UK: Implications Of The Immigration Bill

Last Updated: 15 November 2013
Article by Tim Hayes

The dust has now settled after the Home Office's release of its long-awaited Immigration Bill. The draft follows on from a number of consultations over the past year on matters such as increasing penalties for employers of illegal migrants, introducing charges for use of the NHS and requiring landlords to vet the immigration status of tenants. The Government has devised a very short passage through Parliament for the Bill, which traditionally tends to raise speculation that it doesn't really want anyone pausing to ponder the wisdom of the provisions contained in the legislation. On closer inspection, the Bill does indeed go much further than simply making amendments to the way the immigration system is administered. It is wide-ranging in its scope and contains a number of changes which, if the Bill becomes law, will represent a huge shift in the way the UK treats its migrant population. In this article we take a look through the main areas covered by the new bill and discuss what their effects might be.

No right to remain

One of the most radical changes proposed by the Bill, and one which has long been feared by temporary migrants as well as immigration law practitioners, is the slashing of appeal rights against immigration decisions. The intention is that only decisions affecting the most fundamental rights should warrant a right of appeal before the First Tier Immigration Tribunal. All other decisions will simply be accompanied by a right to have the decision 'administratively reviewed' by another caseworker within the Home Office.

The question remains whether caseworkers will be granted enough time to allow for any meaningful reconsideration of the decision, or whether they will, in the rush to meet departmental targets or as a result of real or perceived pressure from the original decision maker, simply rubber stamp it. Memories of the 'grant monkey' scandal of a few years ago provide an uncomfortable reminder of how difficult it can be for Home Office staff to be genuinely impartial.

The loss of the opportunity to have an appeal before an expert Tribunal tasked with delivering justice in accordance with a complex and centuries-old legal system is a huge blow for the UK's migrant population. This is true not just for those intentionally 'playing the system', which the Home Office says are the target of the changes, but also for the thousands of genuine applicants whose rights to remain in or enter the UK have been breached by a poorly-resourced and, it has to be said, often incompetent system.

In the supporting documentation released along with the Bill the Home Office was at pains to suggest that the current system benefits immigration lawyers. This is a convenient argument for the Home Office to run; lawyers are not an overly popular collective among the public and their recent clarion call to arms against cuts to legal aid have been met with a roundly underwhelming response from the press. However, the argument that immigration law benefits immigration lawyers is akin to saying that disease benefits the medical profession. The simply fact is that there has been a demand for immigration lawyers' services. This is not least because Home Office decisions have provided such fertile ground for challenge, as they are regularly shown to be not in accordance with the law.

It is, of course, true to suggest that eliminating appeal rights for a large proportion applications will decimate the practices of a significant number of immigration specialists. However, it is no cause for celebration that migrants will no longer be able to count on the expertise of specialist judges and lawyers to assert their rights at appeal. The vast majority of immigration practitioners provide a scrupulous expert service to their clients, often for scant financial reward. Replacing appeals with administrative review is no substitute for specialist legal argument before a court.

In terms of the appeal rights which are set to remain, there are also limitations. The Bill proposes that appeals by foreign national criminals (another collective with little appeal for the media) can take place after they have been deported, unless there is a risk of 'serious irreversible harm'. As a result, in all but the neediest of cases, an appeal can proceed without witness evidence in person by the appellant. The judiciary will, therefore, be deprived of the emotional dynamic between an appellant and their family members which is often visible in the courtroom and can be crucial in establishing Article 8 rights. The First Tier Tribunal regularly sees deportation appeals involving people in their early twenties who have spent the majority of their life in the UK, who have little or no knowledge of the country of their birth and may have absolutely no one to whom they could turn there. It is unlikely that such situations would meet the 'serious irreversible harm' test preventing their deportation before an appeal hearing.

Health charges

Following on from a Government consultation on the subject in the summer, the Bill contains powers for the Secretary of State to introduce a health surcharge payable at the point of application for entry clearance to or leave to remain in the UK for more than 6 months. The level of the surcharge has not yet been set, although on the basis of the consultation it appears that it will be in the region of £200 for every year of leave granted. The levy would apply irrespective of any contributions made by migrant workers to the NHS through taxation, meaning that non-EEA migrant employees could effectively be paying twice for NHS healthcare.

The new scheme will inevitably mean that medical professionals are also co-opted into the process of immigration control. The British Medical Association has questioned whether NHS resources should be allocated to checking the immigration status of its patients, as well as the practicality of undertaking such checks. A levy could also potentially put off foreign workers who have traditionally plugged staffing gaps in frontline NHS services.

New obligations for landlords

The Bill also proposes a new regime requiring landlords to take on responsibility for checking the status of their tenants. Essentially the proposal is to replicate the system of checks which, since the introduction of the Points Based System in 2008, has required employers to carry out checks on current and prospective employees and retain certain documentation in order to establish a 'statutory excuse' in the event that an employee is found to be working illegally. In a bid to avoid rogue landlords exploiting a potential loophole, the new regime will also apply to those who sublet and also to those who take in lodgers.

There has been some concern among landlords about such a new regime. Although the Home Office wishes to work towards a situation where the Biometric Residence Permit or 'BRPs' will be the identity document of choice issued to migrants, this is far from being the case today. There are currently hundreds of different identity documents with which landlords will potentially need to be familiar and it will be several years before BRPs are rolled out to such an extent that they cover the majority of migrants in the UK. Understandably, landlords might feel apprehensive about shouldering responsibility in this regard, when they often have a limited understanding of the type of document which might be acceptable in order to prove an entitlement to be in the UK.

One ugly result of the new measures might be a tendency for landlords to, either subconsciously or overtly, discriminate against non-UK nationals because of the perceived risk of fines from the Home Office, even if the tenants in question may indeed have the correct documentation to enable them to take on a tenancy. A British passport, they might well conclude, provides more immediate comfort than one of the myriad of Home Office documents the acceptability of many of which can only be confirmed through additional enquiries.

There is also a danger that they will push an already disadvantaged sector of the UK's population, who may or may not have every right to be here, into the shadier sectors of the immigration underworld. Unscrupulous landlords who are currently well aware of the illegal status of their tenants and who are profiting from them all the same, are unlikely to be brought into line by the threat of fines. Such landlords, who must be the target of these sections of the Bill, exist at the margins of society in any event and will undoubtedly be aware of the relatively sparse enforcement capability the Home Office has at its disposal. They will may view the fines as simply a risk of the trade and one to be priced into the unlawful tenancy arrangement. It is to be hoped that the Government, in bringing in the new measures, has considered the potential impact of these provisions.

Conclusion

The details above cover only the highlights from the Bill. There are also changes to the way driving licences will be granted and how banks should 'vet' non-EEA nationals. There is every chance that the Home Office will succeed in its aim of creating a hostile environment for those with no entitlement to remain in the UK. However, there is a possibility that it will also create such an environment for those who do.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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