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Summary

The United Kingdom has extensive laws relating to immigration and citizenship.  It has recently moved to a points-based migration system to help retain talented migrants in the country.  Entry through many of the points-based system options provides a path to citizenship, provided a continuous residence period is met.  The UK Border Agency is responsible for policing the borders around the UK, and works to ensure that those entering the UK do so with proper authorization.  Illegal immigration remains a problem, despite the relatively robust border controls that exist and the hefty civil penalties that individuals who hire illegal immigrants face.  There has been criticism over the lack of exit controls, which makes it difficult to ascertain how many people remain in the country illegally.  There are a number of criminal offenses that specifically apply to individuals in the country illegally, including entering the country without due authorization, overstaying visas, breaching conditions attached to visas, and assisting illegal immigrants.  Illegal immigrants caught in the UK face deportation and/or criminal prosecution.  

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Introduction

The United Kingdom of Great Britain and Northern Ireland is the collective name of four countries: England, Wales, Scotland, and Northern Ireland.  The four separate countries were united under a single Parliament in London, known as the Parliament at Westminster, through a series of Acts of Union.  The United Kingdom recently has undergone a period of devolution with the creation of a Scottish Parliament, a Welsh Assembly, and a Northern Ireland Assembly (currently suspended) that can legislate in certain areas.  Citizenship and nationality[1] are not devolved areas, and thus remain the responsibility of the Parliament at Westminster.  The Secretary of State for the Home Department (a member of the British executive branch) and his department, commonly referred to as the Home Office, has responsibility for immigration and nationality issues.  

Since 1891 it has been established at common law that “no alien has any right to enter (what is now the United Kingdom) except by leave of the Crown.”[2]  The Aliens Restriction Act 1914,[3] the Aliens Restriction (Amending) Act 1919,[4] and Rules and Orders made under these Acts[5] gave the common law a statutory basis and formed the restrictions on immigration for much of the twentieth century.  The statutory regime governing immigration in the United Kingdom (UK) is now contained in the Immigration Act 1971[6] and the Immigration Rules[7] made under it.  The Immigration Rules are not legislation or regulations per se, but are published as House of Commons Papers and are considered to be part of the law.[8] 

The law requires that individuals who are not British or Commonwealth citizens with the right of abode in the UK, nor members of the European Economic Area, obtain leave to enter the UK from an immigration officer upon their arrival.[9]  

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Immigration Law

The law governing, and policy surrounding, immigration in the UK is highly complex.  The government has attempted to balance the needs of genuine visitors and the contributions they make to the economy of the UK against those that wish to enter for undesirable purposes.  The government has recently shifted back to a policy of managed migration “in the interests of the economy”[10] in which the skills and benefits that migrants bring to the country are emphasized, with particular support for skilled workers.[11]  

Points-Based Migration

Points-based immigration is a fairly recent development in the UK.  A pilot Highly Skilled Migrant Programme (HSMP) entered into force for a trial period of one year in 2002 and was formally incorporated into the immigration system of the UK in 2003 and later expanded upon.  This program, modeled on the Australian system, has been cited as “the most dramatic development in commercial immigration law for the past 30 years.”[12]  Prior to the introduction of the points-based system, there were over seventy different ways to enter the UK, with approximately fifty of these being for the purposes of work or study.[13]

The UK Border Agency is responsible for implementing the points-based system, which aims to provide a simplified immigration system and attract migrants who will contribute to the UK.  The system is structured so that greater emphasis is placed on employers who sponsor applicants to keep track of their employees and report any suspected abuses to the UK Border Agency.[14]  By tying these requirements to the employer, the UK aims to improve compliance with its immigration system and reduce abuse.[15] 

There are five different tiers, which are further broken down into different categories with varying requirements that must be met before an applicant is provided with a visa for entry: 

Tier 1: High-Value Migrants[16]

Tier 2: Skilled Workers[17]

Tier 3: Low-Skilled Workers

Tier 4: Students

Tier 5: Temporary Workers

Each of the tiers has different categories within it, which award points in different ways for different attributes of the applicant.  Distribution of the points is designed in a way to ensure that applicants who will benefit the UK are provided entry, with points “being awarded to reflect the migrant’s ability, experience and age—and, when appropriate, the level of need in the migrant’s chosen industry.”[18]  With the exclusion of Tier 1, applicants must have a job offer from, and be sponsored by, an employer who is licensed by the UK Border Agency.[19] 

In all categories for in-country applications, to be eligible the applicant must have entered the UK legally.[20]

Tier 1: High-Value Migrants

This tier is designed to contribute to the UK’s growth and productivity.[21]  It aims to ensure that the most highly skilled individuals and investors with substantial funds can qualify for entry and leave to remain in the UK.  

