In recent years, the criminalization of migration has become part and parcel of a policy of migration management, irreversibly altering the relationship between migration and crime, and ultimately leading to the (partial) merging of migration and criminal justice systems, with significant consequences for not only the migrants themselves, but also the wider public, and their opinion on migration.
Both the criminal law and immigration law are, at their core, systems of inclusion and exclusion. Both are centred around the idea of population control, and of distinguishing certain individuals from others based on specific criteria. The criminal justice system distinguishes between law-abiding and law-breaking citizens, whilst immigration regulation distinguishes between residents and non-residents of a specific territory. The criminal law is designed to punish individuals who harm other individuals or the society at large. Immigration law, on the other hand, does not have such a concrete goal. Rather, it is a form of administrative law and management, a part of bureaucratic process. Immigration and crime used to be two separate fields, which despite their similarities had distinct rules, targets, and institutions. These distinctions are no longer as obvious as they once were.
In the UK, the Home Office routinely blurs the lines between crime and migration by emphasising human trafficking and smuggling (crimes which can be prosecuted in court) instead of focusing on the migrants who are being trafficked. It is not a coincidence that although the migrants in question are not criminals, they are always mentioned in the same breath as the criminal traffickers. It is a conflation by choice, which happens on at least three different levels: enforcement, substance and procedure.
Firstly, immigration enforcement has come to resemble criminal law enforcement. One example where this is clearly visible is the transformation and increase of border patrols. In recent years, borders have become the subject of tight control and surveillance, with specialised teams and organisations trained for patrolling and deal with any issues that may arise in the process. Additionally, immigration checks are increasingly intrusive: they happen before, during, and after entry into the territory. Pre-entry, before crossing a border, border patrols might check the migrant’s documents or reasons for moving. Once the migrant enters the territory, they are controlled through detection of entry and data sharing. After entry to the territory, the migrant is monitored to ensure compliance with the relevant rules.
In the EU, organisations like Frontex have been created to deal with all these different checks, and more broadly to promote and co-ordinate the management of the EU’s external borders. Frontex is not a part of law enforcement, but rather a specialised group which co-operates with member countries and Europol to facilitate migration administration, including border control and returns of migrants to their home country. Frontex’ increased presence at the EU’s external borders and their police-like approach is not unique, but rather part of a broader trend to render administrative bodies more police-like, and giving them numerous executive and quasi-judicial responsibilities. Most recently in the UK, Home Secretary Priti Patel announced that extra patrols will be activated on French beaches to prevents migrants from crossing the Channel.
Secondly, the substance of immigration law and criminal law increasingly overlaps. On the one hand, immigration status has been playing a role in criminal law systems for a long time, and conversely, criminality may affect one’s migration possibilities. Immigration laws have long tended to place restrictions on immigration in a reflective manner, for example restricting the entry of people who had previously committed offences. More recent developments, however, shift attention from past crimes to present behaviour, with many immigration violations themselves being defined as criminal offences, and many crimes in turn resulting in liability for deportation. Simultaneously, organisations like Frontex which are supposed to be in charge of migration management for the EU have become important players in the prevention, detection and suppression of cross-border crime, specifically relating to the smuggling or trafficking of people. This double role for Frontex has significant consequences for migrants, as they are simultaneously treated as suspects and victims of migration-related criminal activities, merging both fields.
Lastly, procedural aspects of prosecuting immigration violations have taken on many of the trademarks of criminal procedure. The most obvious example here is immigration detention, where the host country can administratively detain people, depriving them of their liberty often with no judicial oversight, simply for being in breach of immigration rules. Effectively, being stuck in immigration detention is not dissimilar from a prison sentence. In fact, some of the UK’s immigration detention centres even used to be prisons, so that not only the process of detention resembles a custodial sentence, but the physical practice of immigration detention is also assimilated to the criminal justice system. A parallel move is the use of criminal law sanctions to punish businesses that engage with individuals whose immigration status is uncertain or unauthorised. Again, in the UK for example, the threat to employers or landlords, should they hire people without immigration status, is one of the pinnacles of the hostile environment.
