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Constituency casework: immigration, nationality and asylum

Organization: 
UK Parliament
Date of Publication: 
3 November 2011
Summary: 

A recent House of Commons Library report for MPs handling constituents' enquiries with useful links and background information on immigration and asylum

HOUSE OF COMMONS LIBRARY

Constituency casework: immigration, nationality and asylum

Standard Note: SN/HA/3186

Last updated: 3 November 2011

Author: Melanie Gower

Section Home Affairs Section

Members of Parliament handle an enormous number of immigration, nationality and asylum enquiries from constituents. Many of them are straightforward and can be answered using information that is readily available, for example on the internet. Others are more complex and require specialist advice from a solicitor or professional adviser. It is an offence for unauthorised people to give immigration advice.

This note outlines the legal restrictions on giving immigration advice, gives some suggestions on handling constituents' enquiries, refers to some sources of information that may be helpful for straightforward questions, and highlights training courses available to Members' staff.

Contents
1 Important warning
2 Some initial checks
3 On-line sources
3.1 Government departments and agencies, statutory bodies and the courts
3.2 Parliament
3.3 International agencies
3.4 NGOs etc
4 Books and journals
5 Members' hotlines
6 Ministerial discretion and representations from Members
7 Training courses

1 Important warning

Many immigration, nationality and asylum enquiries come from constituents who really need professional advice. The Library cannot try to be a substitute for this, not least because it is a criminal offence for a person who is neither registered, authorised nor exempt to provide immigration or asylum advice or representation in the course of a business. [1] Neither the Library nor Members' staff are registered; nor are we specifically exempt, though we may not be considered to be acting in the course of a business. Authorisation refers to professional regulation of solicitors and barristers, etc.

We must nevertheless be careful to keep the information general rather than trying to suggest specific solutions for individual cases. If in doubt, we must refer the constituent to a specialist solicitor or immigration adviser. This may seem unhelpful, but a constituent will be helped much more by correct professional advice.

Where our work is on the borderline of what could be considered to be 'immigration advice' in this context, we need to make it clear that we are simply providing general information. The Library uses a standard disclaimer in all replies to constituents' enquiries, which includes links to sources of professional immigration advice:

This information is provided to Members of Parliament in the performance of their parliamentary duties, and may not fully address the specific circumstances of any particular individual. It should not be relied upon by either Members or others as legal or professional advice, or a substitute for it. If specific advice is needed, a suitably qualified professional should be consulted. The website of the Office of the Immigration Services Commissioner explains about the regulation of immigration advisers and includes a useful online 'adviser finder'. The Immigration Law Practitioners' Association website includes a directory of its members, and the DirectGov website pages on 'getting legal advice and legal aid' may also be helpful.

2 Some initial checks

The following should be checked to see what information is likely to be relevant:

• Is the applicant/would-be applicant already in the United Kingdom?

• If not, will they need entry clearance (a visa)?

• If they are already here and are seeking to stay longer, did they have entry clearance for whatever it is that they are now applying for? People who are admitted for temporary purposes – e.g. visitors – are seldom allowed to 'switch' into categories leading to permanent settlement. Instead (although there are some exceptions) they must leave the United Kingdom, get an entry clearance and come back again.

In some situations it may be appropriate to ask for further details, for instance about the constituent's family, date and place of birth, or immigration history. Bear in mind, however, that we are unlikely to get all the relevant information about a person's circumstances – another reason why they should go to a professional adviser.

The 'working for an MP' website has guides on immigration casework and asylum casework which include some more detailed checklists for different circumstances.

3 On-line sources

Listed below is a selection of internet resources you may find useful. We cannot vouch for the accuracy or currency of any of these websites, and their appearance here does not mean that we endorse them or the views expressed.

