Posted by HSMP Forum at 10/16/2013 5:55 PM |
It is important for immigrants and British citizens to be aware of this proposed law and possible repercussions it may have for them and / or their family members.
Summary of the Bill and some of the notable changes are discussed below:
The Bill is in 7 parts.
Part 1 is concerned with removals of persons who are staying unlawfully in the UK. It replaces section 10 of the Immigration and Asylum Act 1999 (IAA 1999). S.10 (2) of the IAA 1999 ensured removal direction does not affect an overstayer who made an application under s.9 of the IAA 1999, but this would not be applicable once the new law comes into force. Therefore, arguably this is going to affect overstayers as much as illegal immigrants in the UK or someone who has allegedly obtained leave by deception or someone whose leave expired. Currently, there are separate powers depending on whether a person is an illegal entrant, overstayer etc. which arguably is more sensible but this Bill tries to treat all those who do not have a leave to enter or remain in the same manner. It is likely that genuine people may be affected by this change, for e.g. someone who made an invalid application and becomes an overstayer.
Schedule 1 (enforcement powers) of Part 1 gives further powers to immigration and police officers to search individuals, for e.g. at paragraph 2, it states about searching a person, who is detained, if there are reasonable grounds to believe concealment of anything which may be used to cause physical injury or escape from legal custody. It is just short of intimate search.
Paragraph 3 of schedule 1 also gives further powers to immigration officers in entering and searching premises without a constable.
The Bill also provides further powers to obtain biometric information from non-European family members of European nationals and those applying for British nationality in order to verify their identity and immigration status.
Clause 3, Part 1 of the Bill limits the ability of individuals, who are detained and awaiting removal from the UK, to be released on bail. It also makes provision preventing repeat bail applications. It especially gives some arbitrary powers to the Home Secretary by ensuring that a person is denied bail if she does not give her consent, in circumstances where there are existing directions in place for removal of the person within 14 days.
Part 2 is concerned with appeals. Clause 11 replaces section 82 of the Nationality, Immigration and Asylum Act 2002 (NIA Act 2002). The government wants a blanket removal of current appeal rights for refusals of entry, refusals to vary leave to enter and remain and decisions to remove and deport. If the Bill becomes law then right of appeal to the tribunal will only be available for those protected by the European Convention on Human Rights (ECHR) or Refugee Convention, such as protection claim’ (i.e. a claim for refugee status or humanitarian protection), refusal of a human rights claim or a decision to revoke a person’s protection status. Further, section 84 of the NIA Act 2002 is to be replaced with limited grounds of appeal, such as, where removal breaches refugee convention or humanitarian protection or where the removal will be unlawful under section 6 of the Human Rights Act 1998. Immigrants would not be able to appeal under the ground that ‘the decision is not in accordance with immigration rules’ or even in circumstances where the decision is unlawful due to discrimination by public authority. And that is not all, the part substitution of s. 85 (5) of the NIA Act 2002 means that the Tribunal may not consider a new matter unless the Secretary of State has given the Tribunal her “consent” to do so.
The removal of appeal rights overall will be very unfair for immigrants in circumstances where even though they may have a good case but removal of the appeal rights means that they need to instead go for an expensive judicial review to challenge a refusal. In short, the government wants to remove immigrants’ access to justice.
Clause 12 further states that a protection claim or human rights claim appeal cannot be brought within the UK if the Home Secretary certifies that the claim is clearly unfounded or the person can be removed to a safe third country. This is usually the approach of Home Secretary in most cases which are successfully challenged in tribunals but the new law means no possibility of challenging the same and may allow the Home Secretary to carry out her unlawful act in breach of international laws.
At clause 14, the government interestingly tries to redefine the meaning of ‘public interest’ when considering Article 8 of the ECHR to ensure how the courts and tribunals interpret the same. The term ‘public interest’ is referred in ECHR only at Article 1 (concerned with protection of property) and Article 2 (freedom of movement). The state can interfere with qualified rights such as Article 8 – right to respect for private and family life under certain circumstances and the Article states, “there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. The government wants to redefine the meaning of public interest in breach of Article 8 of ECHR to include speaking English or being financially sound to be in the interests of “the economic well-being of the country”. The government states in the Bill that a person speaking English is less of a burden on tax payers and better able to integrate, and further states that those who are well off (financially independent) are better able to integrate in the society. It goes on to say little weight should be given to private life or to a relationship formed with a qualifying partner when a person is unlawfully present in the UK.
In Miailhe v. France (1993) 16 E.H.R.R. 332, the European Court of Human Rights (ECtHR) held at para 36 of its judgment that the ‘exceptions provided for in Article 8 (2) are to be interpreted ‘narrowly’‘. In Funke v France (1993) 1 C.M.L.R. 897, the ECtHR held at para 55 that the need for interference must be ‘convincingly established’, and further at para 56 that ‘relevant legislation and practice must afford adequate and effective safeguards against abuse’. Overall, to say that this is a badly thought out clause (and the Bill) is an understatement.
Access to services
Part 3 of the Bill is concerned with ‘access to services’ and are concerned with the controversial proposals to award more powers to landlords. Clause 16 states that a person does not have a right to rent if the person ‘requires leave to enter or remain in the United Kingdom but does not have it, or if the leave to enter or remain in the United Kingdom is subject to a condition preventing a person from occupying the premises’. Clause 17 further states, ‘a landlord must not authorise an adult to occupy premises under a residential tenancy agreement if the adult is disqualified as a result of their immigration status’. At clause 18, it imposes a penalty on the landlord of up to £ 3000 if the landlord rents premises to the person against the law. This is quite draconian and will just leave migrants at the mercy of the landlord. Some landlords may just be too scared to offer accommodation to immigrants and / or ethnic minorities due to this law and some may exploit the situation and seek more rent and may not offer an agreement to non-European migrants and may deny their legitimate rights. It will be naïve to think this would not affect settled immigrants and British citizens of ethnic minority groups. There is likely to be a large scale discrimination if this law comes into force.
Clause 35 prohibits Banks from opening an account for those without a valid leave.
That is not all. Clause 41 introduces a new inclusion within the section 97 of the Road Traffic Act 1988 where a person should not be granted a driving license if the person is not lawful in the country.
Clause 42 further gives ultimate power to the Home Secretary to revoke a driving license ‘where it “appears” ….that a license holder is not lawfully resident in the UK’.
Marriage and Civil Partnership
Clause 43 is aimed to give power to the Home Secretary to investigate a marriage on reference of the marriage registrar, and states a marriage can be investigated if both the persons are not exempt persons. Clause 44 defines exempt persons as someone who does not have a valid leave. The Home Secretary just needs to have suspicion to conduct investigation and the Home Secretary will always have reasonable grounds for “suspecting” anything. Again, there is a wider scope for discrimination over here by marriage registrars and the Home Secretary exercising arbitrary powers can be a matter of challenges under Article 8 of ECHR.
Clause 59 gives further powers to the Home Secretary ‘for fees to be charged in respect of the exercise of functions in connection with immigration or nationality’.
More comments and reviews may follow on the “immigration bill”. Please do share your thoughts. The HSMP Forum will be providing a draft letter for you to write to your MP about this draconian bill.
Author: Amit Kapadia
Amit is the Executive Director of the HSMP Forum. He campaigns against issues such as – unfairness, inequality and abuse of human rights.
 See also Klass and Others v. Germany (A/28): (1978) 2 E.H.R.R. 214, para. 42.