Human rights such as access to healthcare, accommodation, work and safe living are all impacted as a consequence of the increased overlap between criminal and immigration systems. The Council of Europe Commissioner for Human Rights has previously expressed that such methods of controlling international movements erodes human rights and weakens established international law principles. Yet, there is a steady advance of the discourse of ‘illegality’ in migration law and policy, with few indicators of change in the future.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
The UK is well-known for its sky-high immigration and visa fees. These fees, which have risen steeply up to 20-25% per year since the early 2000s, are big business for the Home Office. In fact, in 2018, the Home Office made over £500m from immigration fees alone. In addition to immigration and visa fees, individuals may be liable for the immigration health surcharge, which is currently priced at £400 per person per year, but set to rise to £624 this fall. On average, an applicant will have to spend over £2,000 to get leave to remain in the UK (rising to £2,500 in a matter of months with the planned surcharge increase), and that is excluding potential legal fees. In short, living in the UK on an immigrant visa is an expensive ordeal.
Unsurprisingly, not everyone who needs a visa can afford these fees. The courts have ruled that for human rights based applications, charging fees which the applicant cannot afford is unlawful. Thus, if you are facing a bill for visa fees that you cannot afford, and are considering borrowing money in order to be able to extend your stay in the UK, it may be worth considering an application for a fee waiver. Here, we go over how to go about it.
Unfortunately, the fee waiver is only available in limit circumstances. The first limitation is that only applicants with a human rights claim are eligible to apply for a fee waiver, and only where their human rights claim constitutes “a substantive basis of their application.” Examples of applications that fall into this category are applications for leave to remain under the five-year parent route, the ten-year partner, parent or private life route where the applicant claims that refusal of that application would breach their rights under Art. 8 of the ECHR, applications based on other ECHR rights, applications from victims of human trafficking or modern slavery, and some applications for leave to remain under the five-year partner route.
Additionally, applications for indefinite leave to remain are never eligible for fee waivers, no matter the basis on which they are being made (human rights or not), limiting the scope of fee waivers further. Applicants are advised to extend their temporary leave to remain until they can afford the indefinite leave to remain fee independently.
Fees waivers do not necessarily cover all fees. It is possible, for example, for an applicant to pay their own fee but apply for a fee waiver for one or more dependant. It is also possible to ask for a waiver of the Immigration Health Surcharge only, and not the main application fee, if the applicant can only afford one of the two.
If the application in question is eligible for a fee waiver, then applicants for fee waivers will have to show that one of the following applies to them:
- They cannot afford the fee
- They are destitute
- They are at risk of imminent destitution
- Their income is not sufficient to meet a child's particular and additional needs
- They are faced with exceptional financial circumstances
Whether you can or cannot afford the fee is a hard thing to prove, and the Home Office tend to only accept fee waivers based on affordability arguments in exceptional circumstances. Generally, officials are instructed to look at applications very restrictively and their point of departure seems to be that an applicant should be able to afford the fee. As such, they will also consider funds from friends and family, or non-liquid funds, when assessing if an applicant can afford the fee.
Applications are made through an online form. After an applicant submits their fee waiver application, the procedure is quite restrictive as well. If waiver is granted, the applicant will be issued with a Unique Reference Number to be used when applying for leave to remain online. The application for leave to remain must be submitted within ten working days of the date of the decision (careful, not the date that the decision is received, but the day it was made). The person must then make an appointment at a Service and Support Centre within 17 working days. If the applicant fails to make the application within these timescales, they may need to make a new fee waiver application. If their leave has expired in the meantime, they may become an overstayer.
If the waiver application is refused, the status of an applicant will depend on whether the applicant had valid leave at the time of the application. The guidance states that there are no service standards in fee waiver applications, meaning they do not provide a standard timeframe in which an application must be decided. However, caseworkers are urged to make reasonable efforts to decide applications requests promptly, especially those involving a child or an applicant who is street homeless, disabled or otherwise in vulnerable circumstances.
Those who have valid leave at the time of application will be told about the refusal and be given ten working days to submit additional evidence to challenge that decision. If the new evidence submitted satisfies the caseworker that they are in fact eligible for the waiver, their application will be accepted, and they will be given another ten working days to submit the application for leave to remain.
If the new evidence does not satisfy the caseworker that they are eligible for a fee waiver, however, their application will be refused, and they will be given ten working days to submit an application for leave to remain and pay the application fee independently. If they do not do so before their leave expires, they will become overstayers.
So, in summary – fee waiver applications are only made online, which poses its own challenges. It is very important that applications for a fee waiver are made before the expiry of leave, to maximise one’s chances. And finally, the requirements are quite restrictive but it is always worth a try. The fact that fee waivers are available is a good development in and of itself.
If you want to know more about how to apply for a fee waiver please do not hesitate to contact us here or send us a question on WhatsApp.