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Boris Johnson is the new Prime Minister and leader of the Conservative Party.  Whilst campaigning to become the United Kingdom’s next Prime Minister, he announced his support for the idea of an Amnesty for illegal migrants.  Mr Johnson suggested that there are around 500,000 people in London alone who have lived there for a decade or more but who were never registered and “are not able to pay taxes”.  He further stated that “I don’t think it’s commonsensical to think we can deport such a large number of people.  We do need to think of how to regularise their status”.  Mr Johnson has supported the idea of an Amnesty for those who have lived in the United Kingdom for 15 years or more, subject to them having “played by the rules”.

Mr Johnson had previously suggested the idea of an Amnesty when he was Mayor of London.  He seems committed to the idea of an Amnesty and in the height of Windrush Scandal in April 2018, he suggested to the former Prime Minister, Theresa May, that an Amnesty should be granted for anyone in the United Kingdom for 10 years or more, provided that they are “squeaky clean”.

Mr Johnson has been quoted as saying “what we want is a democratically controlled immigration system whereby we can continue to welcome people who can contribute to the UK economy, but done by an Australia-Style points system”.

What is an ‘Amnesty’?

The word Amnesty is often associated with the idea of all migrants present in the UK without permission instantly being granted lawful residence and that  an Amnesty would legally declare that any individual currently in the United Kingdom without a visa is automatically granted lawful leave to stay and to live here going forward.  However, the reality of how an Amnesty is likely to work in practice would probably be very different.

In the past Mr Johnson has already suggested that an Amnesty should be granted to individuals who have a clean criminal record and who are able to meet a qualifying period of residence in the United Kingdom.  In 2009, he suggested a period of 5 years of residence in order to qualify.  He later suggested 10-year and then 12-year periods. In his latest suggestion Mr Johnson indicated that only migrants who have lived in the United Kingdom for at least 15 years would be eligible. 

In fact, the idea of meeting a criterion of lengthy residence in order to qualify for leave is not new or different. We previously had the 14-year long residence rule, which was in force between 2003 and 2012.  Under that rule, migrants who had spent a continuous period of 14 years residence in the United Kingdom were eligible for Indefinite Leave to Remain.  There are also specific provisions under the current Immigration Rules, which allow grant of limited leave to remain to those who have spent more than 20 years in the United Kingdom, to children under the age of 18 who have been in the UK over seven years and for young people aged between 18 to 24 year of age who have spent most of their lives in the UK.  Mr Johnson’s idea is hardly new, but by calling it an Amnesty he is likely to cause concern for those who are opposed to immigrants and immigration. 

In any event, Mr Johnson’s proposal sound very similar to existing provisions and it therefore begs the question of why he had to make such an announcement?  Those who are sceptical may suggest he simply has a much wider political agenda.

Practical issues

If the proposal is accepted, a 15-year period of residence would of course represent an improvement for those who are currently waiting to qualify under the 20-year route.  This would also reduce the documentary burden on applicants who are required to provide evidence to show that they have lived in the United Kingdom for the entire qualifying period. 

It is unclear, however whether these proposals could take shape as a one-off Amnesty or rather as a rolling, long residence qualification route. If the Amnesty is a one-off measure, a question mark would be left over what would happen to people who have lived in the United Kingdom for less than 15 years, say 14 or 13 years.  The option of a singular Amnesty seems unlikely at this stage as Mr Johnson’s suggestion seems to indicate support for an ongoing right to regularise, rather than any limited one-off measure.

The Future

We must remember that Mr Johnson has only just taken up his office as Prime Minister.  It is likely that he will be busy dealing with more imminent issues such as Brexit.  Furthermore, he would no doubt face strong opposition from his own party, given their generally hostile stance on immigration, as seen in the last few years. 

An Amnesty of any sort sounds very appealing, but it must be borne in mind that we already have provisions in place that are very similar to the type of Amnesty that Mr Johnson has proposed.  At present, it seems unlikely that an Amnesty is actually going to take place, but migrants should beware of those claiming that the Amnesty described by Mr Johnson has already been implemented into law. 

Any further developments in relation to an Amnesty will be reported on our website.

