For those who may have missed it (I would not blame you as this kicked in just a few weeks before the EU referendum in the UK), the government has passed yet another legislative Act of Parliament on Immigration in a bid to reduce immigration and especially come down hard on those in the UK without legal status. The Immigration Minister’s statement when the Immigration 2016 bill was introduced last year sets the tone of what the government hopes to achieve with the new immigration legislation. Immigration Minister James Brokenshire said:
“The message is clear — if you are here illegally, you shouldn’t be entitled to receive the everyday benefits and services available to hard-working UK families and people who have come to this country legitimately to contribute.
Whether it is working, renting a flat, having a bank account or driving a car, the new Immigration Bill will help us to take tougher action than ever before on those who flout the law.
This Bill will build on the government’s work since 2010 to crack down on abuse and build an immigration system that truly benefits Britain – by deterring illegal migrants from coming and making it harder for those already here to live and work in the UK.”
So what are the changes?
So, just what does this new Immigration Act contain that is different from the recently implemented Immigration Act 2014? The 2014 Immigration Act had already brought in quite a few fundamental changes to UK Immigration laws, including the curtailment of appeal rights and directions as to how judges should deal with Human Rights Cases (See Post)
Well, the new piece of Legislation continues the theme of its predecessor, tightening things a little bit more, with some of the changes including:
- Landlords to soon face up to five years in prison if found guilty of knowingly renting premises to an illegal migrant. – The last Bill introduced Landlord fines of up to £3000 for renting to illegal immigrants, Personal criminal sanctions to Employers who hire illegal migrants and the workers; previously only the business would be prosecuted and fined.
- Illegal Migrants in the UK who already have certain privileges, such as having a Bank account and Driving Licence (now not permissible after Immigration Act 2014) will have these seized by the government i.e. their bank accounts can be frozen and their driver’s licence can be seized.
- Detention of Pregnant women by immigration authorities can be up to 72 hours or one week with special permission.- This is apparently an improvement, as previously there was no actual limit as to how long such persons could be detained, (shocking if you ask me!)
- Arrangements will be made to relocate unaccompanied refugee children from other countries in Europe to the UK.
- Removal of automatic In-country Right of Appeal to all Immigration Applications.
Changes to the Appeals Process
Perhaps one of the most important changes to be suggested by the 2016 Immigration Bill is the removal of the right to appeal whilst in the UK. Under the Immigration Act 2014, appeal rights for the Points Based System were stripped to the extent that the only grounds left available on which to mount an appeal were on human rights or refugee grounds. It also removed in country right of appeal for Deportation cases.
Under the 2016 Immigration Act, appeals must be launched whilst the Appellant is outside the UK.
This new regime will apply to all immigrants, even those who have been living in the UK under one type of visa, but have subsequently been denied the opportunity to switch or extend the visa they are currently on.
For example a student who has been studying in the UK for five years and has obtained a spouse and child within that time and is refused a General Working Visa will be required to leave the UK and his family in order to launch an appeal under Section 6 of the Human Rights Act (which protects the right to private and family life).
Deport First, Appeal Later
In the last Immigration Act of 2014 the majority of appeals against immigration decisions were removed, in addition measures were brought in to allow the deportation of any person with a non-human rights related appeal before the appeal was heard. Now the ‘deport first, appeal later’ provisions have been extended to human rights cases as well. Please note that this law will take effect when the Secretary of State creates regulations stating the law’s ‘start date’.
The appeals certification process commonly referred to as the ‘deport first, appeal later’ was introduced by the Immigration Act 2014 and enabled the Secretary of State to remove foreign national criminals from the UK, denying them a right of appeal from within the UK.
This has now been extended to all migrants. A person will only be able to appeal from within the UK if they can demonstrate that they are likely to suffer from serious irreversible harm or it will be a breach of their human rights if they are unable to appeal from the UK.
In considering such cases, Home Office guide states that case owners must consider all relevant factors in the round, and in particular:
- the best interests of any children who may be, or it is claimed may be, affected by the decision to deport, in compliance with section 55;
- whether there is a real risk of serious irreversible harm to the person being deported pending the outcome of any appeal he or she may bring;
- whether there a real risk of serious irreversible harm to any individual, for example family members, that the person to be deported claims would be affected by his or her deportation pending the appeal;
- if there is not a real risk of serious irreversible harm to the person to be deported or anyone else that such person claims would be affected by his or her deportation, whether that person’s deportation pending the outcome of any appeal breach his or her rights under the ECHR for any other reasons;
- whether there would be a breach of the ECHR rights of any individual, for example family members, that the person to be deported claims would be affected by his or her deportation pending the appeal;
- where the person to be deported makes representations or provides evidence as to procedural unfairness, whether an out-of-country appeal would be procedurally unfair in the particular circumstances of the case;
- any request the person to be deported makes for discretion to be exercised in his or her favour;
- whether it is appropriate in all the circumstances to certify the human rights claim so that the person can only lodge or continue an appeal after he or she has left the UK.
As you can see from the guidelines provided above, it is critical for all those making an application to make sure they include good legal representation from their UK Immigration or Human Rights lawyer/solicitor, arguing as many of the points as possible to give their case a better fighting chance. Having this representation should ensure that you get the visa but at the very least should greatly enhance the possibility for in country right of appeal – so, don’t leave it to chance, your Immigration Solicitor should be pro-active!
Of course one needs to dig into the previous legislation and case laws to establish possible applications of what would be considered as “serious irreversible harm” or “it will be a breach of their human rights” in the context of this new phenomena of Deport First, Appeal Later – I intend to dive into a more detailed analysis of this in my next article.
Meanwhile, those who are likely to be affected by this new act would be well advised to seek legal help from a UK Immigration Solicitor or a Human Rights Lawyer; as you can tell, now is not the time to take chances with your visa application, especially given that soon a small mistake could see you having to leave the UK to fight an appeal from abroad. It is currently taking about a year to get a case from abroad heard – clearly not the ideal way to fight your case, especially given that most Human Rights arguments favour the status quo i.e. the non interference of things as they are.
If you have been affected by this issue or any other UK immigration matter, please contact Tito, a UK Immigration and Human Rights Solicitor, for a Free Initial Consultation about your legal options – it’s free! Call 07544 669131 Or on Skype: tito.mbariti.