Immigration and you

Immigration and you

• Taffy Nyawanza: Makosi and the real Big Brother

By Taffy Nyawanza

IMMIGRATION is firmly in the limelight yet again in Britain, thanks to the recent publication of a report on immigration by the Institute for Public Policy Research (IPPR), the independent think tank.

The report makes astonishing reading, pointing out in part that between 1991 and 2001, half of Britain's population growth was due to immigration and in another, that immigrants now make up about a quarter of London's population.

Predictably, Migration Watch's Sir Andrew Green has come out with a withering response to these findings and fired a broadside: "We believe there is a growing realisation that immigration simply cannot continue at these levels."

The findings of the IPPR report will likely whip up public emotions and galvanise the authorities into action. Politicians, terrified stiff as they are of adverse opinion polls, will be anxious to demonstrate a grip on immigration. Immigrants will be equally anxious to regularise their status to pre-empt the inevitable crackdown on illegal immigrants.

It is in light of this that I will attempt to address the issues raised by various queries which I received following last week’s despatch. I have obtained authority to compress the issues raised into this scenario:

Zulu, a Zimbabwean came to the UK 5 years ago to study for a CIMA course. His wife, Cherie enrolled for a diploma in Mental Health Sciences at the same time. Zulu completed his CIMA in 2004 and switched to become his wife’s dependant. He now works for the local council. He is planning to enrol for an MBA with the University of Clacton. The two have a son born in the UK. What are Zulu's options for remaining in the UK? Is he and his family entitled to any benefits?

On the given facts, this man can apply for a work permit through his employer. A work permit will allow his wife to be dependant on him. He himself cannot apply directly for a work permit however. The employer in the UK who wants to employ him must do this. A work permit is employer specific. Zulu cannot move with it to a different employer. To emphasise, a work permit is issued for a named person to do a particular job for a specific employer. In certain restricted situations, a work permit holder may be able to take work additional to that for which the permit was issued. It is relatively easy to obtain a work permit in the ‘shortage occupations’, and the list of these is regularly updated (link to current list) For all non-shortage list occupations, the employer applying for a Work Permit must prove they have made an attempt to recruit from within the resident EU work force. This is usually done by advertising the position for a given period in appropriate media. If Zulu obtains the work permit and spends four continuous years in the UK as a work permit holder, he will become eligible for Indefinite Leave to Remain (ILR). This will give him the liberty to change employment or to become self-employed.

Zulu’s wife can also apply to extend her student visa provided she enrols on a degree programme. This will enable Zulu to remain as her dependant and will give him the right to work full time. There has been a change to the rules since September 2004 however, which states that you can no longer renew a student visa if by so doing you would spend 2 years on short courses below degree level. For example, it will no longer be possible to obtain a visa extension to study at a language school beyond two years. In other words, the maximum time that a student can stay in the UK to do short courses one after the other, below degree level, is therefore two years. Short courses are those under 1 year in duration, or longer courses broken off before completion.

As for the MBA that Zulu has enrolled for, there is now an MBA provision for the HSMP scheme which awards the full HSMP points for eligible MBAs. Thus, if you graduate from one of the eligible MBAs while that MBA is on the list of eligible courses, you will be eligible to apply for the MBA Provision under the HSMP scheme. The list of eligible MBAs was drawn by the Treasury in the pre-Budget report on 2 December 2004 and is updated annually. Details of eligible MBAs can be found on the Treasury's website. Notice that Zulu’s MBA is not eligible. Clearly, prospective MBA students will now need to take into consideration a broader range of criteria when weighing up the pros and cons of different MBA programmes. But even where an MBA is eligible, the remaining requirements of the HSMP must be met. This means that, like all other HSMP applicants, there is need to demonstrate an ability to continue your chosen career in the UK, the intention to make the UK your main home, and that you can support yourself and any dependants without recourse to public funds.

Finally, Zulu’s son could also be a potential option. His age is not given but there is a ‘7 year concession’ by the Home Office whereby children under 18 who have spent 7 continuous years in the UK will be granted Discretionary Leave with their families. There is no requirement that the child should have been born in the UK. As the concession relates to the length of residence of the child, the immigration status of the parent should not matter. The concession is not incorporated into the Immigration Rules. It is at the discretion of the Home Office which will consider each case to which the concession applies on it's merits.

Finally, there is the question of benefits or public funds which is an important one. When the Secretary of State for the Home Office, who acts through his officers, grants a person leave to enter or remain in the UK, it is often subject to conditions. Any conditions imposed are usually clearly marked in the passport. The common ones under the plethora of existing legislation are;

• Time limit (to prevent overstaying)
• No recourse to public funds
• Prohibition, or restriction on employment
• Registration with the Police; and
• Reporting to a Medical Officer of Health

Perhaps, the most problematic is the ‘no recourse to public funds’ one. Under the Immigration Rules, if you want to travel to, or remain in the UK, you must show that you can live and support yourself and any dependants without claiming public funds. What are public funds and why, generally is it important to abide by the condition not to claim them?

Public funds refer to welfare benefits from the British government. The general rule is that anyone subject to immigration control, in other words without settled status in the UK, may not ordinarily access public funds. Having said this, I hasten to add that your local Citizens Advice Bureau (CAB) remains your first and easily accessible port of call if you are unsure of your rights in this regard.
Public funds for immigration purposes are comprehensively defined by a definitive list in the interpretation portion (Rule 6) of the Immigration Rules (HC 395) (see here). No other funds are precluded. As long as a benefit is not listed therefore, it is fair game, so to say. In fact, it has since been clarified in the rules that a person shall not be regarded as having recourse to public funds if they are not excluded from such funds under specified legislative provisions. Unlisted public funds can be claimed without jeopardising your immigration status. The commonest examples are NHS treatment, state education and statutory maternity pay (SMP). I emphasise that if you are unsure whether you may be eligible for particular benefits, please see a specialist adviser as the consequences of unlawful claims can be very dire.

Public funds also include housing. It is a condition that an Applicant must provide evidence to that adequate accommodation will be available in the UK. In family cases, accommodation must not be overcrowded. This is statutorily regulated and means that occupying persons must not exceed the permitted number per room. The Housing Act 1985 defines what the required size of a room is and relates this to the number of persons, with an allowance that children up to the age of 10 years old only count as half persons.

So why is it important to abide by these conditions? Because a breach of a condition is an immigration offence, and carries the power of arrest, except the one relating to registering with a Medical Officer of Health. A breach of a condition may also lead to administrative removal, this being more common than actual deportation. Deportation is very rarely carried out as it carries far more serious consequences than administrative removal. It is not possible to return to the UK while a deportation order remains in force.

A breach of conditions can also lead to curtailment of leave. This means that existing leave to remain in the UK may be cancelled. A breach also has adverse effects on future immigration decisions. There is nothing as terrible as having a good claim on the merits only to be refused on a technicality such as having an atrocious immigration history. It is a danger to be avoided.

Taffy Nyawanza is accredited by the OISC and writes in his personal capacity. He can be contacted at profettaffy@yahoo.co.uk

Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information.
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