Updates, commentary and advice on immigration and asylum law
New course on Immigration Act 2016 available now

The Immigration Bill 2015

The Immigration Bill 2015 was published on 17 September 2015. For now, this post provides links to further reading and resources on the Bill and also some commentary on the appeals sections, which are of the most direct interest to immigration lawyers like myself. I may update and perhaps republish the post if there are significant developments or I get a chance to take a closer look at other parts of the Bill

The quick news on appeals is that virtually all human rights appeals will be out of country. Given that the right of appeal is limited by the Immigration Act 2014 only to human rights and refugee appeals, this means that almost all normal immigration appeals will be out of country.

The Bill weighs in 139 pages if you want to download the pdf version (better for printing). The html version is for this reason recommended (better for online, includes hyperlinked contents page).

Summary

The accompanying press release tells us about the intentions behind the Bill and provides a summary of what the Government would like the newspapers to say about the Bill:

People driving a car while in the country illegally face jail and having their vehicles seized under new powers announced in today’s Immigration Bill.

A new offence of driving while unlawfully in the UK will see anyone convicted facing a sentence of up to six months in prison and an unlimited fine in England and Wales.

Anyone arrested for the new offence could have their car impounded and, if convicted, forfeited. Immigration Enforcement officers will have new powers to search individuals and properties and seize driving licences if they suspect someone to be here illegally.

The provisions in the new Bill to toughen our action against those with no right to be in the UK have three main themes:

  • new measures cracking down on the exploitation of low-skilled workers, increasing the punishments for employing illegal migrants, and strengthening sanctions for working illegally
  • building on the Immigration Act 2014 to ensure that only people living lawfully in the UK can have access to UK bank accounts, driving licences and rental accommodation
  • increasing powers to make it easier to remove people who have no right to be in the UK…

…The new Bill builds on this work to reduce the ‘pull’ factors that draw illegal migrants to Britain and the availability of public services which help them to remain here unlawfully.

It includes a range of new powers to:

  • tackle illegal employment, including a new offence of illegal working
  • stop providing support to migrants who do not return home once all claims to asylum have failed
  • strengthen our border security
  • ensure all public employees in customer-facing roles speak good English
  • electronically tag those on immigration bail
  • create a new role of Director of Labour Market Enforcement
  • impose a new skills levy on businesses bringing migrant labour into the country so we can reduce our reliance on imported labour, and boost the skills of young people in the UK

Documents and resources

For more detail, there is a gov.uk resource page available that includes an overall ‘fact sheet’ (which is rather low on facts but rather high on rhetoric) an impact assessment and a serious of specific ‘fact sheets’ on the different parts of the Bill:

The Explanatory Notes, which set out the Government’s view of the purpose and effect of the Bill, are also available.

A House of Commons research briefing is now available on Private Landlords: Duty to Carry out Immigration Checks, which includes a section on the proposed changes, and there is also now a Second Reading Briefing (which includes references to pieces on Free Movement, pleasingly).

Further analysis on the Immigration Bill is available from the following sources:

Changes to appeals

The context to the changes proposed in the Bill is that the Immigration Act 2014 restricted appeals to either human rights grounds or refugee grounds; these are the only two types of appeal now available, basically. However, human rights appeals will include appeals against refusal of family immigration applications and perhaps some other situations, as discussed repeatedly on this blog (as long ago as October 2013 in fact: Appeals and the Immigration Bill).

So, a “human rights claim” is no longer to be seen under the Immigration Act 2014 as a claim outside the Immigration Rules, as was the case historically under previous legislation, it also includes any situation that engages human rights including within the Immigration Rules.

Under the Immigration Bill 2015, such appeals will only be able to be brought from outside the UK. This is to be achieved by extending the certification power introduced by the Immigration Act 2014 which is currently applied only to foreign criminals. In future it will apply to all immigrants.

Example

Two students, Alfred and Betty, meet at university, fall in love and marry. Alfred is British and Betty is not. They plan to live in one of their countries and given they met in the UK decide they would like to live in the UK. All is going well. Betty is working part time as a student, as she is allowed to, and her employer will offer her more hours if Betty is allowed to work more. Betty applies as a spouse under Appendix FM of the Immigration Rules.

Her application is refused. This could be because her relationship with Alfred is said by a Home Office official to be a sham, for example, or they do not meet the income threshold, or a mistake may have been made by the Home Office in assessing the very complex documentary evidence that has to be submitted.

