Upper Tribunal Judges appear within the last few months to be publicly struggling with the proper meaning of the phrase “unduly harsh” found in paragraph 399(a) of the Immigration Rules. The same words are also found in Section 117C(5) of the 2002 Act where the proposed deportee has a genuine and subsisting parental relationship with a qualifying child and the effect of his deportation on the child would be “unduly harsh.
It was noted in KMO (section 117 – unduly harsh) Nigeria  UKUT 543 (IAC) that there is no tension in the fact that there is an area of overlap between Sections 117C(4)&(5) of the 2002 Act and paragraph 399 of the Immigration Rules. When Section 117 was brought into effect, the vocabulary of paragraph 399 was different, speaking not of undue harshness but of reasonableness. The Rule was noted to have been amended to reflect the vocabulary of the statute and so the assessment now carried out under the rules is compliant with the requirements of the statutory provision.
The Upper Tribunal in MAB (para 399; “unduly harsh”) USA  UKUT 435 (IAC) decided that the phrase “unduly harsh” in paragraph 399 of the Rules (and Section 117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned. Whether the consequences of deportation will be “unduly harsh” for an individual involves more than “uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging” consequences and imposes a considerably more elevated or higher threshold. The consequences for an individual will be “harsh” if they are “severe” or “bleak” and they will be “unduly” so if they are ‘inordinately’ or ‘excessively’ harsh taking into account of all the circumstances of the individual.
.The Upper Tribunal in KMO (section 117 – unduly harsh) Nigeria  UKUT 543 (IAC), differed from the view taken by the Tribunal in MAB.
In KMO , the Upper Tribunal considered that the Immigration Rules, when applied in the context of the deportation of a foreign criminal, are a complete code. Where an assessment is required to be made as to whether a person meets the requirements of paragraph 399 of the Immigration Rules, as that comprises an assessment of that person’s claim under article 8 of the ECHR, it is necessary to have regard, in making that assessment, to the matters to which the Tribunal must have regard as a consequence of the provisions of Section 117C. In particular, those include that the more serious the offence committed, the greater is the public interest in deportation of a foreign criminal. Therefore in the Upper Tribunal’s view, the word “unduly” in the phrase “unduly harsh” requires consideration of whether, in the light of the seriousness of the offences committed by the foreign criminal and the public interest considerations that come into play, the impact on the child, children or partner of the foreign criminal being deported is inordinately or excessively harsh.
Although the Upper Tribunal in KMO did depart from the approach advocated by the Tribunal in MAB they did adopt the other guidance offered by that decision.
Recently, having acknowledged the conflict in KMO and MAB, Upper Tribunal Judge Gill in AB (para 399(a))  UKUT 657 (IAC) bluntly stated that neither MAB nor KMO were binding upon her but in effect indicated that if she had to pick a decision to follow, she would chose KMO.
RELEVANT LEGISLATION : THE UK BORDERS ACT 2007
Sections 32 and 33 of the UK Borders Act 2007 provide, so far as material:
“32. Automatic deportation
(1) In this section “foreign criminal” means a person—
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(3) Condition 2 is that-
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (serious criminal), and
(b) the person is sentenced to a period of imprisonment.
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). …’
(1) Section 32(4) and (5)—
(a) do not apply where an exception in this section applies (subject to subsection (7) below), and
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—
(a) a person’s Convention rights, or
(b) the United Kingdom’s obligations under the Refugee Convention.”
THE RELEVANT IMMIGRATION RULES
With effect from 9 July 2012 with the amendment to the Rules by HC 194 which inserted new paragraphs 396–400 into the Rules, these paragraphs sought to set out the weight to be given to the public interest in deportation cases where an individual relied upon his private or family life under Article 8 of the ECHR.
The new provisions were further amended by HC 532 with effect from 28 July 2014. These provisions apply to all appeals heard on or after 28 July 2014 even if the Secretary of State’s decision was made before that date.
Paragraph 396 of the immigration rules provides the following presumption:
“396. Where a person is liable to deportation the presumption shall be that the public interest requires deportation. It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007”.
Paragraphs 397 and A398 make clear that the rules aim to encompass rights protected by the ECHR:
“397. A deportation or der will not be made if the person’s removal pursuant to the order would be contrary to the UK’s obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed”.
“A398. These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom’s obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applies for a deportation order made against him to be revoked”.
“Deportation and Article 8:
“A398. These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom’s obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applies for a deportation order made against him to be revoked.
- Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A”.
Family life with a Partner or Child:
“399. This paragraph applies where paragraph 398 (b) or (c) applies if –
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported”.
“399A. This paragraph applies where paragraph 398(b) or (c) applies if –
(a) the person has been lawfully resident in the UK for most of his life; and
(b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported”.
