I'm an immigration lawyer - AMA

[ImmigrationLawyer]

Not a TAAT, but inspired by a discussion on AIBU. I'm an immigration barrister with over 20 years experience. AMA!

I think the last one of these ended up with a lot of adverse comments on roll on Friday and the op being put in a difficult position with regard to advice given. You’re 20 years pqe though so it’s your own lookout..

Hah. I wasn't planning to give anybody any advice, for the avoidance of doubt! Just for anybody who was interested in what the law actually is on things like claiming asylum after arriving illegally, and I don't see that as being different to similar discussions which take place on Twitter etc.

No I agree, I think the other one was an over enthusiastic NQ

Hi, my question is:-
some of these folk are coming from countries that are not at war nor do they persecute their own citizens, such as Albania, Jordan etc. Why are these individuals not deported back to their home country, or are they? I know some destroy their documentation, but if the media know that a high percentage of these immigrants are Albanian then presumably so do the officials?

Thanks very much in advance.

how much truth is there in the argument that a large (but not all) claiming asylum in the uk (and indeed Europe) are young male economic migrants?

what percentage of illegal immigrants in the uk are over stayers?

what proportion of women v men do you deal with?

thanks!

Lots to answer there!

1. The Refugee Convention doesn't require that a person comes from a state of war. The test is whether the person has a "well founded fear of persecution" for reasons of race, religion, nationality, political opinion or membership of a particular social group.

Alternatively, a person can succeed by showing that even though they don't meet that test, they have a well founded fear of treatment contrary to Article 3 (torture or inhuman and degrading treatment).

In both cases the originating state must be either unwilling or unable to protect them.

Most of the Albanian claims (from men) I have ever dealt with have been related to blood feuds or trafficking. If someone fears being re-trafficked on return and being beaten or made an example of by the traffickers, then they may well succeed under Article 3, for example. Having said that, a lot of these claims are disbelieved or the tribunal takes the view that they can relocate safely within Albania or seek state protection. Which brings me to

2. why are they not deported. The smart-arse answer to this is that no failed asylum seeker is deported - deportation is for criminals, and it means get out of our country and never return, you're banned. Deportation often takes place straight from prison, and my experience has been that they are usually effective.

What should happen is called administrative removal, which is for those who don't have the right documents, but in theory at least, if they were to apply for the correct documentation, they could re-enter. (There are lots of rules about 'suitability' to return and periods of re-entry bans which I won't go into here unless someone wants me to.) Removals often don't happen. This is partly apathy on the part of the authorities: they first send a letter asking the person to leave. You can probably guess how effective that is. And it's partly human nature: by definition, a failed asylum seeker will either be someone who knew full well they didn't have a claim and made it anyway, in which case they're unlikely to obey a letter asking them to leave, or they will be someone who has a subjective (but not objective) fear of return and is too terrified to leave.

Failed asylum seekers can't be detained unless removal is imminent. This is practical as much as anything else: it is expensive for the state and absolutely miserable for the individual to keep someone locked up with no idea as to when they might finally get round to removing them, and it means that if they are detained, the state has to pull its finger out to actually get them on a plane. Quite often a person will be reporting at a reporting centre until they can be removed - but that might be years, and by that time their circumstances may have changed. A partner, a fiancee, maybe a child. New evidence of the asylum claim. And so they become eligible to make another application.

Lack of documentation isn't always a barrier to removal - there is a "re-documentation" process whereby a receiving state confirms that the person is a national of that country and they are removable even if they don't have a passport.

Hi!
Do illegal immigrants actually cost the country (moneywise)as much as the media would have us believe?
Thanks!

Why don't UK use dentist checks to find if illegal immigrants who claim to be children but look about 40 are children or not. Looking at a person teeth is not invasive.

