Immigration law in the UK is the area of law covering who can enter, work in and remain in the UK. The law on immigration regulates entering the country and exiting the country as well as how long a person can stay, freedom of movement and the right to participate in commerce or the government.
Reasons people migrate to another country generally stem from:
1. home countries have become dangerous
2. economic reasons
3. to be with family
Under UK immigration law, only authorised individuals can give immigration advice. Those organisations or individuals that give immigration advice must be registered with the Office of the Visa Services Commissioner (OISC) so that they can be regulated.
Solicitors do not require OISC regulation if they hold a current practising certificate and are working in a traditional law firm or an SRA regulated Alternative Business Structure ("ABS").
Law firms (particularly high street firms) will specialise in immigration on behalf of individuals and their families (so issues such as representing asylum seekers). Bigger firms (particularly city firms) will deal with 'business immigration' so that's acting on behalf of a businesses trying to secure immigration status for its employees.
What do immigration lawyers do?
Immigration lawyers will deal with all legal issues that arise from immigration and nationality such as asylum, human rights and how a business can manage the immigration status of its employees.
Immigration lawyers will interpret the law and help their clients analyse their rights, come up with strategies and help clients through the immigration process.
The work will involve assisting clients with asylum and human rights claims via applications made by family members and students. The purpose is to help clients understand the immigration process and help clients prepare paperwork to ensure there are no errors (as errors can cause significant years worth of delays!).
You can be an immigration 'adviser' or an immigration lawyer. As set out above, immigration lawyers (provided they are SRA regulated and hold a valid practising certificate) do not need to register with OISC but it is possible to be an immigration adviser (and not be a qualified lawyer) provided you have registered with OISC.
The government website sets out the different levels of advice immigration advisers can give (lawyers can give all of this advice and more!)... scroll down for more!
Immigration adviser - levels
Level 1 - advice and assistance
A level 1 adviser can help advise on simple cases such as getting a business visa extension when there are no issues with work and the client holds all necessary documents. Level 1 advice includes entry clearance, leave to enter, leave to remain, nationality and citizenship and EU and EEA law.
Level 2 - casework
Level 2 advisers can do level 1 work and accept more complicated cases. A level 2 adviser will be used by a client that has had past problems with immigration and want permission to remain in the UK. Level 2 advisers can:
dvise and assist with claims for asylum and human rights applications
reviewing visa application decisions
advise clients that have entered the UK illegally or stayed after their visa expired
advise and support in cases where clients are being removed or deported.
Level 3 - advocacy and representation
In addition to level 1 and level 2 advice, level 3 advisers can appear on a client's behalf at an immigration tribunal and help clients in court.
Who administers immigration in the UK?
UK Visas and Immigration (UKVI) is a division within the Home Office.
The UKVI administers visas, citizenship, asylum, sponsor applications and manages unsuccessful applications and appeals.
The UKVI was created in March 2013 and replaced the UK Border Agency (UKBA) which was an independent executive agency of the Home Office.
Who enforces immigration in the UK?
Enforcement duties are shared by two commands within the Home Office:
Immigration and Enforcement
Immigration and Enforcement works both domestically and overseas to prevent abuse, track immigration offenders and increase compliance with the UK's immigration laws.
The Border Force is a law enforcement command that is responsible for securing the UK's borders by implementing immigration and customs checks, patrolling the coastline and alerting the authorities about people of interest.
The cornerstone of immigration legislation in the UK is the Immigration Act 1971. This Act gives the Secretary of State the power to create and amend the 'Immigration Rules'.
The Immigration Rules are some of the most important pieces of legislation that make up the UK's immigration law. The Rules are regularly updated to take into account new law and statements of changes to the Rules.
The Rules set out:
different categories of people who may be granted leave
circumstances that give rise to mandatory grounds for refusal of an application
the limited rights of appeal and administrative review that are available for failed applications
removal and deportation procedures
The Rules are divided into different documents. The index page of the documents can be found here.
Changes to the Rules go through a 'negative procedure' in the House of Parliament. This means that changes to the Rules introduced by the Home Secretary are automatically in force on the stated date unless either House of Parliament disapprove/object to the changes.
Review and appeals
Decisions made in relation to immigration may be subject to review in the following ways:
Administrative Review - applicants whose UK immigration applications are refused are entitled to a one-time, free administrative review conducted by an Entry Clearance Manager.
Appeals - in limited cases, applicants have the right to appeal an application decision via the following courts:
The First-tier Tribunal (Immigration and Asylum Chamber) - this court will deal with asylum refusals, human rights claims, decisions made under EEA (European Economic Area) Regulations, protection status revocations and citizenships revocations.
Onward appeals - in certain cases the decisions from the First-tier Tribunal (Immigration and Asylum Chamber) can be appealed to the Upper Tribunal (Immigration and Asylum Chamber). If permitted, the latter court's decision can be appealed to the Court of Appeal (Civil Division). In rare cases, the Supreme Court can hear further appeals.
Judicial Review - if an individual believes that a public body (so the Home Office) has made an illegal, irrational or unfair decision, they can challenge it through judicial review. Judicial reviews are heard by the Upper Tribunal (Immigration and Asylum Chamber) and if successful, the case is returned to the public body to re-decide.
European Court of Human Rights (ECtHR) - this court will hear cases where parties allege that there has been a violation of their rights under the European Convention on Human Rights. ECtHR will hear the case once the applicant has exhausted domestic remedies.
The European Court of Justice - will hear cases where UK regulations or domestic policy are challenged as incompatible with EU law.