RELEVANT LEGISLATION PART 5A OF THE 2002 ACT- SECTION 117
In addition to the amendments to the Rules from 28 July 2014, from that date statutory provisions in a new Part 5A of the 2002 Act (inserted by Section.19 of the Immigration Act 2014) deal, in legislative form for the first time, with the issue of the “public interest” in deportation (Section 117C) and other cases (section 117B) where the court or Tribunal is determining whether a decision made under the Immigration Acts breaches Art 8 of the ECHR:
“Article 8 of the ECHR: public interest considerations
117AApplication of this Part
(1)This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a)breaches a person’s right to respect for private and family life under Article 8, and
(b)as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2)In considering the public interest question, the court or tribunal must (in particular) have regard—
(a)in all cases, to the considerations listed in section 117B, and
(b)in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3)In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).
117BArticle 8: public interest considerations applicable in all cases
(1)The maintenance of effective immigration controls is in the public interest.
(2)It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a)are less of a burden on taxpayers, and
(b)are better able to integrate into society.
(3)It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a)are not a burden on taxpayers, and
(b)are better able to integrate into society.
(4)Little weight should be given to—
(a)a private life, or
(b)a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5)Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.
(6)In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—
(a)the person has a genuine and subsisting parental relationship with a qualifying child, and
(b)it would not be reasonable to expect the child to leave the United Kingdom
117CArticle 8: additional considerations in cases involving foreign criminals
(1)The deportation of foreign criminals is in the public interest.
(2)The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3)In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4)Exception 1 applies where—
(a)C has been lawfully resident in the United Kingdom for most of C’s life,
(b)C is socially and culturally integrated in the United Kingdom, and
(c)there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5)Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6)In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted………”
RELEVANT CASE LAW ON THE MEANING OF UNDULY HARSH
(1)MAB (para 399; “unduly harsh”) USA  UKUT 435 (IAC)
The appeal raised an important point of construction concerning the meaning of the phrase “unduly harsh” in relation to paragraph 399 of the Immigration Rules in effect from 28 July 2014.
Arguments Made on Behalf of the Secretary of State:
The Appellant, subject to deportation proceedings, had British children in the UK and upon his appeal against deportation being allowed by the First Tier Tribunal, the Secretary of State appealed to the Tribunal.
The Secretary of State did not challenge the Judge’s finding that it would be “unduly harsh” for the appellant’s children to live in the USA. However, it was submitted that the judge’s finding that the appellant’s deportation would have an “unduly harsh” effect upon the children if they remained in the UK was flawed.
It was also put forward on behalf of the Secretary of State that the judge had failed to take into account the public interest in assessing whether it would be “unduly harsh” for the children to remain in the UK without the appellant. It was stated that the judge had wrongly simply looked at the impact upon the children. The question of whether his deportation would be “unduly harsh” could not, be decided in isolation from the public interest reflected in the seriousness and nature of the appellant’s offending. The magnitude of the public interest was relevant in determining whether any “harsh” consequences were “unduly” so. It was also submitted that whether the effect of deportation was “unduly harsh” required a context and that context was the individual’s offending and the public interest reflected in its seriousness, society’s expression of revulsion at serious criminality and the deterrent effect on other foreign nationals committing offences. It was put forward that the words “unduly” had a sense of unfairness to the individual and required an evaluation of whether the consequences were or were not ‘due’ to that individual. Even though deportation might have very harsh consequences, whether it was “unduly harsh” could only be determined by looking at the magnitude of the public interest furthered by the individual’s deportation. It was submitted that the more serious the crime the greater must be the consequences for them to be properly characterised “unduly” harsh.
Arguments made on Behalf of the Appellants:
It was submitted on behalf of the appellant that the judge had been entitled to find that the impact of the appellant’s deportation would be “unduly harsh” upon the children on the basis of the evidence that they were struggling to survive. Further, it was not accepted that the “unduly harsh” test required consideration of the public interest. However, it was also contended that the judge had done so by considering the public interest when, in an earlier part of his determination, he set out Section 117A-117C of the Nationality, Immigration and Asylum Act 2002 and stated that he had taken account of the judge’s sentencing remarks. It was accepted that the judge had not explicitly referred to the public interest in the relevant passage in his determination concerned with the issue of “unduly harsh” but, nonetheless, he submitted the judge had sufficiently considered the public interest. Reliance was placed upon two passages in determinations of the Upper Tribunal in MK (Section 55 – Tribunal options) Sierra Leone  UKUT 223 (IAC) at  and BM and Others (returnees – criminal and non-criminal) DRC CG  UKUT 293 (IAC) at  to counter the Secretary of State’s position.
Tribunal’s Findings and Conclusions:
The Upper Tribunal considered that nothing in MK or BM and Others supported the Secretary of State’s submission that inherent in the adverb “unduly” is a consideration not only of the impact upon the child (or partner) but also the public interest reflected in the individual’s offending. In the Upper Tribunals judgement, the approach set out in paragraph of MK and paragraph of BM and Others reflects the correct approach to the phrase “unduly harsh” in paragraph 399(a). In the Upper Tribunal’s judgment, the Secretary of State’s submissions, if correct, would result in any ambiguity in the meaning of the phrase “unduly harsh” being resolved “more harshly” in the “government’s favour”.
Further, in the Upper Tribunal’s view, it was not necessary to interpret the word “unduly” so as to necessarily implant a balancing exercise as put forward by the Secretary of State.
It was clear to the Tribunal that the Secretary of State has, in paragraphs 399 and 399A, set out in detail the number of circumstances where the particular factual matrix has led the Secretary of State to conclude that the public interest in deportation (providing the individual has not been sentenced to at least four years’ imprisonment) is outweighed by those circumstances. The policy in paragraph 399 focuses upon the effect upon children (para 339(a)) or a partner (paragraph 399(b)). The wording of the provision, in itself, reflects that focus: “unduly harsh for the child”. It seemed to the Upper Tribunal , that the issue of “unduly harsh” is treated as an isolated issue focusing on the individual child or partner affected by the appellant’s deportation. It is only if neither paragraph 399 nor paragraph 399A applies that the Rules contemplate the decision maker carrying out a balancing exercise for themselves applying the “very compelling circumstances” rubric and, since Part 5A of the 2002 Act came into force, including the considerations set out in Section 117C and Section 117B. The Upper Tribunal was of the view that there was no place for a balancing exercise to be carried out repetitively.
In the Upper Tribunal’s judgment, the word “unduly” requires that the impact upon the individual concerned be ‘inordinately’ harsh. By that they mean that the impact would be “unusually large” or “excessive”. They made it clear that they did not intend that to be a definition but rather a ‘gloss’ to assist decision makers applying paragraph 399 and indeed, Section 117C(5).
In the Upper Tribunal’s view the First Tier Judge did not fall into error by failing to consider the public interest in reaching his finding that it would be “unduly harsh” for the appellant’s children to remain in the UK whilst he was deported to the USA.
On the other hand, the Upper Tribunal considered that the First Tier Judge erred in law by failing to give adequate reasons and in reaching an irrational conclusion that the impact upon the appellant’s children of remaining in the UK was “unduly harsh”. Further, the evidence did not establish that the consequence of his deportation for them remaining in the UK was “unduly harsh”. Applying the meaning of “unduly harsh” set out in MK that, this did not equate with “uncomfortable, inconvenient, undesirable or merely difficult” circumstances. The Upper Tribunal had no doubt that the circumstances identified by the judge could not be equated to “unduly harsh” consequences for the children. It could not properly be established that the effect on them of the appellant’s deportation was excessive, inordinate or severe. The only proper finding, is that the effect on the children has not been established to be ‘unduly harsh’.
The First Tier Judge’s decision to allow the appellant’s appeal under Article 8 was found to involve the making of an error of law and could not stand. The Upper Tribunal set the decision aside and moved to remake the decision.
The Upper Tribunal concluded that given the seriousness of the appellant’s offending, taking into account all the circumstances, they were not satisfied that there were “very compelling circumstances over and above” those in paragraph 399(a) and paragraph 399A such as to outweigh the significant and considerable weight which must be given to the public interest in the appeal. The appeal was dismissed.
(2)KMO (section 117 – unduly harsh) Nigeria  UKUT 543 (IAC):
The question of law that arose to be addressed in the appeal concerned the construction of the phrase “unduly harsh” in Section 117C of the Nationality, Immigration and Asylum Act 2002 (as amended) and paragraph 399 of HC 395, as amended by HC 532.
The question was whether, in particular, when carrying out an assessment as to whether the impact upon a qualifying child or partner will be unduly harsh, should that assessment be informed by the seriousness of the offence committed by the foreign criminal facing deportation or is that assessment focused entirely upon the impact upon the innocent family member, with no reference whatsoever to the seriousness of the offence.
For the Secretary of State, it was submitted that the approach set out by the Tribunal in MAB was not correct.
It was noted that approach taken by the Tribunal in MAB was that there was a two stage approach, at least “potentially” so that the issue of proportionality arose only at the second stage, where a person subject to deportation failed to meet the requirements of 399 or 399A. The Upper Tribunal stated that if that were correct, the result would be somewhat remarkable in that a clear presumption enshrined in primary legislation would be displaced by an immigration rule. The Upper Tribunal considered that approach seeks to disregard the unambiguous requirement of Sectiion.117A(2) that in considering the public interest question, the court or tribunal must (in particular) have regard to, inter alia, the statement of principle found in Section 117C(2) that the more serious the offence, the greater is the public interest in deportation.
The Upper Tribunal stated that there is nothing in the rules, or the statute, to eliminate from an assessment of what is “unduly harsh” considerations of the seriousness of the offence committed.
The Upper Tribunal considered that the phrase “unduly harsh” plainly anticipates an evaluation being required.
The Upper Tribunal stated that the Immigration Rules, when applied in the context of the deportation of a foreign criminal, are a complete code. Where an assessment is required to be made as to whether a person meets the requirements of para 399 of the Immigration Rules, as that comprises an assessment of that person’s claim under article 8 of the ECHR, it is necessary to have regard, in making that assessment, to the matters to which the Tribunal must have regard as a consequence of the provisions of Section 117C. In particular, those include that the more serious the offence committed, the greater is the public interest in deportation of a foreign criminal. Therefore, the word “unduly” in the phrase “unduly harsh” requires consideration of whether, in the light of the seriousness of the offences committed by the foreign criminal and the public interest considerations that come into play, the impact on the child, children or partner of the foreign criminal being deported is inordinately or excessively harsh.
