24 Oct 2016, 51 mins ago

Immigration analysis: What are the political parties’ plans for immigration?Lee Jackson, barrister at Gherson, takes a look at what the various policies might mean for immigration lawyers after the general election.

What models of border control are proposed by the parties?

Targets and caps

The Conservative Party’s ambition is to deliver annual net migration in the tens of thousands, rather than hundreds of thousands. It says it will maintain the cap on non-EU skilled migrants at 20,700 during the next Parliament. The Labour Party says it will keep the cap on workers from outside the EU, but does not specify any numbers. UKIP says it would cap highly-skilled work visas to 50,000 per annum, including those from the EU, and would introduce a five-year ban on immigration for unskilled workers. It would introduce an ‘Australian-style’ points-based system to select these highly-skilled workers.

None of the other parties make any reference to a cap, except the Greens who explicitly reject it.

Border controls

There is some common ground between all of the parties on the issue of border controls. Both the Conservative and Labour parties place an emphasis on ‘controlling immigration’ in their manifestos, and border controls form an integral part of this. Even the party with the most liberal immigration policy, the Greens, rejects an open borders approach for the foreseeable future.

The extension of exit controls is mentioned in the manifestos of all three main parties. As has been widely publicised, the government extended exit checks to all airports and ports on 8 April 2015. The Conservatives, Labour and the Liberal Democrats are all committed to full exit checks.

Labour promises 1,000 new border staff, to be paid for by a ‘small charge on non-visa visitors to the UK’. UKIP would increase borders staff by 2,500.

Detention and control of migrants

When it comes to in-country controls, the Conservatives say they will introduce satellite tracking for every foreign national offender subject to an outstanding deportation order or deportation proceedings. They also say they will implement the requirement contained in the Immigration Act 2014 for landlords to check the immigration status of their tenants.

The Conservatives do not say anything about immigration detention. Most of the other main parties want to see a reduction in, or at least a review of, the use of detention. Labour and the Greens are both specifically opposed to the detention of pregnant women. The Greens also want to stop the detention of children, and ultimately bring all immigration detention to an end.

How tied to the broader issue of EU membership are the parties’ immigration proposals?

EU–in or out?

Only UKIP expressly says it wants to leave the EU. The Conservatives say ‘Yes to a family of nation states, all part of a European Union’, but ‘no to ever closer union’. They say they will negotiate a new settlement for Britain in Europe ‘so that people will have to be here for a number of years before they can claim benefits’ and then hold an in-out referendum by the end of 2017.

The Conservatives say that changes to welfare to cut EU migration will be an absolute requirement of its renegotiation. They plan to introduce:

– a requirement that EU migrants live here and contribute for a minimum of four years before they can claim tax credits and child benefit

– a new local residency requirement of four years in order to qualify for social housing

– a bar on EU jobseekers claiming any benefits at all, and

– a bar on receipt of child benefit or child tax credit for children living abroad

They also want to negotiate with the EU to bring in stronger powers to deport foreign criminals and prevent re-entry. They want to toughen requirements for non-EU spouses to join EU citizens, including an income threshold and English language test.

Labour is committed to remain within the EU, although it will work to reform it. It says that people coming from the EU to look for work should contribute to our economy and our society and that it will secure reforms to immigration and social security rules, but is far less specific than the Conservatives. Labour proposes a two-year wait before migrants (it does not specify whether this includes EU migrants) can claim out-of-work benefits and will also prevent child benefit being sent abroad.

The Liberal Democrats also wish to remain in the EU but say that does not mean its institutions and policies do not need reform. The Liberal Democrats say they would hold an in-out referendum the next time there is any Treaty change involving a material transfer of sovereignty, but would campaign to remain in the EU ahead of that referendum.

The Green Party wants to stay in the EU but also wants reform. It is in favour of a referendum on EU membership.

The SNP is opposed to a referendum.

Plaid Cymru does not have a stated position on a referendum but does not wish to leave the EU.

UKIP says it would leave the EU, which it says would thus allow the UK to limit the arrival of EU citizens seeking employment in the UK. It proposes to have a referendum as soon as possible and then, if the referendum results in a No vote, to notify the EU of the UK’s intention to leave in two years’ time. As has already been noted, UKIP would include EU nationals in their immigration cap. It would also abolish EEA family permits.

Human rights

The Conservatives’ commitment to ‘scrap the Human Rights Act and curtail the role of the European Court of Human Rights’ will clearly have a major impact on the work of immigration practitioners. The manifesto states that the Conservatives will introduce a British Bill of Rights to ‘break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK’. It says that the Bill will remain faithful to the basic principles of human rights but will ‘reverse the mission creep that has meant human rights law [is] being used for more and more purposes’ and ‘stop terrorists and other serious foreign criminals…from using spurious human rights arguments to prevent deportation’.

