The UK Government’s threats to those unfortunate enough to be in the UK undocumented ( or the future undocumented) were repeated on 25 August 2015 by Immigration Minister James Brokenshire :
“Anyone who thinks the UK is a soft touch should be in no doubt — if you are here illegally, we will take action to stop you from working, renting a flat, opening a bank account or driving a car. As a one nation government we will continue to crack down on abuse and build an immigration system that works in the best interests of the British people and those who play by the rules. …….” https://www.gov.uk/government/news/new-action-to-make-britain-a-harder-place-for-illegal-migrants.
On 21 May 2015, BBC News reported that , “David Cameron says he will not give up on his immigration target despite net migration to the UK reaching its highest level for a decade. Net migration rose by 50% to 318,000 last year – with sharp increases from inside and outside the EU. A total of 641,000 people moved to the UK in 2014, the Office for National Statistics said. But the PM said he would not “cave in” and abandon his target of reducing net migration below 100,000”.
The Immigration Act 2014 received Royal Assent only on 21 May 2014 and came into force that year, yet the Government has already started talking about a new Immigration Bill. Yes, the Immigration Act 2014 did bring in new substantial changes however some of the effects of that legislation are beginning to bite in particular in relation to appeal rights and to those subject to deportation action. It is also already apparent that the judicial interpretation of that Act will leave the higher courts encumbered for several years to come.
On October 2013 the then Immigration Minister Mark Harper MP said as regards the Immigration Bill as it then was:
“What we are going to do:
Reform the removals and appeals system, making it easier and quicker to remove those with no right to be here;
End the abuse of Article 8 – the right to respect for private and family life;
Prevent illegal immigrants accessing and abusing public services or the labour market
………………………..
“The Bill will benefit:
British citizens and legal migrants by:
Deterring illegal migrants from coming to the UK in the first place;
Allowing the Home Office more effectively to identify, and enforce the removal, of illegal migrants;
Encouraging more of those people who are here unlawfully to leave;
Reducing the cost to the taxpayer of the immigration system through fewer appeals and more cost recovery through fees;
Reducing pressure on services therefore freeing up capacity for the lawfully resident population”.
One cannot therefore help but have the passing thought that the 2014 Act could and should have catered for what apparently now needs to be “fixed” by yet even more piecemeal legislation intended to be brought into effect.
THE UK GOVERNMENT’S TOUGH STANCE IN ACTION
Despite the Immigration Act 2014 being brought into force, the Government clearly believes that the changes introduced by that Act are not tough enough……… otherwise why seek to introduce even more substantial legislation so soon?
A summary of the main changes in the 2014 Act are set out below:
- Section 7 Immigration bail: repeat applications and effect of removal directions:– An applicant may apply directly to the Tribunal to be released on bail. Under provisions in the Immigration Act 2014, if further applications for Immigration Judge bail are made within 28 days of a refusal the Tribunal is required to dismiss the application for bail without a hearing, unless the applicant can demonstrate a material change in circumstances since the Tribunal’s previous refusal. Further an Applicant must not be released on bail without the consent of the Secretary of State if directions for the removal of the person from the United Kingdom are for the time being in force, and the directions require the person to be removed from the United Kingdom within the period of 14 days starting with the date of the decision on whether the person should be released on bail.
- Section 15 Right of Appeal to the First Tier Tribunal:- amending This sectionnoteType=Explanatory Notes has no associated Part 5 of the Nationality, Immigration and Asylum Act 2002 (immigration and asylum appeals) requiring for section 82 to provide that a person may only appeal to the Tribunal where—
-the Secretary of State has decided to refuse a protection claim;
-the Secretary of State has decided to refuse a human rights claim, or
-the Secretary of State has decided to revoke an affected person’s protection status.
- Section 17 Place from which appeal may be brought or continued:– Introduced Section 94B of the Nationality, Immigration and Asylum Act 2002. Section 94B 2 allows a human rights claim to be certified where the appeals process has not yet begun or is not yet exhausted and the Secretary of State considers that removal pending the outcome of an appeal would not breach Section 6 of the Human Rights Act 1998. One ground upon which the Secretary of State may certify a claim under section 94B is that the person liable to deportation would not, before the appeal process is exhausted, face a real risk of serious irreversible harm if removed to the country of return. The result of certification under section 94B is that the right of appeal against the decision to refuse the human rights claim will be non-suspensive, meaning it will not be a barrier to removal. Any appeal can only be heard out-of-country.
- Section 19 Article 8 of the ECHR: public interest considerations:– Introduced Part 5A to the NIAT 2002 Act via Sections 117A, 117B, 117C and 117D. In considering the public interest question, the Court or Tribunal must have regard in all cases to the considerations listed in section 117B and in cases concerning the deportation of foreign criminals to the considerations listed in section 117C. The considerations apply in Article 8 cases in relation to assessments of proportionality of removal/deportation.
- Section 21 Persons disqualified by immigration status or with limited right to rent:- A person is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement if they are not a relevant national( ie British citizen, an national of an EEA State, a national of Switzerland) and does not have a right to rent in relation to the premises. A person does not have a “right to rent” in relation to premises if he requires leave to enter or remain in the United Kingdom but does not have it, or if his leave to enter or remain in the United Kingdom is subject to a condition preventing him from occupying the premises.
