An Open Letter to Alan Johnson – Home Secretary

Dear Right Honourable Alan Johnson

Congratulation on your recent appointment as the Home Secretary.  I wish you the best in the position.

Having just taken over the department, I am sure you have a lot to catch up on.  However, it is with a matter of urgency that I write to you.

As you might be aware there is a Borders, Citizenship and Immigration Bill currently making its way through the Parliament.  The Bill has already been debated and voted on in the Lords and had its second reading in the Commons on 2nd June, with the Committee meetings scheduled for June 9th and 11th, 2009

Specifically, I would like to bring to your attention Clause 39 of the Bill.

When the Bill was debated in the Lords, many members of the House fought passionately and successfully for the inclusion of Clause 39 in the Bill.  This Clause seeks to protect legal immigrants who are making their way towards Indefinite Leave to Remain (ILR) and eventual UK Citizenship.  Clause 39 allows the legal immigrants who are still on Limited Leave to Remain (LLR) to apply for ILR under today’s current requirements, if they apply for ILR within 12 months of the commencement of Part 2 of the Bill.

Phil Woolas, Immigration Minister, has tabled Amendment 30 in the Commons to remove Clause 39 from the Bill.  Mr. Woolas is insisting on applying the Bill retrospectively to immigrants who are in this country legally, working hard and contributing to the UK positively.

I am writing to request you to not push for passing Amendment 30 in the Commons.  To ask you to leave Clause 39 intact and protect the promises made to the legal immigrants who are contributing to the UK society.

This might be an appropriate place for me to explain why I am requesting your assistance in this matter.  I beg your indulgence and apologise for the long letter.  Over the last few years, there has been a lot going on in respect to retrospective changes to the immigration system

Before I start, please know that I am not against the Government’s right to change the immigration system.  Indeed, I strongly believe that the government not only has the right, but an obligation to make the immigration system relevant for the benefit of the country and her citizens.

What I am asking is that the changes not be applied to those who are already making their way through the system based on promises and guarantees made to them when they first entered the country.

When I first came to the UK, I was given by the Home Office a specific pathway towards the UK Citizenship goal.  However, over the last several years, the Home Office have continuously made changes to that pathway by moving the goalpost further and further way.  Causing uncertainty in my life, inability to apply for a better job (which requires travel and long term commitment) and stress from not knowing when I would be able to complete the journey I started all those years ago.

Many, including the Joint Committee on Human Rights, agree that retrospective changes are patently unfair and unjust.  And while such changes are routine in rogue nations, they have no place in just and civilised societies like the United Kingdom.  As you no doubt will agree that the laws in the civilised societies are made to protect the inhabitants against the whims of the powerful.

Forgive me for saying so, but unfortunately it seemed to me that the Home Office under the previous leadership flaunted its power as if it was the kingdom of a rogue nation.  The first (but not the only) instance of this occurred in April 2006 when the Home Office retroactively made changes to the immigration rules jeopardising lives and livelihood of tens of thousands.  The changes were made despite the promise Home Office made to the immigrants when it invited them to this country.  In essence, the Home Office broke its own promise.

A court case was filed against the retrospective action and in April 2008, Sir George Newman, presiding over the case ordered the Home Office to reverse its retrospective decision.  In handing down the judgement, Sir George Newman noted:

“In the circumstances, I am satisfied that the terms of the original scheme should be honoured and that there is no good reason why those already on the scheme shall not enjoy the benefits of it as originally offered to them. Good administration and straightforward dealing with the public require it.  Not to restrain the impact of the changes would, in my judgment, give rise to conspicuous unfairness and an abuse of power.”

And abuse of power it certainly was.  The Home Office ignored the court order and continued its retrospective application to immigrants.  The Home Office under the previous leadership without regards to fairness and justice and without respect for the court, continued to act like a rogue nation.

A second lawsuit was filed to force the Home Office to abide by the first court order.  Like the first, the Home Office lost the second lawsuit as well. Honourable Mrs. Justice Cox in handing down her verdict echoed Sir George Newman’s sentiment that the Home Office is acting unlawfully by applying changes retroactively.

