New UK immigration changes on removals of people from UK

UK Immigration has announced that paragraph 395C of the Immigration Rules that provides various safeguards to immigrants before they can be removed from the UK will be deleted. This paragraph states that the UK Secretary of State must take into consideration the following factors before removing an immigrant:
  • age;
  • length of residence in the United Kingdom;
  • strength of connections with the United Kingdom;
  • personal history, including character, conduct and employment record;
  • domestic circumstances;
  • previous criminal record and the nature of any offence of which the person has been convicted;
  • compassionate circumstances;
  • any representations received on the person's behalf.

UK immigration claims that the above factors do not apply to most migrants who have been refused leave to remain in the UK.

This change follows the case of Sapkota v Secretary of State late last year. The case concluded that it is unlawful for the Secretary of State to separate a decision to refuse to extend leave from a decision to remove. In this case the Court of Appeal decided that any decision to refuse leave to remain which did not also consider removal, and therefore paragraph 395C, was unlawful. It is this judgment which led the Secretary of State to decide to abolish paragraph 395C.

The deletion of this paragraph has caused concern amongst immigrants groups and others. This may affect applications made by long term over-stayers, and affect human rights claims and effectively reduce the rights of appeal. Critics claim that when the section is deleted it will lead to further lawsuits as UKBA officials may ignore human rights issues; Those who are able to will have to pursue court action to secure enforcement of their rights.

UK immigration notes that illegal immigrants that have been detained will still be able to set out compassionate and compelling circumstances and that the duty to act fairly will remain an overriding factor.

In addition to these changes, a new rule, Paragraph 353B, has been created to help decision makers when considering exceptional circumstances in unsuccessful asylum or human rights cases where they are reviewing a migrant's immigration history before removal. UK immigration states that this rule was created to ensure that authorities continue to consider the exceptional circumstances in a particular case before removing an immigrant now that the Secretary of Sate is no longer under an obligation to consider the non-exhaustive list as stated in paragraph 395C.

Paragraph 353B states that the decision maker will also have regard to the migrant's:
  • (i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;
  • (ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;
  • (iii) length of time spent in the United Kingdom spent for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused; in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate.
The amendment will come into effect beginning 13 February 2012.

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