The following is based on a recent case, now subject of an appeal, we at Douglass Simon Solicitors, are dealing with. The scenario is one that is familiar to many couples. The parties met and pursued their relationship in the UK. The wife is British, the husband is Filipino and his original visa had expired and was an overstayer. He was already married in the Philippines albeit he had been separated for some time from his first wife.  The husband obtained a divorce, in the UK, against his first wife then he and his second wife set about to marry in the UK. In accordance with current requirements they gave notice to a designated registrar who in turn informed the Home Office, Marriage Unit, about the couple’s intention. The Marriage Unit considered the matter and confirmed that they do not have concerns about the parties proposed marriage so effectively provided their permission enabling the couple to marry in the UK.

After their marriage, the husband returned to the Philippines to pursue a spouse visa application to join his British wife in the UK. To our surprise the Home Office refused the husband’s application solely on the basis that according to the Home Office their marriage was not valid, because in the Home Office’s opinion the husband’s divorce from his former wife was also not valid and he was therefore not free to remarry. The Home Office reasoned that as the husband was in the UK illegally when he obtained a divorce, the divorce is not valid and therefore the subsequent marriage was also not valid. The Home Office further reasoned that as the husband was in the UK illegally the absence of legal domicile in the UK meant that the decree of divorce was not valid. The decision then goes on to state that as he was not validly divorced, his marriage in UK was also “invalid”. It is worth noting that there was a complete absence of reference to any legal doctrine in the Home Office’s decision. Let us not follow the Home Office example and refer to legal principles.

When assessing an application for a spouse visa the Home Office have a legal obligation to look at the Immigration Rules and part of this is E-ECP.2.7 which states: If the applicant and partner are married or in a civil partnership it must be a valid marriage or civil partnership, as specified.

In the case we are looking at, the Home Office avers that the marriage is invalid, firstly, because the divorce is not valid. This is wrong on various grounds; At the outset, the Home Office’s action is “ultra vires”. Ultra vires is a legal concept older than the Home Office, it means “acting or done beyond one’s legal power or authority”. The husband’s Decree Absolute was validly issued by a Family Court. A Decree absolute issued by the English Family Court is a court order, and as such the Home Office is bound by it just as anyone else in the UK. In disregarding the Decree absolute, the Home Office’s decision is plainly ultra vires; unlawful because it was made outside the remit or authority of the Home Office. Plainly, it was not in their power to unmake the decision.

Secondly, even if we are to pretend that the Home Office has some magical power to invalidate a court order (which thankfully they do not), the decision is still flawed in reasoning that the husband must be permanently and legally domiciled in the UK. The contrary was established in a House of Lords case in 2005 namely Mark v Mark [2005] UKHL 42. Baroness Hale of Richmond at § 49 of the Decision stated: “…there is no reason in principle why a person whose presence here is unlawful cannot acquire a domicile of choice in this country”. A domicile of choice is sufficient to apply for divorce in the English Court.

However, even assuming, that the Home Office’s contention is correct, that the Divorce is not valid, it does not automatically follow that the couple’s marriage in the UK is invalid. In English Family Law there is a distinction between an invalid marriage and a void marriage. The relatively recent case of Akhter v Khan [2018] EWFC 54 offers clear guidance on this issue. A marriage contracted by a person who is already married can be void, but it is not invalid. The Court, surmising previous case law clearly established that unlike an invalid marriage, a void marriage continues to be valid and to have legal effect until a Court dissolves it by way of a Decree of Nullity. That is to say, even if the husband’s divorce from his first wife could be invalidated, the Home Office is still bound to acknowledge the legal effects of the husband’s marriage to his second wife in the UK, as this marriage has not been annulled by the Court. The Home Office in this case appear to again simply proclaim, without any legal evidence, that the marriage is not valid. As if by magic subsuming the Family Courts’ power to grant Decrees of Nullity.

It is commonplace but still frustrating when an application is refused by the Home Office on an incorrect interpretation of legal doctrines. The Home Office in the above case appear to have taken the step further by magically acquiring the power to nullify a divorce and invalidate a marriage. The parties are understandably appealing the decision, but a successful appeal will unlikely make the Home Office reconsider their ever-increasing practice of making decisions without regard to legal principles. Regular readers will recall that at this point I try to provide a “moral of the story” advise, tips and hints to watch out for. Sadly, I am unable to in this case as it is entirely for the Home Office to get their law right.