United Kingdom - Country Report: Legal and Policy Framework of Migration Governance
Catherine Hirst & Naures Atto | University of Cambridge
This report explores the legal and policy framework of migration governance in the United Kingdom (UK). It shows that migration governance is complicated, reactive, and that the needs of immigrants, refugees and asylum seekers have been eroded at the expense of border control overtime. The constitutional organisation of the state has contributed to these features of immigration policy. Evidence of the complexity, reactivity and restrictiveness of migration governance is found in the UK’s legislative framework, the legal status of foreigners, the reception system and post-refugee crisis reforms.
Constitutionally there are three tiers of government in the UK – the central UK Government, the devolved governments of Northern Ireland, Scotland and Wales, and local authorities. The central UK Government is responsible for immigration, nationality and asylum policy. However, the devolved legislations and local authorities have a role in providing refugee and asylum seekers support within their constitutional remit, including in the areas of social security, housing and health care. The structure of government contributes to the complexity of migration governance, given the sometimes-difficult task of distinguishing the functions and different objectives of the tiers.
The rights of asylum seekers are in a more precarious position than in other countries for two reasons. First, there is no specific right to asylum enshrined in the UK’s uncodified constitution, although the Human Rights Act 1998 plays a significant role in protecting asylum seeker rights. Second, the UK has no entrenched provisions in its constitution, meaning that legislation such as the Human Rights Act 1998 could be amended or replaced simply via an act of parliament1.
Despite some historical peculiarities that still persist, the UK has an independent judiciary that has at times been in conflict with the government over the human rights of immigrants, asylum seekers and refugees. However, the principle of parliamentary sovereignty in the UK means that i) the courts cannot invalidate primary legislation on the basis of its incompatibility with the Human Rights Act 1998 ii) the judiciary have tended to be cautious vis-à-vis parliament, not wanting to overstep their role.
Evidence of the complexity, reactivity and restrictive nature of migration governance can be found in the evolution of legislation. With some notable exceptions, the evolution of primary legislation on immigration and asylum has been regressive, with successive restrictions on appeal rights, social benefits and the criminalization of irregular migrants. Legislation has been introduced to circumvent more progressive court decisions and has at times been rushed through without adequate consultation. Legislation has also tended to be reactive, with each wave of immigration throughout the 20th century being met with a legislative backlash. Legislation is also complex and rapidly evolving, with 12 Acts of Parliament affecting immigration being passed in the last 20 years.
Routes to live in the UK are incredibly complex, with over 16 different types of work visa, which are being amended, removed and replaced all the time. Conditions are attached to all types of visa, with asylum seekers for example being unable to work unless their claim takes more than one year to process. Although most visa categories are not entitled to access public funds, education for children between the ages of 5 and 16 is compulsory and free at state schools; while the National Health Service provides free emergency treatment to most migrants (although some must pay a surcharge before they arrive in the UK). Undocumented immigrants have limited pathways to resurface from ‘illegal’ immigration, their access to services is circumscribed and it is a crime for them to be employed.
The reception system for asylum seekers provides another example of the complexity and regressive nature of immigration governance, which fails to meet asylum seekers’ needs. Only destitute and unaccompanied asylum-seeking children have access to the reception system. The weekly allowance given to destitute asylum seekers is barely enough to make ends meet, while reception centre accommodation is not sensitive to the needs of vulnerable asylum seekers. The Government has contracted out the delivery of reception housing to three private companies, which then sub-contract themselves, adding to the complexity.
Since the outbreak of the Syrian war, the Government has set up the Syrian Vulnerable Person Resettlement Scheme (VPRS), the Vulnerable Children Resettlement Scheme and children relocated under the ‘Dubs Amendment’. Advocates have been particularly critical of the implementation of the ‘Dubs Amendment’, with the charity Help Refugees challenging the Government’s implementation of the scheme in the High Court in 2017, albeit unsuccessfully (Help Refugees, 2017).
The current immigration landscape notwithstanding, Brexit has generated significant ambiguity as to the future of UK migration governance. Uncertainty surrounds the status of EU citizens who wish to live in the UK in future, as well as the treatment of asylum seekers once the UK is no longer bound by the Common European Asylum System. However, there are significant components of UK migration governance that will remain unaffected – the UK will still need to meet its obligations under the Convention Relating to the Status of Refugees 1951 (Refugee Convention) and the European Convention on Human Rights (ECHR), while Brexit will not directly affect the UK’s export of border controls to France2 (Gauci, 2017, p.3).
The methodological approach of the report has been to rely on secondary research. Where possible, government documents, policies, legislation and publications have been used in order to gather information about the policy and legal environment directly from the source. This has been supplemented by third sector research reports, text books, academic journal articles, media articles and other public commentary.
Read more in the links below: