Written evidence from The Immigration Law Practitioners’ Association (ILPA)

The Immigration Law Practitioners’ Association (ILPA) is a registered charity and a professional membership association. The majority of members are barristers, solicitors and advocates practising in all areas of immigration, asylum and nationality law. Academics, non-governmental organisations and individuals with an interest in the law are also members. Founded in 1984, ILPA exists to promote and improve advice and representation in immigration, asylum and nationality law through training and disseminating information and by providing evidence-based research and opinion.  ILPA is represented on advisory and consultative groups convened by Government departments, public bodies and non-governmental organizations.

Prior to the referendum, ILPA commissioned a series of position papers on its implications for free movement rights and rights protected in the Common European Asylum System.  These are available, together with work subsequent to the vote, on both current problems with EEA applications in the UK and the rights of EEA nationals post Brexit.[1] Our response to the present inquiry concerns the justice system as it affects persons under immigration control, their family members and those who have dealings with them.

General

The full implications of the loss of the framework of EU law, of the protection of the EU Charter of Fundamental Rights and Freedoms, and of the supervisory jurisdiction of the Court of Justice of the European Union for the rights of EEA nationals and their family members, and of third country nationals under immigration control including persons seeking asylum and trafficked persons, will be unclear until the details of any Brexit settlement are known. We set out some possible implications as they concern matters within our expertise below.

EU law pertaining to free movement rights may continue to be relevant insofar as a person’s prior status under EU law is relevant to their status post Brexit. Depending upon the settlement, cases brought by EEA nationals and their family members may turn on whether individuals had acquired rights of residence and/or permanent residence under EU law prior to Brexit.[2] We doubt that any settlement could set out exhaustively answers to all these questions for the purposes of UK law and therefore recommend that the jurisprudence of the Court of Justice of the European Union should be treated as authoritative, or at the very least, only to be departed from with good reason, even if the UK is no longer a member of the EU.  This should be encapsulated in a withdrawal agreement. 

Once the UK is outside the Common European Asylum System interpretation of the 1951 UN Refugee Convention will no longer be mediated through the terms of the EU ‘Qualification Directive’.[3]  Moreover, many future EU law judgments will be concerned with the ‘recast’ Directive[4] and not with the original version of the Directive, by which the UK is bound. We therefore recommend that the judgments of the Court of Justice in asylum cases should be treated as persuasive, rather than binding, in asylum cases following Brexit.  This should be incorporated into any withdrawal agreement.   Similarly for the law on human trafficking, where the the EU Directive 20011/36/EU will no longer be applicable in the UK.

Implications for civil, criminal and public law in the field of immigration

Criminal law

Professor Valsamis Mitsilegas in his paper for ILPA[5] describes how EU law has developed an extensive mechanism of exchange of information on criminal records of EU citizens, which should enable national authorities to have a full picture of the criminal record of EU citizens who enter their territory. In the same series,[6] Professor Bernard Ryan discusses the Schengen Information System. (Its current version is known as ‘SIS II’) where the reasons for entering information relate primarily to policing and criminal justice matters.[7] Professor Mitsilegas cites the UK government’s observation that the EU system:

‘…has allowed the police to build a fuller picture of offending by UK nationals and allowed the courts to be aware of the previous offending of EU nationals being prosecuted. The previous conviction information can be used for bail, bad character and sentencing, as well as by the prison and probation service when dealing with the offender once sentenced.’[8]

He describes how, after the Paris attacks, the Commission has proposed legislation extending the exchange of criminal records to third-country nationals.[9]

If Brexit means that the UK ceases to participate, or that restrictions are placed on its participation, in these information sharing systems, its ability to fight organized crime may be affected.  This has particular implications for its ability to fight trafficking in persons.

Professor Mitsilegas describes the Framework Decision on the European Arrest Warrant[10] and the extent to which the protection of human rights is taken into account in its implementation. It permits warrants issued in one member State to be enforced in another, thus facilitating the UK in requiring other EU member States to cooperate with it in pursuing wanted persons, and vice versa..  Again, this is relevant to international cooperation on human trafficking and other organized immigration crime.