A more immediate impact upon immigration law and practice would likely be caused by the Conservatives’ proposal to extend the ‘deport first, appeal later’ regime to ‘all immigration appeals and judicial reviews, including where a so-called right to family life is involved, apart from asylum claims’.

UKIP would also remove the UK from the jurisdiction of the European Court of Human Rights (ECtHR) and replace it with a UK Bill of Rights.

Labour says it will protect the Human Rights Act 1998 (HRA 1998), and reform the ECtHR. The Liberal Democrats also say they would protect HRA 1998 and add that they would take appropriate action to comply with decisions of the UK courts and the ECtHR. In addition, they would enshrine the UN Convention on Rights of the Child in UK law.

The Green Party, the SNP and Plaid Cymru all oppose scrapping HRA 1998 or withdrawing from the European Convention on Human Rights.

How do the parties address the intersect between education and immigration?

The Conservatives say they will introduce new measures to tackle abuse of the student visa system and introduce targeted sanctions against colleges or businesses that fail to ensure migrants comply with the terms of their visa.

The other parties are almost uniformly in favour of allowing more overseas students to study in the UK.

Labour says that the short-term student visitor visa system will be tightened to prevent abuse, but otherwise would welcome overseas university students.

The Liberal Democrats would separate students out from the official immigration statistics. They would ensure the UK is an attractive destination for overseas students and reinstate post study work visas.

The Green Party would abolish restrictions on foreign students and allow students to work in the UK for two years after graduation.

Both Plaid Cymru and the SNP would reintroduce the post-study work visa to allow students who had been studying in the two parties’ respective countries to spend two years working there after completion of their studies.

Like the Liberal Democrats, UKIP would remove overseas students from the official immigration figures. It says the international student community makes an important contribution to the UK.


What are the prospects of the parties delivering on their manifesto pledges?

As the last government discovered, it is extremely difficult for politicians to achieve targets for annual net migration, particularly given that the number of people wishing to come here (or indeed to leave) is often driven by the state of the health of the economy–something which is extremely difficult to predict in advance. In addition, EU free movement rights mean that it is only non-EU immigration that can easily be targeted by legislation, yet this has resulted in barriers being placed in the way of immigration by highly-skilled workers and students in an effort to keep the figures down, when this is exactly the sort of immigration that politicians say they want to encourage. Since the last election, it is notable that the Conservatives have downgraded their ‘target’ of reducing net migration to the tens of thousands to an ‘ambition’.

Most of the parties’ proposals for reducing immigration from migrants outside of the EU will not be difficult to implement, although it is difficult to predict how successful any of them might be. It has already been highlighted how difficult it is for policies to lead to a real reduction in annual net migration.

Problems will inevitably arise, however, where policies interfere with rights protected by EU law or by the ECHR.

It appears that the Conservatives intend to try to renegotiate the UK’s settlement with the EU before implementing the measures set out in its manifesto. It may therefore be some time before any such measures might be brought into force (if ever). However, if they try to introduce such measures before the conclusion of any renegotiation, then they are likely to come into conflict with both the Court of Justice of the European Union and the UK courts.

The Conservatives’ plan to hold a referendum by the end of 2017 after renegotiating a new settlement in fact seems quite ambitious. Firstly, it is unlikely that the other member states would easily allow the UK to negotiate itself out of provisions of EU law that form part of the free movement of people–one of the four freedoms that form the cornerstones of the single market. The UK would almost certainly need to build alliances with other member states in order to make any headway in such negotiations, and it would take time to put such alliances together. Even then, the UK’s proposals are likely to meet with stiff resistance from some of the leading players in the EU, and it is unlikely to be a speedy process. Mr Cameron has already said that it is unlikely that renegotiation could be achieved before the end of 2015, and even that appears to be an optimistic assessment. Secondly, even if agreement were reached, it would then be necessary to introduce and pass legislation to hold the referendum. Sufficient time would have to be included in the timetable to allow for campaigning for and against EU membership. If the vote went against membership, then only at that point would negotiations for withdrawal be able to start (if indeed the government decided to withdraw).

It should also be observed that UKIP’s planned cap of 50,000 highly skilled migrants and ban on unskilled migrants, including those from EU countries, would clearly be unlawful under both UK and European law, pending the proposed withdrawal from the EU.


Do any of the parties’ proposals present any issues for immigration advisors?

As with most things, the devil is in the detail, and it is difficult to anticipate the likely consequences for immigration advisors of the proposals contained in the parties’ manifestos until more is known about them.

