A letter from Manchester

On any given day of the year Manchester’s streets buzz endlessly with chatter in the Punjabi language which – like headscarves, Qur’āns, shalwar kameez, mosques, miles of takeaways and foreigners – is a local trademark. Things, however, are not quite what they seem and there is a lot more to Manchester than meets the eye.

Several of the city’s large food businesses are, for example, owned by people without visas!

South Asian immigration, especially from Pakistan, is massive in Manchester and while many “foreign” people are genuinely British or legally present in the UK, a substantial proportion of the city’s population has immigration problems. “An ever growing number of people either overstay their visas or enter illegally …” – says barrister Kashif Iqbal (a local resident whose family settled in Manchester as early as 1958 and were among Britain’s earliest economic migrants in the postcolonial era) – “… and the only solution is to reconcile immigration policies with the reality of the situation.” (Just to clarify Mr Iqbal’s statement, the Migration Observatory explains that “the majority of irregular migrants in the UK are … visa over-stayers … rather than illegal entrants.”)

Manchester, or the Lancashire region – which singlehandedly produced 85 per cent of the world’s textiles in the mid-nineteenth century – now suffers from illegal or “irregular” immigration the scale of which is perhaps matched only by the area’s historic economic achievements. The government would, thus, be acting smartly by devising a policy which approached the subject of illegal immigration proportionately. The government’s present policy of removing every overstayer and illegal entrant, when it can, is not only very bureaucratic, it is also lethargic, dangerous and expensive. Imperatively, the process of removal can also be at variance with the UK’s domestic and international legal obligations.

The belief that UK can benefit from a “crackdown” on illegal immigration represents a misunderstanding of who does the hard labour in the UK’s economy: it is the foreigners who do the menial work. The other side of the coin is that the desire to deport every illegal immigrant is a logistical achievement which, despite impressive removal statistics, the British state does not possess the capacity to perform. Furthermore, in any event, the UKBA is reducing its staff which is inconsistent with catching all the illegal immigrants and removing them.

The only practical solution, therefore, is an amnesty for those who contribute positively to society and whose only offence is to have overstayed or have entered illegally. Such a policy was once the keystone of the Liberal Democrat Manifesto 2010 (see at pp. 75-76). The precise words of the pledge made by Nick Clegg, now the deputy prime minister and the President of the Privy Council were:

We will … [p]rioritise deportation efforts on criminals, people-traffickers and other high-priority cases. We will let law-abiding families earn citizenship.
We will allow people who have been in Britain without the correct papers for ten years, but speak English, have a clean record and want to live here long-term to earn their citizenship. This route to citizenship will not apply to people arriving after 2010.

Likewise, the Mayor of London Boris Johnson had also distanced his politics from the rank and file of mainstream Conservative xenophobia by questioning whether more ought to be done to regularise illegal immigrants – because deporting them was nearly impossible and would cost billions of pounds and 34 years to complete.

Both Nick Clegg and Boris Johnson considered it more important to give people a chance to make their case to the authorities because such cooperation between the authorities and illegal immigrants would be good for raising taxes. Nick Clegg had explained this as getting people “out of the hands of criminal gangs and into the hands of the tax man”.

In 2006 proponents of an amnesty valued it at saving the UK taxpayer £6 billion, whereas the opponents argued that the net costs to the taxpayer would be £1 billion. It really doesn’t matter which end of the stick one grabs because having some form of amnesty for illegal immigrants is a more achievable and proportionate policy objective than the low tolerance removal approach followed by successive governments.

There are many people in the UK who would readily qualify under the terms set by the deputy prime minister and, in my view, apart from waiving the English language requirement where reasonable, the only thing he needs to amend in his pledge is to shorten the length of residence from 10 years to 4-6 years. (Purely because Chapter 53 of the Enforcement and Removal Instructions already advises the UKBA to take this step where the length of residence has accrued due to the agency’s delay – dithering on immigration is precisely what Nick Clegg has accused Labour and the Tories of having done and hence 4-6 years should suffice for all illegals who qualify, subject of course to any requirements of “criminality”.)

Many, such as David Cameron, alternatively argue that human rights law lies at the heart of the UK’s problems whatever these might stem from. From Cameron’s perspective, human rights logically bear the brunt because their operation not only legally benefits wrongdoers such as illegal immigrants, but such rights also help murderers (although Chindamo benefitted from EU law; see Aidan O’Neill QC’s post here on the Telegraph’s incorrect reporting), rapists, paedophiles, terrorists, looters and the like.

Imperatively, on the terrorism point, Lord Phillips (the President of the UK Supreme Court) himself has very gallantly declared that “respect for human rights is a key weapon in the ideological battle” against terrorism because the ECHR applies to “everyone”; see barrister Adam Wagner’s article in the Guardian.

As the tenth anniversary of 9/11 fuels further animosity towards foreigners, is Lord Phillips’ considered opinion on human rights law not more valuable than David Cameron’s opportunistic banter on the subject?

And if human rights are important in fighting the ideological battle against terrorism, then surely the same human rights are equally important in achieving a sustainable and just immigration policy. (In any event immigration and terrorism often, to the government’s frustration, go hand-in-hand.)