Professor Mitsilegas discusses EU secondary legislation on defence rights, enabled by the Lisbon legal basis of Article 83(2) of the Treaty on the Functioning of the European Union. He identifies that the Commission put forward a Green Paper on the application of EU criminal justice legislation in the field of detention[11] and that secondary legislation enacted includes Directives on the right to interpretation and translation;[12] to information;[13] and to access to a lawyer,[14] on procedural safeguards for children[15] and on the presumption of innocence,[16] with the text of the Directive on legal aid agreed[17].  All these are of relevance to survivors of human trafficking and more broadly.  Professor Mitsilegas writes of:

…a paradigm shift from a system focused primarily… on promoting the interests of the state and of law enforcement … to a system where the rights of individuals affected by such rules are brought into the fore, protected by and enforced in EU law.

He explains that the European Commission has the power to introduce infringement proceedings where the Directives have not been implemented adequately and that the scope of the Commission’s monitoring exercises extends to an holistic examination of the human rights compliance of domestic criminal justice systems and the European Arrest Warrant Framework Decision, especially after the Court’s ruling in Aranyosi [18] concerning detention conditions in EU Member States.  A level of scrutiny of the UK criminal justice system thus risks being lost as a result of Brexit.

Trafficking in persons

The UK will remain a party to the Council of Europe Convention on Action against Trafficking in Human Beings[19] post Brexit, but EU Directive 20011/36/EU on preventing and combating trafficking in human beings and protecting its victims will no longer be applicable.  This has implications in the spheres of civil and criminal law.

Initially, when the UK exercised its opt-out from the Directive, the Home Office argued[20] that the provisions of the Directive did not add to the protection of trafficked persons in the UK.  The Home Office stated that opting in would require the UK to make mandatory provisions at the time discretionary in UK law and that these steps would reduce the scope for professional discretion and flexibility and might divert already limited resources.

When the UK decided to opt in,[21] it identified that it would need to amend existing trafficking offences to confer extra-territorial jurisdiction over UK nationals who commit trafficking offences anywhere in the world; to make mandatory appointing special representatives to support child witnesses during police investigations and criminal trials, and to set out the rights of trafficked persons to assistance and support.[22]  The UK was already party to the European Convention on Human Rights and to the Council of Europe Convention on Action against Trafficking in Human Beings, but the measures identified were not mandatory in UK law, suggesting that without the Directive they are again vulnerable to repeal.

The terms of the Directive emphasise the importance of protecting trafficked persons and put this on an equal footing with the implementation of criminal measures. Article 12.2 of the Directive requires member States to ensure that trafficked persons have access ‘without delay’ to legal counselling, and, to legal representation, including for the purpose of claiming compensation and that these be free of charge where the victim does not have sufficient financial resources.

Article 4 of the European Convention on Human Rights will continue to provide protection to trafficked and enslaved persons and has, in particular, been recognized as a source of positive obligations toward them.[23]

The supervisory jurisdiction of the Court of Justice of the European Union in trafficking cases will be lost. ILPA recommends that the judgments of the Court of Justice in should be treated as persuasive in trafficking cases following Brexit and that this should be incorporated into any withdrawal agreement. 

As described above, the UK’s ability to identify and punish traffickers and to protect trafficked persons risks being compromised in that it may longer enjoy direct access to the Europol database, Eurodac data or to the same intelligence sharing.  A thematic study as to the way in which Brexit will affect the UK’s ability to pursue traffickers and to protect their victims should be undertaken.

Asylum

The UK would no longer be a party to the Common European Asylum System if it left the EU.  There is nothing to prevent its continuing to operate a system resembling that system, , insofar as this is compatible with its obligations under1951 UN Convention Relating to the Status of Refugees , and under international human rights law. 

Rights of appeal under Part V of the Nationality, Immigration and Asylum Act 2002 can be used to vindicate rights to international protection but the supervisory role of the Court of Justice of the European Union in interpreting refugee law will be lost.  While UNHCR is the guardian of the 1951 Convention Relating to the Status of Refugees, there is no international court specifically charged with adjudicating on the claims of refugees that their rights under the Convention have not been respected.  The UK courts have, however, been interpreting the 1951 Refugee Convention for many years, including reading down the express words of legislation to ensure compatibility with it.[24] The jurisprudence of the Court of Justice of the European Union should therefore, as with trafficking cases, be treated as persuasive, but not as binding after Brexit.

Litigation on the rights of EEA nationals and their third country family members in the UK

Estimates of the numbers of EEA nationals of other member States living and working in the UK range from three million upwards. There will be interference with their rights and those of their third country family members if they are not permitted to remain in the UK or if the conditions imposed on their continuing to reside are such as they not cannot meet. If this happens it is likely that many will have recourse to the courts.

Those potentiality affected include all EEA (not only EU) and Swiss citizens and their qualifying non-EEA family members, including persons exercising derived rights.  Account must be taken of persons enjoying rights under Articles 21, 45 (workers) 49 (establishment) and 56 (services) (and predecessor provisions) of the Treaty on the Functioning of the European Union.

Many of those who have been resident for 10 years or more will enjoy the protection of the Council of Europe European Convention on Establishment,[25]  the origin of the long residence rule in the Immigration Rules on which they will be able to rely.[26] It will be open to those resident for fewer than 10 years, or who otherwise do not qualify under the rule, to assert a claim that being forced to leave would breach their rights under Article 8 of the European Convention on Human Rights.  A refusal of such a claim carries a right of appeal.[27] 

The Immigration (European Economic Area)( Amendment) Regulations 2015 (SI 2015/694) implemented changes to the EEA appeals regime as of 6 April 2015, timed to coincide with changes to the immigration and asylum appeals regime effected by the Immigration Act 2014.  The only persons subject to the regime created by the 2014 Act and by the regulations who continue to enjoy rights of appeal are those whose protection (broadly an asylum) or human rights (for example on the basis of Article 8, the right to respect for private and family life) claim as defined, has been refused whose leave granted for protection reasons has been revoked, or who assert that a decision breaches their rights under the EU Treaties in respect of entry to or residence in the UK.   The result of Brexit will be that these EU appeal rights will no longer exist.  Henceforth only refugee or human rights claims will carry a right of appeal, with all other cases subject either to no review (curtailment of leave) or to a right to a (charged) internal review by the Home Office.

As matters stand, an appeal by an EEA national on human rights grounds will be heard from within the United Kingdom although the coming into force of s 63 of the Immigration Act 2016 will extend the regime whereby appellants can be required to leave the UK while their appeal is pending, from deportation to all immigration cases. The equivalent of this regime for EEA cases is contained in Regulation 33 of the Immigration (European Economic Area) regulations 2016 (SI 2016/1052).  Under this regulation a person can be removed from the UK while their appeal is pending but must normally be allowed to return to the UK to be present at their appeal.[28]  The case of R (Kiarie) v  Secretary of State for the Home Department [2015] EWCA Civ 1020, currently pending before the Supreme Court will examine if, and if so when, such a procedure may be required outside the framework of EEA law and in particular whether and in what circumstances being present at an appeal is a procedural requirement under Article 8 of the European Convention on Human Rights.

Those appealing on human rights grounds will have to pay appeal fees of £800[29] to vindicate their rights, unless they qualify for a waiver.  R (Osman Omar) v SSHD [2012] EWHC 3448 (Admin) confirmed that there will be cases where not to waive a fee would be to breach an applicant’s human rights (in that case under Article 8 of the European Convention on Human Rights).[30] 

We anticipate satellite litigation on the questions of in-country rights of appeal and of fees.

Increasingly, immigration officers, employers, landlords etc., have to know who has a right to reside and who does not, and evidence is needed to prove this.[31] EEA nationals and their third country family members demonstrate their exemption from regimes controlling rights to work rent, drive or hold a current back account, by proving their status. If they continue to enjoy exemptions they will need to have documents by which they can prove their status, to protect them, their employers and their landlords or landladies from wrongful prosecution.  We are acutely aware of the logistical problems this would entail. For the scale of the task see the Migration Observatory’s 3 August 2016 post Here today, gone tomorrow? The status of EU citizens already living in the UK.[32]

We are seeing very large numbers of applications for documents attesting to the status of EEA and for British citizenship, from EEA nationals and family members. There are long delays in issuing these, and in confirming that an application has been made, and knock-on effects of delays in other areas of the work of UK Visas and Immigration.  Delays have implications for asylum and human rights cases that subsequently come before the tribunals and courts as in both asylum cases and cases based on rights to family life the tribunal judge must assess the situation at the date of hearing. Subsequent to long delays, this may have changed.

There may be satellite litigation on delay. The volume of applications from EEA nationals and their family members for documents  they require post Brexit could present considerable challenges to the Home Office with the potential for this to lead to further delay across all areas of its work and for resultant litigation both on substantive cases and procedural problems.

Legal aid

With effect from 6 April 2013[33], there ceased to be legal aid for immigration (as opposed to asylum) cases, including free movement cases under EU law. 

Provision made for exceptional case funding for cases out of the scope of legal aid was held by the courts to be inadequate in Gudanaviciene, et ors v The Director of Legal Aid Casework and the Lord Chancellor (Appellants) [2014] EWCA Civ 1622. One of the bases for exceptional case funding is that to deny it would breach EU law.  When this basis of exceptional funding is no longer available, reliance is likely to be placed on the procedural guarantees of Article 8 of the European Convention on Human Rights to make the case for exceptional funding.  This is likely to affect EEA nationals and their third country family members insofar as they face having to leave the UK as a result of Brexit and need access to the courts to argue their case, whether on the basis of any Brexit settlement or on human rights grounds, to be allowed to remain.  The nature of the procedural guarantees provided by Article 8 will fall to be examined when it hears the appeal from the decision of the Court of Appeal in Kiarie, mentioned above.

Devolution

There will continue to be debates about independence and in particular about the independence of parts of the UK so that they could remain within the EU.  Short of such settlement, certain matters pertaining to EU citizens resident in the devolved administrations are within the competence of their parliaments.  As Sarah Craig, Maria Fletcher and Nina Miller-Westoby set out in their paper for ILPA,[34] while immigration is a reserved matter, matters affected by immigration status, such as welfare entitlements, are devolved.  EEA nationals’ access to services in the devolved administrations could be protected by clarifying which matters are within the competence of those administrations. Further devolution could bring aspects of the rights of EU/EEA nationals within the legislative competence of those administrations, allowing them to reach their own settlement. There is a potential for different successor arrangements to be made by the English, Welsh, Northern Irish and Scottish administrations.[35]  This, or the framework for this, could be set out in the withdrawal agreement, which will need to make express reference to devolution.

Legal sector

Immigration law firms are seeing an increase in enquiries as a result of Brexit, from EEA nationals and their family members and from companies seeking to understand the implications of Brexit for their business and for their workforce. Whether the UK remains with the single market and customs union and whether the free movement of services is preserved are the foci of their concerns.  Based on current enquiries, we anticipate that if the UK leaves the single market and customs union, and if free movement of persons and services are not preserved, particularly if it takes many years to negotiate full independent UK membership of the World Trade Organization, a number of companies will relocate staff and operations out of the UK and greatly reduce their presence in the UK.  This may affect their demand for legal services, in fields far beyond immigration law.  It is far from certain that companies based elsewhere in the EU would wish to continue to make their disputes subject to UK law and to continue to choose the UK courts as the forum for the resolution of such disputes although it is less likely that the law governing agreements already made would be changed.

ILPA members include firms with lawyers based in a large number of different countries, advising on immigration to and from a range of such countries.  They too will need to decide whether to keep the same volume of their operations in the UK post Brexit.  This affects both the location of established practitioners and the location of their training programmes. Mutual accreditation of qualifications is valued by those advising companies on immigration law across several jurisdictions and by those specialising in a particular complex area of immigration laws across several jurisdictions.

22 November 2016