Immigration Control and Immigration Law

Similarities to Prerogatives

Whilst it is highly dangerous to rely on the prerogative (as a reserve of undefined power), two other principles may be playing a similar role:

1.       Sovereignty – dealing with foreign nationals is curtailed by the treaties to which the UK is aparty too, EC on Human Rights and the 1951 UN Convention relating to Refugees.

a.       Adbulaziz Cabales and Balkandali (1985) The CtHR states that countries have the right as recognised by international law to control the entry of non-nationals.

2.       Deference to the Executive – Huang and Kashmiri [2007] there are some areas of immigration law which it is not appropriate for the Judiciary to rule upon. 

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Policies and Concessions

Internal government instructions are highly influential in the implementation of immigration law as they guide officials in their response to individual cases. Internal instructions can be divided into three categories:

1.       Policy Documents which give guidance on the exercise of a discretion

2.       Guidance on the application of the immigration rules, from which officials cannot depart without good reason (ZH (Bangladesh) v SSHD [2009])

3.       Concessions – standard practices which have been established for many years, or which have been introduced by notice on the IND website.

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Entry Clearence

Recognised refugees also need entry clearance to come to the UK because since 11 February 2003 the UK suspended its participation in the 1959 Council of Europe agreement on the Abolition of Visas for Refugees. 

There is a new exception to the need for entry clearance, for those from the Gulf Cooperation Council states (Kuwait, Oman, Qatar and UAE) can register biographic and travel information online and obtain an electronic visa waiver without the need to give biometric information, however these people spend an average of $3417 per visit. 

Applications for Entry Clearance are made online, and are granted or refused by EC officers based in British posts abroad. The post making the decision may not be in the same country where the application was made. The authorization to discriminate issued under the Equality Act applies to entry clearance decisions so that leave to enter (granted outside the UK) may be refused on the basis of legalised discrimination. 

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Authorization to Discriminate

There are wide exceptions to the S29 Equality Act 2010 held in Sch 3 Part 4 which otherwise prohibits discrimination, victimization or harassment by public bodies. However it is excluded for immigration on basis of age, nationality, ethnic origin, on grounds that it would be conducive to the public good. An immigration officer on the basis of a passenger’s nationality can subject them to more rigorous examination, based on the grounds listed by the minister. 

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Sch 7 Terrorism Act 2000

IO’s have the power, to stop, detain, search and question any person at an air or sea port for the purpose of determining whether that person appears to be concerned or to have been concerned in the “commission, preparation or instigation of acts of terrorism”. Powers under this schedule do not require basis of reasonable suspicion. The maximum period of detention for these powers to be exercised is 9 hours although the person may be detained for longer by the police if there are grounds for suspicion. 

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Paragraph 320 - Mandatory Reasons for Refusal IR

(1)“Entry is sought for a purpose not covered by the rules” and the applicant must generally prove this.

(2) the fact that the person seeking entry to the United Kingdom: (a) is currently the subject of a deportation order; or (b) has been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; or (c) has been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 12 months but less than 4 years, unless a period of 10 years has passed since the end of the sentence; or (d) has been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 12 months, unless a period of 5 years has passed since the end of the sentence

 (3) failure by the person seeking entry to the United Kingdom to produce to the Immigration Officer a valid national passport or other document satisfactorily establishing his identity and nationality;

(4) failure to satisfy the Immigration Officer, in the case of a person arriving in the United Kingdom or seeking entry through the Channel Tunnel with the intention of entering any other part of the common travel area, that he is acceptable to the immigration authorities there;

(5) failure, in the case of a visa national, to produce to the Immigration Officer a passport or other identity document endorsed with a valid and current United Kingdom entry clearance issued for the purpose for which entry is sought;

(7D) failure, without providing a reasonable explanation, to comply with a request made on behalf of the Entry Clearance Officer to attend for interview.

