Legal Briefing

New Immigration Bill, October 2013: cause for concern or appeasing public sentiment?

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Human resources | 01 December 2013

The year 2013 has seen a string of reforms to the immigration system by the current coalition government. On 10 October, the government published a Bill aimed at continuing its drive to reduce net migration figures.

Immigration minister Mark Harper MP stated, ‘The government is determined to build a fairer system and address public concern about immigration’. However, the government’s attitude towards immigration and this latest Bill raises deep concerns with regards to how ‘fair’ our immigration system currently is and will become in the future. 


The main provisions of the October Bill will affect migrants’ access to public services, facilities and employment, removal and other powers, appeals and marriages and civil partnerships.

PRIVATE LANDLORDS AND AGENTS BEWARE!

Landlords and agents will automatically be burdened with a requirement to monitor the immigration statuses of their tenants. The new requirements imposed on private landlords will be based on the current requirements which apply to employers who employ non-EEA migrants. The duty to make ‘simple’ checks can be made through the following procedures:

  1. A tool similar to the current online ‘right to work’ checking resource.
  2. A set of services on housing with three elements:
  • A free phone enquiry and checking service for landlords’ use.
  • An e-mail service with a turn around of no longer than 48 hours.
  • An option for migrants who have no documents to obtain confirmation from the Home Office that they are allowed to rent accommodation.

Landlords must also ensure that the retention and disposition of information relating to the immigration status of their tenants adheres with the Data Protection Act. Furthermore, landlords will need to take caution when considering visa documents from a tenant. While the Home Office does not expect landlords to be immigration experts, if they are unable to prove to the Home Office that they took reasonable steps to satisfy themselves as to the authenticity of a document presented, they may find themselves liable to a penalty fine. The extent to which such a defence will be viable remains to be seen.

The above will certainly put a considerable amount of strain on landlords and agents, who will need to tread carefully when considering letting properties to those who are subject to immigration control. With such extensive checks required, the government runs the risk of landlords and agents opting to rent their properties only to British citizens and those with indefinite leave to remain, rather than those with limited leave to remain, from fear of being inadvertently issued with a civil penalty.

Any landlords or agents found to be leasing their property to illegal migrants without following the due process can face a penalty of up to £3,000 per illegal immigrant. Landlords can delegate responsibility to comply with the Home Office’s requirements through the use of a letting agent. One consolation is that there will be an appeals process available to landlords who are believed to have not made reasonable attempts to check a tenant’s status.

CONTRIBUTION TO THE NHS

The Bill also introduces a new requirement for migrants who are applying for leave to remain in the UK for more than six months to make a contribution to the NHS. The intention is to require a surcharge to be paid upon submission of an entry clearance or a leave to remain application, ie that both the application fee and the surcharge are paid simultaneously. This additional fee will only be refunded to a migrant where their application for leave to enter or remain is refused. Only once the surcharge has been paid will a migrant be able to access free NHS care to the same extent as a permanent resident. The Home Office has explained that there will be some exceptions to the medical treatment available to migrants, particularly expensive discretionary treatments. However, a more sensible approach may be to provide migrants with the option of taking out private medical insurance either independently or via their employer, rather than imposing an ‘upfront’ charge.

Whether the surcharge will make any material difference towards NHS expenditure remains to be seen. The Home Office has commissioned an independent audit which will examine the pressures placed by migrants on the NHS and will report the findings later this year. Certainly the argument posed by migrants will be that the taxes they pay in the UK are directly contributing to the NHS and to pay a further surcharge is unreasonable.

A ‘FINE’ CHANGE FOR EMPLOYERS

Employers should be aware that the maximum penalty for employing an illegal worker may soon rise to £20,000. The government also proposes to streamline the processes by which an employer can object to and appeal against a civil penalty. Employers will be able to raise an objection to the secretary of state before making an appeal to the civil court. The Bill will also introduce simplified right to work checks which will include reducing the number of acceptable documents for checking purposes. Where an employer acquires new staff under the Transfer of Undertakings (Protection of Employment) Regulations, under the new Bill, the grace period for the new employer to make right-to-work checks will now extend from 28 to 60 days.

DON’T BANK ON DRIVING WITHOUT A VISA

The Home Office claims that at present there are no specific rules to stop illegal migrants from opening a bank account in the UK. Banks and building societies will now face sanctions if they allow an illegal migrant to open a new current account. To avoid a sanction they will be required to undertake an immigration status check on any new application against records held by an anti-fraud organisation or a data matching public authority designated by the Home Office. Any individual who has exhausted all appeal rights and is liable for removal or deportation will have their details forwarded to the designated organisation by the Home Office.

