26
Examination of witnesses
Barry O’Leary, Sarah Pinder and Samina Iqbal.
Q48 The Chair: Good morning and welcome to the House of Lords Justice and Home Affairs Committee’s inquiry into family migration.
I welcome our witnesses, Barry O’Leary, Samina Iqbal and Sarah Pinder. Thank you very much for coming today. We have questions, and, of course, what you have to say may prompt questions that we had not thought of. We are formal, but informal with it, if I can put it that way.
We are aware that definitions of “family” differ between the Immigration Rules and the bespoke refugee schemes, and in family law. We are interested in whether the definitions reflect contemporary understandings in society of family, both in the UK and overseas.
Samina Iqbal: Looking at the term “family” in the wider sense, we see that it encompasses a number of different relationships, both in overseas communities and here in the UK. We are looking at grandparents, uncles, aunts, brothers, sisters—a whole range of different relationships.
When you look at immigration law, you see that there is an attempt to extend or encompass those definitions, within the rules but it does not allow for all of them. There are some restrictions in terms of grandparents, who are essential to the family unit and the family make-up across the board, who would not fall within the immigration rules but there is also a restriction in so far as elderly parents are concerned in the Immigration Rules. We look at them with reference to what their medical ailments or conditions might be to determine whether they are able to join their family members here in the United Kingdom.
In family law, there is, in essence, a much wider sense of family. For instance, in care proceedings, parents, grandparents, uncles, aunts and so on are involved and considered where the care of the child is concerned. It is much wider in that context and in those kinds of proceedings.
The Chair: I will come to our other two witnesses to see whether they want to add anything, but I wonder whether some of the differences reflect the fact that family law and the family courts start more from the point of view of a child who is affected by whatever the situation may be.
Sarah Pinder: Yes, absolutely. The child’s point of view, lived experiences and voice are central to the family courts and family practitioners, and to how evidence is presented and investigated.
To make a comparison with immigration law, one example in the Immigration Rules that perhaps reflects a societal family circumstance is the category of de facto adoption. It is very specific, but it recognises the family life and the bringing up of a child who has been adopted overseas when that adoption is not legally recognised in the UK. That is one example of immigration law over the years perhaps being more flexible, with the nature of the Immigration Rules providing for a situation that would not otherwise be recognised in family law.
As Ms Iqbal mentioned, the Immigration Rules are otherwise very prescriptive. We have seen some shift recently with the more bespoke refugee resettlement schemes and pathways, but, as far as I can see, the shift has been only in the Ukraine schemes for temporary refuge, where extended family members have been recognised and allowed to come to the UK. That was not in place for the Afghanistan schemes—only in exceptional cases. There was not a more wide-reaching scheme for Afghanistan, for example.
Barry O’Leary: I will make two points. First, we have all acknowledged the really inconsistent definitions in immigration law—there is nothing comprehensive defining who the family is. It is very much a product of policy, rather than bad drafting over the years. There has been an attempt to say, “This is who we think are the family of British citizens we are going to consider. We have to consider these families of EU nationals, because there’s a legacy in the withdrawal agreement, and we want to be a bit more generous to Ukrainians”. It has grown up not necessarily through bad drafting but through successive policy decisions.
Secondly, the word “definition” is quite hard here. At one point, the Immigration Rules say, “A child is a person under 18”, but they go on and lots of other parts come in. Even if you had a nice set of definitions that said, “This is what a child is”, it is what the rules then do with them that causes the problems in modern families.
For instance, we have this ongoing problem with “sole responsibility”. If, say, you are a US person and you meet a British person, you fall in love and you want to move to the UK to be with them, but you have a child from a previous relationship in the US, you have to show that that child has pretty much no connection with the other parent. If they have a good, loving, bonded relationship with the other parent, you fail under the Immigration Rules because you do not have sole responsibility.
We have done better over the years at recognising the importance for a British child of being British. If I have a client who is here and has a British child, I am probably in quite a good position to have an application for him to remain on the basis of the importance of that child. But if that same parent was abroad living with that child, the rules are written in such a way that I would have much difficulty trying to bring the parent in to be with a child that is currently abroad.
The point I am trying to make, maybe not that clearly, is that even if we have definitions that we are think are modern and work, if you then bring in rules that take those definitions and put more and more restrictions on, you will still end up with an immigration situation that is not really reflecting family realities. We have to look at the definitions, but also the restrictions.
The Chair: Thank you, that was very clear.
Q49 Lord Hunt of Wirral: Building on what you said, Sarah, about the fact that in family law the child is central, I turn to the definition of the best interests of the child. How does the legal priority awarded to the best interests of the child differ between family law and immigration law? If there are differences, what are the practical implications for the children?
Sarah Pinder: The legal difference in the two jurisdictions is very clear and is set out in statute. In the family jurisdiction, the concept of the best interests—the welfare—of the child is the paramount consideration; in immigration, it is a primary consideration alongside others, so it could be one of competing considerations. That is also the position since Section 55 of the Borders, Citizenship and Immigration Act 2009 brought in the duty on the Home Secretary to have regard to a child’s best interests and welfare when carrying out her immigration and nationality functions.
Prior to 2009, there was a reservation on the UN Convention on the Rights of the Child. In 2009, that reservation was lifted, so the immigration and nationality functions must now and since 2009 have due regard to a child’s best interests.
As I mentioned, it is one of the competing considerations among other factors that may be at play. In immigration, that will include a public interest in maintaining effective immigration controls, or in deportations, in the context of criminal deportations, and so forth, which, as Barry mentioned, are also very much set by policy and other Acts of Parliament other public interests will also apply.
In terms of practicalities, in the family jurisdiction we have a much more investigatory system to find out and establish what those best interests are. All the parties to that jurisdiction have their role to play in that, and, obviously, the court oversees and determines that if it is not agreed.
In immigration, it is an adversarial system. In the proceedings, the evidence that is presented is up to the parties. In decisions of the Home Secretary[1], the best interests of the child tend to feature at the end of the decisions. As Barry mentioned, the rules are the key mechanism to that decision-making—namely the restrictions and the requirements that are to be met. Section 55 duties, the best interests of the child, are looked at later, so there can be a sense among practitioners that it is effectively an afterthought or there is little resource or ability to be able to investigate that further.
Lord Hunt of Wirral: Barry O’Leary, can you give us some practical examples of the effect of the rather complicated procedure in immigration law that Sarah Pinder laid out?
Barry O’Leary: The practical examples go to how the system culturally struggles to make the child central. It is a primary consideration, rather than paramount.
Sarah Pinder: Sorry.
Barry O’Leary: No, that is what you said; I was agreeing. Sorry.
A very recent example was a grandmother from Pakistan who was here in the UK, and had been for a long time over Covid, dealing with a British citizen child who had very severe autism—a really serious illness. It became quite clear that this grandmother had become integral to the whole family. We sent in an independent social worker, we had lots of medical reports, and we looked at this family as a whole. Removing this grandmother would have caused severe damage, in particular to one British citizen child.