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Paragraph 320 - Common Reasons for Refusal IR

Grounds on which entry clearance should normally be refused:  (8) failure by a person arriving in the United Kingdom to furnish the Immigration Officer with such information as may be required for the purpose of deciding whether he requires leave to enter and, if so, whether and on what terms leave should be given; (8A) where the person seeking leave is outside the United Kingdom, failure by him to supply any information, documents, copy documents or medical report requested by an Immigration Officer;

 (10) production by the person seeking leave to enter the United Kingdom of a national passport or travel document issued by a territorial entity or authority which is not recognised by Her Majesty's Government as a state or is not dealt with as a government by them, or which does not accept valid United Kingdom passports for the purpose of its own immigration control; or a passport or travel document which does not comply with international passport practice;

(13) Failure, except by a person eligible for admission to the United Kingdom for settlement, to satisfy the Immigration Officer that he will be admitted to another country after a stay in the United Kingdom;

(20) Failure by a person seeking entry into the United Kingdom to comply with a requirement relating to the provision of physical data to which he is subject by regulations made under section 126 of the Nationality, Immigration and Asylum Act 2002.

(22) where one or more relevant NHS body has notified the Secretary of State that the person seeking entry or leave to enter has failed to pay a charge or charges with a total value of at least £1000 in accordance with the relevant NHS regulations on charges to overseas visitors.

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Limited Leave to Enter and Remain

Leave to enter may be for an indefinite or limited time period. Limited leave may be subject to conditions:

-          Restricting or prohibiting employment

-          Requiring the holder to maintain themselves and any dependants without recourse to public funds

-          Requiring the holder to register with the police

-          Of reporting to an immigration officer or the **

-          About residence (IA71 S3(1)(c))

Section 3C of the IA71 provides statutory extension of leave where an application for variation is made within the currency of existing leave. This prevents the injustice of a person being treated as an over stayer simply because their application has not been decided before their existing leave expired. Section 3C extends the existing leave, on the existing conditions if any, until the decision has been taken and any appeal finally decided.

Since April 2007, applicants for indefinite leave to remain must pass a test in Life in the UK and now also must meet a minimum language requirement. Settled status must be distinguished from right of abode, indefinite leave to remain and ordinary residence. IA71 S33(2)A defines a person who is settled as subject to no immigration restrictions on length of stay and ordinarily resident in the UK.

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Nationality, Immigration and Asylum Act 2002 S84

The grounds of appeal set out in the Nationality, Immigration and Asylum Act 2002 S84 are as follows:

(a)    not in accordance with immigration rules

(b)   breach of Race Relations Act 1976

(c)    a breach of s 6 of the HRA 1998

(d)   “that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the United Kingdom”

(e)    “that the decision is otherwise not in accordance with the law”

(f)    “that the person taking the decision should have exercised differently a discretion conferred by immigration rules”

(g)   removal would be a breach of the Geneva Convention or of the Human Rights Act 

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Immigration Act 2014, section 15:

      Section 82 NIAA 2002 to be confined to (a) claims for asylum under the Refugee Convention; (b) claims for ‘humanitarian protection’ under ECHR and EU Qualification Directive; (c) claims based on ECHR (esp family/ private life) – thus the only appeal rights left are those based on international law. Thus there (may soon) be no domestic-based appeals left

      Section 84 to be modified accordingly

      EU rights of appeal (now in 2006 Order) to be retained

      Exclusive focus on international obligations – all domestic classes/ grounds of appeal to be lost

      In particular, would not cater for challenges based on the Immigration Rules

Under Commencement Order, NOW applies only to (a) international students (and family members) and (b) persons facing deportation after significant criminal offences

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HRA S8 only allows the normal HR remedies to be given, and also under the 2002 act a Tribunal can only award its usual remedies.Thus it cannot award damages.

The courts have declined to evaluate the necessity for the social policy upon which the decisions of HR are based, as they see them more fit to the executive:

1.       Executive Decision makers are accountable to a democratic body 2.       The primary decision maker can evaluate the facts  3.       The allocation of a kind of decision to a particular decision maker is the will of parliament.

However through the HRA 1998, parliament has made the judiciary the guardians of justice (Huang v **HD [2005] para 55). 

In Huang and Kashmiri v **HD [2007] the HoL stated deference had no place in HR cases, and stated they would consider ** judgements and policies as well as their ideas on justice and the law when coming to a decision. It also set out that tribunals do have jurisdiction to decide the merits of a human rights appeal and are not bound only to apply judicial review principles to the initial home office decisions.

-          They also refuted the proposition that the rules themselves struck the balance between the public interest and the private right.

-          They rejected an argument that cases which can be shown to succeed on the basis of human rights would be exceptional (saying Lord Bingham in Razgard [2004] was not laying down a legal test).

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