The Immigration Bill

Immigration Bill Make no mistake about it. Immigration is the burning issue in the UK’s political arena. In May 2013, in setting out the legislative agenda, Her Majesty had explained that the government will bring forward a bill – ensuring that the UK attracts people who contribute and deters those who do not – that further reforms the immigration system.

Just the other week, the Home Secretary Mrs Theresa May likened the immigration system to a “never-ending game of snakes and ladders”. She simultaneously renewed her pledge to clamp down on the abuse of human rights in immigration appeals. By reducing the grounds of appeals from 17 to 4 the existing number of 70,000 annual appeals against deportation could potentially be halved, she claimed.

Frustrated by characters like Abu Qatada – who on his homeward sojourn asked whether “Crazy May” would be on board? – “Deport foreign criminals first, then hear their appeals”, she said. In her typical style, Theresa May attacked the Human Rights Act 1998 because she believed that Article 8 (the right to a private and family life) of the European Convention on Human Rights was a “free for all” and that the law sided with “the criminals rather than the public.” In its 2015 manifesto for the general election, May’s party wants to include a commitment to scrapping the Human Rights Act.

With anxieties running high, Mrs May’s long awaited Immigration Bill was finally published yesterday. Although the bill itself is not too longwinded, it is garnished with several other documents: see the explanatory notes, the overview factsheet, the memorandum by the Home Office on the Convention and the delegated powers memorandum. Pursuant to section 19(1)(a) of the Human Rights Act, the Home Secretary has made a statement that the provisions of her bill are compatible with the Convention.

The JCWI’s Habib Rahman said that the bill would divide British society. The Immigration Law Practitioners’ Association pointed out that the scheme of the legislation is such that it requires British citizens, EEA nationals and settled people to prove that they are lawfully in the UK. For ILPA, this can only increase expense and racism. ILPA also thinks that the proposed legislation is also administratively unworkable. As Colin has highlighted, only two decades ago Tony Blair argued the case for rights of appeal precisely because they play a very important part in the transparency of any decision making process. And of course, Liberty’s director Shami Chakrabarti pointed out that the bill could produce a “race relations nightmare”. Because it makes it harder for Black and Asian British people to rent property and it wants doctors to check their patients’ immigration status, the bill discriminates on the basis of the colour of one’s skin.

The controversial bill is divided into 7 parts. Stretching in excess of a 100 pages it has 66 clauses and 8 schedules. Part 1 addresses removal and other powers. Part 2 is headed “appeals etc”. Aimed at “access to services”, Part 3 is subdivided into Chapter 1 (residential tenancies) and Chapter 2 (other services etc). Part 4 targets “marriage and civil partnerships” and is set out as Chapter 1 (referral and investigation of proposed marriages and civil partnerships), Chapter 2 (sham marriage and civil partnership) and Chapter 3 (other provisions). Part 5, or “oversight”, makes provision for oversight of immigration advice and services: since good immigration advice is in the public interest, for me this is the most attractive part of the bill. Part 6 makes miscellaneous provision for embarkation and fees. Part 7 makes final provisions in respect of financial and transitional provisions etc.

Key aspects of the Immigration Bill are to (i) make millions of private landlords check tenants’ immigration status with fines of £3,000 for non-compliance – in turn, landlords are concerned whether they know enough about checking identity documents (ii) make people such as students to contribute £200 to the NHS (iii) make banks run checks against an immigration offender datebase before opening bank accounts (iv) give more powers for checking the immigration status of driving licence applicants and revoking overstayers’ licences (vi) use a policy of deport first, appeal later in cases where there is no serious irreversible harm. (See Ronan Toal’s comprehensive clause-wise examination for a deeper look at the bill’s legislative architecture.)

Reiterating Theresa May’s snakes and ladders’ theory of immigration law, the bill’s overview advances some interesting claims:

The winners are foreign criminals and immigration lawyers – while the losers are the victims of these crimes and the public. It is too difficult to get rid of people with no right to be here.

