The proposed measures lock out certain people including children, present in the UK, from securing lawful re-entry, residence, and/or citizenship. They dovetail with the proposed duty on the Home Secretary to remove certain people from the UK.
The narrow exceptions or saving provisions come no-where near rescuing those affected from breaches of their fundamental rights.
In practice, the people affected will be locked out by legislation, which will be likely applied in a blanket fashion by Home Office decision-makers. Thereafter, the people affected will have to scramble to secure advice and representation and makes submissions to relieve themselves from being placed outside the law regulating lawful residence.
The result will be to create a large class of people, present in the UK, but without any hope of securing lawful status. In reality, there will be a permanent population of people present in the UK but with no access to procedures for regularising their status. This denizen sub-class, and their UK-born children, will be condemned to a life without the ability to live meaningful lives from the fruits of their own work and effort: unable to work, unable to rent, and with no route to integration and acceptance. It will be a life so arid as to be without basic dignity; it will be a life of degradation.
To whom do the measures apply?
The proposed measures apply would apply to all those people requiring permission to enter or remain in the UK, including asylum seekers, who on or after 7 March 2023: (i) arrive in the UK without any required prior permission, (ii) arrive without a required electronic travel authorisation (ETA) (iii) enter the UK without permission, (iii) enter using deception; or (iv) have been deported.
For all of the above, the proposed measures apply where they have not come directly to the UK from a country in which their life and liberty were threatened by reason of their race, religion, nationality, membership of a particular social group or political opinion. Further, in the proposed measures, they will not have come directly if they stopped in or passed through a country where their life or liberty were not threatened. This formulation suggests a focus on asylum seekers who seek Refugee Convention protection. However, the measures would apply to all people caught by the definitions.
The exclusion from UK entry and residence
All the people to whom the proposed measures apply (noting that the Home Secretary will be under a duty to remove them), as well their family members (spouses, children, etc.): (i) cannot be given permission to enter or remain in the UK (subject to narrow exceptions for unaccompanied children and victims of modern slavery or human trafficking), and (ii) cannot be given permission to travel to the UK by way of entry clearance or an electronic travel authorisation (ETA).
In respect of subsequent conferral of permission to travel or time-limited permission to enter or remain, there are narrow exceptions where the Home Secretary considers it necessary as the UK is bound by an international treaty such as the Human Rights Convention, or where she considers there are compelling circumstances for that person that render it appropriate to grant permission. As regards of conferral of indefinite leave, the discretion is limited to where the Home Secretary considers it necessary as the UK is bound by an international treaty such as the Human Rights Convention.
Immigration Rules will be required to provide that applications that do not engage with one of the above exceptions, will be treated as void and will not be considered.
The proposed measures ignore the existing safeguards to refuse individual applications under the General Grounds of Refusal on grounds of character, conduct, or association.
Exclusion from access to British nationality
The proposed measures exclude people from access to four classes of British nationality: British citizenship, British overseas territories citizenship, British Overseas citizenship, and British subject status. To understand what is proposed, it is necessary only to consider the proposals in respect of British citizenship.
The proposed measures apply to all the people to whom the proposals apply (noting that the Home Secretary will be under a duty to remove them), as well to children born in the UK on or after 7 March 2023 who have such a parent.
Those affected are excluded from a raft of existing provisions for those applying to register as British citizens by entitlement: including from registration provisions for children where one parent secures indefinite leave in the UK, for children who have been UK born and thereafter raised in the UK for 10 years, and for children born overseas to a British citizen parent (who has that status only by descent) who subsequently come to the UK with their parents as a family.
Those affected are also excluded from a raft of existing provisions for those applying to be British citizens at discretion, including from the provision to register any minor, and provisions for adults to naturalise on the basis of UK residence.
As regards UK-born children, as well as children arriving in the UK, such measures plainly contradict the requirement to consider a child’s ‘best interests’ as a primary obligation as required by the Borders, Citizenship, and Immigration Act 2009, s 55, and as underpinned by Article 3 of the 1989 UN Convention on the Rights of the Child.
Further, as regards adults as well as children, the proposed measures ignore the existing safeguards to refuse individual applications for citizenship either at discretion or on grounds of a failure to meet a ‘good character’ test.