As noted by the Upper Tribunal in KMO at paragraph 26 , although they departed from the approach advocated by the Tribunal in MAB they did adopt the other guidance offered by that decision being:
“Whether the consequences of deportation will be “unduly harsh” for an individual involves more than “uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging” consequences and imposes a considerably more elevated or higher threshold.
The consequences for an individual will be “harsh” if they are “severe” or “bleak” and they will be “unduly” so if they are “inordinately” or “excessively” harsh taking into account all of the circumstances of the individual.”
The Upper Tribunal made it clear that “all of the circumstances” includes the criminal history of the person facing deportation.
(3)AB (para 399(a))  UKUT 657 (IAC)
In AB, Upper Tribunal Judge Gill stated:
“54.Neither MAB nor KMO is binding upon me. Although of course I take account of the need for judicial comity, this is not necessarily determinative. In any event, given the clear conflict between the two decisions, it is not possible for me to follow both.
55.Mr Farhat mentioned MAB at the hearing in response to which I mentioned KMO. He did not address me on which of the two decisions I should follow and why. His skeleton argument refers to MAB. It is noticeable for its complete failure to mention KMO.
56.I take into account the fact that, whilst the decision in MAB was reached by a panel, the decision in KMO was made by a single Upper Tribunal Judge. Nevertheless, I am entirely persuaded by the reasoning at - of KMO. I prefer to follow KMO.”
MAB (para 399; “unduly harsh”)  UKUT 435 (IAC) was heard on 16 June 2015 and notified on 16 July 2015.
KMO (section 117 – unduly harsh) Nigeria  UKUT 543 (IAC) was heard on 16 September 2015 and was notified on 25 September 2015.
AB (para 399(a))  UKUT 657 (IAC) was heard on 19 October 2015 and notified on 20 November 2015.
Having regard to MAB, a Judge would not fall into error by failing to consider the public interest in reaching his finding that it would be “unduly harsh” for an appellant’s children to remain in the UK whilst he was deported.
These Upper Tribunal appeals were heard and decided in the space of less than 6months. It would have been thought that by the time the third decision was notified, there would be more or less some sort of finality as regard the applicable principles within the Upper Tribunal if only for the sake of consistency. This is clearly preferable to a public acknowledgment of conflict within the Upper Tribunal itself in reasoning upon the same ground. In practice, this is leading to the undesirable practice with the First Tier and Upper Tier Judges choosing, depending upon the facts in the appeal, whether or not to apply KMO or MAB. It remains to be seen whether the conflict will be resolved by the Upper Tribunal itself or be left to the Court of Appeal.
The Home Office has within the last year ( more so since the coming into force of the Immigration Act 2014) increasingly sought to put in place measures to deport as many foreign criminals as possible from the UK but in so doing, seem to be deliberately blurring the line between the relevant applicable law and principles that apply when deporting a foreign national criminal as opposed to an EEA national criminal subject to deportation. There has, for example, been a deliberate mirroring of the Section 94B certification, which applies to non- EEA foreign national criminals and the Regulation 24AA Certification that applies to EEA nationals similarly subject to deportation – the intention being to deny deportees an in – country right of appeal. In terms of relevant litigation in this regards for both categories of deportees, the Secretary has so far been winning, as in Kiarie, R (On the Application Of) and Another v The Secretary of State for the Home Department  EWCA Civ 1020 in relation to section 94B and as regards Regulation 24AA, of which judgment was handed down by the Upper Tribunal on 26 November 2015, following a judicial review claim. The judgment is not yet in the public domain.
In a judgement handed down on 26 November 2015, the Upper Tribunal, closely following Kiarie, R (On the Application Of) and Another v The Secretary of State for the Home Department  EWCA Civ 1020, dismissed a Regulation 24AA certification judicial review challenge by an EEA national subject to deportation.
(Although no longer subject to an embargo, the judgement is at the current time yet to be published in the public domain).
The UK Government has over the years (more so since July 2012) sought to introduce measures intent upon ensuring that foreign national criminals are deported or excluded from the UK. Where deportation appeals are won, the Home Office’s now predictable reaction is an onward appeal, challenging allowed Tribunal decisions and sometimes with success. Those subject to deportation therefore cannot afford to proceed upon an assumption that once a deportation appeal is won, the Secretary of State will not seek to appeal such a decision.
The UK Government’s Announcement of 17 September 2015, “New measures will make it tougher than ever before to live illegally in the UK”, coincides with the publication of the new Immigration Bill which was published the same day. The bill is intended to become the Immigration Act 2016. The Bill is meant to build up on the Immigration Act 2014. To put it in basic terms, a view can be taken that the Bill sets out the UK Government’s intention of getting the UK rid of not only those without current leave to be here but also those who have leave but are refused and are intending to appeal in- country but will be denied that opportunity.