There are four categories within Tier 1:

  • Exceptional Talent, “for exceptionally talented individuals in the fields of science, humanities, engineering and the arts, who wish to work in the UK.  These individuals are those who are already internationally recognised at the highest level as world leaders in their particular field, or who have already demonstrated exceptional promise in the fields of science, humanities and engineering and are likely to become world leaders in their particular area.”[22]  Leave to remain is granted for up to three years.[23]  The initial application must be endorsed by either the Royal Society, the Arts Council England, the British Academy, or the Royal Academy of Engineering.[24]
  • General, for “highly skilled migrants who wish to work, or become self-employed, to extend their stay in the UK.”[25]  Leave to remain is granted for up to three years.[26]
  • Entrepreneur, for “for migrants who wish to establish, join or take over one or more businesses in the UK.”[27]  Leave to remain is granted for up to three years and four months.[28] 

  • Post-Study Worker, for “graduates who have been identified by Higher Education Institutions as having developed world class innovative ideas or entrepreneurial skills to extend their stay in the UK after graduation to establish one or more businesses in the UK.”  Leave to remain is granted for one year;[29] and
  • Investor, for “high net worth individuals making a substantial financial investment to the UK.”[30]  Leave to remain is granted for up to three years.[31]

Tier 1 has recently had a cap added to it and is restricted to 1,000 exceptional individuals, investors, and entrepreneurs.[32]

Permanent Residence

The law provides that highly skilled migrants may qualify for permanent residence in the UK (known as indefinite leave to remain).  The requirements are that the applicant must:

  • not be an illegal entrant;
  • have spent a continuous period of five years lawfully resident in the UK and not been absent for more than 180 days in one year; 
  • have at least seventy-five points; must have sufficient knowledge of the English language and life in the UK unless aged under eighteen or over sixty-five; and
  • not have breached immigration laws during his or her stay (overstays of twenty-eight days or less are disregarded for these purposes).[33]

Tier 2: Skilled Workers

This tier encompasses skilled workers that have a job offer in an area where there is a labor shortage in the UK.[34]  Areas of the labor market where there are shortages are determined by the Migration Advisory Committee.[35]  Skilled workers require a job offer from an employer within the UK that has been licensed by the UK Border Agency as a sponsor.[36]  Categories within this tier include:

  • Intracompany Transfers, for “multinational employers to transfer their existing employees from outside the EEA to their UK branch for training purposes or to fill a specific vacancy that cannot be filled by a British or EEA worker.”[37]  Within this category are four subcategories: short-term staff, long-term staff, graduate trainees, and skills transfers.[38]  Leave to remain varies according to which subcategory the employee is present in the UK under, and may be granted for up to three years and one month.
  • General Migrants; Minister of Religion; and Sportspersons.  This category is provided to “enable UK employers to recruit workers from outside the EEA to fill a particular vacancy that cannot be filled by a British or EEA worker.”[39]  Leave to remain may be granted for up to three years and one month.[40]

The category was recently further restricted and is now limited to 20,700 people per year, who must have a job offer for a position that requires a college degree.[41]  This cap excludes individuals that earn £150,000 (approximately US$240,000) per year and intracompany transfers.[42] 

Tier 2 workers are eligible for permanent residence on generally the same basis as those in Tier 1.  There are a number of additional criteria that individuals who are in the UK as Tier 2 intracompany transfers, general migrants, ministers of religion, and sportspersons must meet when applying for permanent residence.  One of the most notable additional criteria is a certificate in writing from the sponsoring employer that “(i) he still requires the applicant for the employment in question, and (ii) he is paid at or above the appropriate rate for the job as stated in the Codes of Practice in Appendix J.”[43]   

Tier 3: Low-Skilled Workers 

Tier 3 was designed to fill temporary low-skilled labor shortages.  However, this tier was never opened and is currently suspended.[44]  The UK closed this tier after it determined that its low-skilled labor needs were being met by workers from within the European Union, who do not need to obtain a visa to enter and work in the UK.[45]

Tier 5: Temporary Workers

Admission into the UK for temporary workers is provided for by Tier 5 of the points-based immigration system.  There are six categories of Tier 5 temporary workers:

  • Creative and Sporting,
  • Charity Workers,
  • Religious Workers,
  • Government Authorized Exchange Programs,
  • International Agreements, and
  • Youth Mobility Scheme.[46]

To apply  for a visa under almost all Tier 5 categories, the applicant must have a job offer from a sponsor licensed in the UK, have a valid Certificate of Sponsorship from this sponsor prior to applying for the visa, and score a certain number of points on an assessment.  To qualify as a Tier 5 temporary worker in most categories the applicant must score thirty points (for a Certificate of Sponsorship) and ten points by demonstrating they have maintenance funds of at least £900 (approximately US$1400) in a bank account.[47]  Certain workers may be exempt from demonstrating the maintenance funds if an “A rated” sponsor certifies that they will not claim public funds during their stay as a temporary worker.[48] 

A sponsor is a UK-based organization that has registered as a licensed sponsor that meets the requirements for the particular category of Tier 5.  Employers must assign prospective employees with a certificate of sponsorship, which is required before an application can be made, and provide assurance that the applicant is able and intends to work in a specific job. [49]