I do not want to blame individual caseworkers, because they are not trained in this way, but they could see it only through the prism of this adult foreign person. That is it: “If there is an adult migrant, surely that is what we are dealing with”. Actually, no: if we are dealing with the best interests of the child, the welfare of that British citizen child is just as important. The family courts are probably much better at seeing that child as central, whereas in an immigration application to the Home Office it is very hard for them to see a child as anything but an adjunct to an adult migrant.
In that case, we ended up with a refusal. We will probably win on appeal, but I would prefer not to have to go through the tribunal for it; I would prefer for everybody to see at the start how important it is. If we are really looking at the best interests of the child, it should have been allowed. Even if you disagree with the decision, the fact that the refusal centres only on the adult migrant shows the practical difficulties of having a system that is not focused on the child.
Lord Hunt of Wirral: Samina Iqbal, I have come across a lot of examples of where immigration law is too complicated and does not sit easily with the rest of UK law. I do not know where we are with rewriting immigration law—the Law Commission keeps talking about it—but will you pursue what Barry O’Leary spoke about and give some practical examples of where it has not been clearly helping the individual child, and the best interests are not being adhered to?
Samina Iqbal: As you say, we have looked at simplifying the immigration laws for a very long time, and that is still, essentially, in situ. When you compare it with family law and the structure of where the child’s best interests lie in relation to family, you see that the best interests of the child are considered in a very prescriptive way in family law, under Section 1 of the Children Act. The child’s wishes and needs are considered by way of a proper welfare checklist and therefore quite a structured method of providing for the best interests of a child.
We were moving towards that, in immigration proceedings and following Section 55 of the Borders Citizenship and Immigration Act 2009 case law has developed over the years that provides us with some structure, but, as you say, it is not simple, and it does not allow us to just have a checklist as you would in family law. Maybe a move or simplification ought to be considered for this process.
Q50 Baroness Shackleton of Belgravia: I am slightly puzzled about the perspective of the child and getting a child before a family court. You talked about the child’s interests being one of the paramount interests considered in immigration, but there can be only one paramountcy test—you cannot have lots of paramount interests. It is only under Section 1 of the Children Act 1989 that the child’s interests are “paramount”. I see in the papers that there is a conflict, because unless there is a child arrangements order it goes swinging back to the immigration department, and the immigration department cannot get a child arrangements order without there being one.
I can see there is a real tension there, but if you were to look through the prism of the children’s eyes—in your example, Barry, if that child could get before the family court—it must be of paramount interest to that child to have his granny in this country. How do you break that tension and get between the cycle of the conflict between the two different jurisdictions?
Barry O’Leary: I do not think that that case will ever come before the family courts, because there is no tension in the family. Mum and dad are still there in the family home, so they have parental responsibility—
Baroness Shackleton of Belgravia: You can have parental responsibility for grandparents.
Barry O’Leary: Yes. I would have to defer to you two, Sarah and Samina, on the family law issues because I am an immigration lawyer, but that family will never be looking for that, because they have no need for a family law order.
Baroness Shackleton of Belgravia: But it is an avenue to get what you want. There is no need, but I always try to reverse-engineer things by asking, “What do you want at the end? How are you going to go about getting it?” If you were to use or facilitate that avenue of exploration for that child, his life would be much better by having granny, on whom it sounds as though he has a dependency and who really is required for his welfare. You could get a report saying that.
Barry O’Leary: We have a fantastic report from a well-respected independent social worker saying that this is absolutely fundamental. Maybe we could do it as a tactic, but we would not usually say, “Let’s bring a family court into an immigration law matter that we think can be solved purely within immigration law”. It would seem an unnecessary use of the family courts to involve them in a matter where there is no tension in the family, and which could be resolved with what we already have. I think I will win it on appeal without bringing the family courts in; it would seem an unnecessary family court order.
Baroness Shackleton of Belgravia: I would have thought that, if the local authority was looking at the welfare checklist of a child who is dependent on a grandmother, it might be interested in securing her staying in this country for the welfare of that child, but I do not know how you get before the court. Anyway, you gave a specific example.
Barry O’Leary: It is a really good example of how, if you sit on the outside, you imagine a system where we have a really interested local authority that has resources available and a family court system that will entertain more and more applications. In fact, what we have are clients who are already struggling to afford the immigration applications and a local authority that is overworked and definitely not wanting to employ family solicitors to go for a family court matter.
Although I really like your strategies, my aim, maybe because I am not a family law specialist, would be to see the best interests of the child from the facts in front of us and the expert evidence, rather than involving the other bodies. The Home Secretary could make that decision without having to bring the other bodies into play.
In an ideal world, it would be great if we could have a big multiagency conference where we all discuss this, but that is just not the reality of the world we live in.
Baroness Shackleton of Belgravia: Is that an aspiration? Would it be useful if this committee recommended setting up a body so that the left hand could know what the right hand was doing?
Barry O’Leary: A better relationship between the Home Office, the family courts and local authorities is definitely an aspiration.
The Chair: We will come to more detail on that. Without saying anything that might identify the particular case, Barry, can you give us some idea about the length of time the situation that you have just described takes? That must have an impact on everybody involved.
Barry O’Leary: That particular case took 11 months for the first decision, and I imagine it will probably take another 12 months for the appeal. Those delays have different impacts on different clients. To be honest, that particular family is not concerned about the delay, because its situation is here. It is far worse if the family is separated—that is when the delay is really harmful—or when you have an individual who needs to do more, as you often do. This individual client needs to be in the home with the family, and we have the status quo at the moment. Delay would be more harmful for other people.
Q51 Baroness Kennedy of The Shaws: Thank you all for coming; it is really great to see you. Baroness Shackleton asked about co-operation between the immigration tribunals and the family courts. From what you are saying, it sounds as though there is not any—they seem quite distinct—or is that not true?
Samina Iqbal: There is some co-operation by way of adopted protocols. There are two specific protocols in place. One is a protocol that was introduced around 2002—the latest version is 2018—which ensures communication between the family courts and the UKVI directly. Where a family court decision involves immigration issues in relation to the nationality or immigration status of the child or the parent, the family courts can invoke this protocol and specifically ask for information about the individual – whether the (potential) parent/carer or the child concerned - from the UKVI in the Home Office.
The second protocol, which is most useful to practitioners, relates to communications between the two jurisdictions—the family and the immigration jurisdictions. I think that protocol came about in 2013, and its arrangements allow either court, during the course of parallel proceedings, to obtain information about the other proceedings, in essence.
There has been some disconnect though between the two jurisdictions with the protocols being invoked and used to obtain information. Parties often do not know about the protocols, so there is a push to ensure that they are widely available and known about.
Baroness Kennedy of The Shaws: Is it to know what is happening in the proceedings? Is it procedural rather than anything?
Samina Iqbal: Yes.