However, lamentably – under the aegis of British leadership – in direct contradiction to what Lord Phillips had said, the latest attack on human rights is the proposal of a “democratic override” which will allow ministers of the High Contracting Parties to the ECHR to undermine the Strasbourg Court’s powers by striking down its rulings.

In 2009 the London School of Economics estimated estimated that there were between 524,000 and 947,000 illegal immigrants in the UK; the research suggested a “midpoint” figure of 725,000. If an estimate of 725,000 people is adopted, then – assuming that there are 200 people on board each flight – to remove everyone to their “home” country (assuming that the authorities can figure where that is) will require some 3,625 flights.

To say the very least, such enforcement action is environmentally unfriendly and it also defies the the Conservatives’ election pledge of a “zero waste” economy and undermines the quality of life of the “local” people.

Moreover, catching illegal immigrants in large numbers, detaining them and ultimately removing them will also require vast resources and manpower. The idea is also hugely compromised by UK’s obligations under the law and it is not, therefore, at all surprising that politicians such as David Cameron should lobby to dilute or change the laws which afford legal rights to the unwanted.

The above notwithstanding, the paradox for leaders such as Mr Cameron is that the more political milage they try to extract from beating the drums of war on the immigration question in relation to non-EU sources of migration, the actual number of people coming to the UK from EU countries such as Poland just becomes higher. The fact that net migration to the UK rose by 21 per cent in 2010 despite Mr Cameron’s promise to bring it down to the “tens of thousands” level in the 1990s is making him seem “foolish and desperate”; see Richard Seymour’s article in the Guardian who, inter alia, accuses Mr Cameron’s policies “of smugly insular weltanschauung that passes for Britishness”.

Given that people are constantly arriving in the UK and since many people just overstay their visas, without exit stamps the UK is forced to rely ever more on other countries to endorse entries and exits properly: in al-Qaida’s age of terrorism, would it not be right for the UK to rely on itself rather than leaving this responsibility to Islamabad or New Delhi? But no says the government which instead prefers to spend money on trying to find loopholes in “controversial” new EU employment laws.

The truth is that since most illegal immigrants would like to be considered under an amnesty, if worth nothing else such a policy will be quite vital in determining exactly how many people are in the UK illegally because the present system, in contrast, offers no incentives to people who attempt to register with the authorities as illegal entrants or overstayers.

Manchester is just an example of a British city where illegal immigration is rampant. And, since at times decades pass by without any enforcement action being taken, cases no longer remain simple as people, through marriage, cohabitation, or otherwise, develop bonds and relationships with others in the community. At least in theory, cases exhibiting strong local bonds create impediments for the authorities in removing people and an amnesty resonates with the UK’s existing laws which ought not be be meddled with by tunnel visioned politicians for short-term leverage.

Alternatively, under its present leadership, the UK could go for an Alabama style law which creates unprecedented offences in relation to illegal immigration. In many ways, the protection of the ECHR notwithstanding, the UK is almost there. Just as the temporarily stayed Alabama law makes it an offence to rent property to an illegal immigrant, the UK already has punitive provisions in place for Tier 4 sponsors who are forbidden to sponsor any student whose visa has already expired.

Since sponsoring an overstayer results in the loss of HTS (or highly trusted sponsor) status, in order to please the government educational establishments such as the LSE – which has the distinction of having accepted £1.5 million in funding from the venal Saif al-Islam Gaddafi – now even require language centre students to prove that they have a valid visa for the entire duration of their language course. The problem here is that a school such as the LSE shouldn’t really impose such a requirement on students in their language centre courses because enrolment on such courses falls outside the LSE’s Tier 4 (General) sponsorship duties and the measure is aimed at appeasing Mr Cameron’s opportunistic and plutocratic politics.

In her Barnard’s Inn Lecture Lady Hale of Richmond explained that with respect to the ECHR “there is no room for the more extreme versions of the American doctrine of originalism” because the “living instrument” concept differs from the “Aladdin’s cave” of the “always speaking statute”. Equally, in her lecture, Lady Hale linked the ECtHR’s “living instrument” analogy to Lord Sankey’s “as a living tree capable of growth and expansion within its natural limits” declaration in Edwards v Attorney-General of Canada (a Privy Council case about whether women were “persons” eligible to sit in the Canadian Senate) because such an approach was “helpful” in understanding a state’s obligations under the ECHR.

If, from the perspective of the immigration amnesty, Lady Hale’s argument is taken to its logical conclusion then – in the event that the economic rationale espoused by Nick Clegg and Boris Johnson proves unpersuasive – illegal immigrants who can prove that they have acquired rights under the ECHR should be granted visas because it would be for the greater good and in the interests of a democratic society.

Critics of a British amnesty for illegal immigrants draw inferences from the experiences of Spain, Italy and America to argue that an amnesty could only result in further problems for the UK. The dilemma for politicians, David Cameron included, in subscribing to such a view is that it imposes an American, Italian or Spanish conclusion on the potential benefits of an immigration amnesty in the UK.

Instead the British, whose empire once controlled one-fifth of the world’s territory and governed one-quarter of its inhabitants, should reach their own conclusions on an immigration amnesty and Nick Clegg – who has recently voiced his support for human rights – should try to talk some sense into the prime minister.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in ECHR, Immigration Amnesty, Manchester, Muslims, Pakistan, Politics, Removals, Settlement, UKSC and tagged , , , , , , , . Bookmark the permalink.

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