Accruing the requisite number of points alone does not guarantee a successful application, and the UK Border Agency bases its decision on the complete application and evidence provided to support it.[50]  Eligibility for entry as a Tier 5 temporary worker may be refused on “general grounds” even if the applicant is otherwise fully eligible.  These general grounds are extensive, and include a criminal history or a previous breach of the immigration rules.[51]

Visa Conditions

Individuals entering as temporary workers may engage in work that is supplementary to work that they have been granted leave to enter the country for, provided the job is for less than twenty hours per week, does not interfere with the hours for which the Certificate of Sponsorship was originally granted, and is “on the shortage occupation list in Appendix K[52] of the Immigration Rules or a job in the same sector and at the same level as the work for which the Certificate of Sponsorship was assigned.”[53]

In almost all Tier 5 categories workers may change jobs while in the UK as a Tier 5 worker.  The new job can be either with the same sponsor or a new one.  If a new sponsor is used, the worker must be provided with a new certificate of sponsorship, and the applicant must provide new evidence that he or she meets the maintenance requirement.  The rules do not permit Tier 5 workers to switch into a different tier or category and they may only stay the maximum time permitted in the Tier 5 category they originally selected.[54]  

If a temporary workers employment ends before the time allotted in their visa, the UK Border Agency will reduce the duration of stay to a maximum of sixty days.[55]  With the exception of workers in the international agreement category who have worked as private servants in a diplomatic household,[56] there is no method through which a person who is in the UK as a Tier 5 worker can apply for permanent residence or citizenship.[57]

Tier 5 Categories

The following is a brief summary of some specific provisions that apply to each of the Tier 5 categories:

1. Creative Workers and Sportspersons

To enter the UK as a sportsperson in the Tier 5 category, the individuals must be internationally established at the highest level and/or their employment must make a significant contribution to the development and running of high-level sports.  Additionally, the sponsor’s endorsement must confirm that the post could not be filled by a suitable settled worker in the UK.[58]  Sportspersons must be endorsed by a governing body of their sport that is recognized by the UK.  Requirements for coaches are less onerous and simply require that the individuals be suitably qualified to perform the job.

Sponsors of creative workers must follow a code of practice in the Immigration Rules, which requires taking the needs of the resident labor market into account.  If a job is not covered by a code of practice, the sponsor is required to show that a settled worker could not fill the post.[59]

Sportspersons may be in the country for a maximum of twelve months.  There are no ways to extend in the Tier 5 category past that time.[60]  Creative workers may receive entry clearance for up to twelve months, extendable for a maximum of twenty-four months, provided they remain with the same sponsor. 

2. Religious Workers

Religious workers may be admitted into the UK for a maximum stay of twenty-four months to preach and do both pastoral and nonpastoral work.[61]

3. Charity Workers

Charity workers may enter the UK for a maximum of twelve months to do unpaid voluntary work.  The can not receive paid employment and must intend to carry out work “directly related to the purpose of the sponsoring organisation.”[62]

4. Government Authorized Exchange Programs

The Government Authorized Exchange category is “for those coming to the United Kingdom through approved schemes that aim to share knowledge, experience and best practice through work placements, whilst experiencing the wider social and cultural setting of the United Kingdom.  This category cannot be used to fill job vacancies or provide a way to bring unskilled labour to the United Kingdom.”[63]  There are different programs provided for under this subcategory, including: work experience programs; research programs; and training programs.[64] 

Individuals in this category, with limited exceptions, may not be sponsored by individual employers or organizations as is required by most other Tier 5 categories.  Instead, an overarching government body is responsible for assigning Certificates of Sponsorship.[65]

Entry into the UK in this category is for a maximum period of twenty-four months.[66]

5. International Agreements

This category is for individuals that enter the UK under an international agreement.  This category includes private servants in diplomatic households and employees of overseas governments and international organizations.[67]  Various conditions apply to ensure that the workers are of age, engage in domestic work only, and will leave the UK once their permission to stay ends.[68]  Overseas governments and international organizations that act as sponsors must guarantee these conditions.[69]  Entry into the UK is for a maximum period of twenty-four months, with limited exceptions that include private servants in diplomatic households and employees of overseas governments.[70]

6. Youth Mobility Scheme

The youth mobility scheme is open to young people aged eighteen to thirty-one on the date of application.  Once in the country, individuals in this category may extend their stay for up to two years, but may not transfer into another Tier or category.[71]  Applicants under this category must give evidence that they have sufficient maintenance by showing a bank balance of at least £1800 (approximately US$3500) to support themselves during their stay. 