Baroness Kennedy of The Shaws: Taking up Baroness Shackleton’s idea, what I really want to know is: if there was a decision in the family court, would that have any weight in the immigration court? Barry, you said that you did not go down that avenue in the case that you described, but supposing there was a case involving a divorce, for example, and the family court said, “This child really does need to have his father around for all kinds of reasons”, would that have an impact on the immigration court?
Sarah Pinder: Yes, but, in effect, it is again a consideration, a factor to consider and to weigh in the balance in these types of cases where there is a balancing exercise to be carried out.
This comes back to the earlier questions in terms of the role of the family courts and whether there is any intervention there. A final family court order is not binding on the Secretary of State for the Home Department—she is not a party to the family court proceedings. There has been much consideration by the courts around that.
In immigration courts, it will be something to consider, alongside what we have already covered—the best interests of the child and the place and role for that—but it is by no means determinative of an outcome. It may be on a given case, depending on the specific facts involved and all the circumstances, but in law it is not determinative.
Baroness Kennedy of The Shaws: Barry, you mentioned that the Home Secretary—be it a he or a she—can be the ultimate arbiter of whether the child’s interests do actually move to the very front of her considerations. How often are you successful in front of Home Secretaries?
Barry O’Leary: That is a really important point. My world as an immigration solicitor—as opposed to a barrister—does not involve the tribunal that much, so we often get to the end result. Interestingly, they might refuse, but we would get a review before we get to the tribunal again, and sometimes we are successful in that review.
I tend to find that when it is more straightforward—for example, if the court has basically ordered access to a child—the Home Office will pretty much accept that that is therefore a relationship that has been ordered by the family courts. In my experience, it is respectful of that. If there is a migrant dad, as there often is, and he has been awarded access to the child, they will see that that could be a valid reason why the father might have to stay in the UK, even if his relationship with the mother has broken down.
They are quite respectful of that now, and that is definitely an improvement, but some cases are less obvious to them. For instance, I have done a lot of work with transnational marriage abandonment, where people—often called stranded spouses—have been tricked to go abroad and are left in a foreign country. When there are proceedings in the UK that are basically dealing with the breakdown of that marriage and maybe the keeping of children without permission, et cetera, I often find that the Home Secretary, because it is unusual and they do not have their own rules, is much less respectful of it, even though on the surface it seems more pressing.
While the protocols are there, I would also advise—not “advise”; that is too grand for me. I also think it would be really helpful if sometimes the Home Secretary talked more to the family courts when they make their own policies. I do not think that they always get the best family law advice. I will quickly give a really good example—I do not want to take too long.
About 18 months ago, they suddenly said in all their guidance, “You can’t send any documents from the family court to the Home Office unless you’ve got the permission of the family court”. They suddenly said that they were not going to look at the orders that were previously given to them because they did not have permission from the family court. I think that under, Section 12 of the Administration of Justice Act, they could look at them; there were other documents that they could not look at. Now we are going into long correspondence with the professional organisation ILPA to try to get to this.
Before they make a policy that involves the family court, they should talk to somebody really senior in the family court and have a meeting to say, “Should we say this?” I think that senior judges would say, “No, you can provide the orders, but for anything else related to the proceedings you need permission”. That is probably what they should say.
Baroness Kennedy of The Shaws: They are allowing privacy to cover the order, as well as perhaps more intimate information that they should not have access to. I can understand that.
Barry O’Leary: You end up with a situation where I am asking family judges, through the family lawyers, “Can you get permission for this order to be released?”, and the family judge is saying, “He doesn’t need that permission. What is he talking about?” It is softer, maybe.
Baroness Shackleton of Belgravia: The President of the Family Division is trying to encourage transparency because he does not like justice being done behind closed doors.
Barry O’Leary: Exactly.
Lord Blunkett: Without being too clever by half, but in the interests of those who may be accessing this discussion, I ought to say that only in exceptional circumstances would “the Home Secretary” or even the Immigration Minister deal with an individual case. I raise this because the way the administrative practice operates is the crucial element here. There were cases that I dealt with in the three and a half years in which I was Home Secretary because they had such a profile—the Ay family was one case relating to removal from the country. You would not normally deal with individual cases.
The Chair: Indeed. Samina, at the administrative level, you have described the relationship between immigration tribunals and family courts as “fractured”. Is that right? Is that the term that you used?
Samina Iqbal: I think that it can be slightly fractured, but it is getting better. We see a lot of case law, especially in immigration courts but also in the family courts, that provide assistance on how cross or parallel proceedings ought to be considered, the evidence that ought to be acquired and how it should be acquired. There is quite a helpful structure now following the cases and these protocols. There is now more awareness in relation to parallel proceedings.
Q52 Baroness Shackleton of Belgravia: What aspects of family proceedings would you recognise as being best practice and recommend applying to immigration proceedings, and the other way around?
Samina Iqbal: One of the really good things in family practice is that there is very active management of cases from the start and all the way through, to get best-quality evidence in relation to the child and the child’s needs. That is a really good of way of doing things, to get to the bottom of what the child’s needs are and then to apply that to the rules or the decision that has been made.
The family law proceedings and that lengthy process, however, which is quite a good process, can lead to delays in relation to settling the child and providing a more stable environment. With immigration proceedings, one of the good things is that, although there is some delay, once it gets to appeal stage things can move much faster.
Baroness Shackleton of Belgravia: How long does it take to get to appeal stage?
Samina Iqbal: Barry mentioned that there are delays of at least a year.[2]
Barry O’Leary: It is quite hard to say at the minute, but I would estimate a year for most cases.
Samina Iqbal: If we had a more structured assessment, that might well present better for the child practically when decisions are made in immigration courts.
Baroness Shackleton of Belgravia: Do you have people who are qualified in both jurisdictions: immigration and family law? Is there a cohort of people who appear in front of the family courts and the immigration courts?
Samina Iqbal: There is quite a big cohort. In our team, we have quite a big crossover. There are lots of individuals with a background in family law, if they are immigration specialists, and likewise the other way. There is also a big push across the board for training, as it is recognised by practitioners and various training organisations, to ensure that, at the very least, you are aware of where to go when you are looking at parallel proceedings to ensure that you are doing the best for your clients.
Baroness Shackleton of Belgravia: Do you think that it would help to have a family court that dealt just with this area of the law?
Samina Iqbal: I think that it could only help.
Baroness Shackleton of Belgravia: It is so nuanced and specialist. The average judge will not necessarily be equipped to deal with the nuances of the overlap.
Samina Iqbal: It would definitely help to have specially trained individuals to look at those aspects, where there is that crossover.
Sarah Pinder: I want to add something on best practice. One of the more recent pushes or items that features in best practice in care proceedings, so public law children proceedings, is an emphasis on pre-proceeding work to try to avoid coming into proceedings—you mentioned delays, as well. Practitioners would like to see that best practice. It is consistent with what we have said so far about how the Home Office should look at applications and having more engagement at the application stage.
