The Immigration Rules meet the Law Commission
“Why are we having all these people from shithole countries come here?”
The words allegedly uttered by the President of the United States in a White House meeting last week on a proposed bi-partisan immigration plan. If the numerous, and as yet not fully denied, reports are to be believed, President Trump proposed that the US should not be taking as many migrants from Africa and Haiti but should instead look to countries like Norway to make up their immigration quotas.
These reported comments have, deservedly, attracted considerable attention and criticism, particularly in light of America’s status as a nation of immigrants. One of the most interesting conversations started as a result of these comments, however, relates to the interaction between merit and nationality.
This is because the White House and its supporters have sought to defend any comments made by President Trump by stressing he was arguing for a merit based immigration system. The logical takeaway therefore, is that merit and nationality are somehow intrinsically linked. To be a person of merit, you cannot come from a country like Haiti or any country on the African continent, rather a person of merit is to be found in overwhelmingly white European countries like Norway.
To hear this argument made in such stark terms draws almost universal condemnation and well-earned accusations of racism. However, a quick perusal of the UK immigration system reveals an enterprise which is, to an extent, founded on the idea that merit and nationality are, at least in part, linked.
For a clear demonstration of this fact, one can look at the treatment of Tier 1 Entrepreneur applications. In response to a freedom of information request in November 2015, the Home Office disclosed the contrasting facts regarding applications made from Pakistan and the US.
Between 1 January 2014 – 30 June 2015, only 3% of all entrepreneur applications made in the US were refused, versus 31% of applications made from Pakistan. Further, not a single applicant from the US was subjected to a substantive interview as part of the application process. In contrast, 65% of the total applicants from Pakistan were required to attend a substantive interview. This is a trend we have seen around the world. I know that the advice I give to a potential entrepreneur from China, for example, about the prospects of success and being subject to an interview, are very different to the advice I give to an applicant from the US. This would be true even if they came to me with identical backgrounds and business plans.
Yes these applicants, in theory, have to satisfy the same criteria, but we know that in practice the level of scrutiny they attract differs.
Anecdotally, this is something we see all the time. Spouse applications from the US, from Australia, from Canada are processed quickly and rarely with issue. Contrastingly, spouse applications from India, Pakistan, Nigeria, are slow to be processed and more regularly refused.
Average processing times for these types of applications from recently collected data
We know from appeal statistics that refusals are frequently wrong and regularly overturned by appeal courts. Subsequent Immigration Acts have in recent years limited the right of appeal but before the 2014 Immigration Act, around 50% of decisions were reversed on appeal. The appeal process is lengthy and can be expensive, which means that families are often delayed for months if not years while awaiting their chance to challenge a decision in Court.
This blog is not intended to address our obligations under domestic and international agreements to provide safe haven for refugees, those displaced by humanitarian crises or to facilitate family life. I simply wanted to look at our approach to the idea of merit based immigration and how, without the vulgarity and shock factor we have seen in the US, we too have been casting aspersions on individuals of certain nationalities and holding them to a different standard and a more laborious process.
The Migration Advisory Committee is currently preparing a report on the UK’s immigration needs in view of our upcoming departure from the EU. We can review evidence of business need, of economic impact and of the value of diversity of thinking. We can examine skills gaps in the labour market and how to attract entrepreneurs and investors. The UK already attracts talented migrants from around the world and I don’t wish to imply otherwise. However, conscious and unconscious bias is inherent in our immigration system and, as the UK gears up for Brexit and our entire immigration system faces reform, such bias must be acknowledged and subject to a full and frank analysis. This is an uncomfortable truth to acknowledge but an unavoidable one.
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