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Consular Special Report – Embassy 49

UK Immigration Bill Debate

Andrew Elliot (Home Office) and Rowena Moffatt (ILPA) debated the new measures to reduce the impact of immigration in the UK.

With the lifting of restrictions on the free movement of Bulgarians and Romanians From 1 January 2014, and the approaching 2015 General Election, the debate about immigration in the UK has intensified.

According to a study by the LSE (2009) there are an estimated 618,000 illegal migrants in the UK. Last year, 44,000 irregular migrants were removed.

Andrew Elliot, the Home Office’s Immigration Bill Manager, told consuls the new Immigration Bill seeks to reduce the number of illegal immigrants by strengthening the push factors, namely reforming the removals and appeals system and restricting the use of Article 8 in deportations of foreign criminals; and weakening the pull factors, namely limiting migrants’ access to services and clamping down on sham marriages.

Reforming removals
The number of deportation decisions that can be appealed against in the courts will be reduced from 17 to four. This will apply to migrants in-country seeking to extend their stay.

Students and workers refused an extension will be offered an administrative or internal review (as currently exists in overseas applications) where a Home Office official investigates possible case errors. Administrative reviews are preferred as they are quicker and cheaper (appeals take up to 12 weeks to conclude whereas an administrative review typically takes 28 days to process).

The right of appeals will remain for persons who are refused, where there is a fundamental rights issue, such as those who are refused asylum, refused for human rights reasons or those with a family application.

Prisoners will be deported first and may appeal from abroad, unless they face serious irreversible harm.

Immigration barrister Rowena Moffatt, who advises the Immigration Law Practitioners’ Association (ILPA), said the emphasis on administrative reviews would cost less but risks unfair outcomes. Quoting Home Office statistics, around 20 per cent of entry clearance cases are overturned on internal review. However, a further 50 per cent are overturned on appeal. These figures suggest that the independent and impartial scrutiny of an immigration tribunal remains important.

Moffatt warned that limiting the right of appeal could lead to increased reliance on judicial reviews. In parallel, plans to introduce a residency test for access to legal aid will exclude some migrants from seeking a judicial review.

Another element of the Bill relates to bail applications. Elliot explained that new laws would prevent immigration detainees “abusively” applying for bail where removal is imminent.

Consuls raised concerns about the “indefinite” detention of immigrants in removal centres and joined the ILPA in calling for the Home Office to introduce a limit to the number of years migrants could be held in removal centres.

Elliot said Britain had no plans to sign up to the EU Return Directive but added that the package of new laws should speed up the process of removal. He also appealed to consuls to assist the Home Office in pinning down the identity of migrants and to provide travel documents for them.

Restricting Article 8 appeals
The Home Secretary Theresa May has asserted that Article 8 – the right to a family life under the European Convention on Human Rights – has increasingly been misused by foreign prisoners to resist deportation after they have served their sentences.

According to Andrew Elliot, the Immigration Bill seeks to tip the balance in favour of the public interest by restricting the invocation of Article 8. Under the  new rules deportation should become routine for any foreign criminals jailed for at least 12 months and those sentenced to more than four years should only be allowed to remain in the “most exceptional circumstances”.

Last year secondary legislation was introduced to clamp down on the abuse of Article 8 but did not have the desired effect in the courts, so the Home Office has decided to introduce the measure in primary legislation to give it the backing of Parliament.

However, Moffatt argued that judges are still bound by European Court of Human Rights in Strasbourg, and would need to consider Article 3 relating to the rights of the child.

Fair access
Public dissatisfaction with immigrants receiving benefits and so-called “health tourism” has prompted the Home Office to introduce “fair access” to services, explained Elliot. “This means making sure that migrants are adequately contributing before receiving access to services and making sure that illegal migrants are prevented from services.”

Furthermore, the Bill will introduce further measures to ensure fair access to the labour market. Measures include the NHS surcharge, landlord checks, bank checks and drivers’ licences.

NHS Surcharge
Migrants whose stay exceeds six months will be asked to pay a £200 fee on a pro-rata basis (£150 for students) at the point when they apply for their visa to allow them to access the NHS. This levy will apply even if the applicant has health insurance.

It was considered whether the fee should be waived for those with health insurance but it was decided that it is administratively complex to test the extent of the coverage and whether the insurance would be valid.

There will be some exceptions, for instance the inter-company transfer route (Tier 2 of the Points-based System) will be exempt, but details have yet to be finalised.

Reciprocal arrangements with other countries where the UK has an agreement will not be affected by the levy.

ILPA argues that a system of checks on entitlements is detrimental to public health as migrants would be hesitant to seek medical advice. They add that the new rules may exclude foreigners entitled to NHS care but cannot prove their status.

Landlord checks
Landlords will need to check the immigration status of persons wishing to rent a property and if they fail to do so they will be liable for a civil penalty of £3000.

There will be a Home Office enquiry service and code of practice to advise landlords.

ILPA and consuls raised concerns that migrant homelessness was already a growing problem and the Bill would exacerbate this. ILPA’s main concern is that if a migrant’s application to extend their stay is refused, coupled with the loss of appeal rights, this may jeopardise their access to accommodation. Thus migrants are at risk of being made homeless or vulnerable to unscrupulous landlords.

ILPA also worries that this measure may encourage discrimination on the basis of nationality. Furthermore risk-averse landlords unwilling to let properties to any foreigners may lead to increased difficulties for legal migrants in finding private rented accommodation.

EU nationals and UK residents in difficult circumstances may face problems if they do not have documentation to prove their status.

Banks and drivers licences
Banks will be prohibited from opening bank accounts to illegal migrants and there will be a ban of illegal immigrants obtaining drivers licences. The Home Office will also start revoking the driver’s licences of illegal migrants.

Sham marriages
The Home Office estimates that there are between 4,000-10,000 so-called “sham marriages” taking place annually where non EEA migrants marry a British citizen or an EEA citizen as a means of gaining long-term residency in the UK.

Home Office figures show the number of reported cases has tripled in the last three years to 1,800 and it is assumed that due to the sensitive nature of the immigration crime, there is significant under-reporting.

In order to marry, the couple must notify the registrar. Under the proposed immigration rules, the Government intends change the notice period from 15 days in England to 28 days. This will also include British citizens in order to avoid accusations of discrimination.

If a non-EEA national who does not have permanent residency or “settled status” gives notice of their intention to marry, this will be referred automatically to the Home Office for screening. If the marriage appears suspicious, the couple can be called for an interview and the investigation period is extended to 70 days.

If at the end of the period, the Home Office feels the marriage is not genuine, the non-EEA citizen will not receive an immigration advantage if the marriage goes ahead.

New Powers
Immigration enforcement officers will also receive new powers under the new rules, including:

Collecting and checking fingerprints – if there is a reasonable suspicion that a migrant may be illegal, immigration officers can collect prints whereas previously they had to obtain consent, bringing their powers in line with those of the police.

Search for passports – this is needed in order to pin down their identity. Lack of travel documents is one of the main barriers to removal.

Embarkation controls – the Government wishes to re-institute exit checks, to keep track of people entering and exiting the UK, in order to be able to monitor overstayers.

For more information visit: www.gov.uk/government/collections/immigration-bill and http://services.parliament.uk/bills/2013-14/immigration/documents.html

Home Office Immigration Bill Manager Andrew Elliot

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