Raising the Bar™ – Immigration & Asylum – Garden Court Chambers

Continuing on with our very special Raising the Bar interviews, Mark Symes talks to Lawyer Monthly about his work in immigration & asylum, with particular expertise on the implications of Brexit on EU and UK business immigration law. Mark also tells us about his most notable cases and notes his opinion in regards to ‘raising the bar’ on immigration law, following the UK’s exit from the EU.

Mark Symes specialises in all aspects of immigration law; he has appeared in many leading cases involving asylum, human rights and public law. A Deputy Judge of the Upper Tribunal and a fellow of the Refugee Law Initiative at the Institute of Advanced Studies, Mark is co-author of Asylum Law and Practice – “encyclopaedic… pre-eminent” according to one Supreme Court judge, and co-author of Immigration Appeals and Remedies Handbook – (“invaluable … to the armoury of all … a compulsory addition to the library of every immigration judge and practitioner”: President of the Upper Tribunal Mr Justice McCloskey).  Mark is also a contributor to MacDonalds Immigration Law and Practice.

How did you come to specialise in immigration, asylum and human rights law?

I became interested in refugee law and worked at the Refugee Legal Centre in the early 1990s, in a very different funding climate to the current one. Over the following decade the NGO sector grew very significantly and there was the possibility of pursuing a legal career within specialist NGOs such as RLC. Eventually I took charge of national legal strategy and training.

What has been one of the most notable and impacting cases you have worked on, and how did you raise the bar in this scenario?

In SQ (Pakistan) [2013] EWCA Civ 1251 I represented a young boy who potentially faced imminent death on a return to his country of origin. His case had failed in the Tribunals but the Court accepted that it raised issues of special public importance such as to surmount the “second appeals” test, notwithstanding that it had been twice refused permission to appeal to the Upper Tribunal. We persuaded the Court of Appeal that the private life of vulnerable children with serious health problems required special attention, representing an exception to the general rule for migrants that only the prospect of imminent death without palliative care could prevent their return abroad.

Over the last decade, what would you say have been the most significant milestones in UK immigration law to affect your work?

Two things:

• The reduction in public funding has enormously changed the ability of migrants to access legal representation: it is now restricted to asylum seekers and a few other categories of very vulnerable individual. This has taken place over a period where the relevant law has become Byzantine in complexity and where the Home Office’s own advocates in the Tribunal system often struggle to keep up-to-date with the ever-changing Rules and the constant stream of authorities from the higher courts and the Upper Tribunal.

• The reduction in appeal rights which has largely ended the era by which most government decisions (outside of asylum and family migration cases) are subject to review by independent judges. These days the remedies for people who feel that the Home Office has misapplied the law or failed to properly assess their case are far more limited; basically a right to a second pair of Home Office eyes reviewing their application followed by an application for judicial review if their pockets are sufficiently deep to finance their own legal team and face the significant costs that may be sought by government lawyers if their claim fails. Anybody working in the immigration system will be aware that decision making is more erratic where there is no independent scrutiny.

Do you have any thoughts on the potential legal reforms in immigration and asylum that may be incited as a result of the recent Brexit vote?

 By potentially making millions of EEA nationals (often with British citizen family members and children) who have lived and worked freely in the UK for many years subject to immigration control, the government is vastly expanding the work that will have to be done in future by the immigration dept. of the Home Office (UKVI). It remains unclear what arrangements will be put in place for the very large numbers of EEA nationals who are entitled to permanent residence, but have not previously been required to obtain documentation to confirm this.

British workers and entrepreneurs wishing to establish themselves in an EU Member State in future face the likelihood of quotas or rules, by which EU Member States give preference to EU nationals.

One might hope for some kind of transitional measures whereby those who have made their lives in this country, and contributed to the economy, can continue to reside here without satisfying the strictures of the Rules currently applying to non-EEA citizens.

How might this potentially affect the way business immigration is dealt with?

There are very large numbers of EU nationals presently in the UK in circumstances which would normally be subject to the business immigration routes. Currently, they are free to generate income for themselves and wealth for the UK via tax revenues and the general contribution to the economy without any significant regulatory burden. For example, wealthy individuals may be present as self-sufficient EEA nationals, whereas were they third country nationals they would have to satisfy the highly technical requirements of the Investor route; they may have set up a business, but if subject to immigration control they would have to satisfy the dozens of technical Rules found in the Entrepreneur route. There are large numbers of EEA nationals working here who would need their present employers to become sponsors under the ‘Tier 2’ route (and those sponsors would have to face the expense, including the ‘immigration skills charge’ of £1,000 per migrant, per year entering force in April 2017, and the administrative burden set out in the hundreds of pages of government-imposed guidance).

In regards to the UK’s approach to granting asylum, what do you believe should be expected of any government and if you had the power, what would you change or introduce?

The present crisis arising from armed conflict in the Middle East has led to vast population movements on a scale seldom seen since the Second World War. All civilised nations should see the virtue of responding to a humanitarian crisis so that the burden is shared equally. It is especially unfortunate that vulnerable children in places such as Calais are unable to be reunited with family members in the UK and elsewhere because of foot-dragging and reliance on legal technicalities by government bureaucrats.

Finally, how would you explain your reputation as a barrister who has raised the bar when it comes to UK immigration law?

Internal to the brief, when advising immigration clients, it is imperative to master their immigration history and spot missing information that might bear vitally on the case early on. Externally once must be aware of the constantly changing environment of rules and regulations and the possible legal challenge to any adverse decision. It is likely that the UK’s proposed departure from the EU will change the focus of restraint on governmental power from European Union law to domestic public law principles, including the judge-made rights recognised in our unwritten constitution: that is the likely direction of travel for lawyers at the cutting edge.