While I will not debate the merits of the Bill, I will humbly ask you to not insist on passing Amendment 30 through the Commons for the Borders, Citizenship and Immigration Bill.  Please retain Clause 39 in the Bill.

I am confident that under your able leadership, the Home Office will return to doing the right things, within the boundaries of law, justice and fairness and not continue to act as a department of a rogue nation.

Sincerely yours,

An Immigrant

Lady Hanham – The Promise Keeper

True to her promise Lady Hanham put forward Amendment 56 on February 25th 2009 to the Border, Citizenship and Immigration Bill.

She specifically asked how the Government intends to address those who are already in the system and how they will be affected by the Bill.  She was quite clear that she wants the Government to explicitly state (in the bill) that changes will not be applied to visa holders retrospectively.  Lord Avebury even mentioned the HSMP Forum Ltd case and quoted Sir George Newman’s judgment against the Government:

“satisfied that the terms of the original scheme should be honoured and that there is no good reason why those already on the scheme shall not enjoy the benefits of it as originally offered to them”

As expected Lord Brett, representing the Government, gave a very unconvincing answer by waffling around the question.  Baroness Hanham, of course, saw the answer for what it was and insisted that Lord Brett provides a complete and through answer as quickly as possible.

“It is important that retrospection does not get caught up in this. The noble Lord, Lord Avebury, cited a case that I have before me but did not worry the Committee with. That case left the Government looking not very clever, although I gather that they have been clever enough to manage not to implement the judgment.”

Bravo to the Lady for pointing out the error (to state it politely) of the Government, but more importantly their childish behaviour in their continued refusal to do the right thing.

Lord Brett’s answer (or lack thereof), combined with the continued refusal of the Home Office to abide by the court order, makes me believe that the government again intends to apply the new legislation retrospectively.  The request to allow existing visa holders to apply under current legislation is not only reasonable, just and fair bit also required by law and the court order.  So why is the government insisting on not accepting the amendment.

Listening to Lord Brett’s gobbledygook answer, even Baroness Hamham in the end said:

“I am still not at all clear what is happening, but for today’s purposes I beg leave to withdraw the amendment.”

Thank you to the Baroness and Lord Avebury for calling the Government on this.

Thank you Baroness Hanham

Today I read the transcript of the second reading (on 11 February 2009) of the Border, Citizenship and Immigration Bill currently under consideration by the House of Lords

Discussion on the bill by Baroness Hanham was particularly interesting to me, especially the following paragraph:

“We will also test by amendment the effect on existing migrants of these changes. In the White Paper, The Path to Citizenship, the Government acknowledge the importance of understanding the effects of the proposals now before us on those who are already in the system and say that they will continue to examine this before making any changes. Will the Minister tell us the result of that examination, particularly as the Bill is now here and there seems to be no operative date for the start of this scheme and, thereby, the effect of that on those who still have their applications under consideration? Many migrants currently will be progressing their way along the road to citizenship and will be concerned as to whether they will end up in a game of snakes and ladders, by which they may fall down and have to start the process all over again.  The Government need to make it clear in the Bill that those who are already in the scheme will be able to enjoy its benefits as originally offered to them.“

Wow!  Immigrants who have been dealing with the dictatorial Home Office regime, it is a breath of fresh air to hear from a member of the Parliament who believes in doing the right thing.  In keeping ones obligations.  In upholding ones word and fulfilling ones honour.

Thank you Lady Hanham.  Words are not enough.  It is with great appreciation I bow to you in gratitude.  Your sense of justice in the face of Home Office’s disrespect for rules, regulations and law restores my faith in the British society.

I am still baffled how the Home Office has gotten away with such a brazen disregard to its own rules.  How can they blatantly ignore court orders as if they are the autocratic rulers without any consideration to the law of the land?  How can such a tyrannical organization survive in a democratic country?

Hope there are more Parliamentary members who believes in justice and fairness like Lady Hanham and less like Jacqui Smith.