3.1 Government departments and agencies, statutory bodies and the courts

UK Border Agency (UKBA)

This is the part of the Home Office which deals with immigration, nationality and asylum policy, applications and enforcement. Its website has a lot of useful information which is sufficient for answering many common casework enquiries. For example:

• information on the types of visas available for coming to the UK, whether persons overseas need to apply for a visa in advance, how to apply, fees and processing times

• information and application forms for applicants who are already in the UK, and for employers who wish to sponsor a migrant worker

• a guide to asylum applications and asylum support arrangements

• detailed guidance on British nationality law, including eligibility for British citizenship

• the current version of the Immigration Rules

• policy guidance used by officials on visas (Entry Clearance Guidance), immigration (Immigration Directorate Instructions), nationality (Nationality Instructions), asylum (Asylum Policy Instructions), removals (Enforcement Instructions and Guidance) and other areas

• press releases, policy announcements, RSS feeds and consultation papers

UK Identity and Passport Service

This Home Office agency handles applications for passports from British citizens. The site includes:

• information about the passport application process, including application forms, fees and guidance on urgent applications (via the DirectGov website)

• policy guidance to passport officials handling passport applications

• press notices and Frequently Asked Questions

Only people who have been born, naturalised or registered as a British citizen can get a British passport. Leaflets, application forms and guidance on becoming a British citizen are provided on the UK Border Agency website's nationality pages.

For other nationalities, information on how to obtain a new or replacement passport can often be found on the website of that country's diplomatic mission in the UK or on the website of its ministry of justice, interior or home affairs (depending, of course, on that country's administrative arrangements).

DirectGov pages on 'getting legal advice and legal aid'

These pages (which are not specific to immigration law) contain information about:

• where to get legal advice, including where to search for local providers

• how the legal aid scheme works, how to calculate eligibility for legal aid, and how to get it

• how to complain about a legal adviser

Office of the Immigration Services Commissioner (OISC)

The Office of the Immigration Services Commissioner (OISC) is an independent public body responsible for ensuring that all immigration advisers fulfil the requirements of good practice. Its website provides:

• information on the regulation of immigration advisers

• an online 'adviser finder'

• policy documents

Tribunals Service (Immigration and Asylum Chambers)

The Tribunals Service (Immigration and Asylum Chambers) hear appeals against decisions made by the Home Secretary (and her officials) in asylum and immigration matters (other than asylum support). It is a two-tier system which replaced the old single-tier Asylum and Immigration Tribunal. There are separate websites for the First-tier Tribunal and Upper Tribunal, where you can find:

• appeal forms, practice notes, guidance and directions for judges

• reports of past cases, including Country Guideline determinations which give a detailed analysis of the situation facing a particular individual or group of individuals in a country

• Frequently Asked Questions

First-tier Tribunal (Asylum Support)

If the UK Border Agency refuses to provide asylum support or decide to stop or withdraw it, an asylum seeker can appeal against the decision. The appeal will be considered by the First-tier Tribunal (Asylum Support). Its website includes the following:

• glossary of terms used by the Tribunal

• forms and guidance for appellants

• Tribunal decisions

• Frequently Asked Questions

Home Office Research and Statistics

The Home Office Research, Development and Statistics unit publishes bulletins, reports, research studies and regular migration statistics.

Home Office staff also produce a range of country of origin information reports which are used by UK Border Agency staff during the asylum determination process.

Foreign and Commonwealth Office

Here you can find the contact details and websites for all UK embassies overseas and for foreign embassies in the UK (useful for people in the UK who want to travel abroad).

Independent Chief Inspector of the UKBA

The independent Chief Inspector of the UKBA is responsible for assessing the efficiency and effectiveness of the UKBA. His main areas for inspection include UKBA practice and procedure in making decisions, treatment of applicants, consistency of approach, the handling of complaints, and the use of enforcement powers. His inspection reports are available on his website.

Migration Advisory Committee

The Migration Advisory Committee is a non-departmental public body comprised of independent economists. It provides advice to government on migration issues, including the impact of current immigration provisions and government proposals for reform.

Parliamentary and Health Service Ombudsman

The Parliamentary Ombudsman considers complaints from members of the public that government departments (including the UKBA) have not acted properly or fairly or have provided a poor service. The Ombudsman will only take on complaints referred by Members of Parliament, and usually only after the constituent has tried to resolve it with the organisation directly.

3.2 Parliament

House of Commons Library

The Commons Library intranet site includes a large number of research papers, standard notes, statistical information and useful links on the following subject pages:

• asylum

• immigration

• nationality

• race relations

We try to update standard notes to take account of recent developments but cannot promise to do so comprehensively. Each note states clearly the date on which it was last revised; if there is any doubt, please contact the author to check whether it is entirely up-to-date.

