by Dr Austen Morgan 3 Temple Gardens, London

Introduction

The fifth immigration act in eleven years (and the Blair government's third) - the Asylum and Immigration (Treatment of Claimants, etc.) Act ("AITCA') 2004 - received royal assent on 22 July. It deals with more than asylum; immigration practitioners generally will have to become familiar with its provisions. These will be brought into force incrementally by commencement orders (available at www.legislation. hmso.govuk); there should be no retrospective effects in statute law.

New labour has majored on the asylum issue. Trying to preempt racist reaction, and even inter-communal violence, the government has arguably contributed to the moral panic. Being seen to be tough on asylum-seekers and their families has become the policy. David Blunkett as home secretary has probably driven would-be claimants into continuing illegality. His alternative policy of new routes of immigration has been contaminated by the culture of disbelief of foreigners in the Home Office, now dominated by law and order populism.

The AITCA 2004 - which began with 28 clauses and ended with 50 sections - deals principally with: a new appeal system; removal and detention; further immigration offences; the prevention of sham marriages; the treatment of claimants; and enforcement powers. Lord Dholakia of the liberal democrats described them as "some of the most draconian measures under the name of reforms."

The New Appeal System

The Nationality, Immigration and Asylum Act ("NIAA') 2002 replaced judicial review with statutory review. The idea had come from the senior judiciary. The government then proposed to unify the appeal system - by abolishing adjudicators and creating a new Asylum and Immigration Tribunal ("AIT") - and to oust the jurisdiction of the High Court (and considerably diminish the role of the Court of Appeal).

The ouster clause - "No court shall have any supervisory jurisdiction or other jurisdiction (whether statutory or inherent) in relation to the Tribunal." - was supported enthusiastically by Lord Falconer, the Lord Chancellor. The senior judiciary revolted. Lord Woolf the Lord Chief Justice, proclaimed a major crisis, and came close to arguing for a written constitution. Lord Irvine, the sacked Lord Chancellor - who threatened to break his silence during the second reading debate on 15 March - forced the government to retreat.

The AIT is the beginning and end for all immigration appeals. The exceptions to this general rule are: (1) a one-off application to the High Court within five days (with legal aid restrictions), regarding an error of law, and a final decision on the basis of written submissions; (2) followed by - if the AIT does not favourably reconsider - an appeal, with permission, on a point of law to the Court of Appeal; (3) the High Court may also refer a question of law to the Court of Appeal; (4) and (as an alternative to statutory review) where three or more legally qualified members sit as a panel; an appeal, with permission, on a point of law to the Court of Appeal.

It remains to be seen how the AIT will work. No appellate court has ever become a court of first instance. The government's policy of unification of the appeal system has been restrained' by the rule of law. However, it is possible that immigration appeals will be heard by effectively single adjudicators (as at present), under the management of a high court judge and deputy presidents. AIT members may be removed by the Lord Chancellor (increasingly a political figure) under the terms of their appointment.

The NIAA 2002 provided for the certification of clearly unfounded asylum or human rights claims (and the denial of a UK appeal). Parliament listed the ten accession EU states, and the Secretary of State added two lists of seven countries each by statutory instrument.

The AITCA 2004 extends the certification power to further immigration decisions: no right of abode; refusal to vary leave to enter or remain; and variation which leads to the end of leave. The new EU states list is omitted. But the idea of listed states is expanded by descriptions of persons derived from Refugee Convention reasons plus gender, language and any other attribute (e.g. safe to return men, if not women, to country X).

Entry clearance appeals from abroad are an important part of an immigration practitioner's caseload. The AITCA 2004 - with little public comment - further restricts the basis for appeal through ineligibility: if the grounds of the adverse decision relate to a provision of the immigration rules and are specified by order of the Secretary of State.

Removal and Detention

Sections 11 and 12 of the Immigration and Asylum Act "IAA") 1999, which permitted the removal of asylum claimants, to an EU member state under the Dublin Convention, or to a designated country which respects the Refugee Convention, are repealed.

Schedule 3 of the AITCA 2004 - removal of asylum seeker to safe country - now applies. It comprises a statutory first list of 26 safe countries (the other EU member states plus Norway and Iceland), and provision for a second list of countries designated by Secretary of State order (plus a third list of countries which protect refugees but do not necessarily respect human rights!).

A new criminal offence is created of failing to cooperate with deportation or removal. A person may be required to take specified action to obtain a travel document. The only defence is: reasonable excuse for failing to comply. The maximum sentence is: two years on indictment or 12 months on summary conviction.

This criminalization is perplexing. Specific performance may work in civil litigation; not with persons resisting deportation and removal. How does imprisonment get rid of them?

