COVID-19: Distinguishing crime
Since the introduction of the Points Based System, individuals entering under Tier 1 and Tier 2 of the Points Based System have been affected most by Labour and Conservative Governments’ immigration policies. The result is that migrants are caught up in a Kafkaesque system in which legislation is applied retrospectively and genuine mistakes in applications end up with the prospect of forcible removal from the UK.
Yesterday say the publication of the long awaited changes in the immigration rules which will come into effect on 6 April 2012. The phrase “the devil is in the detail” has never been more apt. The rules will introduce a new 12 month exclusion period to all Tier 2 migrants and this will be applied retrospectively. UK employers who made recruitment decisions within the last 3 years which were based on the immigration rules at the time, are coming to terms with the fact that the rules of the game can be changed at half time and the goal posts are now in a different stadium entirely.
These changes are yet another example of the Government attempting to use a sledgehammer to crack a nut.
In AA (Nigeria) v SSHD  EWCA Civ 773, Lord Justice Longmore commented
“I am left perplexed and concerned how any individual whom the [Immigration] Rules affect... can discover what the policy of the Secretary of State actually is at any particular time if it necessitates a trawl through Hansard or formal Home Office correspondence as well as through the comparatively complex Rules themselves. It seems that it is only with expensive legal assistance…, that justice can be done.”
The current President of the Immigration and Asylum Chamber of the Upper Tribunal noted in Philipson (ILR – not PBS: evidence) India  UKUT 00039 (IAC):
‘The intrinsic lack of justice in this case comes from the attempt at the 59th month of her 60 month stay, to impose wage conditions on her that were irrelevant to the original grant of the work permit. Having admitted her at a certain wage level and led her to believe that settlement was probable at the end of the five year period, it is very harsh to refuse her because of a recent change of policy that operated on employers and not employees.'
The Immigration Minister Damian Green has stated that the way courts interpret the Human Rights Act human has led to a “ridiculous and damaging situation where the whole concept of Human Rights is called into question”
Unfortunately, given the constant changes in immigration law and policy, in most cases migrants are left with no other choice but to challenge UKBA decisions through the Courts to protect their private and family life in the UK.
There is a growing perception that the current policy is damaging Britain’s reputation abroad, economic recovery and that Britain is no longer open for business.
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