A Qualified Amnesty – the right policy at the right time

I was pleased to read in the Daily Mail – 6th July 2019 Boris Johnson has pledged an amnesty for illegal immigrants in the UK. I think it is right and proper at this time and at this juncture of our nation’s history for several reasons which I will refer to below.

The spirit of any amnesty – an act outside of our normal laws that apply, must be one that is both necessary and in the public interest. These two points apply whether this is an amnesty on illegal immigration, knife crime, financial settlements for tax evasion or similar. In this contest, I support an amnesty on illegal immigration. A policy that is firm but fair – returning us to the spirit of the Immigration Act 1971 (which is still the foundation of UK Immigration law) which was to facilitate entry to the UK, not act as a barrier.

In addition to being both necessary and in the public interest, it is the right thing to do. Brexit should be an opportunity to re-organise our fundamental laws on trade and freedom of movement with the aim of re-energising the economy.

The Test

On the first limb of the test, there are widely differing reports on the scale of illegal immigrants now present in the UK, ranging from 500,000 to 2,000,000. This is an astonishing figure and therefore in my view, makes this amnesty necessary.

I now turn to the second limb of my test – the public interest.

Firstly, we must know who resides within our borders – who they are and where they come from. An amnesty will incentivise those who fall within this category to come forward.

At present, illegal immigrants are sometimes caught by chance or by intelligence led immigration raids. Both are time consuming, labour intensive and financially expensive – not forgetting the subsequent detention and eventual (if at all) removal. The latter point is of extreme importance because, before we can remove a person to their Country of origin, we must ensure that the recipient Country will allow them to enter. This requires either the person has a passport (or is able to get one) from their nations Embassy or we secure an ‘out pass’. This means we are reliant on the third party Embassy to pursue the matter with the expediency and rigour we want, which is usually far from the case – resulting in the large periods of detention. The alternative is to release them on temporary admission with reporting restrictions which carry’s its own risks of the person absconding, and we return almost full circle. All of this is at the public expense.

Therefore, this will be a far simpler process. As at present, it will require an applicant to provide a passport from their Country of origin’s Embassy, or an explanation why they can’t. They will have to provide photographs and biometrics. Therefore, they are now in the system. In addition, they must provide evidence of residency – this usually entails bank account details, medical histories or other evidence which is useful if making a picture of what they have been doing in the UK. Evidence, which can be used to trace and detain them in future should the application under an amnesty fail.

Inevitably, it will also be cheaper since the applicant will come to us, rather than the other way around. I should add at this point; the cost of an application can also be reduced to cover the reduced administrative expenses. £1,052.00 plus another £1,000 for the NHS surcharge is prohibitively expensive. The aim of the amnesty should be to regularise the immigration status, not profit (although, there will be many financial benefits to the UK from this process – see below).

Secondly, what contribution have they made to society. An illegal immigrant will rarely be in a position to have made tax contributions to the UK economy, simply on the basis they will usually only be in a position to work for cash in hand, if at all. However, they may have skills which are needed in the UK; they may have children who have attended school; elderly parents who are resident in the UK and who they act as full time carers for; being part of charitable causes; advocates of a worthwhile cause (for example Malalaa) or similar. We should therefore look at “contribution to society” as a wide ranging field within the spirit of the 1971 Act.

Third, if given leave to remain, can they financially maintain and accommodate themselves without recourse to public funds. This can be sub-divided into two categories – (i) those can work and (ii) those who cannot work.

With regards to (i) – those who can work. Some will have a professional academic qualification and skills acquired abroad or sometimes in the UK. Here we are looking at teachers, chefs, nurses, carers and entrepreneurs or similar. Some will have the desire to work towards acquiring skills and training leading to a profession qualification or others, will be happy to remain in the unskilled labour market – fruit farmers, kitchen porters, refuse collectors etc. What is important here is that we potentially have a readily available workforce in the UK, even in the absence of the current EU workforce. For example, to meet the extreme shortage of skilled staff and, people willing to work in the restaurant catering industry to meet the challenge and immediate risks of a declining restaurants and takeaways industry.

Any applicant must provide evidence that they have an offer of a full time job or a job sufficient to financially maintain and accommodate themselves and their families without recourse to public funds – based on the national minimum wage and not an arbitrary financial level beyond the reach of many businesses and individuals. Most should be in a position to do so, having done so, for many years already.