The UK Government is not hiding the fact that they want undocumented migrants in the UK to leave, if not voluntarily, then by force. The Immigration Act 2014 is also intended to make life harder for those without leave to remain and also those whose claims have been refused and are intending to appeal whilst in the UK. The Immigration Act 2014 has generated litigation and its provisions are expected to continue generating legal challenges in future in the higher courts- as such it is doubted that the publication of the new Bill or its coming into force will result in an orderly queue to the airport any time soon by those it is intended to target.
THE MAIN CLAUSES
The new Bill is to be read together with several published FactSheets relating to the various clauses.
- Labour Market Enforcement- Clauses 1 to 7:
With a stated view to cracking down on serious exploitation of workers, the Government will appoint a new Director who will oversee the relevant enforcement agencies to provide an enforcement strategy for non-compliance in the labour market. The Government believes that the main bodies responsible for ensuring minimum standards are met for workers are currently not designed to deal with the increase in organised criminal activity engaging in exploitation in the labour market. It is believed that this kind of worker exploitation often appears to involve migrant workers. There will be created a new Director of Labour Market Enforcement appointed by and reporting to both the Home Secretary and the Secretary of State for Business. The Director’ s remit will cover labour market breaches, not immigration offences. The Director and the enforcement bodies will work closely with immigration enforcement wherever labour market breaches are linked to illegal immigrants or people working in breach of their visa conditions.
- Illegal Working – Clauses 8-11:
The Government currently has powers to prosecute migrants with permission to be in the UK who are working illegally in the UK in breach of their conditions, however the Government considers that there is a gap in the current legislation as it does not cover people who have entered the UK illegally or overstayed their visas. A new offence will close this gap by covering any worker – self employed as well as employed.
With the intention of making it harder for people to live and work illegally in the UK, the Government will make it a criminal offence to work illegally, with a sanction of a fine and/or a custodial sentence of a maximum of 6months. By making illegal working a criminal offence in its own right, this will allow wages paid to all illegal workers to be recoverable under the Process of Crime Act 2002.
The Bill will make it an offence for an employer to employ someone whom they “know or have reasonable cause to believe” is an illegal worker. The maximum custodial sentence on indictment for an offence of employing an illegal worker will also be increased from two years to five years. These powers are intended to operate alongside and reinforce the existing system of heavy financial penalties for businesses that negligently employ illegal workers. The new measures are intended to build on legislation introduced in 2014 to strengthen punishments for employers which included doubling the maximum civil penalty to £20,000 per illegal worker.
As regards employers who continue to flout the law by employing illegal workers and evade sanctions, the Bill will introduce a power to close premises for up to 48hours. The closure may be cancelled if the employer demonstrates that they have conducted right to work checks where illegal workers have been identified. Where they cannot, the next step is to place the business under special compliance requirements, as directed by the courts. This can include continued closure for a period, followed by re-opening subject to the requirement to conduct right to work checks and inspections for compliance.
- Driving Licenses- Clauses 16 and 17:
The Government’s intention is to prevent illegal immigrants from retaining UK driving licenses. The immigration Act 2014 provided the power to revoke UK driving licenses held by illegal immigrants. Foreign issued licenses cannot be revoked by the UK Government. Immigration Officers do not currently have the power to seize revoked UK licenses that they encounter. It is the responsibility of the license holder to return the revoked license to the DVLA and failure to do so is a criminal offence. The Immigration Bill 2015 will provide two new measures which build on the driving license related powers in the 2014 Act. It will provide a power for police and immigration officers to search people and premises, in order to seize the UK driving licenses(whether revoked or not) of illegal migrants. The Bill creates a new criminal offence of driving whilst unlawfully present in the UK, which carries a custodial sentence of 6months and/or fine of up to the statutory maximum. The new offence of driving whilst unlawfully present is anticipated to be a power to be used primarily by the police, in the course of their work who may encounter drivers who are not lawfully present driving on the UK roads. The vehicle used may be detained and upon conviction, the court may order its forfeiture. If a police officer stops a motorist for a driving offence, they can check the immigration status of that individual. If the individual is here illegally, the police officer will be able to search for and seize their UK driving license, arrest them for the driving offence and detain the vehicle. If the migrant is convicted of the offence, the court may order forfeiture of that vehicle. This is intended to make it harder for illegal migrants to lead a settled life in the UK.
- Banks- Clause 18:
The Government intends to make it harder for illegal migrants to live and work in the UK by working with banks and building societies to restrict their access to bank accounts.
The Immigration At 2014 prohibited banks and building societies from opening current accounts or individuals who are in the UK unlawfully. Checks are performed with the anti- fraud organisation Cifas. The new Bill goes further and includes measures to prevent illegal migrants from continuing to operate existing bank accounts. This includes bank accounts opened before the 2014 Act prohibition came into force and also where accounts were opened during a period of lawful stay but where the migrant has remained in the UK after their leave expired.
