Workshop 1
Introduction to Immigration Control &
Processes and Procedures to making applications
This workshop offers a general introduction to key topics in immigration law. It will cover the main sources of UK immigration law. You will also practice your knowledge about important legal concepts, such as the Right of Abode and different types of visas, the kinds of permission people may be granted to stay in a country, and the ways this permission is issued—whether in electronic or physical form.
1. Sources of Immigration Law in the UK
UK immigration law derives from several key sources:
- Primary Legislation: Acts of Parliament, notably the Immigration Act 1971, which established the framework for immigration control and the right of abode.
- Secondary Legislation: The Immigration Rules, formulated under the authority of the Immigration Act 1971, provide detailed provisions on various aspects of immigration, including visas, leave to remain, and deportation.
- Common Law: Judicial decisions that interpret and apply immigration laws, influencing their application and development. (Do note that IAA Level 1 Competence is not normally based on common law sources of immigration law in the UK.)
- International Treaties: Agreements such as the European Convention on Human Rights, which impact immigration policies and practices.
2. Exclusionary Principle
The Exclusionary Principle in UK immigration law refers to the legal concept that individuals who do not have the right to reside in the UK may be excluded from entering or remaining in the country. This principle is rooted in s.1 Immigration Act 1971, which governs the entry and stay of non-citizens. It ensures that only those who meet specific legal criteria, such as holding a valid visa or having the right of abode, are permitted to enter or remain in the UK.
It reads as follows:
(1) All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person.
3. Right of Abode
The Right of Abode grants individuals the unrestricted right to enter and live in the UK without immigration control. British citizens automatically possess this right. Certain Commonwealth citizens who had the right of abode before 1 January 1983 and have not ceased to be Commonwealth citizens retain this status. This right is enshrined in Section 2(1) of the Immigration Act 1971 and cannot be conferred by the Home Secretary; it must be proven through documentation such as a UK passport or a Certificate of Entitlement.
4. Immigration Rules (Secondary Legislation Process & Amendment Process)
The Immigration Rules are a form of secondary legislation, meaning they are made by an individual or body under powers granted by an Act of Parliament. They provide detailed provisions on immigration matters, such as the criteria for each application type.
In the UK, immigration rules are amended through a process outlined in the Immigration Act 1971. The Home Secretary can make changes by laying a ‘Statement of Changes in Immigration Rules’ before Parliament. These changes typically come into effect on a date specified in the statement, often at least 21 days after being laid, though this is not a strict requirement.
Once a Statement of Changes is laid, Parliament has 40 days to disapprove it. This is done through a resolution in either the House of Commons or the House of Lords. If no resolution is passed within this period, the changes automatically come into effect. Parliament cannot amend the changes; it can only approve or disapprove them.
5. Visa & Non-Visa Nationals
- Visa Nationals: Individuals from countries that always require a visa to enter the UK, even if they are coming to visit the UK for 6 months or less.
- Non-Visa Nationals: Individuals from countries that do not require a visa for short visits (usually up to six months). However, they may still need a visa for longer stays or specific purposes. Visa nationals do normally need to have an ETA prior to arriving to the UK.
The distinction affects the entry requirements and procedures for individuals from different countries.
6. Types of Permissions Issued
- EC (Entry Clearance): Permission granted to an individual outside the UK to enter the country.
- LTE (Limited Leave to Enter): Temporary permission to enter the UK for a specific period and purpose.
- LTR (Limited Leave to Remain): Temporary permission to stay in the UK, subject to conditions and time limits.
- ILE (Indefinite Leave to Enter): Permanent permission to enter the UK without time restrictions.
- ILR (Indefinite Leave to Remain): Permanent permission to stay in the UK without time restrictions. Holders of ILR can live and work in the UK indefinitely.
7. 3C Leave
Section 3C leave refers to the automatic extension of an individual’s leave to remain while their application for further leave is pending. This provision ensures that an individual’s lawful status is preserved during the decision-making process. However, it does not grant new rights; the individual retains the same conditions as their previous leave.
7. Paper, Card, Electronic Permissions
Immigration permissions in the UK can be documented in various forms:
- Paper Documents: Traditional paper-based evidence of immigration status. These are no longer issued. However, during your immigration practice you may come across immigration documents that had been issued this way. Examples could include Indefinite Leave to Remain documents, or EEA Residence Cards, etc.
- Passport Vignettes: Visitor visas, Entry Clearance permissions, Right of Abode and ILRs used to be produced as vignettes which were inserted into the successful applicants’ passports. These are being phased out by the Home Office.
- Biometric Residence Permits (BRPs)/ Biometric Residence Cards (BRCs): Plastic cards containing biometric information, issued to non-citizens as evidence of their immigration status. These are no longer issued by the Home Office either as it is moving onto issuing exclusively electronic records of UK visas. What is more, due to difficulties in moving all UK visa holders onto the electronic system of eVisas, BRPs and BRCs are still accepted by the Home Office as evidence of immigration status.
- Electronic Records: Digital records accessible through online systems, reflecting an individual’s immigration status. These are now called eVisas. The Home Office is moving onto an exclusively online system of visas. Landlords, mortgage providers, airlines etc are able to check individuals’ UK immigration status visa online checking systems.
9. Application Processes Under the Rules
Applications for immigration permissions are made under the Immigration Rules and typically involve:
- Submission of Forms: Completing the appropriate application forms for the desired immigration status. The relevant Immigration Rules will specify the correct type of application form to be used for each type of application. Do note, that using the incorrect type of application form is likely to lead to refusal of an application.
- Provision of Evidence: Uploading necessary documents online to support the application. Sometimes the relevant Immigration Rules do set out the documentation to be submitted to support an application. Moreover, a completed application form will have a Supporting Documents list. Nevertheless, IAA Level 1 Advisors must possess the ability to be able to read the relevant Immigration Rules and advise on the documents needed with taking the personal circumstances of their clients into account.
- Biometric Information: Providing biometric data, such as fingerprints and photographs, as part of the application process. This can be provided, depending on the application type via the IDV app, or by booking a biometric appointment (whether to take place abroad or in-country) following the submission of an application.
- Decision: The Home Office reviews the application and makes a determination.
Do note, that whilst most applications to be submitted to the Home Office are now exclusively to be submitted online, however, some application types, such as late applications under the EU Settlement Scheme, are to be submitted using paper application forms and to be supported by documentary evidence to be posted to the relevant branch of the Home Office.