With regards to (ii) – this could cover a wide range of people including children, those with disabilities, or maybe even those who act as carers to relatives but are unable to work elsewhere. Hitherto, most will have a family member who falls under category (above). For those who do not, we must assess their contribution to society compassionately. For example, a carer of a resident relative benefits the taxpayer because we do not have to pay for a carer, or a resident relative entitled to carers allowance.

All applications under this amnesty must require disclosure of all relevant grounds on which the application is made and consequently, no right of appeal against the decision leading. All refusals should be the subject of an administrative removal (which only attracts a right of appeal from abroad or is subject to a Judicial Review) rather than deportation.

Those with serious criminal convictions or involved in serious criminal activities must be removed swiftly. The existing legal definition of a serious criminal conviction / activities is sufficient and will therefore will not require an exhaustive list or a change to the law (unless required for some other purpose). The problem with deportations lays in the right of an in-country right of appeal. Under the second limb of the amnesty – that is the ‘public interest’ argument, any appeal against a deportation order can only be limited to a risk of serious harm or risk if the person is deported, rather than a loose argument under the human rights grounds – the most relevant of which is under Article 8 (1) Human Rights Act 1998 – a right to family life / private life in the UK. Unfortunately, judge made law under the “living instrument” doctrine has led to confusion and complications in the judicial process.

By way of a side note, in addition to an overhaul of the Immigration Acts, we should also now repeal the Human Rights Act and replace it with a Bill of Rights and Responsibilities – a social charter between the State and the Individual as well as between the Individuals themselves.

 

What is a qualified amnesty?

It is not suggested we look to provide a blank amnesty. On the contrary, it must have a legitimate aim in the ‘public interest’. For example, to meet the challenges of a declining industry in the UK or where there is a shortage of labour.

 

What would be the terms of the ‘qualified’ amnesty?

A summary of the proposals would be:

Those who have spent at least 10 years in the UK and can contribute to society. General qualification criteria already exist under HC395 of the immigration rules and these should be adopted or used as guiding principle only.

They can provide evidence of their identity and where they are from.

They can provide evidence they have a permanent and secure job offer (subject to status) in the UK and, the employer can prove they have the means to meet the salary of the applicant in addition to meeting all other UK laws, such as Health & Safety, employment rights etc. The salary must meet the national minimum wage (rather than the £35,000).

There are other ways in which an applicant has or can contribute to society.

 

Leave to remain should be granted subject to:

a limited visa for 12 months and an entitlement to use public services (other than state welfare) such as the NHS.

If the applicant can demonstrate they have continued employment during this period and have paid all taxes due or where other contributions to society apply, they have made such contributions and there are no countervailing factors (such as a criminal record), the visa should be renewed for a further period of 12 months until the third year and, then renewable every 2 years.

This leave to remain does not entitle the applicant to permanent residency in the UK for at least 10 years.

This leave to remain does not entitle their family members to join them in the UK (although there is nothing to stop the family from entering in another capacity, for example as family visitors).

The leave will entitle the applicant to travel.

 

Pro’s	Con’s
We will be able to get a more accurate figure on the number of illegal immigrants in the UK.	We must have adequately trained staff to process applications swiftly in weeks, not months (or years). Depending on the current competency levels, this could mean more training required and, consequently cost.
We will have a readily available workforce in the UK to meet any challenges raised by Brexit	Can be seen as discriminating against those who have entered the UK legitimately. This can be off set through the restrictions on leave mentioned above and having to wait for 10 years before they are eligible for Indefinite Leave.
Those who apply but do not qualify for leave can be removed out of the UK swiftly (because we will have their passports).
Low costs on immigration enforcements through raids and, processing at detention centres.
Income generated from application fees.
Tax receipts from those who are employed.
Is likely to be popular with the working class and BAME communities and an opportunity to connect with those communities and show that the Conservatives do value and want their votes.

 

Working example:

The Indian restaurant industry is worth some £4bn to the UK economy and employs hundreds of thousands.

The staff are made up mainly from Bangladesh and the Indian sub-continent.

It is estimated that at least 10 restaurants/takeaways are having to close very week due to staff shortages.

 

The Qualified Amnesty will resolve:

Immediately available resident skilled workforce.

Tax receipts from full time jobs immediately available;

Will help boost employment in related businesses – such as suppliers and new technologies being introduced into the industry.

 

Attic Rahman

23 July 2019