After the Immigration Rules were changed quite significantly in 2012, there was a move towards more specified requirements to meet, including in spouse cases. There were evidence requirements for the minimum income rule, for example. Simple mistakes could then happen or documents are omitted, which lead to refusals. A bit more flexibility was then built into the application process, but a lot of refusals that we see could have been avoided had there been more of an exchange between the Home Office and the applicant. That focus on trying to resolve things as part of an application process—front-loading, in effect, the resources at that stage—would be commendable. We would certainly recommend that.
The second item that I would add might be stretching the best-practice remit. A lot of cases that involve children and family members—the types of cases that Barry mentioned—are out of scope of legal aid in immigration. There is a catch-all procedure to be able to apply and be granted exceptional legal aid funding, but a lot of the areas that are difficult, complex areas to navigate have been taken out of legal aid. A fair amount was taken out of scope in the family courts at the same time, although there is legal aid in care proceedings and cases where there is domestic violence and complexities.
The procedures and protocols we have talked about are all complex, on top of very complex Immigration Rules. It is difficult for anyone to navigate that. For a lot of lawyers, navigating that is difficult.
Baroness Shackleton of Belgravia: For the actual punters, it is hopeless without somebody to help them.
Sarah Pinder: Yes.
Barry O’Leary: My co-speakers have more experience in the two different jurisdictions. The only thing that I would add is that anything that promotes the understanding of immigration law in the family courts would be superb. We are often asked to do expert opinions. The family law judge will say, “Can you all agree on an expert?”, and they will write the immigration law, but having in-built expertise would be superb. A specific court that could sit for these things would be excellent.
Baroness Shackleton of Belgravia: If you have a lot of practitioners who bifurcate, if I may use that word, surely they could be trained to be judges.
Barry O’Leary: Yes. I think that it is more prevalent in the Bar than among solicitors for people to have dual knowledge.
The Chair: That is what I was going to ask you about. I do not mean it pejoratively, but solicitors will be narrower in their area of practice. Have you been aware of any moves in training of solicitors that are bringing the two areas together in the way we have heard about for the Bar?
Barry O’Leary: It is hard for me to say because my firm is a very specialist nationality and immigration law firm. If I am honest, at the risk of making myself seem a bit limited, I worry about the general level of immigration law advice given in the UK. There are lots of excellent immigration law solicitors, but there are lots of very poor immigration law solicitors. The ones who do it well are probably dedicating a career to the practice of immigration and nationality law. Because of the nature of the subject, how quickly it changes and how often it is legislated about, understanding the rules, as the higher courts have said quite often, is sometimes so complicated. I think that the best immigration lawyers are those who are focused pretty much solely on it as their career, but maybe that is just because I do not have the capabilities to take on another subject.
This is something I will take away and think about. There are firms that have both disciplines in-house. I am thinking of a couple of firms that are excellent and have their family law advice on hand, which is good.
Often, it is more the other way around. We find it very easy to access family law advice from other firms. Often, it is more the family law firms that are struggling to get immigration law advice. There is a plethora of good family law firms.
The Chair: As you say, legislation changes often. The rules change even more often than that.
I do not know whether our two members of the Bar can comment on this. In the area of training, is this something that the judiciary has taken up? Do you know? I do not want to get you into trouble by asking you to comment on that. If there is no answer, that is fine.
Sarah Pinder: As Samina mentioned, in relation to the protocol there has been a push to make those procedures more widely known and to raise awareness.
Q53 Lord Ricketts: Still on the issue of best practice, this is a question about representation of the child in front of either family or immigration courts. I am seeking your ideas on where best practice lies.
We have had some evidence from witnesses that the Children and Family Court Advisory and Support Service—Cafcass—is a very good model. You have specialists who are there almost in the relationship of a guardian in the court to oversee the interest of the child, alongside others.
Would anybody like to comment on that? Barry, from your point of view, is Cafcass a good role model? Could it be extended? Could there be something similar in the immigration tribunals?
Barry O’Leary: It is really interesting. I know Cafcass where it is ancillary to my work as an immigration lawyer, when we have parental orders or adoption orders. There is nothing similar in immigration law. We have in the past had attempts to have children’s champions—people who are trying to put into effect Section 55 of the 2009 Act—but it is not something that you would ever have noticed on a day-to-day level. The idea of having a body that is there and can make assessments on behalf of the Home Office is one that I love as a model. The adversarial nature of it has been mentioned. This might withdraw some of that and help to put the focus on the child. I like it as an idea.
Lord Ricketts: Ms Pinder, have you had professional experience of Cafcass at work?
Sarah Pinder: Absolutely, as a member of the Bar practising in family law previously. As Barry mentioned, there is no such input now within immigration cases. The children’s champion featured quite shortly after the Section 55 duties came in, when the reservation was lifted. The impact of an immigration decision on the child is entirely dependent on the evidence concerning the child, the child’s voice and the child’s experience that is before an immigration court, generated by one or both parties.
Obviously, there can be conflicts of interest, particularly if a parent does not have status and so forth. Taking that role on and having it separate, whether it is representation or just a separate mechanism and channel of communication of assessment by specialist child practitioners, can only be a good thing.
Lord Ricketts: We have heard witness evidence that the Home Office caseworkers in immigration tribunals do not have anything like the experience of families and practice that is available in the family courts. Is that a fair comment?
Samina Iqbal: As Barry said, if you are a specialist practitioner and are looking only at immigration cases, it is difficult. Unless they have that background, individuals are unlikely to have the practice area or the ability to have knowledge about cross or parallel proceedings. That can often be the case across the board, not only for the Home Office but, as Barry said, for specialist practitioners.
Lord Ricketts: Is there any best practice from the immigration courts in relation to representation of the child that is worth taking note of?
Barry O’Leary: I do not know that there is in the tribunal as much. I want to be clear, because I do not want to give the wrong impression. In UK Visas and Immigration—what we call the Home Office, although obviously the Home Office is a bigger thing—there are pockets of really good practice.
I will give an example. A section of the nationality team I deal with quite often is looking at children who, for reasons of how nationality law works, are not born automatically British but whom we are looking to make British after, for example, there has been a surrogacy agreement internationally and, for reasons I will not go into, British nationality law does not make people the parents. I find that section of the nationality team, up in Liverpool, very focused on that job. The child has an issue, and they are quite keen to make that child a British citizen.
Within the massive organisation that is the Home Office, there are centres of practice that, as a practitioner, I probably see more than the other two witnesses and that are good, but I can pick a pocket here or there. The central issue of seeing the child as an adjunct is probably more widespread over different departments.
Lord Ricketts: Do you have anything else to add?
Samina Iqbal: I would add that in immigration practice we have used the wider context of Article 8 outside the rules, which allows for consideration of a number of different factors, if properly put at the first stages, through the front-loading of applications. The use of Article 8 in relation to immigration applications generally is an essential way of proceeding with those kinds of applications that have nuanced or special considerations.
