UK: The End Of The UKBA

Last Updated: 14 June 2013
Article by Tim Hayes

There has been much publicity over the announcement by Theresa May that the UKBA is to be no more. The agency is being split in two parts, one focusing on enforcement and the other on, essentially, deciding applications by existing and prospective migrants. Both will be brought back under ministerial control, ostensibly to make our immigration institutions more accountable. Can we hear the creak of furniture being moved around or are these the rumblings of tectonic plates moving towards a more effective and sustainable basis for the UK's immigration policy?

The answer, of course, will only be apparent in a number of years' time. It takes a long time for the effects of immigration policy to filter down. The decision in the mid nineties to freeze recruitment in what was then the Immigration and Nationality Directorate arguably led to the huge backlog in undecided cases at the beginning of the 2000's. This is a backlog which has never been properly resolved to date.

Whether bringing more ministerial control is the right thing to do in the long run is a moot point. One of the main drivers for creating the UKBA as an agency in the first place was to isolate the immigration system from political whim. However, constant chopping and changing of policy resulting from changing governments, shifting priorities and a reactionary media have shown that the institutions at the heart of immigration policy can never be fully protected from constant tinkering by ministers or policy initiatives which are often counterproductive.

Enhancing ministerial control is only likely to increase the short-termist agenda of those appointed to oversee the control of our borders. In the same way as bankers are being told that their bonuses are to determined according to long-term results, a similar measure of control over long-term policy is arguably necessary for important policy areas such as immigration.

It is also said that bringing the agency back under the direct control of government will increase transparency. This would be a novel development. Immigration control has long been a shady, opaque business, characterised by the exercise of discretion by the executive, the primacy of internal, at times secretive, guidance and the tireless propensity of the executive to change the rules, often to the detriment of the migrant population. Take, for example, the Supreme Court's ruling last year (in the cases of Alvi and Munir) that decisions on applications to enter or remain in the UK could not be made on the basis of guidance not laid before Parliament. The Government's response was simply to incorporate the entire guidance into the immigration rules, instantly rendering those rules incomprehensible to the layman and enshrining a number of requirements which border on the perverse.

Or take last year's changes to the immigration rules in which the Government attempted to set out how the courts should interpret Article 8 rights, seemingly without regard to the courts' obligations to observe international law.

Even if we do indeed get more accountability, will it change anything? If we really want a fully functioning, effective and fair immigration system there is, of course, only one solution: more money. Only by allocating enough resources to the immigration service in whatever form it now takes, to recruit and train sufficient personnel to clear the backlog, reach reliable decisions and uphold the rule of law rather than simply wield executive authority can we resolve the disfunction blighting the current situation. Resources to ensure a specialised judiciary has the time and equipment to reach informed and well-reasoned decisions. Resources to enable proper enforcement of decisions and to permit swift removal and deportation on a sound legal basis. Resources to ensure Government, on the one hand, and migrants and asylum seekers on the other, are properly represented at immigration tribunals and before higher courts. The choice we have to make is between investment in a proper immigration system or accepting that immigration control will flounder for the foreseeable future in underfunding and injustice.

Despite hyperbole and scaremongering among the media, are we really prepared to make the substantial investment in the UKBA and its enforcement teeth that an immigration mechanism which is truly 'fit for purpose' requires? Is it even right to invest in immigration? Would we not prefer to see the money invested in, say, the health service or education? It may very well be that we will need to ensure that other, more needy, sectors of our public services receive the funds they desperately need. Education, health, what is left of our legal aid and benefit systems; these may all have to take priority in our scaled back public finances. We may simply have to accept the reality that our immigration system is seriously deficient and is destined to be so for the foreseeable future, regardless of the reshaping of the primary institutions at its heart.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Tim Hayes
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