1. With the caveat that I can only answer this based on my own experience - other lawyers may have a different perspective - both true and untrue at the same time. A person who is fleeing their country is likely, if they can, to aim to take refuge in a country where they won't end up leaving the frying pan of persecution only to end up in the fire of destitution. So to that extent there is an economic factor for some. But if you're asking whether the majority of asylum seekers are exclusively motivated by economic factors, I'd have to say that's not my experience at all, no.

2. There are no good statistics on how many illegal immigrants there are that I can find, much less how many of those were overstayers.

3. Vastly more men than women for asylum claims, and almost entirely men for criminal deportation appeals. In other areas such as family claims or elderly dependent parents, it's much more evenly balanced. On the asylum imbalance this is partly because of how the Refugee Convention is set up - the types of persecution women experience are more likely to be from non-state actors, and although this type of persecution is now recognised as capable of founding a refugee claim, it took a while to get there - and partly because globally women are less likely to have the money to leave or the social resources to do so. In a war situation it often makes sense for the man to leave as he is most likely to be actively targeted, and then to apply for "family reunion" for his wife and children to join him once he has his refugee status.

I am no statistician and of course it's impossible to count something you can't see. It is true that it is vastly expensive to detain and remove someone. A lot of media reports seem to focus on the "what ifs" - what if every illegal immigrant has twelve children all of whom need NHS care twice a year, sort of thing (exaggeration for deliberate effect). Equally, others will go miles in the other direction - what if they all become higher tax paying heart surgeons and have no children. The only thing I can say with any degree of confidence, again only from my own perspective, is that there is a lot of waste in the system. Nearly all those who are detained for example are then released - vast cost with no obvious benefit.

On immigration cost generally, I find the Migration Observatory in Oxford to be a helpful and generally reliable resource. migrationobservatory.ox.ac.uk/resources/briefings/the-fiscal-impact-of-immigration-in-the-uk/

Because it's unreliable to the point of futility.

Thank you very much, very interesting.

1. Are you aware of any fraud from other firms of

Immigration advisors / solicitors? Eg setting up a company and employing immigrants (no actual job, the immigrant pays a fee for this service and covers tax etc) so they have something to show to stay?

1. A man comes to UK under entrepreneur visa. Loses everything about a year away from claiming ILR and borrows tons. He manages to stick it out and stay until visa expires. His wife thinks ILR has been applied for but it hasn't as he has no money to do so but to scared to tell her that. They end up overstaying, she kicks him out and he leaves country. Wife and school age kids stay and apply for asylum saying if she returns his family have connections and will remove kids. Doesn't think asylum will be successful but will stretch time here so they can stay. Is that outcome likely or is there still danger they won't be able to stay?

How much time do you spend with your clients? (Is client the right word) How much do you get to known them, and is it emotionally difficult for you if things don't go as they hope?

Really? Several scientific studies show quite good accuracy especially in males. It could certainly flush out an under 18 from a 40 year old. www.sciencedirect.com/science/article/abs/pii/S0379073816304388?via%3Dihub

1. No, I'm not aware of any. I know there was a scandal some years ago with a firm which was organising sham marriages. If I found out that a firm was behaving in that way I would report them.

2. I'm really sorry - I can't attempt to advise on specific cases on here.

Is there much truth to the claim that a lot of the people trying to get here are highly skilled professional people - doctors, nurses, lawyers - that are fleeing persecution?

It vastly depends. The way that the system is set up means that the solicitor (or sometimes OISC adviser - someone who isn't a solicitor but is qualified just in immigration law) will be the one spending most time with the client. They're the ones who sit down with them and take a statement, read back over their interview with them, ask them for their comments on a refusal, organise any necessary experts and so on. They then prepare what is called the bundle - an indexed wodge of documents about the case - and send it to me. If the case is relatively straightforward I only meet the clients the day before, or sometimes the morning of, the hearing. (Technically speaking, my client is the solicitor and the applicant is the solicitor's client - we call the applicant the lay client to differentiate them from the professional client who is the solicitor.)

In a more complicated case, or if the solicitor is under huge amounts of pressure for time, I will be asked to help draft the statement and advise on questions for the expert and it may be many hours.