This is not fair to the British public and it is not fair to legitimate migrants who want to come and contribute to our society and economy.

Surely, by fusing foreign criminals and immigration lawyers together in this ridiculous way and putting them at odds with the British public, the Home Office is not being very honest or transparent. Complicated and fast changing legislation encrusted with hard case law is much harder work for people employed by the Home Office (the vast majority of whom are legally unqualified) than it is for lawyers. Singling out immigration lawyers and depicting them as some kind of menace is pretty unjustified. To impute that they form some kind of “axis of evil” with foreign criminals is even worse.

For the time being, perhaps the Home Office can lick its wounds and find limited comfort in some of the things said by the Court of Appeal (Dyson MR, Davis and Gloster LJJ) in MF (Nigeria) v SSHD [2013] EWCA Civ 1192 – see earlier posts here and here. The Court disagreed with the Upper Tribunal that the regime set out for deportation under the Immigration Rules is a not complete code for dealing with Article 8. But notwithstanding that, the Court dismissed the Home Office’s appeal and found that the Upper Tribunal was entitled to strike the balance in MF’s favour: any divergence in the judicial approach adopted by the Court and the Upper Tribunal related only to form and not to substance.

On the other hand, some of the other recent case law is less forgiving. For example, in SSHD v Al-Jedda [2013] UKSC 62 the UK Supreme Court (Lord Neuberger PSC, Lady Hale DPSC and Lords Mance, Wilson and Carnwath JJSC) unanimously held that Hilal Abdul-Razzaq Ali al-Jedda (a terror suspect with longstanding litigation against the government) could not be deprived of British citizenship because it would be against the 2012 Guidelines on Statelessness No 1 (HCR/GS/12/01) issued by United Nations High Commissioner for Refugees. Since the Home Office had copied these guidelines into its own guidance on statelessness, Lord Wilson JSC para 34 commented that:

The Secretary of State’s own guidance eloquently exposes the fallacy behind her appeal.

So the judicial environment for introducing the bill, which seeks to create a hostile environment for foreigners, is not all that rosy for the Home Office. Al Jedda’s lawyer Mr Phil Shiner pointed out the high costs incurred by the taxpayer because of the Home Office’s appeal and he hoped that his client would be left alone in the future.

It is probably pertinent to question whether the never-ending game of snakes and ladders analogy is justified?

Even if it is justified, it is surely not a one-way street. Anybody who has had anything to do with the new Immigration Rules will know all about snakes and ladders. Take spouse visas for example. Is there another group of people who have been so badly shafted? Their “crime” is just marriage or a partnership but the Home Office nevertheless appealed Blake J’s decision in MM, R (On the Application Of) v SSHD [2013] EWHC 1900 (Admin) (see posts here and here). Perhaps, in order to save face, they want to “claw” something “back” like they did in MF.

Some other points that the government makes about the bill are that it:

  • Is expected to complete its Parliamentary passage during the third session of this Parliament and once Royal Assent has been received, the measures in the bill will be implemented from summer 2014 onwards.
  • Deters illegal migrants from coming to the UK in the first place.
  • Allows the Home Office more effectively to identify, and enforce the removal, of illegal migrants.
  • Encourages more of those people who are here unlawfully to leave.
  • Reduces the cost to the taxpayer of the immigration system through fewer appeals and more cost recovery through fees.
  • Reduces pressure on services therefore freeing up capacity for the lawfully resident population.

The bill’s overview cites the fact that net migration is down by one-third in comparison to 2010 and it holds this information out as some sort of blueprint for the future. However, given the general sentiments that the bill has aroused, it remains to be seen whether the bill will be the panacea that its promoters make it out to be?

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Human Rights Act, Immigration Law, Immigration Rules, UKSC and tagged , , , , . Bookmark the permalink.

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