Banks and building societies will be required to check regularly whether they are operating a current account for a person known to be in the UK illegally, according to information provided by the home office via a specified organisation. If a bank establishes that a customer is an illegal migrant, they will have a duty to report the match and details of any other accounts they provide to the Home Office. Measures in the bill will provide the home office with a graduated range of option which could be deployed where a current account holder is confirmed to be unlawfully present. These include requiring banks and building societies to close the illegal migrant’s accounts as soon as reasonably practicable. This measure will be used in routine cases to disrupt the illegal migrant’s ability to remain in the UK and to encourage them to leave voluntarily. The Home Office will be granted the power to apply to the courts to freeze the current account until the illegal migrant leaves the UK. Use of this power is intended to be targeted towards hard to remove cases with significant funds, to leverage co-operation with the removal process. The Bill provides for prosecuting individuals for the new criminal offence of working illegally and recovering wages as proceeds of crime. This measure will be used where there is clear evidence that the assets are the proceeds of illegal working and the person meets the criteria for prosecution. Where the account is frozen, the individual will be able to access their funds to meet basic essential living needs and the level of funds will be determined by the courts in such cases.
The measures are intended to make it harder to live a settled life unlawfully in the UK and to incentivise voluntary departure.
- Residential Tenancies- Clauses 12-15 :
The Government intends to make it more difficult for those with no right to be in the UK to rent private accommodation.
The Immigration Act 2014 introduced the Right to Rent scheme, which set out to prohibit illegal migrants from accessing private sector rented housing. The Right to Rent scheme was first implemented in part of the West Midlands and the Government has announced its intention to expand the scheme across the UK. Under the scheme, private landlords, letting agents and homeowners who let rooms need to check the right of prospective tenants to be in the country by conducting simple document checks, for example a passport or biometric residence permit. Landlords who fail to make the right checks are liable for a civil penalty of up to £3,000 per illegal migrant tenant.
Immigration status is not currently a ground for eviction, but landlords may be able to gain possession for other reasons. The Bill will enable landlords to evict illegal migrant tenants more easily, and in some circumstances without a court order. Landlords will obtain a notice issued by the Home Office which confirms that the tenant is disqualified from renting in the UK as a result of their immigration status. On receipt of this, the landlord will be expected to take action to ensure that the illegal migrant leaves the property. The Government is also introducing four new criminal offences to target unscrupulous landlords and agents who exploit migrants and who repeatedly fail to carry out right to rent checks, fail to take steps to remove illegal migrants from their property. These landlords or agents may face a fine, up to five years imprisonment, both a fine and imprisonment and further sanctions under the Proceeds of Crime Act.
The Bill intends to encourage illegal migrants, who are evicted, to make arrangements to depart from the UK. If they do not the Government states that they will take steps to remove them.
- Enforcement Officer Powers- Clauses 19-28 and 30:
The Government intends to tackle illegal immigration and minimise its impact on public services, communities and businesses in the UK.
Immigration officers currently have powers to examine, arrest and detain illegal migrants for the purpose of removal. They also have search powers to find passports and travel documents to aid removal but if they find other evidence of use to law enforcement partners they cannot always act.
Immigration officers currently do not have powers to search for and seize evidence where the intention is to take administrative action, either to remove an illegal migrant from the UK or to serve a civil penalty notice on an employer or landlord. The Bill provides additional powers of search and seizure, but no extra entry powers.
The Immigration Bill will give immigration officers powers to seize and pass on evidence where there are reasonable grounds to believe it has been obtained through, or is evidence of, a crime and where it is necessary to prevent it being concealed, damaged, or destroyed.
The Bill creates new powers to allow officers to search for and seize evidence of illegal working (such as pay slips or time sheets) or of illegal renting (tenancy agreements and letting paperwork).
Detained migrants and prisoners facing deportation are subject to routine searches for items which may pose a threat to security, but not for nationality documents. This Bill creates new powers to search for and seize these documents which will help speed up removal.
The Bill ensures warrants for immigration officers to enter premises are aligned with police warrants.
The Bill provides a power to cancel leave extended by statute where conditions of leave have been breached or the applicant uses or has used deception in seeking leave to remain.
- Immigration Bail- Clause 29
The Government intends to create a new power to allow the Home Office to require the courts to tag foreign offenders released on immigration bail but are waiting to be deported so that the Government always knows exactly where they are. This is intended to prevent absconding and increase the number of criminals deported. Currently, when a foreign national offender is released on bail, a judge has the discretion to tag a foreign national offender. The Immigration Bill will change the law to allow the Home Office to mandate a tag as a bail condition when an individual is released on bail. Tagging foreign national offenders using GPS technology is intended to allow immigration officers to more quickly re-detain them when deportation is imminent. The Government considers that monitoring individuals using GPS tags will also improve public protection.Illegal migrants, including foreign national offenders, who are awaiting deportation or removal, can be placed on conditions, such as reporting, if detention is not appropriate. The Government considers that the current legal framework for this is complex and fragmented as there are six different legal statuses including immigration bail and temporary admission. It is believed that this complexity is confusing and leads to litigation. The reforms will create a single power of bail, where it is clear what conditions can be imposed, when and what the sanction is for breaching conditions. Tagging will not automatically apply to all non-detained foreign national offenders as the government will seek electronic monitoring as a condition of bail when an foreign national offender is released.