Further Criminal Offences

The first immigration offences are provided for in the Immigration Act ("IA") 1971.
The AITCA 2004 adds four: one, the addition of Schengen acquis states to the offence of assisting unlawful immigration to member states (in the IA 1971); two, entering the UK without a passport, the defences including a reasonable excuse (not including complying with the instructions of a people smuggler), use of a false immigration document, or proof of travel without documentation; three, the addition of immigration documents (as distinct from passports) to the Forgery and Counterfeiting Act 1981; and four, trafficking into, within or out of the UK (for non-sexual exploitation here or elsewhere).
Entering the UK without a passport is a major departure in criminal liability. Magistrates, judges and juries are likely to determine that the gravity is less than provided for here.
A Home Office press release added parenthetically of this policy: "(currently more than 60 per cent of asylum seekers have no documents and this is the single biggest barrier to dealing with their claim and, if their claim is rejected, to returning them to their country of origin)."
Clearly, the UK wishes to deter immigrants with asylum and human rights claims. It remains to be seen whether stories of convictions will influence people smugglers and their clients, being pushed by country conditions and/or pulled by UK full employment in parts, ethnic diversity and still moderate policing of foreigners.

The Prevention of Sham Marriages

Seven new clauses, dealing with marriage between a person settled in the UK and "a party to which is subject to immigration control", were added at a late stage. The latter will be required to provide specified evidence of: entry clearance expressly to- get married; the written permission of the Secretary of State to the same effect; or falling within a class specified in new regulations.
There are a number of problems with this new law (aside from the new labour practice of exaggerating problems to justify solutions). One, it is potentially discriminatory since marriage in the Church of England is not included. Two, the refusal, if not of entry clearance, then of written permission, or conceivably the Secretary of State's regulations, could lead to a violation of article 12 (the right to marry) of the human rights convention. Is there a presumption that a person subject to immigration control enters into a sham marriage (as opposed to the allegation that sham marriages may be made by persons trying to become settled in the UK)? The primary purpose rule, abolished by new labour in 1997, has returned in the form of a legislative provision.

The Treatment of Claimants

These six sections (which feature in the title of the Act) deal with claimants, failed asylum-seekers and refugees.
One section requires a deciding authority to take account of a claimant's behaviour, regarding inadequate or no documentation (which it thinks is designed to distort assessment), as damaging that claimant's credibility. A
reasonable explanation (not defined) is required for no passport. Other behaviour likely to count against a claimant is: failing to claim while passing through a safe country; and only claiming after an adverse immigration decision or after being arrested under an immigration provision. The provision concludes: "This section shall not prevent a deciding authority from determining not to believe a statement on the grounds of behaviour to which this section does not apply."
One of the most important cases in domestic refugee law is R n. Uxbridge Magistrates' Court, ex parte Adinri [1999] Imm AR 560. This section undermines the impact of that decision of the Divisional Court.
The treatment of failed asylum-seekers attracted attention during enactment. A failed asylum-seeker with family is now the fifth class of ineligible person for support or assistance from local authorities. The Secretary of State has to certify, which may be appealed, that the person is failing to leave the UK voluntarily. It is envisaged that children will be taken into care by local authorities. As for NASS accommodation provided by the Home Office, regulations will specify criteria for continuing to provide accommodation (which is appealable), this to be "conditional upon his performance of or participation in community activities". These are defined as appearing to the Secretary of State to be "beneficial to the public or a section of the public".
As regards refugees, the provision for the back-dating of benefits is simply repealed. There will be regulations providing for loans for the purpose of integration.

Enforcement Powers

Five new sections give the Secretary of State additional powers to enforce immigration law and rules. One, an immigration officer may now arrest a person without warrant on reasonable suspicion that an offence has been committed or attempted. Two, there are amendments to the fingerprinting provisions, to take account of the change in setting removal directions. Three, carriers may be asked (not required) to provide copies of travel documents. Four, the Secretary of State may retain documents which may facilitate the removal of illegal entrants. And five, persons with entry clearance may be refused upon arrival if an immigration officer concludes that they have a different purpose.
The imposition upon carriers of copying documents is of considerable significance. But so also is the fifth power, which may have the effect of undermining the idea of entry clearance.

Conclusion

The NIAA 2002 was meant to be new labour's comprehensive immigration measure. Then, Tony Blair announced further measures at the 2003 party conference.
Two policy themes run through this new legislation. The first is removing judicial determination from the field of immigration. And the second is the return of immigrants to their own and third countries.
The first would return the UK to the position before the 1993 Act, when domestic effect was give to the Refugee Convention. Reducing the role of law helps the government and not those meant to be protected under the UK's international obligations.
The second theme is evident in the clearly unfounded certificates (now with descriptions of persons), the three lists of safe countries, the new offences of entering the UK without a passport and failing to cooperate in deportation or removal, the denial of claimants' credibility on the basis of their immigration behaviour, and the requests to carriers to copy travel documents.
It is not known whether the Home Office is working on another immigration bill. Given globalization, the ease and cheap cost of air travel, fewer frontiers in the EU the economic, social and cultural attractiveness of the UK, and the conditions in many third-world states, no doubt the government will want to be seen to be holding back a human tide.

© Sweet & Maxwell Ltd 2004