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Consular Special Report – Embassy 55

Immigration Act 2014

Consuls were able to discuss changes to the immigration rules and the impact these will have on their migrants with Niva Thiruchelvan of the Home Office and Alison Harvey of the Immigration Law Practitioners Association

The Immigration Act 2014 received Royal Assent in May. Its aim is to cut down the abuse of the immigration system and to  remove incentives for migrants to stay in the UK illegally. It also targets the criminality that supports illegal immigration.

The Act seeks to expedite the removal of foreign nationals who pose a risk to the public (such as Foreign National Offenders).

There are four key areas that affect migrants:

the appeals system
sham marriages
landlord checks
NHS surcharge

Appeals
The phased implementation of the Immigration Act 2014 began on 20 October 2014 with changes to the appeals system for students and foreign national offenders.

Individuals who have right of appeal is now limited, mainly relating to human rights cases, and the number of appeals these are entitled to has been reduced from 17 to 4.

From 20 October, students wishing to challenge an immigration application that has been refused may request an administrative review to investigate if any casework errors have been made (at a cost of £80). Decisions are quicker (28 days as opposed to 12 weeks) and less costly than going through the courts.

Consuls should note that in October 2015 there will be a report on the effectiveness on the administrative review by the Chief Inspector of Immigration. Consuls and education attachés assisting their nationals with administrative reviews are advised to retain documentation should they wish to submit these to the Chief Inspector.

There is now a single decision notice for removals, explaining that the migrant has no legal right to remain in the UK and are liable for removal, with immediate effect, if they do not do so voluntarily.

Sham Marriages
Measures to clamp down on Sham Marriages will be implemented in Spring 2015. These are intended to stop migrants from gaining an immigration advantage by entering into a bogus marriage or civil partnership.

The notice period has been extended from 15 to 28 days and applies to everyone irrespective of nationality.

Any marriage involving a non-EU national who is not exempt from immigration controls will automatically be referred to the Secretary of State by the Registrar, who can decide to investigate further.

Consuls officiating at marriages in their embassies will be given detailed information on the new procedures from the Home Office closer to the time. Meanwhile consuls of countries whose nationals have a high incidence of entering into sham marriages are urged to warn their citizens that entry into a bogus marriage could result in a criminal record and removal from the UK.

Limitations on data sharing were exploited by criminal gangs but the Act now allows enhanced data sharing powers between registrars to help prevent this.

Consuls of countries whose nationals have a high incidence of entering into sham marriages are urged to warn their citizens that entry into a bogus marriage could result in a criminal record and removal from the UK

Landlord checks
The new Immigration Act requires private landlords to check the immigration status of their tenants to prevent those with no right to live in the UK from accessing private rented housing.

Landlords need to see evidence of identity (eg residence card or passport) and retain copies of this for a year after the tenancy ends. Those found to be renting accommodation to illegal immigrants face fines of up to £3000.

The first phase commenced in the West Midlands from 1 December. There will be no extension of landlord checks until after evaluation in Spring 2015.

There are provisions for short-term lets to be exempt from the scheme, for instance for tourists.

ILPA Legal Director Alison Harvey warned that landlords may feel ill equipped to check the documents or to detect a fraudulent document and therefore choose not to let their properties to foreign nationals for fear of receiving a fine. Home Office checks could take 48 hours, by which time the property is no longer available.

Consuls pointed out concerns about identity fraud arising from copies of passports being handed to landlords. They also noted that in some countries, the handing of copies of passports or ID to unauthorised persons conflicted with their own local data protection laws. Consuls were assured that under the law the landlords would be given the authority of a data controller.

NHS Surcharge
From Spring 2015, requirement that temporary migrants with a time-limited immigration status – for example overseas students – will be asked to make a financial contribution to the National Health Service. There is an exception for Tier 2 intra-company transfers.

The surcharge will apply to all migrants staying for more than six months and the surcharge will be paid when they pay their visa application fee.

The proposed figure is £150 for students per year and £200 for other categories.  This is paid up front depending on the length of stay.

It is likely the NHS surcharge will be refundable if the visa application is refused (even though the visa fee is non-refundable).