Parliament website

The topics section of the Parliament website has dedicated pages on asylum, immigration and nationality. These contain links to recent Library research papers, standard notes, Lords Library papers, Select Committee reports, Early Day Motions and RSS feeds.

Working for an MP

This website contains practical guides on immigration casework and asylum casework written for people who work for MPs.

3.3 International agencies

United Nations High Commissioner for Refugees (UNHCR)

UNHCR is the UN's refugee agency. Its aim is to lead and co-ordinate international action to protect refugees and resolve refugee problems worldwide. On its website you can find:

• the 1951 Geneva Convention on the Status of Refugees and other international conventions

• legal handbooks and guidelines on refugee protection

• databases containing Country of Origin Information (COI) and Legal Information

• international statistics on refugees and asylum seekers

There is also a separate website for UNHCR in the UK.

Organisation for Economic Co-operation and Development (OECD)

The International Migration section of the Organisation for Economic Co-operation and Development publishes reports on member countries' migration movements and policies.

International Organisation for Migration (IOM)

The UK branch of the IOM, an inter-governmental organisation, is involved in several projects including the Gateway resettlement scheme for recognised refugees and counter-trafficking initiatives.

3.4 NGOs etc

The AIRE Centre

This is a specialist law centre which provides information, advice and representation on individuals' rights under international human rights law, particularly European Community law such as free movement rights and the European Convention on Human Rights.

Asylum Aid

Asylum Aid is charity which assists asylum seekers in the UK by giving them free legal advice and representing them in their asylum application. It also does policy work and campaigning. It operates an advice line twice a week which is able to provide free one-off advice to asylum seekers, refugees and people working with them.

Bail for Immigration Detainees (BID)

BID is a charity that works with asylum seekers and migrants, in removal centres and prisons, to secure their release from detention. Its website contains practical information for immigration detainees and advisors, as well as research and policy publications.

December 18 portal

Portal for the promotion and protection of the rights of migrants, based around the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

Immigration Law Practitioners' Association (ILPA)

ILPA does not provide immigration advice, but has a list of members who do. Its website includes information sheets on recent developments, policy submissions and responses to consultations on immigration and asylum matters.

Information Centre about Asylum and Refugees in the UK (ICAR)

An independent academic research and information organisation based at City University in London. Its website contains a lot of resources and research publications related to immigration and asylum in the UK and overseas.

Joint Council for the Welfare of Immigrants (JCWI)

JCWI provides legal advice and assistance to individuals, as well as training and campaigns on immigration, asylum and nationality matters.

Migration Observatory

Based at the University of Oxford's Centre on Migration, Policy and Society, the Observatory produces topical evidence-based analysis of data on migration and migrants in the UK, to inform media, public and policy debates.

Migration Watch UK

This is a voluntary organisation which is concerned about the present scale of immigration into the UK. Its internet site includes a series of briefing papers.

National Coalition of Anti-Deportation Campaigns (NCADC)

NCADC is a voluntary organisation, which provides practical help and advice to people facing deportation on how to launch and run anti-deportation campaigns.

Refugee Action

Refugee Action is a national charity which provides advice and support to asylum seekers in the UK. It also runs the EU/Home Office funded 'assisted voluntary returns' programmes for refugees, asylum seekers and irregular migrants who want to return permanently to their country of origin.

Refugee Council

The Refugee Council is a national charity with offices across the UK which provides practical advice and assistance to asylum seekers and refugees and undertakes policy and campaigning work. It operates telephone advice lines on asylum support and the asylum process. Its website has advice leaflets on a range of asylum-related topics, translated into many different languages, as well as briefings, campaigns and policy papers.

UK Council for International Student Affairs (UKCISA)

UKCISA represents the interests of international students and those who work with them. Its website includes a range of useful information guides for international students about their rights and entitlements in the UK, including immigration and visa requirements.

US Committee for Refugees

This non-profit organisation publishes an annual World Refugee Survey which reviews refugee conditions and government policies.