- Appeals- Clauses 31 to 33:
The Government intends to make it easier to remove those who have no right to be in the UK by enabling them to remove a person whose human rights claim has been refused and making them appeal outside the UK, provided this does not breach their human rights. The intention is to extend the current “ deport first , appeal later” policy to other immigration cases and not just foreign national offenders liable to deportation. The Immigration Act 2014 reduced the number of rights of appeal against immigration decisions from 17 to 4. It also created a new power to allow those subject to deportation, primarily foreign criminals, to be deported first so that they have to submit any appeal after their removal – i.e. from outside the UK – so long as this does not cause serious irreversible harm or, otherwise breaches human rights. The Government now plans to extend this power to enable it to be applied to all immigration cases. A person will therefore only be able to appeal before removal where an asylum claim has been refused (provided it is not clearly unfounded) or where a human rights claim has been refused (provided it is not clearly unfounded) and there is a real risk of serious irreversible harm or other breach of human rights if the person is removed before the appeal. Where there is a real risk of serious irreversible harm, or breach of human rights, the Government states that the person cannot be removed from the UK before their appeal has been determined.
- Support for Certain Categories of Migrants- Clause 34:
The government expects more illegal migrants to leave the UK rather than access support. They intend to restrict the support they give to people whose claims for asylum have been found unsubstantiated and their dependants, to those who are destitute and face a genuine obstacle to leaving the UK through changes to the Immigration and Asylum Act 1999.
The UK provides support for asylum seekers who would otherwise be destitute until their claim is finally determined, in line with their international obligations. However, the Immigration and Asylum Act 1999 provides support in broader circumstances. Section 94(5) allows failed asylum seekers with children to continue to receive the same support once their asylum claim has been finally rejected. Section 4 of the 1999 Act provides support for other failed asylum seekers and other categories of migrants.
The Immigration Bill aims to reduce the scope for such support to remove incentives for failed asylum seekers to remain in the UK illegally.
The Bill will make these key changes to the existing support framework: those with children with them when their asylum claim and any appeal are rejected will no longer be treated as though they were still asylum seekers and will cease to be eligible for support under section 95; section 4 will be repealed and support will only be available to failed asylum seekers and any dependent children if there is a practical obstacle that prevents them from leaving the UK.
To avoid destitution, the Home Office will continue to support failed asylum seekers with children if they cannot leave the UK because of a practical obstacle beyond their control (for example because they are unable to travel for medical reasons or because they are waiting for their national embassy to issue them with travel documents).
As regards how the proposals affect asylum seekers and refugees, the Government states that they will not. They state that they will continue to meet their international obligations to both groups. Asylum seekers who are destitute will be provided with accommodation if they need it and a weekly allowance to cover their essential living needs. If they are granted refugee status, they will have access to the labour market and be eligible to apply for mainstream benefits.
There will be transitional arrangements for failed asylum seekers already in receipt of support under section 95 or section 4 of the 1999 Act when the new measures come into force. This will avoid the scenario in which large numbers of families lose support abruptly. There are existing powers to manage these cases off support if they refuse to take steps to leave the UK voluntarily and these will be used on a case-by-case basis.
- Border Security- Clauses 35 to 37:
The Government state that they intend to crack down on those who exploit illegal migrants by seeking to smuggle them into the UK. The Bill will give Border Force new powers to target vessels in UK territorial waters suspected of involvement in facilitating illegal entry into the UK.Border Force operates a fleet of cutters to enforce revenue and customs matters, in particular to lead the fight against the importation of controlled substances. Officers on board cannot exercise immigration powers in UK territorial waters so cannot intervene when they identify vessels which they suspect to be involved in facilitating illegal migration. The Immigration Bill will provide Border Force Officers with new powers to: stop, board, divert and detain a vessel where there are reasonable grounds to suspect that it is being used to facilitate the breach of immigration law or is being used in connection with such facilitation; search a ship and anyone and anything on the ship to obtain information or evidence of the facilitation offence; arrest of any person reasonably suspected of being guilty of an offence of facilitation and seize relevant information or evidence; use reasonable force in the exercise of any of these powers or functions.
When passengers arrive on international commercial flights they must present at immigration control. Carriers and port operators who fail to comply with their legal obligations in this regard may be liable for a criminal offence. The Immigration Bill will create a civil penalty scheme to incentivise carriers and port operators to invest in better passenger management processes. The detail of the scheme will be in secondary legislation and codes of practice, including the maximum penalty that can be imposed.
Travel bans restrict the movement of named individuals associated with regimes or groups, including terrorist groups, whose behaviour is considered unacceptable by the international community. The decision to impose a travel ban is made either by the United Nations’ Security Council or by the Council of the European Union. To implement travel bans in the UK, secondary legislation is laid before Parliament to amend the Immigration (Designation of Travel Bans) Order 2000. The Immigration Bill will remove the need to update this secondary legislation. Instead international travel bans against non EU nationals will take effect in the UK automatically.
- English Speaking in the Public Sector- Clauses 38 to 45:The Government wants to ensure that all public sector workers in customer- facing roles can speak fluent English.
