Coming to Britain: The Discretion Factor

Edwin Goodwin

Description

The subject of immigration in Britain has become a dark minefield especially for asylum-seekers and irregular migrants. This is as a result of arbitrary changes in legislation and probably the politics of Brexit. Unsettled migrants, it seems, are completely at the mercy of the Home Office decision-makers - because the Home Office simply change the immigration rules when it does not like the answers the courts are giving.

The current bureaucracy is hostile, cynical and hardened to every sob story under the sun. Arbitrary policies tear apart families and ruin lives. The treadmill of unfair bureaucratic decisions is a direct result of a relentless drive towards unrealistic migration caps that don't take real lives into account. Indeed, there are ever so many ways in which these faceless bureaucrats ride roughshod over the rights and legitimate expectation of migrants.

It is hoped that this essay will do something to lessen the heavily tilted playing field on which migrants and their representatives must contend.

Sujets

• Civil Law
• Droit et juridique
• Law

Informations

• Publié par: eBookIt.com
• Date de parution: 05 février 2018
• Nombre de lectures: 0
• EAN13: 9781456630362
• Langue: English

Extrait

Coming to Britain: The Discretion Factor
 
by
Edwin Goodwin
Copyright 2018 Edwin Goodwin,
All rights reserved.
 
 
Published in eBook format by eBookIt.com
http://www.eBookIt.com
 
 
ISBN-13: 978-1-4566-3036-2
 
 
No part of this book may be reproduced in any form or by any electronic or mechanical means including information storage and retrieval systems, without permission in writing from the author. The only exception is by a reviewer, who may quote short excerpts in a review.
Table of Contents
About the Author
Foreword
Acknowledgements
Introduction
Section 1:
MIGRANTS AT THE END OF THE LINE
1.1 Discretionary Leave Policy
1.2 Some Caselaw in Removal Cases
1.3 Paragraph 353B Not Justiciable
1.4 Apparent Disregard for Legal Precedents
1.5 Illegal Until Proven Otherwise
1.6 Independent Eye
1.7 Immigration Bail and Reporting Conditions
Section 2:
LEGAL CONUNDRUM
2.1 The Catch-22 of Human Rights Law
2.2 The Messy Article
2.3 Progressing the Article 8 Argument
2.4 Extent of Private Life
2.5 Extent of Family Life
Section 3:
STAYING POWER
3.1 Considering Suicide Threats
3.2 Medical Approach to Suicide Threats
3.3 Psycho-wrangling
3.4 Immigration Meets Extreme Welfare
3.5 A Jolly Good Show Indeed
3.6 Arbitrary Change Causes Tragic Case of Suicide
3.7 Better Get Hitched?
Section 4:
DISCRETION MUST GO
4.1 Investigating Abuse of Discretion
4.2 Discretion is Indispensable
4.3 The Appeal for Amnesty
Section 5:
CONCLUSION OF THE MATTER
5.1 What Hope for Migrants?
5.2 Bringing It All Together
References and Further Reading
Appendix A
Appendix B
Appendix C
Correspondence
 
About the Author
Edwin Goodwin migrated to the UK from Nigeria as a student and to join his family in October of 2005. He studied Applied Biomedical Science (2005-2008) at the University of Wolverhampton (UK), graduating with a 2.1 Honours degree. He also holds a Postgraduate Certificate in Biomedical Science (PGCert) which was awarded to him in 2010 by the same university.
Whilst at university (in 2008), he was awarded the Dean’s Prize, having been selected as the winner of the Final Year Experience Writing Competition. Shortly after his undergraduate studies, he joined the National Health Service (NHS) in England as a qualified biomedical scientist (2009-2012). During his NHS employment (in 2010), he was awarded a Certificate of Academic Development in Medical Microbiology and Clinical Bacteriology by Liverpool John Moores University.
In March 2017 Edwin published a book entitled Appraisal Science: Appraising Healthcare Professionals in which he delivers a critical, thorough overview of the UK’s appraisal system for healthcare professionals.
In July 2017, he was appointed as Mentoring Programme Manager for a community club known as Speakers of Croydon – part of Toastmasters International, a global organisation devoted to communication and leadership skills development.
Edwin lives in London (UK) and currently works in the field of Facilities Management. In September 2017 he was formally recognised by his employer as a Health & Safety Champion . He invests his time in creative writing, strategic personal development, and mentoring young people. He was awarded a Certificate in Volunteering by the Mayor of London in March 2015. The certificate reads: “ An award for volunteering with the Mayor’s Mentoring Programme & making a difference to the lives of young Londoners .”
Foreword
The author (Edwin Goodwin) presents to us a comprehensive thesis which explores a hostile brand of bureaucracy. But one would have thought that hostility and bureaucracy are inextricably linked, aren’t they?
In recent times, we have heard how people with every right to live and work in Britain have been left terrified by Home Office communications threatening them with deportation. Far from being a new string of errors, this ineptitude, lack of proper judgement, and general aversion to compassion may as well be official Home Office policy. The government’s obsession with immigration targets mires everything it does, and apparently everyone is fair game.
The immigration system is at present based on a reactionary agenda, not reason, and certainly not the best interests of Britain’s economy. Against all advice, the UK government led by Theresa May continues to insist on maintaining a net migration target of under 100,000, which has never once been met.
Indeed, the Prime Minister has worked steadily towards creating the “ hostile environment ” she envisaged as Home Secretary. Her government presides over a detention system that can effectively hold detainees indefinitely, and has been found to do so without sufficient cause – they enforce inhumane mass deportations that do not assess asylum claims in a fair and timely manner; and of course have  falsely accused international students of overstay ing in large numbers. The failures are endless. It is no surprise that the  ombudsman upholds more complaints against the Home Office than any other Government department .
 