Student visa abuse
An exposé revealing systematic cheating in English Testing Services (ETS) centres led to further investigations by the Home Office which uncovered widespread abuse of the system. As a consequence, the Home Office engaged in a swift crackdown on institutions turning a blind eye to abuse.

Almost 400 of the education institutions were removed from the sponsor register. One university (Glyndwr) has had its rights to sponsor foreign students suspended. Two further universities (Bedfordshire and West London) had sponsorship rights temporarily withdrawn pending further investigations. Both universities can now sponsor a limited number of students having taken action to address the concerns of the Home Office.

A further 75 privately-operated further education colleges had sponsorship rights temporarily withdrawn, 44 of which have now been removed from the sponsor register. 

The Home Office is conducting a criminal investigation and as of 6 October, 28 individuals have been arrested and four have been charged with 11 offences.

If a sponsor has their licence revoked, the Home Office will remove them from the list of registered sponsors and will write to foreign students informing them of this action. Students will then have 60 days to find an alternative licensed education institution.

Students can then apply to the Home Office to vary or extend their leave but they may incur further costs. The Home Office is in discussions with the Department for Business Innovation and Skills on whether they can introduce a Student Protection Scheme to compensate students.

The Home Office will be introducing further changes to the student sponsorship system in 2015 to prevent abuse.

The Home Office is appealing to consuls to facilitate returns and removals of foreign national offenders by providing travel documents in a timely manner to avoid deportees spending indefinite lengths of time in an immigration detention centre...

Access to benefits for EEA nationals
Following much public debate in the UK and in the EU about free movement and the social benefits EEA migrants should be entitled to, a number of changes have been introduced over the course of 2014.

The new rules link benefits to a migrant’s contribution to the economy. Further, more wide-reaching limitations, may be introduced if by a Conservative government after the General Election in May 2015.

A summary of EEA migrants’ access to benefits as it stands is as follows:

A new three-month delay before a new EU jobseeker can claim benefits, after which they must demonstrate compelling evidence they can find a job. Those who fail the evidence test will cease to have access to benefits

New EU jobseekers can no longer claim Housing Benefit

New enforcement powers to tackle abuse of free movement rights, such the removal of EU nationals participating in sham marriages and 12-month re-entry ban for repeat beggars

EU nationals can no longer enjoy multiple or repeat periods of residence and access to benefits as a jobseeker

There is a new minimum earnings threshold to check if EU nationals claiming in-work benefits are actually in meaningful employment

A stronger gateway test (the Habitual Residence Test) which all migrants must satisfy in order to access benefits

Enhanced compliance checks on payment of child benefit and child tax credit payments to EU nationals

Inactive EU nationals (jobseekers, self-sufficient persons, students) can no longer claim child benefit and child tax credit until they have been resident here for at least three months

New statutory guidance has been issued to make sure local authorities set a residency requirement for qualification for social housing – so that new or recent arrivals do not get priority access

New incentives for hospitals to identify chargeable EU nationals (visitors with an EHIC) so that the UK can recoup the cost from their Member State or the individual’s health insurance

Foreign National Offenders
Non-EEA foreign national offenders face deportation if they have served a custodial sentence of 12 months or more or if they have received two or three sentences over a period of five years or if they have been convicted of a drug offence.

For EU nationals, this is considered on a case by case basis but deportation will normally be pursued where the person is sentenced to two years’ imprisonment or more, or 12 months’ imprisonment for a sexual, drug or violent offence.

The Home Office appeals to consuls to facilitate returns and removals by providing travel documents in a timely manner. However this becomes difficult if the nationality and identity of the foreign national offender is unclear or in question.

This will help avoid having foreign nationals detained in removal centres for indefinite lengths of time as their citizenship status is debated.

The Home Office would welcome suggestions on how to improve the returns and re-documentation process.

To see the list of education institutions that are licensed to sponsor students visit https://www.gov.uk/government/publications/register-of-licensed-sponsors-students


Niva Thiruchelvan explains the implementation phases of the Immigration Act 2014


Consuls debating the various features of the Immigration Act 2014 with the Home Office and ILPA

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