The Chair: Our policy analyst has given me a note that starts with a question. I tried to answer his question, but what we want is to get this on the record. Why does one need to be a specialist to give good immigration advice? Is it that the rules are too complex? Why is it that non-specialists cannot give good advice in the area? As I said, I answered him, but that is not evidence. Would any of you like to answer that question?
Barry O’Leary: I think that it is because it is vast, ever changing and, sometimes, quite poorly written. There is no getting away from the fact that we live in a world where immigration is an incredibly political issue. Because of that, rule changes are made and legislation is brought in very frequently. That means that, to be on top of it, you cannot just go to the rules and say, “This is it”.
I will give you an example, which may make it easier. If you go down the Immigration Rules, you will get to a part that says, “Part 8: family members”. You will think, “Great, I have found it”. In that, you will find all these things about the family. In fact, they go back mainly to 2011 and are transitional. What you have to go down to is the appendices, where it says, “Appendix FM”. That is where you find the rules on family members. What we have right at the top is this thing that is ostensibly the rules about family members, but if you used that you would unfortunately be 10 years out of date.
It is quite an extreme example, but the Law Commission did a great job on this and said what could be done to make it better. There are definitely civil servants who are giving a lot of time and effort to trying to rewrite this. It is a massive job, and one where the goalposts keep changing because of what is wanted politically from immigration law. I say that with a non-political bias, but all of us know that it is a very political issue and, therefore, rules will come up because of political matters.
Baroness Shackleton of Belgravia: Maybe they could do a simple fix by just putting the appendix up in the normal bit.
Barry O’Leary: I would love that. I think that they should. There must be a quicker fix, almost like a halfway house, for the glaringly obvious ones such as that. Then they can do the big job.
Baroness Shackleton of Belgravia: Yes. Saying it is too complicated is an excuse for doing nothing. To make it slightly more user-friendly, you could just flick a switch or change the order of the numbers of what you can see, which might help the man in the street.
Barry O’Leary: I agree.
The Chair: Sometimes it might help those who ought to know. I have had the experience of being in a meeting with a Home Office Minister when somebody from the third sector pointed to the relevant rule. The civil servants had not been aware—they did not have it in their heads, let me put it that way. It is some years now since the decision was made not to try to keep publishing everything in hard copy. You have to go online to find it.
I am afraid that that was a bit of a diversion. May I move to Lord Blunkett?
Q54 Lord Blunkett: May I reinforce what Barry said about the nationality unit in Liverpool? My experience was that they are excellent and have managed to retain their humanity, which is very difficult given what we ask of the civil servants dealing with immigration.
Baroness Kennedy of The Shaws: We know that.
Lord Blunkett: Mine is quite a broad question. We all know that access to the law is a challenge in every walk of life, not least because of the costs. Mention has already been made of legal aid being out of scope for particular areas. Can we delve for a minute into the nightmare of access to the law and the availability of funds? Will all three of you comment on that, bearing in mind—picking up the point about the big “P” Politics—that there have been massive storms in the papers in the past about the amount of legal aid going into this area? Who would like to put their toe in the water?
Barry O’Leary: I will start. This is really bigging myself up, but I often have family lawyers say to me, “We’re so pleased we’ve found you. It’s really hard to find good immigration law advice”. I will go on to legal aid, but there is actually quite a small pool of excellent advice.
I was trying to think about it this morning, because we knew that you might ask why this is. A good starting point is to ask: is it an attractive area for people to go into? I am not going to get political, but the last Home Secretary told us that we were lefty do-gooders and used the term “specialist lawyer” as a derogatory term.
Just yesterday, the current Home Secretary launched an investigation into one of our colleagues on the basis that he is a barrister who has not only provided excellent training to people on government money but represented some migrants in a case that the Government did not like. Basically, there is criticism of him as a barrister for doing both of those things. We know that barristers are completely entitled to train, on the one hand, and to act, on the other. Therefore, the first thing that I would say is that I worry that people who might be interested in the law may be put off by how it is characterised.
There is very little legal aid. I do not have a legal aid contract any more. We gave ours up quite a long time ago because, for various reasons, we did not want to take part in the system. We try to keep our fees as low as possible and will do things pro bono, where we can, but we cannot, with low fees and pro bono work, make up for a legal aid system that offers legal aid only for asylum and victims of domestic violence.
Lord Blunkett: VAT is charged on your fees?
Barry O’Leary: We have VAT charged on our fees for anybody who is here as more than a visitor—for anybody who is here for more than the short term.
Lord Blunkett: I raise this because it is quite a considerable hit on people. I raised it with the previous Chancellor, but I did not get anywhere.
Barry O’Leary: That would be good. They can do something called exceptional case funding, where they ask exceptionally of the legal aid authorities to be able to represent a case, but it puts another barrier in. With the lack of good-quality legal aid advice that there is anyhow, getting through that barrier and then getting a solicitor to take you on means that a lot of people are unrepresented.
I do not have any statistics to back this up, but we find that we are in the tribunal so infrequently because we manage to upfront our applications with really good, early on, well-evidenced applications, which we hope can get us through in front of the Home Office so that we do not go on to the more expensive, airtime-consuming appeal system. However, if we have unrepresented migrants who do not do that and then go in front of immigration tribunals, again unrepresented, we put a lot of the costs on the back end of the system. You may cut down legal aid at the start, but you are putting costs on the back end.
Baroness Kennedy of The Shaws: Which is more expensive.
Barry O’Leary: Yes. I should stress that some migrants have money to pay the legal fees. Not all migrants are looking for legal aid. It is only one section of the migrant population, of course. A lot of migrants will pay their own fees. The biggest problem for them is lack of good-quality advice. There are just not enough good-quality immigration lawyers.
The Chair: May I check something with you? We talk about legal fees. In fact, within those are expert fees, when experts are needed. Is that correct?
Sarah Pinder: Yes. If you take a step further back, there are fees in relation to applications to the Home Office. Obviously, that has been in the public domain as well as a debate, or a question as to how much applications should cost. Each family member pays an application fee. For example, the cost of an application for limited leave to remain for a family of four with two adults and two children can easily reach close to £5,000. For indefinite leave, it can reach close to £10,000. That is even before the lawyers’ fees and the expert fees, which we have already mentioned. Both financial access and, as Barry mentioned, access to specialist advice need looking at.
If I am permitted, I will cite from a case in the Court of Appeal. Lord Justice Underhill states that “the aim should be that the Rules should be readily understandable by ordinary lawyers and advisers. That is not the case at present.”
Lord Blunkett: That is a hope.
Sarah Pinder: That is from 2015. We are nowhere near that.
The Chair: Indeed.
Lord Blunkett: I will follow up, partly because, as the Chair said earlier when our expert adviser gave her a question, we need to get on the record the thoughts of those providing evidence to us. Any of the three of you may answer this. The more recourse there is through the system to relying on the law to challenge, the greater the cost to the public purse of the Home Office combating that will be. Is that not true?
