals under the current 322(5) regulation.
Any review of the regulation must decouple any assessment of threats to national security from all other assessments of a person’s attributes. There must be clear criteria by which character and conduct are judged. All the persons who have suffered as a result of this punitive rule should be contacted and their passport entry should be amended to say that they are not a threat to national security and giving clear reasons for rejection of the visa. The applicants who have suffered because of this injustice must be given redress.
The refusal of ILR to these applicants is highly likely due to the inflexible cap on number of visas to be issued. If that is the case, would it not be more honest to tell the applicants such is the case and they should be given ample time to wind up their affairs in the UK and leave voluntarily rather than face the ignominy of destitution and deportation.
These cases reveal how shabbily and cruelly the British state treats individuals and families, disregarding their contribution to our society and reducing them to destitution in contrast to its professed moral standards about fairness and family values. This has been rightly condemned by some MPs and immigration experts as “truly wicked” and “an abuse of power”.
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