According to a recent Parliamentary Ombudsman Report, poor decision-making was a major issue, cited in more than one in four upheld complaints about the Home Office and its immigration departments. The number of upheld complaints is more than double the average for public sector organisations.
 
Shadow Home Secretary Diane Abbott wrote:
 
“ The immigration system has been described as broken, supposedly for not being “tough” enough. But the truth is it lacks sense, and above all it lacks humanity – a requisite component when dealing with human beings. These “error” letters, and the Tories’ approach behind enforcing immigration policy as a whole, exposes a much more inherent flaw: the callousness that comes from being guided by deportation and detention, as measures of a successful immigration system. This system is unworkable, and the Home Office needs to clean up its act ”.
The author focuses primarily on ‘end of the line’ immigration control within the United Kingdom - that is, migrants who face what is termed as administrative removal or deportation.
On a broader note, this essay may bring more service user insight into the thinking of bureaucrats, policymakers and researchers.
Happy reading!
Enakeme Goodwin BSc (Hons)
Policy Adviser
Speakership Development Forum
Acknowledgements
I wish to thank the UK Immigration Enforcement team for providing insight into how they operate albeit during what was a challenging time for me.
My mother (Princess Margaret) continues to earn my deepest gratitude for her relentless assistance and encouragement with all my writing. Whether through material or emotional support, feedback or ideas, she is nothing less than a blessed benefactor. My brothers (Irikefe, Steve and Enakeme) gave me their full support and good advice on needed additions to the book.
Finally, to all my friends who supported this project and helped to make every page possible.
Thank you all for your generosity.
Introduction
“ How do you react when bureaucracy does not perform up to your expectations? Probably you criticise and condemn it. It does not occur to you that you have made little effort to understand how it works, and that your criticism of bureaucracy is rooted in your own ignorance of the ground rules of bureaucracy .” - Barun Kumar Sahu
Immigration is one of the most trending topics, and it stokes tension amongst the population. But I feel that problems with immigration enforcement need to be aired in whatever public way possible when the channels they provide are either inadequate or unfairly administered.
There seem to be a contradiction in the law regarding the treatment of some ‘illegal’ migrants. Section 24(1)(b)(i) of the 1971 Act states that, it is an offence knowingly to remain beyond the time limited by the leave or fail to comply with such a condition or requirement – as also referenced in Part 1(8) of the Immigration Rules. But section 10(1)(a) of the 1999 Act states: “A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave.” Note that the word ‘knowingly’ was not used in the 1999 Act – that is, [knowingly] remains beyond the time limited by the leave .
 
Paragraph 353B of the Immigration Rules is one of the final legal hurdles ('end of the line') for migrants fighting to remain in the UK. Of course, this is seen as a “legal barrier” by the Home Office, and perhaps that’s why some (if not all) of their caseworkers seem to avoid it in their decision-making process, probably because they think they might get away with it. Unfortunately, it usually takes a protracted and expensive court battle to correct such injustice (judicial precedents are now more important and relevant to immigrants than ever before). I recall during my appeal hearing at the First-tier Tribunal, the judge was very quick to ask the Home Office lawyer ('Presenting Officer'): "Do you have any precedent?" Indeed, this was the first time I became aware of the power of legal precedents. I was probably fortunate that the answer to that question was 'no'.
 
The Judge suggested a “fresh decision” be made, with reference to paragraph 353B of the Immigration Rules. This meant that I had the legitimate expectation of a fresh decision under paragraph 353B of the Rules – which considers length of residence as a relevant factor against removal. I had lived in the UK legally for eight consecutive years, with clean records.
 
In paragraph 46 of the High Court Judicial Review of Mohammed [2012], Mr Neil Forshaw, an Assistant Director of the UKBA stated:
 
“It is accepted that the EIG was changed in 2009 for all cases to allow caseworkers across the UKBA to t