A new Immigration Bill – proposed changes and causes for concern

11 October 2013

A new Immigration Bill was ushered onto the floor of Parliament this week with the words of Immigration Minister Mark Harper MP ringing in all our ears, ‘the public expects and deserves an immigration system that is fair to British citizens and legitimate immigrants and tough on those who abuse the system and flout the law’.

The ‘fairness’ of this Bill is certainly up for debate. The sweeping proposed law touches on diverse areas, ranging from the introduction of a levy to be paid by all migrants applying for more than six months limited leave to enter or remain for the National Health Service (NHS), to a complete overhaul of the current appeals process right through to changes to registration for Marriages and Civil Partnerships.

Proposed changes

Covering all provisions of the new Bill is outside the scope of this blog but in summary, the headline grabbing proposed changes include:

  • Ensuring refusals of leave to remain and removal decisions are made at the same time to reduce the number of opportunities a person has to challenge their removal from the UK;
  • Changes to how and when immigration detainees can apply for bail;
  • Extending the number of people who need to enrol their biometrics to include applicants naturalising as British citizens;
  • Preserving the right of appeal only for refusals of applications relating to human rights, asylum claims and revocation of refugee status or humanitarian protection;
  • Replacing the current appeal system with an Administrative Review System;
  • Serious changes to how an applicant’s family and private life are to be assessed;
  • The imposition of a duty on private landlords to check the immigration status of their tenants – please see HERE for more details on this proposal;
  • The introduction of a levy for migrants applying for entry clearance and limited leave to remain lasting for more than six months to go towards the cost of NHS care;
  • Requiring banks to check customers against a list of known immigration offenders prior to opening a new bank account;
  • Refusing and revoking driving licences where the migrant does not have leave to remain in the UK;
  • Extending the notice period for all marriages and civil partnerships to 28 days;
  • New powers to refer and investigate proposed marriages and civil partnerships, including the ability to extend the notice period up to 70 days to allow for any such investigations to take place. These provisions are supposed to help tackle ‘sham’ marriages and civil partnerships;
  • Changing the rules so that fees for Home Office applications can be changed more regularly and easily.

There are also proposals to change the regulations allowing the Civil Penalties imposed on employers found to be employing illegal migrants to be capped at £20,000 per illegal migrant employed (double the current level).

What happens next?

Now, it is important to remember that at the moment, these proposals are just that and the Bill has a way to go before it becomes law. However, with a General Election expected in early 2015 and the current crop of top politicians in all the main parties clambering to be as tough on immigration as possible, it is hard to see many significant amendments being advanced.

There are numerous elements of the Bill which are cause for concern. The removal of the right to appeal for most migrants is one change which is particularly worrying. As immigration lawyers, it is not unusual for us to see badly made decisions, which sometimes misrepresent the facts and misunderstand the applicable law. Applicants who are subject to such refusals must have recourse to correct these mistakes and the recourse should be an independent Judge, not an application for reconsideration by the same body who made the mistake in the first place. It is highly likely that this change will simply drive up the numbers of Judicial Reviews as applicants seek justice in the only forum still available to them.

The NHS levy and changes to the duties of landlords were the subject of consultations earlier this year. It is not clear that the responses to these consultations have been reflected in the subsequent Bill. Our own responses to the consultations commented that many migrants who come to the UK with limited leave to remain already have comprehensive health insurance and should not, therefore, have to pay a health surcharge. Further, migrants travelling to the UK to work are contributing to the NHS through taxes paid on their salaries. It is unclear why they should have to pay further on top of these payments. We also addressed the impracticality of the proposals for landlords, who will be required to check and understand many types of ID.

It may not be surprising that sensible considerations were excluded from the Bill in an environment on immigration which Vince Cable described recently as ‘toxic’ and impacting on politicians’ ability to make an ‘economically rational’ case for immigration.

We wait with baited breath to see whether the legislative process can soften the harsh edges of this Bill and remove some of the toxicity.

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