On the big issues, such as the EU and human rights, Labour and the Liberal Democrats are essentially committed to maintaining the status quo. Of the bigger parties, therefore, most of the issues for immigration advisors arise from the Conservatives’ proposals because they will fundamentally affect our relationship with both the EU and the ECtHR. These concerns over the Conservatives’ manifesto will be exacerbated if they enter into a coalition with UKIP and take some of UKIP’s policies on board.

The proposal to repeal HRA 1998 is most worrying, especially when read alongside the 2014 policy paper, ‘Protecting Human Rights in the UK’, which makes it clear that the intention is that the UK’s courts will no longer be required to take into account the Strasbourg Court’s case law. It will be a serious problem for immigration advisors if they are no longer able to rely on Strasbourg case law or, perhaps even more importantly, unable to go to Strasbourg for interim measures preventing removal pending the determination of an individual’s rights. Moreover, the Lord Chancellor and Secretary of State for Justice, Chris Grayling, has proposed quitting the ECHR altogether if a looser relationship with the ECtHR cannot be negotiated. This has been described by the former Attorney-General, Dominic Grieve QC, as having potentially ‘devastating’ consequences for the UK.

Irrespective of whether HRA 1998 stays on the statute book or not, the proposal to extend the ‘deport now, appeal later’ regime to all except asylum appeals will cause major issues for immigration advisors. Worryingly, the phrase ‘all except asylum appeals’ appears broad enough to include ECHR, art 3 appeals, giving rise to the prospect that some appellants may suffer serious irreversible harm by being removed to their country of origin while their appeal is pending. Even if in practice removals were only to be implemented in non-art 3 cases, it will be exceptionally difficult to run such appeals with the appellant outside the UK, and it may well result in the lengthy and damaging separation of families during the appeal process.

Northern Irish parties

If the election is particularly close-run, the Northern Irish parties could end up holding the balance of power, and it is also worth looking at what they have to say about immigration.

The DUP (currently the fourth largest party in Parliament) says immigration needs to be limited but also that the contribution of immigrants needs to be recognised. It says it wants proper border controls and a tougher immigration policy. The DUP wants an early referendum on membership of the EU, and supports the coalition government’s pledge to renegotiate elements of the relationship with the EU.

The SDLP’s manifesto does not have an express policy on a referendum, but given its absolute opposition to withdrawal from the EU, it seems unlikely that it would support one.

Sinn Fein’s manifesto does not mention immigration at all, but the party is opposed to a referendum on EU membership. Interestingly, Sinn Fein has not ruled out the possibility that it may take its seats in Parliament after this election, as a strategy to counter the influence of the DUP.

In the event of a coalition, would there be any natural bedfellows when it comes to immigration policy?

With the exception of Europe and human rights, the differences between the two major parties’ policies on immigration-related matters are largely a question of degree, and therefore unlikely to present an obstacle to any other party entering into a coalition with them.

The real division is Europe, and whether or not to have a referendum. The party divisions are as follows:

– for a referendum–Conservatives, DUP, UKIP, Green Party

– against a referendum–Labour, Liberal Democrats, SNP, Sinn Fein, SDLP (implicitly)

The Conservatives and UKIP also have similar policies on replacing HRA 1998 with a British Bill of Rights, and the trio of Conservatives, DUP and UKIP might most easily be seen as natural bedfellows. Given that the Greens’ other policies are almost diametrically opposed to the Conservatives’, it is almost impossible to conceive of them being in a coalition with the other pro-referendum parties.

Among the parties that are against a referendum, the only party that might not be a natural bedfellow to Labour (other than perhaps Sinn Fein) is the Liberal Democrats. As regards, the latter working again with the Conservatives, it certainly seems possible to conceive of the Liberal Democrats putting aside their opposition to a referendum by the end of 2017 in order to enter government. However, it is less easy to imagine the Liberal Democrats agreeing to an exit from the ECHR.

At the end of the day, despite the fact that immigration regularly comes near the top of voters’ concerns in opinion polls, it is unlikely that it will be a deal-breaker in the formation of any coalition. All of the parties accept the need for some form of immigration control, and the divisions between the major parties are probably not sufficiently great to prevent any party, with the possible exception of UKIP, from going into coalition with another over this issue alone.

Lee Jackson is a barrister with the leading immigration law firm, Gherson, where he specialises in asylum and human rights work, as well as general immigration. After qualification, Lee was a Legal Officer at the Refugee Legal Centre. He was then in private practice at the Bar from 2000-2009. He has worked in-house at Gherson since 2009.

Interviewed by Jane Crinnion.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.