The government proposes to provide the Driver Vehicle Licensing Agency (DVLA) with the authority to refuse driving licence applications for individuals who cannot evidence their legal permission to reside in the UK. The DVLA will verify an individual’s immigration status before issuing a driving licence. The DVLA will also be directed to revoke a licence where the licence holder no longer has the right to remain in the UK.

REDUCTION IN APPEAL
S

The government estimates that almost 70,000 appeals are heard each year and one of the key aims of the Immigration Bill is to reduce the number of appeal routes from 17 to four, emphasising the government’s intention to preserve appeals for individuals asserting fundamental rights. The fundamental rights categorised are the refusal of a leave to remain application which violates a migrant’s human rights, refusal of asylum, humanitarian protection claims and where refugee status and humanitarian protection has been revoked. Its implementation is likely to make it easier to remove and deport illegal immigrants.

They also plan to extend the number of non-suspensive appeals, requiring appellants to pursue an appeal from their home country after deportation. The secretary of state will be required to certify that the deportation of each appellant will not cause serious irreversible harm.

The government has directed the courts/tribunals to consider public interest when assessing claims under Article 8 of the European Convention on Human Rights. The Bill also proposes a more specific definition of ‘public interest’ to be considered.

POWERS OF REMOVAL

The Bill seeks to streamline and simplify the process for removing migrants unlawfully in the UK. The current process requires the decision to remove an individual to be completed in two stages. The revised approach will require only one decision to be communicated to an individual regarding their permission to remain in the UK and their right to appeal of the decision made. The government believes this will reduce the ambiguity surrounding whether an individual has the right to remain in the UK. Immigration enforcement will have powers to remove individuals if they do not leave the UK voluntarily once the decision has been made. The approach will inevitably reduce the amount of time an individual may have to prepare and submit an appeal.

NOWHERE TO HIDE

The government propose to strengthen the powers for immigration officers to enter the property of individuals suspected of a criminal immigration offence. Currently the powers granted do not permit immigration officers with reasonable grounds of suspicion to search the premises of a third party to obtain documentation that could aid the removal of an illegal immigrant from the UK.

ONE STRIKE AND YOU’RE OUT: IMMIGRATION BAIL

There will be a restriction on the number of times an individual can apply for bail if detained pending removal from the UK. At present, individuals can make repeated requests for bail despite no change to their circumstances. In addition, bail can be granted even when an individual is scheduled to be deported within days. This can result in multiple applications being made and an abuse of the bail request process. Changes to the Tribunal Procedure Rules will prevent repeat bail applications in the absence of a material change in circumstances and thus enable the Home Office to maintain detention where removal from the UK is scheduled within 14 days.

TILL DEATH DO US PART

The Home Office estimates that between 4,000 and 10,000 applications a year to stay in the UK are made on the basis of a sham marriage or civil partnership. The government will now extend the marriage and civil partnership notice period from 15 days to 28 days from the date notice of marriage is given. It will also permit the secretary of state to extend this period to 70 days in order to investigate reasonable suspicions of suspected sham marriages reported to it by registration officials. The Home Office can consider taking enforcement action, removing the migrant from the UK and prosecuting the couple if the relationship is deemed to be a sham.

The Bill also introduces the requirement for most non-European Economic Area (non-EEA) nationals to complete civil preliminaries if they want to marry in the Church of England or the Church of Wales.

EMBARKATION CHECKS

The government will grant powers to enable carrier and port operator staff to undertake exit checks in the aim of improving security at borders and establishing the identification of those who are in the UK illegally. The partnership with third-party carriers on rail and maritime routes will enable quicker identification of harmful individuals.

CONCLUSION

The government endeavours to remove legislative obstacles that prevent the prosecution and removal of illegal immigrants from the UK. We must, however, reflect upon the impact the proposals will have on the fundamental rights afforded to individuals under Article 8 of the European Convention on Human Rights. The consequences of restricting migrant’s right of appeal together with their removal from the UK while appealing a decision raises questions around the government’s commitment to human rights while controlling migration.

Subject to Parliamentary approval and royal assent, the bill could become law as early as spring 2014. With the shortly approaching general election in 2015, the government will inevitably seek to address public concern on migration and demonstrate its ability to regulate borders and tackle illegal immigration. The implementation of the Bill is therefore inevitably high on the political agenda.

By Sundeep Rathod, solicitor, and Anirban Chatterji, trainee solicitor, Magrath LLP
.

E-mail: Sundeep.rathod@magrath.co.uk; Anirban.chatterji@magrath.co.uk.