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Immigration Act 2014 Commencement Order No. 3: analysis

Immigration Act 2014 Commencement Order No. 3: analysis

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Even aside from the issue of an unpublished law purporting to have any effect, the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (SI 2014/2711) is a dog’s breakfast. At first blush it appears to bring into effect the new unified removal power at section 1 of the Immigration Act 2014 and the new refugee and human rights only appeal regime. These would be very major changes to immigration law and practice. There are saving provisions, though, and then there is a further layer of “un-saving” provisions and yet a further layer of “re-saving” provisions. Topped by a final “other than” provision. I kid you not.

In short, it transpires that the powers are only brought into effect for two unfortunate groups of migrants. We will therefore have two parallel and identically numbered sets of laws operating for different people at the same time. The new section 10 of the Immigration and Asylum Act 1999 and sections 82, 84, 85 and so on of the Nationality, Immigration and Asylum Act 2002 will apply to those designated in the Commencement Order. For everyone else the old sections 10, 82, 84 and so on will continue to apply. This state of affairs may carry on for some time, perhaps even indefinitely. As we will see below, the terms of the Commencement Order appear to plan for the long term and Broken-shire’s statement to Parliament offered no timescale for full implementation.

This recalls the drafting car crash that has been the parallel sections 88A of the 2002 Act, one version created by the 2006 Act and the other by the 2008 Act and both operating at the same time for different groups even to this day owing to the terms of SI 2008/310. Couldn’t they have been given different numbers?

Who is affected?

The first group of designated migrants for the Immigration Act 2014 powers consists of persons who become foreign criminals as defined by s.117D 2002 Act on or after 20 October 2014 and their families if liable to deportation. The second group broadly consists of students and their families, but only those who make an application for Tier 4 leave on or after 20 October 2014.

Arguably it sends an unhelpful message to be lumping foreign students together with foreign criminals and depriving them of procedural protection in the same way, but there we go..

I say “broadly” because there is specific provision for students re-entering the UK on a different basis (i.e. not Tier 4) so that the new laws do not apply to them. This looks a little bit like some long term planning and it raises the possibility that the removal powers and/or appeal rights might be postponed for other groups, perhaps indefinitely. Maybe someone in Government finally cottoned into the fact that the Immigration Act 2014 appeals scheme actually increases appeal rights for unpopular overstayers and forces reliance on despised human rights grounds. In addition, if a student who has applied for Tier 4 leave on or after 20 October 2014 later makes a human rights or protection claim then the new provisions will apply, unless it is an application made at port.

Other provisions

By Giuseppe Zeta, on Flickr
By Giuseppe Zeta, on Flickr

Consistently with removal of independent appeal rights, the new process of in-country “administrative review” by one official of another official’s work is being introduced for affected students. Who needs judges when the Home Office can simply review its own decisions? The process is set out in a new section of the Immigration Rules and is quite special in its own right. But that is a story for another blog post.

Some of the more sinister and overtly racist parts of the Act are also starting to come into effect, although not yet with full force. The “papers please” landlord checks are to commence in certain West Midlands local authorities from 1 December 2014, as has previously been announced. Smethwick is included, with all the historical resonance of previous battles there.

The powers to make regulations in order to bring into effect the foreign national marriage delay powers are also being commenced. I still cannot understand how the Home Office thinks it can possibly cope with conducting 6,000 investigations a year, which is what it was predicting during the passage of the Bill.

The “health charge” (a sort of visa fee add on) is being lined up with powers commenced in order to lay regulations. Additional powers are being conferred on the OISC to conduct investigations (incidentally, the very existence of the OISC seems to be under review right now).

Home Office guidance

The Home Office has also today published guidance on the new appeals regime and on the transitional provisions. At the time of writing I haven’t had a chance to review it but will either update here or put out a new blog post if it seems deserving.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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