This program applies to residents of only certain countries, and there are restrictions on the number of places allotted to each country participating under the program.  For 2013, the limits are:

  • Australia—35,000 places
  • Canada—5,500 places
  • Japan—1,000 places
  • Monaco—1,000 places
  • New Zealand—10,000 places
  • Republic of Korea—1,000 places
  • Taiwan—1,000 places.[72]

Individuals entering under this category may not bring dependents, and applicants must not have any children under the age of eighteen living with them, or for whom they are financially responsible.[73] 

Sponsor Responsibilities

As noted above, to help tie in sponsoring employers to immigration enforcement, the sponsors have a number of duties.  They are responsible for keeping records of the applicant’s passport, immigration documents, and contact details.  They are obliged to report any person they sponsor to the UK Border Agency if

  • the worker does not show for work on his or her first day,
  • the worker is absent from work for more than ten working days without permission,
  • the job has ended for any reason,
  • the sponsorship stops for any reason, and
  • the worker has any change in circumstances, such as a change of job.[74] 

Notification requirements also arise if the sponsor believes a worker is breaching the conditions of his or her immigration status or if the sponsor believes the employee is engaging in criminal or terrorist activity.[75] 

Resident Labor Market Test

As the purpose of the majority of the points-based worker categories is to fill positions that cannot be filled by a UK resident, there is a resident labor market test that must be performed.  This is designed to ensure that there are no UK residents that are able to perform the job for which the employer sponsors a migrant worker.  This test requires employers to advertize positions through the Jobcentre Plus and nationally for four weeks before they are able to sponsor a migrant.  The UK Border Agency checks that employers have met this requirement.[76]

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Statistics of Applications Under the Points-Based System

The following table provides points-based system data for 2010–11, as reported by the UK National Audit Office:

Tier

Visa Application

Apply Within UK (%)

Apply Outside UK (%)

Total

Total % of Applications

Tier 1

General

55,018 (63%)

31,901 (37%)

86,919

48%

 

Post-Study

82,455 (89%)

10,379 (11%)

92,834

51%

 

Investor

337 (45%)

407 (55%)

744

0.4%

 

Entrepreneur

244 (42%)

336 (58%)

580

0.3%

 

Total

138,054 (76%)

43,023 (24%)

181,077

50%

Tier 2

General

26,734 (59%)

18,499 (41%)

18,499

40%

 

Intracompany
Transfer (ICT)

12,732 (20%)

51,358 (80%)

64,090

57%

 

Minister of Religion

1,132 (61%)

739 (39%)

1,871

2%

 

Sportsperson

181 (27%)

494 (73%)

675

1%

 

Total Tier 2

40,779 (36%)

71,090 (64%)

111,869

31%

Tier 5

Total Tier 5

454 (1%)

67,469 (99%)

67,923

19%

Total

 

179,287 (50%)

181,582 (50%)

360,869

 

Source: UK National Audit Office, Report by the Comptroller and Auditor General, Immigration: The Points-based System—Work Routes, 2010–11, H.C. 819, at 13, http://www.official-documents.gov.uk/ document/hc1011/hc08/0819/0819.pdf.

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Number of Immigrants

The estimate for the population of the UK as of 2011 reported that there are 63.2 million people resident in the UK.[77]  In 2011, estimates show that 566,000 immigrated to the UK with 351,000 emigrating from the UK.[78]  Twelve percent of the population is foreign born.[79]  The five most common countries that foreign-born UK residents come from are India, Poland, Pakistan, the Republic of Ireland, and Germany.[80]

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Visa Countries

Pre-entry clearance is required for individuals classed as “visa nationals.”  This clearance can be obtained from the British Embassy, Consulate, or Commission in the individual’s country of residence.  The Immigration Rules specify that nationals or citizens from a long list of developing countries and countries of a lesser economic status must obtain a visa to enter the UK.[81]

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Non-visa Countries and the European Economic Area

Citizens of countries that are not listed above, British Nationals, British Subjects, and British Protected Persons are considered to be non-visa nationals.  Citizens of these countries are required to obtain leave to enter the UK (a visa); however, a non-visa national may obtain this visa at the port of entry if his or her visit is for less than six months and the purpose of the visit not for employment or study on a course that requires a work placement.[82] 

Nationals of Member States of the European Economic Area do not require a visa to enter the UK.  Current Member States are all twenty-seven member countries of the European Union plus Iceland, Liechtenstein, and Norway.

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Citizenship Pathways

Legislation regarding citizenship in the United Kingdom is highly complex and is contained primarily in the British Nationality Act 1981, as amended.[83]  Individuals born in the United Kingdom, or in a former colony of the United Kingdom, on or after January 1, 1983, and whose parents are either British citizens or settled in the United Kingdom, are entitled to British citizenship (double jus soli). Individuals can also obtain British citizenship through adoption by British citizens or persons settled in the United Kingdom, descent, or naturalization and registration.[84]  Citizenship is not granted automatically to individuals who have legally resided in the United Kingdom for any period of time, nor is it granted automatically to individuals who marry British citizens or babies born in the UK.  Such individuals must meet specific criteria and apply for citizenship.