Barry O’Leary: That is true.
Lord Blunkett: Thank you very much.
Baroness Kennedy of The Shaws: But that is the cost of the rule of law and justice in a society that is committed to the rule of law.
Lord Blunkett: Yes. The point that I am seeking to get at is that the more complex we make it and the more we push people into having recourse to very expensive legal processes, the more it costs us to argue the case. The simpler the rules are and the more clarity you can have in administrative practice, the less it costs us in the end.
The Chair: Samina, do you want to comment?
Samina Iqbal: I want to add one other thing as far as access is concerned. In immigration, you have lots of different subsets. Barry has already mentioned the family aspect of it. You have the EU scheme, when we had Brexit. A whole tranche of individuals were applying or having to engage with the new rules that were set out for them to cement their rights in the United Kingdom. That is another layer of legal complexity that has been added.
Many individuals were not fully aware of what the rules were or whether they applied to them, so it is also about knowledge. Because the rules become so complex in the way they are laid out, it becomes about access to that knowledge for individuals. In several areas, this led to not-for-profit organisations being set up, led, helped and assisted on a pro bono basis by a number of lawyers across the board. That is generally what happens: across the board, you have specialist pro bono organisations, set up, that will step in to assist where there is a very complex area that needs grappling with.
The Chair: It is entirely by chance that the three members of the committee whose questions I am going to come to are all online. It was not intended to reflect any sort of prejudice against those who have joined online; it is the just the way in which it happened.
Q55 Baroness Chakrabarti: I shall go back to something that has been touched on already because I am not really clear on the impression I have. I am not sure we have had a consistent answer to whether immigration lawyers have adequate practical experience of the family courts, and, following on from that—this was very much Baroness Shackleton’s implication—whether they are really making the most of that jurisdiction in the best interests of their client.
At some moments, we were getting quite positive spin—“Oh yes, we have people in our chambers who are doing both and there is crossover”, and so on—and at other times we were hearing, perhaps from Mr O’Leary, “To be a fine immigration lawyer, you have to focus on just that and, therefore, you will not necessarily have the other skill”.
May I ask the witnesses categorically what they think the general situation is on that?
The Chair: If there is one categoric answer; there may not be.
Samina Iqbal: It is difficult to make that assessment because, across the board, you have different forms of practitioners. You have, as you say, advocates—barristers who work within barristers’ chambers. They may themselves have backgrounds in family law, or they may have colleagues whom they can turn to. It is the same with solicitors’ firms.
The third category of individuals—is those solely specialising immigration practitioners—and is where there is a difficulty. Many of them, because they are specialist immigration practitioners, have access or know there is a route by which to obtain the information that they require, including training and so on. There is a lot of training out there for various individuals who may need that support.
Sarah Pinder: Barry may add or correct me if I am wrong, but for solicitors’ firms you find generally in immigration that a lot of applicants are represented by smaller, high street community firms. By the very nature of their practices they might be sole practitioners—just one fee earner. Those types of firms will generally solely be in immigration and will not necessarily have that cross-practice or that awareness.
Bigger firms, which Barry referred to, will have several departments and will have the resources to have the specialism across the two jurisdictions. Again, solicitors’ firms have experienced difficulties in maintaining a business in immigration with legal aid coming out of scope, or taking that specific step not to continue the legal aid franchise because it was not administratively feasible, from a business point of view. It is more the nature of a person’s practice that will dictate whether they have that awareness.
The Chair: Barry, are there situations where firms find that, to survive as a firm, they have to be very specialised?
Barry O’Leary: That is right, but I do not want to get defensive about it. Sitting here considering it, I would say that the best practice is sitting next to me, with two lawyers who can do both jurisdictions. You can see the potential weakness in me in that I specialise only in one.
Traditionally, I have seen that there is probably more of a problem that the much bigger world of family law is less up to date in knowing what you can get from immigration law and not even identifying the issue. I would say that there is also a job to be done for people such as me to at least be aware of what is available. You are absolutely right, as Baroness Shackleton said earlier: “Would you consider this application in the family courts?” That has to be done.
I will give another example. I mentioned transnational marriage abandonment. A couple of years ago, I was trying to get some training on that from a family lawyer, who opened my eyes to the fact that I was not using the fact that these children could be a ward of court as much as I should have been. I thought I was very good at spotting every family law issue and referring on. I believe that was a weakness in my practice as an immigration lawyer: it should have almost been automatic for these children.
Baroness Shackleton of Belgravia: We suggested that to another witness.
Baroness Chakrabarti: Thank you so much for that. I found your answers incredibly helpful. By the way, my question was not intended to be critical, because you are all dealing, in my view, with the most unlevel playing field in our legal system. That is what immigration law is. Thanks to successive Home Secretaries of both parties, we have created the most unlevel playing field in English law with the immigration system.
To be devil’s advocate, my concern about the previous suggestion of creating a specialist immigration family court is that it would be a second-tier, second-class family court and just bake in discrimination against the children of one or two migrants. In case people think that is going to be a great idea, I would have concerns about that. Ultimately, subject to your views as expert witnesses, family law made great leaps forward in recent decades because of our obligations under the UN Convention on the Rights of the Child. Do you think, as lawyers in the field, that the convention has really been embraced in the context of our immigration law?
The Chair: Does somebody want to answer that?
Samina Iqbal: On the UN convention on children’s rights, the mandatory consideration under Section 55 of the Borders, Citizenship and Immigration Act came about in 2009 because the Government were looking to the convention rights. There has been much development since then. There is movement towards ensuring that the rights of children are almost, or are reaching, the same considerations as one would look at within family law courts. There has been movement in that area, certainly since 2009, where that mandatory obligation has been brought about by Section 55. I do not know whether anyone else can add to that.
Barry O’Leary: It is good for me doing things like this because it makes me stop thinking about the day-to-day reality of representing migrants in their applications and start to think about the changes we can make. Whether I can say it is anything to do with the convention, I would not say in any way I had seen any real improvements because of it.
What I would say is that, in the 22 years I have been doing it, there are things that have improved. The one thing that is more recognised is that the rights of a British citizen child are quite strong and there are advantages to being British; those should be recognised. I would not want to see it all as a negative. The British child has probably become more central in some of this, even though it is not paramount; there are still issues. Their rights are probably more recognised than they were. Do you think so?
Samina Iqbal: That is right, yes.
Sarah Pinder: As well as the opportunities that citizenship comes with. For many years, with a British child who might be on the younger end—pre-nursery, pre-school—there may have been the approach, “Well, that child is young and can go and relocate to X country”. Through what Barry touched on—the recognition that that would entail a loss of the opportunity that comes with that citizenship—that approach is not reasonable to expect; it is not right.
Barry O’Leary: The non-British child has not kept up quite as much, I would say.
