UK ‘loses control’ of immigration

What a difference half a century makes. In 1964, when the Sixties started swinging, the net immigration figure for the UK was “minus 50,000” as the Commonwealth Immigrants Act of 1962 started to restrict numbers of entrants.

Now, net migration for 2013 is put at “plus 212,000” — and that is despite the closing of what was called the post-study work route of Tier 1 of the Points Based System for entrants. Indeed, a figure of around plus 200,000 seems to have become the norm. No wonder then that, as Chris Magrath of the specialist immigration firm Magrath LLP points out, immigration is now the most potent of election issues. Moreover, immigration lawyers are mostly of like mind — the UK’s immigration system is “a big mess”.

The fact that hard-nosed professionals — not sensational pundits or ideological politicians — collectively agree on this is highly significant.

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“The reality is that we have no control over the number of EU nationals who come into the country,” Mr Magrath says. “Meanwhile the government has “painted itself into a corner” by committing itself to a target — reducing net immigration to mere tens of thousands — over which it has virtually no influence.”

Andrew Osborne, of Lewis Silkin, agrees, pointing out that “a little bit of honesty from politicians about this would be a big step in the right direction”.

Instead, says one well-placed lawyer, who prefers not to be named, there is now a political imperative to create the illusion that the government is “getting a grip” on the immigration figures through a fevered focus of legal activity on non-EU nationals as the only group who can be managed. “Policy is being driven by the matter of perception so that the government can claim it is clamping down even though in real terms the impact on numbers is absolutely marginal,” the lawyer says.

As a result, UK immigration law is now “horrendously complicated, with rules being made just for their own sake”, Sophie Barrett Brown, of Laura Devine Solicitors, says. “There were a dozen major changes to the rules last year, often hastily drafted and trickling through in dribs and drabs. And there are updates issued virtually every day.”

As Mr Osborne points out, many of the rules are drawn up on a crude one-size-fits-all basis, which cannot do justice to individual circumstances. A classic example is the requirement that those highly skilled foreign workers who enter the country under intra-company transfers as long-term staff are only permitted to remain for five years. Consequently, the worker returns home but is then replaced by another person brought in to do the same role. “The net result in the number of immigrants is no change,” Ms Barrett Brown says, “but the inconvenience and disruption to the company and the individuals is considerable. These are the kind of negative messages sent out to the rest of the world and interpreted as meaning that the UK is no longer open for business.”

The paradox is that most of the rules are making it as difficult as possible for the very people that the UK needs to attract — entrepreneurs and investors. It is also why the demand for the services of top immigration lawyers is so high. “Immigration lawyers are probably doing better than they should,” Mr Magrath admits ,“but that’s because the rules are disproportionately complicated for what the government is trying to achieve.”

Tom Ketteley, of Bates Wells Braithwaite, says an example of this is the way that people in the Tier 1 (Investor) category must present the evidence confirming that their £1m investment (the minimum requirement) is “freely transferable” to the UK. “Unfortunately the Home Office is prescriptive in only accepting specified documentation,” Mr Ketteley says. “To the potential investor it appears that the Home Office doesn’t really understand how globally mobile investors operate or what their advisors can and cannot confirm about their affairs.”

The upshot of this and similar complex regulations is that desirable immigrants are choosing to go elsewhere, where the rules are less complicated, procedural costs lower and compliance obligations not as demanding.

Matters will worsen if the Immigration Bill 2013 gains Royal Assent in its present form. Mandatory checks by landlords and letting agents on the right to residence of their tenants is likely to be costly and complicated, says Tijen Ahmet, the head of immigration at SA Law.

Bilal Rawat, of 7 Bedford Row, says the proposed reforms to the right of appeal, which reduce the current 14 immigration decisions (carrying rights of appeal to the First-Tier Tribunal), down to a mere three, are likely to lead indirectly to an increase in judicial review. “This will mean more work for the higher tribunals and courts and a process that takes longer,” he says.

So, how to meet the net migration figures? Lose Scotland (Cameron’s cunning plan?).