- Section 38 Immigration health charge:- The Secretary of State provided for a charge to be imposed on applications for leave to enter or remain in the United Kingdom for a limited period
- Section 40 Prohibition on opening current accounts for disqualified persons:- status checks required of the bank which indicate that person is not a disqualified person, or at the time when the account is opened the bank is unable, because of circumstances that cannot reasonably be regarded as within its control, to carry out a status check in relation to the applicant. A person is caught by the legislation if he is in the United Kingdom, and requires leave to enter or remain in the United Kingdom but does not have it.
- Section 47 Revocation of driving licenses on grounds of immigration status:- Where it appears to the Secretary of State that a license holder is not lawfully resident in the United Kingdom, the Secretary of State may serve notice in writing on that person revoking the license and requiring the person to surrender the license and its counterpart forthwith to the Secretary of State. A person is not lawfully resident in the United Kingdom if the person requires leave to enter or remain in the United Kingdom but does not have it
- Section 48Decision whether to investigate proposed marriages and civil partnerships:-
- If a superintendent registrar refers a proposed marriage to the Secretary of State or a registration authority refers a proposed civil partnership to the Secretary of State, the Secretary of State must decide whether to investigate whether the proposed marriage or civil partnership is a sham.
ANTICIPATED CHANGES
The Queen’s Speech on 27 May 2015 relevantly simply stated that measures would be introduced to control immigration.
A Policy Paper published on 27 May 2015, “Queen’s Speech 2015: what it means for you” clarifies the following in relation to the Immigration Bill :
“Immigration
The purpose of the legislation is to:
- control immigration, making sure we put hard working British families first
- support working people, clamp down on illegal immigration and protect our public services
The main benefits of these clauses would be:
- dealing with those who should not be here, by rooting out illegal immigrants and boosting removals and deportations
- reforming our immigration and labour market rules, so we reduce the demand for skilled migrant labour and crack down on the exploitation of low-skilled workers
The main elements of the clauses are:
- illegal working: The Bill will introduce an offence of illegal working, making it clear to migrants who have no right to be here that working illegally in the UK is a crime, with consequences for their earnings. This will provide a firm legal foundation for the wages paid to illegal migrants to be seized as proceeds of crime
- work: we will create a new enforcement agency that cracks down on the worst cases of exploitation. Exploiting or coercing people into work is not acceptable. It is not right that unscrupulous employers can exploit workers in our country, luring them here with the promise of a better life, but delivering the exact opposite, and the full force of the State will be applied to them. A new single agency will have the scale and powers to do this. The Bill will also make it illegal for employment agencies to recruit solely from abroad without advertising those jobs in Britain and in English
- skills levy: a consultation will be carried out on funding apprenticeship schemes for British and EU workers by implementing a new visa levy on businesses that use foreign labour
- services: a clearer bar on access to services by illegal migrants. We will build on the national roll-out of the landlord scheme established in the Immigration Act 2014, and make it easier to evict illegal migrants. We will ensure banks take action against existing current accounts held by illegal immigrants
- appeals: extend the principle of “deport first, appeal later” from just criminal cases, to all immigration cases. In 2014 the last government cut the number of appeal rights but other than foreign criminals, migrants retain an in-country right of appeal against the refusal of a human rights claim. We will now extend the ‘deport first, appeal later’ principle to all cases, except where it will cause serious harm
- tagging: Require all foreign offenders released on bail to be tagged, so we always know exactly where they are. This will prevent absconding and increase the number of criminals deported”
The following relevant Bills are currently before Parliament:
Illegal Immigrants (Criminal Sanctions) Bill 2015-16; A Bill intended to make provision for criminal sanctions against those who have entered the UK illegally or who have remained in the UK without legal authority. This Bill was presented to Parliament on 6 July 2015. This Bill is expected to have its second reading debate on Friday 4 March 2016. It is not yet published.
UK Borders Control Bill 2015-16; A Bill to make provision to ensure that the United Kingdom has absolute control over the right to prevent non-UK citizens from entering the United Kingdom; to determine the circumstances in which non-UK citizens may be required to leave the United Kingdom; and for connected purposes. This Bill was presented to Parliament on 6 July 2015. This Bill is expected to have its second reading debate on Friday 20 November 2015. It is not yet published.
Foreign National Offenders (Exclusion from the UK) Bill 2015-16; This Bill was presented to Parliament on 29 June 2015. This Bill is expected to have its second reading debate on 11 March 2016.
CONCLUSIONS
On 29 August 2015, the Home Secretary, Theresa May wrote in the Sunday Times, “ I AM not going to beat about the bush. The numbers are far too high. This government has an objective to reduce annual net migration to the tens of thousands — but the latest figures, released on Thursday, show it is three times that level, at 330,000…………” A borderless EU harms everyone but the gangs that sell false dreams.
Having regard to the current European migration crisis and in combination with the intention to drastically reduce net migration, it is clear why the UK Government is extremely reluctant to accept more refugees. The Guardian reported on 2 September 2015 that the Prime Minister stated that the crisis would not be solved simply by Britain taking in more refugees, but rather that the Government considers that in relation to the Middle East,“ the most important thing is to try to bring peace and stability to that part of the world”.
Taking in more refugees is clearly inconsistent with the Government’s policy of increased exclusions, deportation and removals. The Immigration Bill, upon it becoming law may set out the Government’s position and intentions however in practical effect, where the UK Government does not get it right on immigration, it is debatable as to whether rather than speeding up removals(in light of the mounting legal challenges being generated by the 2014 Act and inevitably to be extended to the forthcoming legislation) delay may be the result necessitating yet further reactionary legislation.