Baroness Kennedy of The Shaws: One of the shocking things was that, under the 2004 Act, every government department was supposed to give priority to the welfare of the child. Suddenly, in the middle of the Bill, we received an amendment from the Home Office stating that it would apply to everybody else but not to migrant children. It was a shock to me, certainly, and a shock to many of the people in the House. Unfortunately, it had come from the Home Office.
That created the two-tier thing that Baroness Chakrabarti described: British children were to be protected but not the children of asylum seekers or migrant children arriving on their own. It was shocking and it was only in 2009 that we got a change introduced. It is a rather sad part of my life in this House.
The Chair: Let us move on to administration.
Q56 Baroness Primarolo: I apologise for not being able to be with you in the committee room this morning. I want to turn to Home Office decision-making. The committee has been told of inconsistencies in Home Office decision-making on visa applications. Does this tally with your experience? If it does, why do you think this is happening? Barry O’Leary, if you could enlighten us on this it would be great.
Barry O’Leary: There is inconsistency. We have inconsistency in that similar fact cases are dealt with differently. For instance, one of the things I do, where people with perhaps a negative immigration history have fallen in love with somebody settled here and applied from within the country, is show that there are very significant difficulties in relocating to the other country to live their life happily together. When I do, I find that I sometimes get very good decisions, where there is an absolute understanding of the reasons why the couple could not live in that other country, and sometimes with a very similar fact case I might get a refusal, which just spouts cut-and-paste paragraphs that do not relate to the couple.
Where does it come from? I believe they have a big overturn of staff and they find it very hard to train up to the level they would like to. It sometimes comes from a culture of refusal and disbelief. Again, I always want to stress that there are some other senior civil servants in those departments who really do want to get it right; they are committed to trying to get it right first time and keeping the quality high. That might be a training issue within the Home Office.
There are other inconsistencies that may be more obvious to highlight. For instance, I will give an example of a family I am dealing with at the moment whom I have dealt with before. They are extremely wealthy. They have foreign servants; they have a beautiful house. I gave all the evidence of this and applied for visit visas, but they were all refused. The reason why they were refused is that they are Pakistani.
I do not believe there is any way of getting away from that; the same application by somebody from a nationality that was not so heavily disbelieved would have been successful. Is that inconsistency or is it a valid judgment by the powers that be? I do not know. It is definitely inconsistent in my mind. We did get it overturned by threatening judicial review.
There is inconsistency in training but there is inconsistency in that we treat different nationalities differently, particularly when they are abroad, not so much when they are in the UK. It is mainly when they are abroad that we treat them differently from when they are here.
The Chair: Is there disbelief about an individual who is visiting intending to go home?
Barry O’Leary: There is. The reason I am slightly flippant about how wealthy they are is that we did upfront it: they have a huge house, they are very, very well off; they have their staff; the children are in very expensive schools. The idea that this family unit would come to the United Kingdom and overstay in the United Kingdom as a better way of life than their life in Pakistan is absurd. I probably use the word “absurd” quite a lot.
I find it frustrating because if I accept that there is some cultural disbelief, even on this level, it almost goes to a point where it is just knee-jerk: “That’s what we do. They can challenge it if they want.” But there is no right of appeal against it, so you have to go through threatening judicial review, which is a whole different process.
Again, if you have a lawyer on your side like me, maybe you are going to do that. Maybe a lot of people just give up because the idea of having an expensive immigration lawyer to judicially review a visit visa application is quite strange; you would think that was something you could do through the system yourself.
Yes, inconsistencies: again, there are some areas of good practice that are very consistent. I am going to go back to the nationality department dealing with children in Liverpool, because it is very consistent. I can pretty much predict what it will do because it will actually look at what is best for that child in that situation.
Baroness Primarolo: I am just a bit taken back. I was expecting a slightly different answer; that is very direct and honest about straight discrimination—“No, we are not going to agree it”. That is a question of inconsistency on outcome. There are also issues around process and complexity of the system, which you have touched on before in other answers—for instance, on the definition of the family. May I ask you, over and above the very direct answer and example you have given: are there other issues that cause delay and problems?
Barry O’Leary: Well, on “cause delay and problems”, one thing is that when we do get a delay in the system, the delays are very inconsistent. You will have one person who applies for nationality and they are delayed for seven or eight months. Then their friend applies and receives their decision very quickly. What is happening is that the Home Office is starting new queues, so the people who have already been delayed get delayed more. It is incredibly frustrating, as a practitioner, because that person then calls you and say, “Well, my mate got it yesterday. I don’t know what you’re doing”. That makes it quite tricky.
It is difficult for me to know exactly what they are doing because I am not in the Home Office. There is an inconsistency just over timescales. Sometimes you will be given a reason by the Home Office. They send out quite standard paragraphs that say, “It’s because your case is complicated”, or, “Because we need to do checks”. It can put fear into a migrant’s heart when there is the idea of these checks.
Often they are just standard, pat excuses: “We’ve got too much to do. Yours is not going to meet a service standard and we might put some people in front of you so we can meet the service standard with them”. It is procedural, but it is incredibly frustrating because people’s lives are often on hold while this happens.
Baroness Primarolo: Thank you. I must admit that I am horrified to hear of the complexity of the mess in denying people a route through what is supposed to be routes for applications. I cannot ask any more. Thank you for your clarity. I am dumbfounded; it is dreadful, appalling.
Barry O’Leary: We do need to consider how decisions affect delays. Sometimes bigger decisions are made by the Home Office; how will this affect the whole system? One thing that happened very recently was the decision on how we dealt with people from Ukraine. We will all agree that we really did need to assist. However, what we did in the UK, rather than the example of Ireland, is to put everybody through on a normal visa system. By doing that, we now have a system where—I understand they have been prioritised; I am not criticising giving them priority—now, if you want to bring your spouse from abroad, the standard time is six months. The reason given is, “Well, we’re dealing with Ukraine first”.
There could have been a step back. Civil servants knew this and it was quite hard for them to implement it and say, “Actually, we need another system”. Maybe the system is that we take off the visa restrictions to Ukrainians and they come to the UK first. Then we are rid of that whole outside-the-country issue that is clogging up the system for the spouses. My clients are being so lovely. They say, “Oh, we do understand why the Ukrainians need this”. However, they are very upset when they are still separated from their spouses for six months.
Sometimes we take a step back on these big decisions. It is hard for civil servants; they do not always have the leeway to do what they think is right.
Baroness Primarolo: Thank you. I am in danger; there are questions I could ask but I know that Lord Dholakia is going to move on to them so I will stop there. You have given me a very clear and direct answer. I am not sure the other witnesses have indicated that they want to add anything, so I will leave it at that.
Q57 Lord Dholakia: The previous question obviously dealt with inconsistencies in the Home Office’s decision-making process for visa applications. My question relates to the information that we seem to receive about caseworkers being overloaded with visa applications. Would you recommend some ways of how to resolve this problem? May I ask Barry to see whether he can deal with the question?