Fair or Not

Dear Respected Member of the Parliament,

I am writing to you with regards to the upcoming Borders, Immigration and Citizenship Bill. You have probably considered the pros and cons and have contemplated either to support the bill or not. If you have considered supporting the bill, could I request that you also ask the Home Office not to implement the bill retroactively?

Please allow me to explain and excuse the lengthy letter as I would like to provide you with the background for my request.

As you know, prior to introducing the bill, the Home Office published “The Path to Citizenship” (please see web link below) document which explains the need for the bill. That document states that the United Kingdom as a nation of fair and law abiding citizens should make the immigration system fair by expecting immigrants to obey law, embrace British values and earn the right to citizenship.

As an immigrant who have been in the UK for several years, I agree that generally speaking British people are both fair and law abiding. Hence why the actions lately by the Home Office has been rather confusing to me.

As a brief background, I was given permission to move to the UK in 2005 under what was then called Highly Skilled Migration Program (HSMP) and is now a Tier 1 scheme.

My visa conditions (as the UK law required) allowed me to apply for unlimited leave to remain in the UK after completing 4 years and then apply for UK citizenship after an additional one year. However, the Home Office in 2006 changed the rules to allow for unlimited leave after 5 years and citizenship after 6 years.

I believe that the British government not only has the right, but indeed an obligation to adjust its laws and regulations for the benefit of the citizens. However, I find it perplexing that the changes were made retroactively to apply to all previous visa holders. The concept of fairness would lead one to expect honouring previous commitments and obligations, especially as the Home Office insists that immigrants continue to fulfil their obligations towards the conditions of the visa. It’s only fair to ask the same in return.

The retroactive application of the changes is even more puzzling in the light of the Home Office commitment made previously to the visa holders in October 2003 by the Immigration and Nationality Directorate guidance. The guidance included the following:

24.10 Q: I have already applied successfully under HSMP. How does the revised HSMP affect me?

A: Not at all. It is important to note that once you have entered under the programme you are in a category that has an avenue to settlement. Those who have already entered under HSMP will be allowed to stay and apply for settlement after four years qualifying residence regardless of these revisions to HSMP.”

However, as is evidenced by the subsequent actions, that Home Office did not honour its own rules.

While this action is unfair, I am even more baffled by the Home Office’s blatant refusal to obey an order by the court of law to respect its contract with the immigrants who were given visas prior to the changes. How can Home Office tout the need to obey laws, when the organisation itself unashamedly ignores these laws and court orders?

A law suit was filled against the Home Office on this issue by HSMP Forum Ltd. On 8th April 2008, Sir George Newman handed down the verdict in favour of the immigrants, requiring the Home Office to honour its commitment and observed:

“I find that the terms of the scheme, properly interpreted in context and read with the guidance and the rules, contain a clear representation, made by the defendant, that once a migrant had embarked on the scheme he would enjoy the benefits of the scheme according to the terms prevailing at the date he joined.”

The Judgment concluded:

“In the circumstances, I am satisfied that the terms of the original scheme should be honoured and that there is no good reason why those already on the scheme shall not enjoy the benefits of it as originally offered to them. Good administration and straightforward dealing with the public require it. Not to restrain the impact of the changes would, in my judgment, give rise to conspicuous unfairness and an abuse of power.”

Abuse of power indeed. As can be seen by the subsequent actions by the Home Office. They (the Home Office) half-heartedly implemented Sir George Newman’s verdict by allowing previously disallowed visa holders to reapply. However, Home Office is continuing to refuse applications by visa holders to apply for unlimited leave after 4 years and citizenship after 5 years.

As you can see, Home Office actions in this matter have not only been unfair, but also unlawful. An unjustified position taken by the Home Office that many prominent individuals, members of the parliament and organisations have spoken against.

So my request is to kindly take the above into consideration and should you vote to support the upcoming Borders, Immigration and Citizenship Bill, that you instruct the Home Office to not implement the legislation retroactively. To honour commitments made to previous visa holders and allow them to apply for settlement in the timescales originally promised.

Respectfully yours,

An D. Immigrant

P.S. Path to Citizenship:
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/consultations/closedconsultations/pathtocitizenship/