Written by Catherine Maclay
Most commercial organisations and international business people regard immigration as a very formalistic paperwork exercise, usually involving applying for long-term work permits or temporary entry visas for key foreign staff to fill gaps in the domestic labour market – more of a hassle and inconvenience than something that could have far-reaching, real consequences for migrants’ lives and lifestyles. In the European region European free movement law as one of the pillars of the internal market has done away with the need for hefty paperwork for mobile European nationals and their family members on the grounds that such formality hinders the facilitation of economically vital cross-border trade and business development.
Business migration to the UK from outside the European region usually comes by way of the Points-Based System while European business migration comes via European free movement law.
The Global North has seen recent political and social developments leaning towards greater protectionism of domestic economies and settled workers thereby raising the question of what developments in immigration law may occur in response to such deep and broad paradigm shifts. It is outside the scope of this article to consider potential technical changes that could be heralded by a different political landscape in the European region, but it is possible to ask what principles may exist in the law to balance the interests of stakeholders in the economies that are affected by such sweeping changes, and to ask whether there are sufficient procedural safeguards in place to argue for the protection of such interests.
The modern commercial world is not always familiar with the notion of human rights, both in their traditional form and in their modernised, enhanced form including socio-economic rights. Most European countries accept the principles enshrined in the Universal Declaration of Human Rights by way of their accession to the European Convention on Human Rights in the last century. More recently Her Majesty Queen Elizabeth II as Head of the Commonwealth signed the Commonwealth Charter on Commonwealth Day 2013, a document which contains the Commonwealth’s commitment to Human Rights, including both traditional human rights and socio-economic rights relevant to its commitment to international economic development objectives.
Relatively recent changes in immigration policy in the UK since 9.7.2012 have seen the introduction of distinct private life rules and family life rules which are held to be the official British interpretation and implementation of the European human right to a private and family life. Applications made for leave in line with such claims now require distinct applications following formal procedures for these human rights to be considered.
Prior to 9.7.2012 senior British Immigration Judges had determined that a very broad interpretation should be given to the European private life human right (Lord Bingham of Cornhill in Razgar, R (on the Application of) v. Sectretary of State for the Home Department  UKHL 27 (17 June 2004), arguably broader than what is envisaged in the current private life rules. Human rights were also previously arguable in addition to and as an alternative to an existing application for leave as an economic Points-Based System migrant.
In the landmark case relating to Tier 1 of the Points-Based System, Secretary of State for the Home Department v Pankina  EWCA Civ 719 (23 June 2010), Lord Justice Sedley (with the agreement of Lord Justice Rimer and Lord Justice Sullivan) made it clear that at the very least the Secretary of State has to comply with her duty in line with s6(2) of the Human Rights Act 1998 to act (or not act) in a way that has regard to and gives effect to applicants’ Convention rights:
“This will mean in most cases evaluating the extent and quality of their family and private life in the United Kingdom and the implications, both for them and for the United Kingdom, of truncating their careers here.”
The above legal observation could arguably be applied to both Points-Based System business migrants and European business migrants in the UK, especially in the current post-EU Referendum environment. Such an approach would accord with the UK’s international position and obligations in relation to human rights and international law, its international development objectives and its desire to be a champion of genuine and sustainable international trade in the modern world.
While appeal rights for European business migrants and their family members still exist, appeal rights for Points-Based System migrants were completely removed in March 2015 and replaced with a right of administrative review by a more senior Home Office caseworker. There is therefore no automatic right to independent oversight by an Immigration Judge available to business migrants from outside Europe who must rely on limited judicial review powers and fresh, complex immigration applications should their initial visa applications be refused. When Points-Based System applications are refused on deception grounds though, not having full recourse to an independent tribunal compounds the risks and consequences of a business visa application refusal for themselves, for their families and for their business partners in the UK. Never before has care been required to such a degree when making a Points-Based System immigration application and with such far-reaching consequences.
The rule of law requires that in practice there should be guiding principles and real remedies available to challenge important decisions by public authorities. The United Kingdom will arguably chart a better future course on the high seas of international trade all round with human rights as its compass and procedural fairness as its rudder.
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I have over eight years’ experience practising immigration law in the United Kingdom. I was a practising Attorney in South Africa prior to relocating to the United Kingdom. I read my Bachelor of Business Science (BBusSci) degree and my Bachelor of Laws (LLB) degree at the University of Cape Town. I have also read my Master of Laws degree (LLM) in International Commercial Law at the University of Johannesburg, during which time I also served as a Judge’s clerk in the Johannesburg High Court. My immigration practice covers business immigration, family migration, foreign student visas, challenges to refusals of visa applications, the intricacies of British nationality law and European immigration law. My special field of interest is women’s business development immigration options. I am passionate about the economic empowerment and inclusion of women in business, in the professions and in broader society.