Barry O’Leary: Taking the word “visa”, often in immigration we use “visa” as meaning something from abroad. I am taking it in the wider sense of all applications. There are obvious answers such as, “They’re understaffed”, and, “They need to train more”, but there are some things we can do without spending more money—we could actually decrease it. For instance, we keep having policies that mean that people have to make more applications. The most recent Act—I forget the name of the Act that came in this year—
Sarah Pinder: It was the Nationality and Borders Act 2022.
Barry O’Leary: It basically states that certain refugees, instead of obtaining leave for five years, will now get two and a half years and apply again after two and a half years. Why have you put another set of applications in the middle of this? You are just creating work for yourself.
It is the same for somebody who gets the right to stay here on private life. Say they have been here for 20 years and then they apply; they are eligible for the right to stay. They will have to do two and a half years, two and a half years, two and a half years, two and a half years, until they have done 10 and apply at the end. By doing this, you have created all this work for yourself. Either bring permanent residency forward more quickly or give them five years in the first instance. Do not keep creating tasks for yourself when you do not have time to do the basis tasks.
I will give another quick example; I do not want to take up too much time. We recently went forward with children. We said that we will let children who were born here and have been here for seven years go directly to permanent residence—indefinite leave—instead of making them keep jumping through the hoops for 10 years. It was, “This is fantastic, what a step forward.”
What they then did was make sure there was no fee waiver for this application. You had to pay £2,404 to get that status for the child. Given the nature of the families usually involved, they do not have £2,404. In fact, what these parents will have to do is keep extending their leave, because they can get fee waivers for that, but not obtain the crucial permanent residence done and dusted.
These children are not going anywhere: they were born here; they have never been anywhere; they have lived here for seven years. Let us get them permanent residence and take them off the immigration books. We do not have to keep dealing with them consistently.
The Home Office, through its policies, creates work for itself. Make these grants of leave simpler and for a longer time. Give permanent residence more easily—not easily, but just in one fell swoop—and you would end up having less work.
Going back to consistency, you also need to put people in the right departments. We keep saying, “There are so many asylum seeker cases on the books because we haven’t decided hardly any for the last three and a bit years”. If we do not decide the cases, then we will have a backlog. We also need to get people into the right departments where the backlogs are.
Lord Dholakia: May I follow up that question? Trade agreements are now being sought as part of this process. There are over 120,000 Indian students in this country. You then have another situation. Yesterday, for example, there was a gentleman speaking, asking government department to make savings. Is the whole process going to deteriorate?
Barry O’Leary: Savings are quite an interesting one, to go to that first. Remember that, when people pay for an immigration application, the fee is far higher than it costs administratively. These applications are always more expensive to the migrant than they are for the country to process. When we do it, we usually put on the top an immigration health surcharge. As well as these young graduates paying income tax for the next few years, they are also paying for the health surcharge differently way. If you look at the economy as a whole, these migrants are usually paying for the system themselves.
Sarah Pinder: More than.
Barry O’Leary: Obviously, yes, more than. If we have more applicants, will there be more demand on the system? Yes, there will.
I am just going to say, and you can all put your heads in your hands: we have a lot more work permits, as they used to be called, coming through because we have a staff shortage because we can no longer employ Europeans without any structure. Everybody we need to employ now has to come through the skilled worker scheme, whereas when we were part of the European Union a lot of these applications were not there because we were getting labour from abroad without the need for a work permit. I am using “work permit”; it is such an old-fashioned term, but it is easily understood.
I am not jumping in over my colleagues, by the way. We agreed in advance that I was going to answer these more critical questions.
Lord Dholakia: Very helpful.
The Chair: We are coming towards the end of this session. May I ask a question, not following on from that, about timing and the interconnection, if any, between the two systems? If someone is to be removed from this country—deported—but there are family court matters to be resolved, will the Home Office delay in order to allow them to be resolved while the individual is in the country? It is a very specific question and you might say it depends on the facts, but it goes back to some of our earlier discussions.
Sarah Pinder: Perhaps Barry can speak more about the process at application stage, dealing directly with the Home Office and Home Office caseworkers.
From a policy guidance point of view that has been the case over the years, usually, if a person was actively involved in family court proceedings, the person would qualify for leave to remain outside the rules in order to participate in those family court proceedings. There tends to be an assessment, as far as I understand it from the Home Office, as to whether that person’s involvement or presence in the UK is required to enable that participation and so forth. Provided that those elements are met then that person qualifies for leave to remain and that potentially delays a removal.
If the timing is a lot more coincidental with the decision to remove, usually you enter that scenario when you are already in immigration proceedings, so in appeal proceedings. Again, that is something that the courts have grappled with over the years. The guidance is set out by the Upper Tribunal and the higher courts that there should be delay, so either immigration proceedings are stayed to enable the family proceedings to continue to their resolution, which will then inform the decision of the immigration courts, or, if that timescale is too long to make a stay feasible and that is not practical, the immigration proceedings are usually allowed. So the appeal would stand to be allowed on the guidance that is set in order to enable that participation. The matter is then revisited at that stage. That is where we tend to see co-operation between the two jurisdictions working: when minds are focused on those two timescales.
The Chair: If the Home Office is assessing whether the presence of the potential deportee is required, that is rather allowing the Home Office to pre-empt some of the views of the family court.
Sarah Pinder: Yes. The types of cases where that is incredibly problematic—certainly as we see it from our point of view as practitioners—are usually where a person is perhaps trying to re-establish their relationship with the child. My experience is that if the person has involvement, contact or caring responsibilities already that does not tend to lead to a refusal in the Home Office.
Where a person is trying to re-establish that relationship, for whatever reason—after a period of imprisonment or the breakdown in the relationship between the two parents where there is no criminality involved—is where it is difficult. Effectively, the person is trying to show their intention and is trying to show success in the family courts, and that is where the pre-judging risk is problematic—absolutely.
The Chair: Thank you. Does anyone want to ask any final questions in the room or online?
Lord Blunkett: I have one very quick final question—again, to get it on the record. Would it not help enormously if there was job retention within the system and progression, so that those who learned something inside the system about how the rules work were actually able to grow and develop in the job, rather than having to escape to get promotion?
Barry O’Leary: I absolutely agree.
Sarah Pinder: Yes, and enabling or empowering—whatever the word needs to be—a caseworker’s discretion. From 2008 there was this huge move away from enabling caseworkers to look at evidence, to look at an application and exercise their assessment, which, with training and all of that, is usually to be commended. There is a perception that, perhaps in order to simplify or make a system more transparent, we moved away from that to a very prescribed system, which is difficult for everybody to manage, whether lawyers, applicants, caseworkers, et cetera.
The Chair: Human beings do not always fit boxes.
Sarah Pinder: No, exactly.
The Chair: Would any of our witnesses like to add anything? There will obviously be the opportunity to say to us after today, “I really should have said”.
Sarah Pinder: No, thank you.
Samina Iqbal: Thank you.
Barry O’Leary: Thank you for the opportunity.
The Chair: Thank you all very much, indeed. That has been very helpful.