Birth and Descent

Citizenship is not automatically granted to babies born in the UK.  British citizenship is only granted to babies if their birth father or mother is a British citizen or settled in the UK.  A person whose parents are not British citizens may register as a British citizen if, during the period her or she is a minor, either parent become a British citizen or an application is made to register the minor as a British citizen.[85]  Individuals born outside the UK are considered to be British citizens if, at the time of birth, either their mother or father is a British citizen otherwise than by descent.[86]

Naturalization and Residence

Citizenship through naturalization is not an entitlement or right.  Certain legal requirements must be met and the Home Secretary must “see fit” to grant citizenship.[87]  Specifically, the law requires that applicants for citizenship must

  • be over the age of eighteen years;
  • be able to communicate effectively in either English, or Welsh or Scottish Gaelic;
  • have sufficient knowledge of life in the UK;[88]
  • be of sound mind;
  • intend to continue to reside in the UK “or to continue in Crown service, the service of an international organisation of which the UK is a member, or the service of a company or association established in the UK”;[89]
  • be of good character, demonstrated by observing the laws of the UK and fulfilling the duties and obligations of being a resident in the UK, such as by paying taxes;[90]
  • be legally resident in the United Kingdom for a period of five years;
  • be free of immigration time restrictions during the last twelve months of the five-year period; and
  • not have been absent from the UK for a total period of more than 450 days, with no more than ninety of these days occurring in the twelve months preceding the application.[91]

If the individual is applying on the basis of marriage to a British citizen, the period of residency is three years and the applicant must not have been absent from the UK for more than 270 days in these three years.[92]  

If all these requirements are met, the applicant must then take a formal oath and pledge of allegiance before citizenship will be granted.[93]  This was in response to concerns that the common sense of “Britishness” was diminishing and that a clearer idea of the rights and responsibilities of British citizenship could be established through a formal statement of allegiance.[94]

Language Requirements

Citizenship applicants must be able to communicate effectively in either English, or Welsh or Scottish Gaelic.  Applicants can demonstrate this in one of two ways.  The first is simply showing that they meet the English for Speakers of Other Languages (ESOL) Entry 3 standard of English.[95]  There is no need to submit a form to the Home Office demonstrating this capability, as the citizenship test that applicants for naturalization are required to pass is designed to require the ability to use English language at the ESOL Entry 3 standard and thus “applicants who pass the test will automatically have shown that they have the required level of ability in English.”[96]  In the first year from the introduction of citizenship tests, applications for citizenship dropped by 8%.[97]  

Family Reunification

Individuals who obtain permanent leave to remain or citizenship are entitled to bring their immediate family, classed as their spouse and children under the age of eighteen.[98]  Parents and grandparents of settled persons or citizens are permitted to join their children or grandchildren in the United Kingdom but only if they are over the age of sixty-five and have no other relatives to support them in their home country.[99]  Other close relatives, such as aunts, uncles, brothers, and sisters may be eligible “if living alone outside the United Kingdom in the most exceptional compassionate circumstance.”[100]

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Border Security

Border controls are achieved through technical measures, such as those used to detect illegal immigrants in freight trucks passing through the channel tunnel,[101] intelligence-led (risk-based) checks at ports of entry,[102] passport inspections, and the requirement that all visitors obtain leave to enter for any period of stay in the UK.  The UK Border Agency has a large number of officers based out of Calais and Belgium and has attributed to this staffing the prevention of over 100,000 individuals from illegally entering the UK since 2004.[103]  All visa applicants are fingerprinted and their information checked against databases to help prevent those with a known criminal background from entering the UK.  These procedures also help identify fraudulent visa applications.[104]

Legislation governing border controls provides for wide-ranging measures and is  contained in a number of acts that address asylum and immigration.  Leave to enter can be refused[105] on certain grounds, including when the person seeking entry is subject to a deportation order; the Secretary of State has personally directed that the exclusion of a person is conducive to the public good;[106] a previous leave to enter or remain was obtained by deception; the person has been convicted of an offense that would be punishable in the UK by twelve months or more imprisonment; or the Immigration Officer has information available to him that the person’s exclusion from the UK is conducive to the public good, “for example in the light of the character, conduct or associations of the person seeking leave to enter it is undesirable to give him leave to enter.”[107]

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Illegal Immigration

Illegal immigration is a continuing problem in the UK, and is exacerbated by the lack of exit controls that make verifying whether individuals have overstayed their permitted time extremely difficult.  The government has declined to disclose the top three countries for which illegal immigrants originate from, but has stated that the majority come to the UK through Turkey and then into Greece.[108] 

The Immigration Act provides for a number of criminal offenses that apply to illegal immigrants.  They are extensive and include the offenses of illegally entering the country; entering the country by deception; overstaying visas; and violating the terms of a visa, such as by working if this is not authorized.[109]  Assisting unlawful entry into the UK is also an offense.[110]  The UK has two methods of dealing with illegal immigrants: they face administrative action by the UK Border Agency, or criminal proceedings and deportation.[111]  Such individuals are barred from entering the UK again.[112]