The code of practice will outline the standard of spoken English to be met, the action to be taken by a public authority where someone does not meet that standard, the procedure to be operated to deal with any complaints and how the public authority can comply with its other duties including its obligations under the Equality Act 2010.
The Government will place a duty on public authorities to ensure that each person who works for a public authority in a customer-facing role, speaks fluent English. In determining how to comply with this duty, a public authority must have regard to a code of practice. The duty will ensure every citizen receiving help or advice is served by someone who can provide them with advice in clear English.
At the moment, the Government believes that there are many vital customer-facing public sector roles which do not require the job holder to be a fluent English speaker. This includes unqualified teachers, teaching assistants and unregulated NHS staff. It is considered that this cannot be allowed to continue for roles where communication with the British public is vital to deliver an effective service.
- Fees and Charges- Clauses 46 to 50:
The Government wants to encourage businesses to source the skilled workers that they need from the resident labour market. They intend to introduce an immigration skills charge , which is intended to help address current and projected skills needs in the UK economy and contribute to reducing net migration.
The Bill will also allow the Home Office to formalise the framework of costs underpinning the passport fees to apparently better reflect the costs incurred in providing passport services, for example the costs of processing more complex applications requiring costly Home Office interventions, and to allow some passport fees to be set at above cost. This is intended to alleviate the corresponding burden on the vast majority of passport applicants and potentially facilitate further fee reductions.
Existing legislation governing the registration of births, deaths, marriages and civil partnerships is considered restrictive in terms of the products and services for which fees may be charged. The Bill will introduce what is stated to be modernised and flexible fee-raising powers in respect of services provided, enabling fees to be set for a wider range of products and services than is currently possible. This is stated to be intended to reduce the burden for providing registration services on the taxpayer by allowing such services to become increasingly self-sufficient.
The Bill will introduce a new immigration skills charge which will be applied to employers sponsoring non-EEA nationals who come to the UK under Tier 2 of the Points-Based System. The specific employers and amount will be set following consultation. The money raised will then be used to address skills gaps in the UK by contributing to funding training, particularly more apprenticeships.
On the basis of the new Bill as per the Government’s intentions, those without leave to remain may seriously wish to consider seeking to regularise their immigration status in the UK. It is not every person who is undocumented who cannot establish a legal basis of stay upon application. It is possible for such a person to rely upon the Immigration Rules themselves as a basis of stay.
A person may be able to show by way of documentary evidence that they have been living in the UK continuously for at least 20years and be granted leave to remain.
A person without leave may be able to show that he has a child aged under 18years in the UK who has spent at least 7years continuously here and argue that it would be unreasonableness to expect the child to be removed with the parent to the country of origin.
Further a young person aged between 18 and 25years may also be able to show that they have lived continuously in the UK for half their lives.
It may also be possible to show that they are applicable exceptional circumstances in an individual or family case such that they should be granted leave to remain in the UK outside the immigration rules by reliance upon Article 8 of the ECHR.
A single mother with no leave to remain may have a child who is British by virtue for example of that child having been born of a British or settled father. A “Zambrano” application or family life Article 8 human rights application may be submitted to the Home Office. As regards the “Zambrano” application, a primary carer of a British citizen will qualify for a derivative right of residence where they can show that they are a primary carer of a British citizen who is residing in the UK, and would be unable to reside in the UK or in another EEA state if they as the primary carer are required to leave the UK.
An undocumented father may have a British child but be separated from the British or settled mother yet be able to obtain an order from the family courts ordering contact and therefore be able to apply for leave to remain as a parent seeking to have access to the child.
The Government intends to extend the “ deport first, appeal later ” powers to all immigration cases. This certification procedure is challengeable (where there are merits to the case) by way of judicial review and where a claim is made in some cases removal is normally suspended pending a decision on grant of permission to proceed with the claim. The Home Office has published guidance on how to apply the “serious irreversible harm test” and the relevant guidance gives the following example of where serious irreversible harm could result: the person has a genuine and subsisting relationship with a child or partner who is seriously ill, requires full-time care, and there is no one else who can provide that care. Not many people will be able to meet the high threshold applicable to resist removal. In the Government’s Fact Sheet, in response to how many appeals have been allowed under the existing “ deport first appeal later” provisions, the Government’s response as published on 17 September 2017 is ,”Over 230 foreign national offenders have been removed under these powers and 67 have lodged an appeal, of which three have been determined and were dismissed. In addition, over 1,200 EEA foreign national offenders have been removed under equivalent powers and 288 have lodged an appeal”. Basically the answer is none and as such providing for an out of country appeal in practise is simply an illusion, with only a mere hope of obtaining a successful outcome, however in deserving cases with prospects of success, it is suggested that the certification procedure be challenged by way judicial review prior to removal action being taken.
It is therefore likely that before the Bill becomes law, the Home Office may well see an unexpected flurry of activity as regards submission of applications for leave to remain with the result that those that had been the target of the new provisions may well obtain leave to remain, if not granted directly upon application by the Home Office themselves or failing that following a successful in country appeal as it is not every case that can be certified or not have such certification successfully lifted.