Nigel Farage has been warned his plan to retrospectively strip thousands of people of indefinite leave to remain would “trash Britain's reputation for fairness”, as lawyers say the policy would be blocked by the courts.
Immigration lawyers have told The Independent that the retroactive element of the policy is likely to be successfully challenged in the courts whether or not the UK left the European Convention on Human Rights (ECHR) because an expectation that laws can’t be changed in hindsight is a “a cornerstone of administrative law around fairness”.
Mr Farage’s party has pledged to scrap settled status for all non-EU migrants, requiring those who have been granted indefinite leave to remain to reapply under much stricter rules – meaning tens of thousands of people who have legally settled in Britain could be at risk of deportation.
Indefinite leave to remain is the status that grants legal migrants the ability to settle in the UK without the need to renew a visa every few years.
The Reform leader said the current option of ILR – open to those who have lived and worked in Britain for five years – has “betrayed democracy” and vowed to abolish it.
But lawyers have cast doubts over whether or not the plan would be workable in practice, warning that they could be successfully challenged in the courts on the basis of “legitimate expectation”.
“People have the right to depend upon the law and not changing that substantially retrospectively,” Bethan Lant, a lawyer at migration charity Praxis explained.
“It undermines the basic rule of law if you can change the law at any time and apply it retrospectively.”
She continued: “In 2008, the government changed some of the routes to settlement around highly skilled workers and they said that would impact people who were already here. That was successfully challenged in the courts because those people had a legitimate expectation that they could stay when they arrived.
“[With Farage’s plan], you’ll have arguments around legitimate expectation saying you can’t retrospectively change the rules for an entire class of people who are already here and already on the path to staying here.”
Ms Lant told The Independent this aspect of the policy would be challenged regardless of whether the UK left the ECHR, because legitimate expectation is “a cornerstone of administrative law around fairness”.
Helena Sheizon, a specialist immigration lawyer at Kadmos Consultants, warned that both revoking ILR from people who already have it and taking away the option of applying for ILR from those who are in the UK on an immigration route with a legitimate expectation to receive ILR at the end of the qualifying period would undermine the rule of law and could be challenged in the courts.
“The first scenario is by far more extreme and would be comparable to stripping citizenship from persons born abroad, or whose parents were born abroad”, she said.
“Of course, the rule of law is part of the UK constitution and non-retrospectivity of laws is part of this principle.
“But both ‘constitution’ and ‘the rule of law’ are legal and philosophical concepts, and if you have a populist government which feels that restoration of Anglo-Saxon purity is a political agenda, the constitution is unlikely to be a major deterrent – you can always pass an amendment to the constitution if necessary, but most likely no one would even bother.”
Robert Buckland KC, a Tory former solicitor general and justice secretary, warned that Mr Farage’s plan “runs counter to our British values”.
He said: “With only a few carefully guarded exceptions, when we make our laws, we do not apply them to past circumstances, as this would create obvious unfairness to innocent people.
“This principle is deeply embedded in our common law, and rightly so. Once again, we can see that Farage’s approach runs counter to our British values.”
Meanwhile, Anna Turley, chair of the Labour Party and MP for Redcar, dubbed the plan “extreme and divisive”, saying it would “rip communities apart” and “tear foreign-born parents, who are here legally, from their children who were born here and are British citizens”.
“It would also trash Britain’s reputation for fairness and undermine the rule of law that has held this country together for generations”, she told The Independent.
When the Reform leader first unveiled the plans, they were dubbed “racist” by the prime minister, Sir Keir Starmer, despite Labour also announcing its own plans to tighten rules around claiming indefinite leave to remain.
Sir Keir told the BBC’s Sunday with Laura Kuenssberg in September: “It is one thing to say we’re going to remove illegal migrants, people who have no right to be here. I’m up for that.
“It is a completely different thing to say we are going to reach in to people who are lawfully here and start removing them. They are our neighbours.”
Asked directly about Reform UK’s policy, he said: “I do think that it is a racist policy. I do think it is immoral. It needs to be called out for what it is.”
But Zia Yusuf, Reform UK’s head of policy, said: “Labour’s message to the country is clear: pay hundreds of billions for foreign nationals to live off the state forever, or Labour will call you racist.
“Reform’s plan will ensure only British people can access welfare and that migrants contribute to society.”
A Reform UK spokesperson said: “Only Reform UK will put British citizens first, avert the ‘Boriswave’ and end benefits for migrants.
“The British people will not accept left-wing lawyers blocking their wishes any longer.”
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