The National Audit Office notes that under the points-based system the UK Border Agency has not sufficiently followed up with workers to ensure that they leave the UK once their leave to remain expires.  There are estimates that up to 181,000 migrants of all visa types are still in the UK after the expiration of their leave to remain.[113]  This has been attributed in part to the lack of exit checks, making it almost impossible to identify individuals who overstay, and to IT systems that are unable to identify individuals who need to renew their visas. [114] 

The government has established an E-borders program, which requires carriers to provide certain information regarding the passengers and crew they carry.  Carriers are under a mandatory duty to provide travel document information for crew and passengers, as well as the name of the carrier and its departure and arrival points when requested.  The information must only be given when requested, and at the point when no other embarkation for other passengers or crew is allowed.[115]  Carriers are also required to provide additional data, such as passenger information that includes the name, address, telephone numbers, ticketing information, and travel itinerary of the passengers.[116]  A Code of Practice provides that data collected by the UK Border Agency may be shared with other law enforcement agencies in the UK.[117]  One of the controversial issues of this system is extending it to ports and railway stations within the EU as a number of Member States view sharing passenger and crew information as violating the European Union’s free movement laws.[118]

In addition to preventing individuals from illegally entering the country, all UK employers are under a legal obligation to verify that their employees are not subject to immigration controls that prevent them from working in the UK.  It is an offense, punishable by a fine of up to £10,000 (approximately US$16,000) per illegal worker, to violate these provisions.[119]  This law is actively enforced and in “2010–11, the UK Border Agency (UKBA) collected £6.91 million [approximately US$11 million] in illegal working civil penalties from those employers who were found to be employing illegal workers.”[120]  In the period July to September 2012 alone, 305 penalties were issued to UK employers for hiring people who were not authorized to work, amounting to fines of £2.7 million (approximately US$4.2 million), and 481 illegal workers were discovered.[121] 

The issue of compliance with immigration rules has been further compounded by the faltering economy.  The UK has recently cut 20 percent of the UK Border Agency’s budget, and there have been over 5,200 job losses from this Agency.  Despite this big drop in funding and staffing, the government claims that the work of the UK Border Agency has not been undermined and that the use of better technology and intelligence are resulting in higher numbers of illegal immigrants being caught at the border.[122]

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Clare Feikert-Ahalt
Senior Foreign Law Specialist
March 2013

[1] “Nationality” refers to the status of those individuals who are British citizens, British subjects with the right of abode in the United Kingdom and thus outside the scope of the United Kingdom’s immigration control, and citizens of British Overseas Territories.  In this report, the term “citizenship” is used to include nationality.  These terms are commonly interchanged.  Nationality has been defined as a person’s international identity that demonstrates they belong to a state, as evidenced by a passport.  Citizenship has been considered to be more “a matter of law determined by the facts of a person’s date and place of birth, those of their parents and the application of the provisions of the relevant legislation,” and concerns with the rights, duties, and opportunities that a person has within a state, such as voting rights, military service, and access to healthcare.  Laurie Fransman, Fransman’s British Nationality Law 12 (2d ed. 1998).

[2] Musgrove v. Chun Teeong Toy, [1891] A.C. 272, followed in Schmidt v. Home Office, [1969] 2 Ch. 149.

[3] Aliens Restriction Act, 1914, 4 & 5 Geo. 5, c. 12.  

[4] Aliens Restriction (Amendment) Act, 1919, c. 92, http://www.legislation.gov.uk/ukpga/Geo5/9-10/92/contents.

[5] Aliens Order, (1920) Stat R. & O. 448 (as amended).

[7] Immigration Rules, UK Border Agency, http://www.ukba.homeoffice.gov.uk/policyandlaw/immigration law/immigrationrules/ (last visited Mar. 11, 2013); R v. Chief Immigration Officer, Heathrow Airport, ex. p. Salamat Bibi, [1976] 3 All ER 843 (CA), per Roskill, L.J.: “these rules are [not administrative practice and are] just as much delegated legislation as any other form of rule making activity . . . [and] to my mind, are just as much a part of the law of England as the 1971 Act itself.”

[8] Id.

[9] Immigration Act 1971, c. 77 § 3, http://www.legislation.gov.uk/ukpga/1971/77/section/3.  

[10] Home Office, Controlling Our Borders: Making Migration Work in Britain, Five Year Strategy for Asylum and Immigration, 2005, Cm. 6472, http://www.archive2.official-documents.co.uk/document/cm 64/6472/6472.pdf.

[11] Id.

[12] Macdonald’s Immigration Law and Practice ¶ 10.77 (Ian McDonald et al. eds., 6th ed. 2003). 

[13] Home Office, A Points-Based System: Making Migration Work for Britain, 2005–6, Cm. 6741, http://www.official-documents.gov.uk/document/cm67/6741/6741.pdf.

[14] National Audit Office, Report by the Comptroller and Auditor General, H.C. 819, 2010–2011, ¶ 2, http://www.official-documents.gov.uk/document/hc1011/hc08/0819/0819.pdf.

