We all need a secure place to call home and we all want to ensure that the UK emerges from the Covid-19 pandemic as a strong, cohesive and tolerant nation on the post-Brexit world stage. This position necessitates calling on the UK to ensure fair and compassionate immigration decision-making in which the dignity and talents of people from nations around the world are safeguarded and recognised as needed for what lies ahead. This position also necessitates good relationships with our international partners, including the Commonwealth, which requires not treating migrants in a way that we would not tolerate for UK migrants overseas. The UK’s Highly Skilled Migrants (HSMs), like all people who move to the UK, deserve to be treated with fairness and dignity and given agency to build and maintain a life in the UK where there is no harm, material loss or damage to the public interest that justifies interference with their rights.
HSMs in the UK have however been criminalised and denied indefinite leave to remain (ILR) based on the Home Office’s subjective ‘bad character’ or ‘dishonesty’ judgements under immigration rule 322(5) for historic self-employment tax discrepancies up to 10 years ago. The denial of ILR has left them in legal limbo. All those affected are migrants of colour from 6 South Asian and African countries. As Commonwealth citizens, they might have the right to vote but as part of enforcement of hostile environment policies, over half have no ability to work, rent, drive, receive NHS healthcare, open bank accounts or receive access to public funding (Immigration Act, section 3C). There is no secure future in the UK for any HSM, and British-born children of HSMs with no ILR are not eligible for British citizenship, even if they were born here. The 2019 Balajigari judgement found that if HSM applicants are not found “guilty of conduct bringing them within the reach of clause 322”, which is otherwise applied to criminals, terrorists and those deemed a national security threat, “then a serious injustice will have been done”.
The HSM case is another example of the impact of discriminatory ‘hostile environment policies’ experienced by migrants of colour and that Windrush lessons have not been learnt. It also sets a concerning precedent for the use of ‘good character’ references against EU, Windrush, TOEIC and other migrants.
The Home Office’s inhuman policies towards these Highly Skilled Commonwealth Migrants of colour, who were brought in to help boost the UK economy, have not achieved the policy objectives sought: to reduce net numbers of migrants in the UK. Pushed into destitution, homelessness and with serious stress-relate illnesses, local authorities and the taxpayer are picking up the bill while nearly all HSMs stay in the UK resolute to fight their cases. With serious debt restricting them from pursuing their cases in the UK or leaving the country, even if they wanted to, they remain in a state of paralysis. The HSMs instead now rely on local authorities (for example Section 17 child support), friends, family and charity to survive. This is a further strain on local authorities, and the taxpayer, in a time of national crisis.
Wider questions also remain about the use of points-based (ILR) application processes for HSMs and other migrants which retrospectively punishes applicants for failing to maintain certain standards or running into barriers in their career beyond their control such as unconscious racial biases within hiring processes.
This report asks the Home Office to immediately review and repeal its decisions to refuse ILR where no criminality has taken place and act on the urgent asks below. The unique, discretionary application of rule 322(5) to refuse ILR is a wholly disproportionate tool to use to meet immigration objectives.
This report’s investigation was conducted with the Highly Skilled UK group and included 2 comprehensive surveys in June and October 2020 with 67 and 63 responses respectively. Extensive interviews were also conducted with members of the Highly Skilled UK group, legal professionals, those working on relevant immigration matters in NGOs and in UK Parliament.
Sincere thanks to the members of the Highly Skilled UK group who have taken time to share their stories in their difficult circumstances. We are deeply impressed by the resilience of the community, and especially its secretariat, Salman Faruqui, Ihsam Uddin and Inam Raziq, who voluntarily support hundreds of HSMs through the difficulties outlined in the report in their free time and sometimes from their own pockets.
Sincere thanks also for the wisdom provided by many including Syed Naqvi (ITN Solicitors), Sonali Naik QC, Maha Sardar and Adrian Berry (Garden Court Chambers), Zainul Jafferji (Clarendon Park Chambers), Rakhi Rashmi (MRN Board) and colleagues at MRN who have worked on these, Windrush and other immigration issues closely.