If we win, I never see the client again. If we win but the Home Office appeal, or we lose and we appeal, I'll see them again and likely have more conferences with them prior to the next hearing.

I try not to get emotionally invested in cases but there are some which stay with you.

have you had cases of undocumented british citizens (windrush or just someone without passport or other id?)

how do you go about proving if someone is genuine or not?

Yes, it would separate out a 14 year old from a 40 year old. But you're creating unnecessary work here, because a 40 year old wouldn't get as far as an age assessment in the first place.

The way it works is that an individual presents and claims to be a minor. Let's say our individual claims to be 16.5, born in April 2006.

If there is "clear and credible" evidence that they are under 18 - like a reliable passport - then their claimed date of birth is accepted. Off he goes to school with his April 2006 birth date.

If there isn't any such evidence, and if two immigration officers, one at a senior level, both agree that "their appearance very strongly suggests they are significantly over 18 years of age and there is little or no supporting evidence for their claimed age," they're treated as an adult without the need for any further assessment. So your 40 year old would fall in this category.

If their claimed age is not accepted BUT they don't appear "significantly" over 18 then a Merton compliant age assessment is conducted. Typically the HO will say that someone is 18 or 19, and they will say they're 16 or 17. This is the category for which an age assessment is done, and for this cohort, dental checks which are accurate only to +/- two years, won't be very helpful.

A Merton compliant assessment is conducted by social workers. They're not perfect either but they are generally quite thorough. If our claimed 16yo is assessed as 18, he is given an 01/01 date of birth, so he would be given 01/01/2004 and moved to adult accommodation.

The British Dental Association lobbied - against their own interests, as they'd be paid for providing the checks - against dental age checks. dentistry.co.uk/2022/03/10/government-defeated-on-dental-age-checks-for-asylum-seekers/

One interesting development is that the local authority can require an applicant to provide details from their Facebook account if they have one.

Yes I have. It really does bring home to you the immense power of the state compared to the individual.

On the second question - whether someone is genuine is known as credibility. And of course a lot of refugees won't have vast amounts of evidence, especially if they're a political dissident. You don't smuggle yourself out of a border carrying the proof of your treachery! Some will have no documentary evidence at all. So their claim is scrutinised and they look at whether the person's account is consistent with the background evidence and whether it is consistent in itself. If someone is not being honest then their account will usually unravel in interview or in court. The problem, as you can probably imagine, is that so will the account of an honest but traumatised individual. Immigration judges are given specialist training in the law and on credibility.

Yes, it's not uncommon. A theme I hear quite a bit is that although they knew the authorities didn't tolerate dissent, they were well-to-do people living a pretty blameless existence and they didn't think it would happen to them - until it did. I've had clients from very rich to very poor backgrounds, but most are somewhere in the middle.

Lawyers make terrible clients 😁

With all due respect, I don't know how you can say that there isn't a large economic factor. The Geneva Convention is quite clear that someone should claim asylum in the first safe country they arrive in. The fact that so many asylum seekers in the UK came from the EU clearly shows that their reasons for entering the UK (as opposed to claiming asylum in the EU) are for economic reasons.

As someone who is married to a refugee, and worked in immigration for 20 years, I can see things from both sides. I don't judge people for wanting a better life.

But pretending they aren't coming to the UK for economic reasons is ridiculous.

Interesting thread, thank you.

DH has seen some of this process from being called as a witness in asylum cases. One of his observations is that educated, articulate applicants are far more likely to be able to convince the Home Office & judge. Less educated applicants seem far more likely to have claims rejected and get stuck in the appeals process.

Is that something you see as well?

I agreed with the poster that it is true and is a large factor! But IME not the only one - the push is persecution or lack of safety, and then when someone looks at where they can go, they'll aim for somewhere that they believe will be economically viable. As we all would, I think, in similar circumstances.

The Convention doesn't require a person to claim in the first safe country they reach.