[15] Id. at 4.

[16] Immigration Rules, supra note 7, ¶ 245B.  See also Skilled Workers, UK Border Agency, http://www.ukba.homeoffice.gov.uk/visas-immigration/working/tier2/ (last visited Feb. 25, 2013).  

[17] High-Value Migrants, UK Border Agency, http://www.ukba.homeoffice.gov.uk/visas-immigration/working/tier1/ (last visited Feb. 25, 2013).  

[18] Quick Guide to the Points-Based System, UK Border Agency, http://www.ukba.homeoffice.gov.uk/business-sponsors/points/quick-guide-pbs/ (last visited Feb. 25, 2013).

[19] Id.

[20] See, e.g., Immigration Rules, supra note 7, ¶¶ 245CA & 245BF.

[21] Macdonald’s Immigration Law and Practice, supra note 12, ¶ 10.2.

[22] Immigration Rules, supra note 7, ¶ 245B.

[23] Id. ¶ 245BC.

[24] Tier 1 (Exceptional Talent), UK Border Agency, http://www.ukba.homeoffice.gov.uk/visas-immigration/working/tier1/exceptional-talent/ (last visited Feb. 26, 2013).

[25] Immigration Rules, supra note 7, ¶ 245C.

[26] Id. ¶ 245CB.

[27] Id. ¶ 245D.

[28] Id. ¶ 245DC.

[29] Id. ¶ 245F.

[30] Id. ¶ 245E.

[31] Id. ¶ 245EE.

[32] National Audit Office, supra note 14, ¶ 1.16.

[33] Immigration Rules, supra note 7, ¶ 245BF.

[34] Macdonald’s Immigration Law and Practice, supra note 12, ¶ 10.6.

[35] National Audit Office, supra note 14, ¶ 2.

[36] Id. ¶ 1.

[37] Immigration Rules, supra note 7, ¶ 245G.

[38] Id. ¶ 245GC.

[39] Id. ¶ 245H.

[40] Id. ¶ 245HC.

[41] Annual Tier 2 Limit Announcement, UK Border Agency, Apr. 2012, http://www.ukba.homeoffice.gov.uk/site content/newsarticles/2012/april/18-Tier2-limit.

[42] National Audit Office, supra note 14, ¶ 1.16.

[43] Immigration Rules, supra note 7, ¶ 245GF(e).

[45] Id.

[46] Temporary Workers, Home Office UK Border Agency http://www.ukba.homeoffice.gov.uk/visas-immigration/working/tier5/.

[47] Home Office UK Border Agency, Tier 5 (Temporary Worker) of the Points-Based System - Policy Guidance, Dec. 2012, ¶ 135, http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier5temporaryworker guidan1.pdf

[48] Immigration Rules, supra note 7, ¶ 105 & App. C, ¶ 8.

[49] Home Office UK Border Agency, supra note 47, ¶ 44. 

[50] Id. ¶ 13. 

[52] Immigration Rules, supra note 7, App. K.  There are a wide range of jobs that are experiencing shortages and are listed in this appendix, including civil engineers, biological scientists, software professionals, medical practitioners, social workers, nurses, dancers, and artists.

[53] Home Office, supra note 47, ¶ 158.

[54] Id. ¶ 164-5.

[55] Id. ¶ 85.

[56] Immigration Rules, supra note 7, ¶ 245ZS.

[57] Tier 5 (Temporary Worker—Government Authorised Exchange), Home Office: UK Border Agencywww.ukba.homeoffice.gov.uk/visas-immigration/working/tier5/government-authorised-exchange/settlement/.

[58] Home Office, supra note 47, ¶ 101.

[59] Id. ¶ 104.

[60] Id. ¶ 58–62.

[61] Id. ¶ 88.

[62] Id. ¶ 119.

[63] Id. ¶ 125.

[64] Id.

[65] Id. ¶ 127.

[66] Id. ¶ 88.

[67] Id. ¶ 130.

[68] Id. ¶ 132.

[69] Id. ¶ 131.

[70] Id. ¶ 88.

[71] Id. ¶ 35.

[73] Home Office, supra note 47, ¶ 35.

[74] Id. ¶ 60.

[75] Id.

[76] National Audit Office, supra note 14, ¶ 3.18.

[77] UK Population Estimate Revealed, Office for National Statistics, Dec. 2012, www.ons.gov.uk/ons/rel/ mro/news-release/uk
-population-estimate-revealed/uk-population-estimate-revealed-.html
.

[78] Long-Term International Migration, 2011, Office for National Statistics, Nov. 2012, http://www.ons.gov. uk/ons/rel/migration1/long-term-international-migration/2011/index.html.

[81] Immigration Rules, supra note 7, App. 1, ¶ 1.

[82] Information for Non-Visa Nationals, Home Office, UK Border Agency, http://www.ukba.homeoffice.gov.uk/ visas-immigration/general-info/non-visa-nationals/ (last visited Mar. 5, 2013).