Under the Immigration Act 2014, Betty’s application will be treated as a human rights claim because it involves Article 8, the right to private and family life. Betty would have a right of appeal against her refusal, and the couple can both attend the immigration tribunal to try and convince a judge that their relationship is genuine.

But not any more.

Under the Immigration Bill 2015, Betty’s right of appeal could only be exercised after she has left the UK. There will still be an appeal but Betty will not be able to attend in person to try and convince the judge, which will make it rather harder for her and Alfred to succeed. Even if she is able to win despite the additional obstacles, she will also lose her job and be separated from Alfred for the duration of the appeal. Or Alfred will also have to leave the UK with her. At the moment, appeals are taking over 18 months to be heard then several additional weeks to be determined and implemented. If they win they can then return victorious but presumably very, very bitter at what they have been put through at the start of their married lives together.

There is a good chance that many people who would have appealed and won simply will not bother; they will move abroad instead. A few extra embittered British citizens leaving with their spouses will count towards the Government’s elusive net migration target.

James Broken-shire apparently says:

“Through the Immigration Act 2014, we introduced a ‘deport first, appeal later’ rule for foreign national offenders.

“And now, through the Immigration Bill, we will remove even more illegal immigrants by extending this rule to all immigration appeals, apart from where there is a risk of serious irreversible harm.”

What Broken-shire says is inaccurate, though. The power is not being extended to “illegal immigrants”, it is being extended to all immigrants, including those that have been lawfully resident up until the Home Office have rightly or wrongly refused their immigration application. This is made clear by the rest of the appeals factsheet: “We now plan to extend this power to enable it to be applied to all immigration cases.” The factsheet goes on to make plain that the power will be used to separate families, including parents from children.

There is an exception. Human rights appeals cannot be certified so as to be out of country only if this would be a breach of human rights or cause “serious irreversible harm”. The Home Office and immigration tribunal interpretation of this exception is exceedingly narrow. A child being separated from a parent for the duration of the appeal process is not sufficient, for example, nor is being prevented from participating in family proceedings. The Court of Appeal is considering this issue shortly.

The summary on appeals from the overall impact assessment reads:

The Bill provides that an individual may be refused entry, required to leave or removed from the UK before they can exercise a right of appeal against the refusal of a human rights claim, where this would not breach their human rights or cause a real risk of serious irreversible harm or other breach of their human rights if removed before the appeal. This change will not affect asylum claims, where existing certification powers will continue to apply if the claim has been refused and is manifestly unfounded.

Where a breach of human rights would arise or there was a real risk of serious irreversible harm if any appeal had to be lodged from overseas, this new power could not be used to require individuals to depart from the UK before their appeal had been determined.

This change will create more opportunities for prompt removals in human rights cases. Individuals whose case is certified will be liable to removal soon after the refusal decision is made. This will reduce detention costs. There will be an increased incentive to cooperate with removal in order to access the right of appeal where this is only available from overseas. The absence of an in-country right of appeal will remove the opportunity to exploit the appeal process to extend the individual’s stay in the UK, and remove the scope for existing human rights to be strengthened or additional rights accumulated while awaiting the outcome of that in-country appeal.

To achieve this, the actual change to the legislation itself is fairly minor. Basically, the new section 94B that was inserted by the Immigration Act 2014 into the Nationality, Immigration and Asylum Act 2002 is amended to omit the words “made by persons liable to deportation”. It will in future read:

94B Appeal from within the United Kingdom: certification of human rights claims made by persons liable to deportation

(1) This section applies where a human rights claim has been made by a person (“P”) who is liable to deportation under—

(a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good), or
(b) section 3(6) of that Act (court recommending deportation following conviction).

(2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed refusing P entry to, removing P from or requiring P to leave the United Kingdom, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed refusing P entry to, removing P from or requiring P to leave the United Kingdom.

There is a consequential amendment to section 92(3)(a) as well.

Given that the immigration tribunal remains utterly impervious to modern means of communication, such as emails or Skype and video link evidence, it is hard to imagine that these new out of country appeals will allow for a fair trial of the issues, never mind the huge disruption they will cause to the lives of those affected, who will have to endure the long delays involved in immigration appeals.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

Not yet a member of Free Movement?

Sign up for as little as £20 per month

Join Now

Benefits Include

  • Unlimited access to all articles
  • Access to our forums
  • E-books for free
  • Access to all online training materials
  • Downloadable training certificates
Shares