Living in limbo
Against a backdrop of government rhetoric, controversial policy making and a rapidly changing body of law, Dan Bindman speaks to CILEX members about the challenges and rewards of working in immigration law
CILEX members practising immigration law have their work cut out. Law in this area is constantly changing and subject to transitory government policies brought about by political pressures and international crises.
In recent years, the conflicts in Syria, Afghanistan and Ukraine have had a direct effect on immigration practice. The position of the UK government on each case has been very different, inspiring a range of legal problems.
The current government is intent on implementing its pet scheme of sending some asylum-seekers to Rwanda in southern Africa. This extreme measure appears to reflect the belief that the policy will yield political dividends, regardless of the obvious human and financial cost involved in flying people 4,000 miles, not to mention the carbon footprint.
The scheme has hallmarks of the ‘hostile environment’ that preceded the so-called Windrush scandal, in which many people who came to Britain from Commonwealth countries prior to 1973 faced deportation because, for whatever reason, they had not acquired British citizenship.
It is now scarcely disputed that Windrush had its origins in racism. An unpublished government report written by a Home Office historian, leaked to a newspaper in May 2022, described how UK immigration and citizenship legislation between 1950 and 1981 “was designed at least in part to reduce the number of black and brown people who were permitted to live and work [here]”.
Complex work
Since 1999, CILEX has been a designated professional body able to authorise immigration practitioners and Chartered Legal Executives can apply to specialise in this area.
“The rewards can be considerable: lawyers’ work will have a major impact on the lives of their clients and their families”
CILEX practitioners explain that cases can be complex, simultaneously involving expertise in family, human rights and immigration law. As a consequence of their situation, clients may also have difficulties with housing and even the criminal law.
This makes the work challenging but with rarely a dull moment. The rewards can be considerable: lawyers’ work will have a major impact on the lives of their clients and their families, but there is also the risk of becoming deflated when decisions go against them, as inevitably they will from time to time, however good the practitioner.
It can also be frustrating work, fraught with bureaucratic delays, which leave clients in long-term limbo, anxious and repeatedly contacting their lawyer for updates to which there is no positive answer.
Fleeing conflict
The war in Ukraine has led to a significant amount of work for immigration lawyers. Three schemes enable refugees to enter the country: those with existing connections to the UK, such as relatives, those with sponsors, and those already here who need extensions to their visas.
Chartered Legal Executive Nataliya Burns, who has worked in the field for more than two decades and is currently at central London solicitors Montecristo, is a native Ukrainian and Russian speaker. She has had clients applying for all three schemes and points out that, as refugees who have fled their home country looking for safety, their situation is quite different from those who have refugee status under the Geneva Convention and are claiming asylum.
“There’s not really a risk that they will be physically removed, and in the majority of applications they come to the UK after the application has been accepted,” she says.
Sariah Bashir, a Chartered Legal Executive at BHB Law in Coventry, says the practice of immigration law has become harder in the 15 years she has been doing it: “Immigration has always had its difficulties, with the situation with Syria, Libya [and so on]. It’s become a lot tougher over time.
“What with the pandemic, the Afghan crisis and Brexit, it all came together. Also, changes in legal aid and other factors have made it difficult for applicants to access services where they're not in a financial position to do so.”
Ms Bashir, who works mainly on private immigration cases, not asylum, speaks five languages altogether, including Urdu, Punjabi and Hindi, which she says often means she can speak to clients in their mother tongue.
Political expediency
One of the challenges of immigration law that has a large impact on clients is its responsiveness to political expediency, such as tabloid newspaper campaigns. This means the issue of human rights is never far away. A Chartered Legal Executive whose work brings her into the thick of international policy and whose cases touch on immigration and UK resettlement, is Erin Alcock, a lawyer in the human rights team at civil liberties law firm Leigh Day in London.
Ms Alcock’s CV includes a successful challenge to the immigration exemption of the Data Protection Act, challenges brought by Palestinian families made refugees by the Syrian crisis, and assisting Afghan interpreters who worked for the British Army and applied for resettlement in the UK after Britain and the US pulled out of Afghanistan.
She expresses fears about current immigration policy: “I have a lot of clients from civil society, NGOs [non-governmental organisations] and campaign groups. There's just such a high level of concern, particularly with Home Office decision-making at the moment.
“Concerns range from the provision of basic human rights to people who are subjected to [government decisions], whether that be just simple things like the right to a fair hearing, not being unlawfully detained, to bigger-picture things such as compliance with the Refugee Convention, or questions about lawful or unlawful processing of personal data.”
She expects fall-out from the Rwanda policy. “I envisage that there will probably be challenges to it. I know a lot of people are concerned. Most of my NGO clients have mentioned it in passing in conversations as being a horrendous policy. I don't think anyone agrees that it's the right thing to do, or really a good idea.”
Immigration law expertise has become the bedrock of at least two firms set up by enterprising barristers-turned-Chartered Legal Executives.
Joshi Advocates, a CILEX-regulated firm set up by Chartered Legal Executive Khyati Joshi in 2015, is based in London. Ms Joshi was called to the Bar in 2011 but spent the next six years seeking a pupillage without success. During her search, she worked as a paralegal, before qualifying with CILEX and creating her practice.