[83] British Nationality Act 1981, c. 61, http://www.legislation.gov.uk/ukpga/1981/61.  In this report, the term “citizenship” is used to include nationality.  For definitions of “nationality” and “citizenship,” which are commonly used interchangeably, see Fransman, supra note 1. 

[84] British Nationality Act 1981, c. 61, §§ 3–5, http://www.legislation.gov.uk/ukpga/1981/61.

[85] Id. c. 61, § 1.

[86] Id. § 2.

[87] Standard Requirements for Naturalisation, Home Office, UK Border Agency, www.ukba.homeoffice. gov.uk/britishcitizenship/eligibility/naturalisation/standardrequirements/ (last visited Mar. 12, 2013).

[88] Id.

[89] Id.

[90] Good Character Requirement, Home Office, UK Border Agency http://www.ukba.homeoffice.gov.uk/ britishcitizenship/eligibility/goodcharacter/ (last visited Mar. 11, 2013).

[91] British Nationality Act 1981, c. 61, sch. 1, http://www.legislation.gov.uk/ukpga/1981/61

[92] Id.

[93] Id.  The oath and pledge of allegiance are contained in schedule 5 of the British Nationality Act 1981, c. 61.

[94] Home Office, Community Cohesion: A Report of the Independent Review Team, 2002, ¶ 5.1.16.

[95] Knowledge of Language and Life in the UK, Home Office, UK Border Agency, http://www.ukba.home office.gov.uk/visas-immigration/settlement/knowledge-language-life/ (last visited Mar. 6, 2013).

[96] Id.

[97] UK Citizenship Applications Fall, BBC News (May 17 2005), http://news.bbc.co.uk/2/hi/uk_news/4555663.stm.

[98] Immigration Rules, supra note 7, pt. 8. 

[99] Id.

[100] Id. ¶ 317(i)(f). 

[102] Id. 

[103] Id.

[104] Id.

[105] The legislative basis for refusing leave to enter is contained in section 3(1)(a) of the Immigration Act 1971, c. 77, http://www.legislation.gov.uk/ukpga/1971/77/contents.

[106] R (Farrakhan) v. Secretary of State for the Home Department, [2002] 2 WLR 481, available at http://www.1cor.com/1315/?form_1155.replyids=496.  With regard to the Secretary of State’s discretion in making such an order the courts have found that the Secretary of State, rather than the courts, is more suited to make such a determination as he is “better placed to reach an informed decision about the likely consequences of admitting” a person into the UK; is democratically accountable for his decision; and the decision typically involves a wide range of consultation that the Secretary of State has at his disposal.  In 2000, the Secretary of State directed that a citizen from the United States of America be excluded from the UK on the grounds that it would not be conducive to the public good, as the presence of the person, a spiritual leader of Islam, might give rise to public disorder.  In this instance, the courts upheld the Secretary of State’s order as being proportionate interference with the freedom of individual expression.

[107] Immigration Rules, supra note 7, pt. 9.

[109] Immigration Act 1971, c. 77, pt. III, § 24(1)(i), (ii), http://www.legislation.gov.uk/ukpga/1971/77/contents

[110] Id. pt. III.

[111] Id. pt. III, § 24(1)(i)–(ii). 

[112] News Release, Home Office, UK Border Agency, Illegal Immigrants Removed from Lincolnshire, (Aug. 12, 2012), http://www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/2012/august/15-illegal-lincolnshire.  

[113] National Audit Office, supra note 14, ¶ 17.

[114] Id. ¶ 3.9.

[115] UK Border Agency, E-Borders Overview of Legislation, at 3, http://www.ukba.homeoffice.gov.uk/ sitecontent/documents/travel-customs/ebordersoverview.  See also The Immigration and Police (Passenger, Crew and Service Information) Order 2008, SI 2008/5, http://www.opsi.gov.uk/si/si2008/uksi_20080005_en_1.

[116] Id.

[117] The Immigration, Asylum and Nationality Act 2006 (Data Sharing of Practice) Order 2008, SI 2008/8, http://www.opsi.gov.uk/si/si2008/uksi_20080008_en_1.

[118] Brian Wheeler, The Truth Behind UK Migration Figures, BBC News (Oct. 12, 2012), www.bbc.co.uk/news/uk-politics-19646459.

[119] Penalties for Employing Illegal Workers, Gov.uk, https://www.gov.uk/penalties-for-employing-illegal-workers (last visited Mar. 11, 2013).

[120] 20 Feb. 2012, Hansard, H.C. (6th ser.) 512W, http://www.parliamentonline.co.uk/hansard/hocw/120 220w0002.htm.

[121] Illegal Working Civil Penalties – 1 July to 30 September 2012, Home Office, UK Border Agency, http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/listemployerspenalties/illegal-working-civil-pen?view=Binary (last visited Mar. 12, 2013).

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Last Updated: 02/28/2014