4 Books and journals

The Library holds many books and journals on immigration, asylum and nationality and a series of subject-based chronological news files. The following may be helpful for constituency enquiries, though parts of the books are now out-of-date and so should be used with care. Again, we cannot endorse the content or views expressed. Please contact the Home Affairs Section on x3636 if you wish to consult any of our holdings.

Joint Council for the Welfare of Immigrants, Immigration, nationality and refugee law handbook, 2006 edition

A detailed but clear explanation in plain English of British immigration, nationality and refugee law and policy, with practical suggestions and useful sections on policy developments, helpful addresses and further sources of information as well as a glossary. Electronic updates for outdated chapters are available, by subscription, via the Electronic Immigration Network website.

Ian A Macdonald QC and Ronan Toal (general editors), Macdonald's Immigration Law and Practice, 8th edition 2010

The main practitioners' textbook in this area. Comprehensive but quite technical as it is aimed primarily at lawyers.

Laurie Fransman, Fransman's British Nationality Law, 3rd edition 2011

The main nationality law textbook, with a detailed history of British nationality policy and legislation and a large section on nationality laws in other states with a connection (or former connection) to the UK.

Journal of Immigration, Asylum and Nationality Law

Quarterly academic journal comprising news, in-depth and shorter articles, commentaries and case-notes, practice notes and decisions of the European Court of Justice.

Legal Action

Monthly journal of the Legal Action Group, concerned with promoting equal access to justice. Most issues have articles or news about immigration/nationality/asylum issues.

Migration News Sheet

Monthly information bulletin on policies and law on regular/irregular migration, asylum and racism/discrimination in the EU and individual European countries.

5 Members' hotlines

The UK Border Agency has several hotlines and dedicated post and email addresses for immigration, asylum and nationality enquiries from Members of Parliament and their staff. A current list of these and other hotlines is available on the Parliamentary intranet, but is available only to those with PDVN access. The hotlines list also contains a link to some dedicated UKBA website pages for Members of Parliament and their staff. These contain some general information about how the UKBA handles constituency casework enquiries from Members of Parliament and a link to the 'information document' produced by the UKBA in May 2011 for Members of Parliament dealing with immigration and asylum casework.

On no account should these numbers be given out to constituents or others, who must instead use the UKBA's general enquiry numbers.

6 Ministerial discretion and representations from Members

The Secretary of State has a wide discretion when it comes to immigration and asylum matters, and in some aspects of nationality applications, discussed in a separate standard note. [2]

It is therefore always open to Members to raise cases with Ministers if they wish them to review the initial decision and/or step outside the rules to make a decision in the constituent's favour. However, it is rare for a decision to depart entirely from the rules set out in the Immigration Rules and published policy documents – the most exceptional compassionate circumstances would usually have to be shown. This is because there is a concern that, should the published rules be departed from as a matter of routine, the rules-as-published would no longer bear any relation to the rules-as-implemented. Moreover, Ministers will not normally intervene in any way if an appeal is outstanding, and are unlikely to reverse a decision which has been through the independent appeals process unless new and compelling information has become available. [3]

Members should not submit initial asylum applications or further submissions on behalf of a constituent, since these must be made by the applicant in person, although they can make representations about the handling of the case. [4]

The UKBA does not provide substantive replies to enquiries from Members of Devolved Legislatures on individual cases, since immigration is a reserved matter, but does provide substantive replies to general and policy-related queries. Enquiries about individual cases raised by Ministers of Devolved Legislatures in their ministerial capacity do receive substantive responses from the UKBA. [5]

7 Training courses

Free training courses for Members' staff on constituency immigration and asylum casework are available in the House of Commons. Information on these courses is available on the 'working for an MP' website.

© Parliamentary copyright 2011

(End)

[1] Immigration and Asylum Act 1999 Part V. For background information see Library standard note SN/HA/2733 Regulation of immigration advisers, 5 November 2003

[2] SN/HA/1634 Immigration: Discretion outside the rules

[3] See for example UK Border Agency Enforcement Instructions and Guidance ch59 'Members of Parliament representations'

[4] HC Deb 22 February 2010 cc329-330W

[5] HC Deb 13 October 2011 cc507-8W