The Hull firm was set up by triple-qualified Frantz Gregory. Unusually, after being called to the Bar, he qualified as a CILEX Litigator and Advocate and then did the legal practice course, which he explains he did out of intellectual curiosity. Mr Gregory, who is 49 and also has a PhD in computer science, was born in Georgetown, Guyana, in South America. His firm is regulated by the Bar Standards Board.
Delays and bureaucracy
All the above Chartered Legal Executives complain bitterly about Home Office delays, which to an extent the department blames on Covid-19. There have always been delays, but now it can take months longer than before to process applications for nationality, visas, refugee status – particularly asylum claims – and so on. This is despite Home Office business now being largely paperless, which in general has had the effect of greatly reducing bureaucracy.
Delays can have major implications for applicants. Matters were especially slow during lockdown, says Ms Bashir. “The pandemic has been extremely difficult because embassies and the Home Office had limited capacity. So that meant applications that were being submitted were put on hold until appointments could be scheduled.”
Since then, backlogs have become worse, she adds. “When we assist with visa renewals, they’re now waiting a significant period. It was initially eight weeks and now they could be waiting up to 12 months or more.”
Natalie Smith, a Chartered Legal Executive who is part of a small team of immigration advisers at central London homelessness charity the Cardinal Hume Centre, observes that delays can be catastrophic for clients. One of her clients who is waiting for his leave to remain in the UK to be renewed, faces destitution. Ms Smith anticipates it could take the Home Office 11 months to make a decision and as a last resort she would have to contact his MP.
“With that case, what I'll do is probably contact his MP straight away. Usually I'll wait for about six months. If my client becomes destitute, then he'll be found intentionally homeless.”
Meanwhile, Mr Gregory says he has an ongoing appeal which has been going on for two or three months now and the Home Office actually breached an order to disclose and carry out a meaningful assessment of the case.
“It may be that they are overwhelmed with the number of cases, but the fact still remains that our clients rely on visas to work. We have cases where we are still pending decisions after six months. In one case last year we had to wait 11 or 12 months before the decision,” he recounts.
These delays cause great anxiety and it is the lawyers who bear the brunt: “Clients then come back to us in repeated phone calls, asking when the decisions will be made.
“We've done our part, submitted the application in time to the decision-maker or the Home Office. But we are the first point of contact, so we are the ones who get phone calls from clients who are not happy. Often they are vulnerable people.”
Making a difference
Despite these frustrations, none have any regrets about choosing immigration as a specialism. It is both challenging and rewarding, they say.
“It's very interesting. There are different types of immigration, ranging from asylum and human rights applications to private business immigration, so it's very diverse. You meet people from different countries,” says Ms Burns.
Ms Bashir agrees, adding: “Everyone always asks you if you enjoy it. I certainly do. It’s making a difference in a person's life whether or not they can remain in this country and that has a knock-on effect on their right to work, whether they can bring their family here, or bring themselves to [reach] some form of security.
“Immigration law moves at a phenomenal pace. The volume of information which needs to be parsed is potentially huge”
“A lot of the clients I come across are desperate to be able to work; if they can work, they can then provide for their families, contribute to the state and make a difference.”
Mr Gregory says that, when cases go well, the rewards are immense. “One of the best parts of the job is actually giving the client good news, especially if it's been a protracted case; telling them ‘we've got your visa, you can stay in the country, your children can stay with you, you can now get settled, find a job and carry on living your normal life’. This is a reason why we do it.”
The work is not easy. Immigration law moves at a phenomenal pace. The volume of information which needs to be parsed is potentially huge. Just in the last few months, practitioners might have been expected to, for instance, update themselves on Home Office schemes for Ukrainians, new right-to-work guidance for employers involving the phasing out of biometric residence cards and permits and frontier work permits, UK visa application fees, changes to the Private Life (Leave to Remain) Rules, meeting the ‘English language for study’ requirements, new immigration rules on public funds and children, certificates of sponsorship, and new guidance on evidence from overseas in the First-tier Tribunal, among much more.
The stakes can be high. Ms Joshi explains: “It's not like civil litigation where the law [changes slowly]. You have to be proactive in knowing the law… [making] sure you're up to date. Because if you're not, you're risking the client's liberty, not just their money, and you're compromising their chances of settlement in the long term, which they rely on for buying properties or raising their children.”
She adds: “If you think that last year you did an application, and the law remains the same for this year, you'd be wrong.”
Mr Gregory agrees that the work is challenging yet rewarding. “I would always recommend CILEX professionals to go into immigration, because it’s an area where you’re never bored.
Says Ms Bashir: “You’re always learning something new. Immigration law changes so frequently, you have to stay up-to-date.
“It's important, because you may advise a client on something the day before and by the following day it may have changed, that that's how rapid it is. So you have to always double, triple check your advice before you [give it].”
For this reason, immigration practitioners consider the CILEX route to qualification to have been especially beneficial to them, in that they were able to practise daily while qualifying. Nataliya Burns is representative of the majority who ended up working as a Chartered Legal Executives in this field, in so far as her career involved incremental progress towards the title.
She started off in 2001 as an interpreter and a legal representative, before becoming a caseworker and eventually qualifying as a Chartered Legal Executive in 2018. “CILEX was naturally the best route for me. It’s a really good and interesting area of law and I’m glad it’s become more popular now than when I started,” she says.