The New British Immigration Bill: What’s In and What’s Out?

Post by Ana Aliverti, Warwick Law School, University of Warwick.

The immigration bill announced last year during the Queen’s speech is currently being debated before the UK Parliament and is soon to become law. If enacted, it will be the first comprehensive immigration and asylum legislation under the current Coalition government. Reminiscent of the infamous record number of immigration laws enacted during the precedent Labour government, the Conservative-Liberal Democrat government has been careful to avoid overusing primary legislation since it came into power in May 2010. Instead, it has governed this field mostly through secondary legislation: immigration rules. As the new bill makes its way through Parliament, another related draft bill on ‘Modern Day Slavery’ is currently through the pre-legislative stage pending its legislative scrutiny in next year’s session.

The immigration bill started its parliamentary journey in October 2013 at the House of Commons and it is due for its Third Reading in the House of Lords on 5 May 2014. Once the Lords give the Third Reading―which can include the proposal of further amendments not considered during the Committee and Report stages―the bill will go back to the Commons where all the proposed amendments will be considered. When both chambers agree on the final version of the bill, it receives Royal Assent and becomes law.

As it stands, the proposed legislation introduces changes on a vast range of areas including:

• removal powers, including the removal of children;
• immigration officers’ powers of investigation;
• regulation of the detention of unaccompanied children and families;
• restrictions on immigration bail;
• restrictions on appeal rights against immigration decisions, and in particular against removal decisions based on Article 8 of the European Convention on Human Rights (i.e., the right to respect for private and family life); and
• further regulation of ‘sham’ marriages and civil partnerships.

By far the most controversial provision in the bill is that regarding deprivation of citizenship, outlined in section 66. Without prior notice, Home Secretary Theresa May introduced the amendment 24 hours before the last debate in the Commons in a move that caused unease among Members of Parliament (MPs). If agreed, this amendment will pave the way to bestow upon the Secretary of State the power to deprive a naturalised British citizen from his or her citizenship if ‘the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests’ of Britain, ‘even if to do so would have the effect of making the person stateless.’

Several parliamentarians opposed the measure because it will jeopardise Britain’s obligations under international law―particularly the Convention Relating to the Status of Stateless Persons 1954 and the Convention on the Reduction of Statelessness 1961. In one of the most vociferous critiques, Baroness Kennedy argues that the proposed deprivation is tantamount to punishment without trial:

Deprivation, with all its consequences in the modern world, is equivalent to a penal sanction of the most serious kind, but imposed without a criminal trial, without a conviction, without close and open examination of the evidence, and without an effective opportunity of defence, contrary to the requirements of due process.

Although the current law contemplates the deprivation of citizenship, section 40 of the British Nationality Act 1981 (modified by the Immigration, Asylum and Nationality Act 2006) authorises such measure in two circumstances―when the deprivation is conducive to the public good, irrespective of the route in which citizenship was obtained, and when citizenship status through naturalisation or registration was obtained by fraud―provided that the measure doesn’t render the deprived individual stateless.

The immigration bill covers a wide range of areas, yet the hallmark of the bill is the provisions on restrictions to various services by migrants in line with the motto of making the UK ‘a hostile place for illegal migrants.’ Part 3 of the bill on ‘Access to Services Etc.’ is hence the flagship of the bill. As it stands, it introduces tight restrictions on certain migrants to housing, bank accounts, driving licences, and free health care services. Modelled on the system of employment checks, new controls on the housing market will require landlords to check the immigration status of prospective tenants. On pain of being fined with up to £3,000 for non-compliance, they’ll have to perform systematic immigration checks and deny accommodation to those whose immigration statuses disqualify them from renting. A number of landlord and letting agent associations oppose the new measures, claiming that they’ll be turned into immigration agents without the required training to do so. These groups also reject the imposition of extra administrative burdens, arguing that the changes will have a detrimental impact on ethnic communities and will drive people into the illegal renting market with the high risk of being exploited by rogue landlords.

Similar checks on immigration status are required of banks and building societies for people applying to open bank accounts. The bill also introduces a residence requirement which will prevent applicants who don’t normally and lawfully reside in the country from obtaining a British driving licence. Finally, the bill imposes ‘immigration health charges’ on temporary migrants and migrants without leave. Amid protest by universities and educational institutions worried that the charge will deter overseas students, the government justified the new measure to stop the abuse of the National Health Service (NHS) by ‘health tourists’ and unlawful migrants. As many MPs claimed, however, evidence of large scale health care abuse wasn’t forthcoming.

An amendment tabled before the House of Lords to impose a temporal limit of 28 days on immigration detention was swiftly rejected by the representative of the government who claimed that setting a temporal limit on detention is unnecessary. Lord Taylor of Holbeach unconvincingly defended the current system of no upper limits on the basis that it ‘affords appropriate protections to individuals and flexibility to the Government,’ adding that ‘requiring release 28 days after initial detention is inflexible and would have unintended consequences.’

A similar fate faced a proposal to allow asylum seekers whose claims are outstanding after six months of being filed to pursue employment. As one of its advocates, Baroness Lister of Burtersett, pointed out, the policy of ‘enforced idleness’ on asylum seekers sharply contrast with the government social policy which revolves around the citizens’ duty to work and champions ‘hard working families.’ Despite the human and economic costs of maintaining both immigration detention and asylum support, the government reiterated that these policies of ‘compulsory immobility’ are the price to be paid to maintain the integrity of border controls and to prevent abuses of the asylum system.

So far, the new bill has received wide bi-partisan support, with an unopposed Second Reading in the Commons. Amid protests by several MPs and civil rights groups that the bill has been hastily taken through Parliament without much debate and that the measures introduced are ill-suited to achieve the goals set by the government, the new bill seems well on its way to pass into the statute book in the next few weeks. As ever, the shadow of an electoral success of far-right, anti-immigration parties in the next general election has likely boosted the political enthusiasm that heralds the enactment of the new legislation.

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How to cite this blog post (Harvard style): Aliverti A (2014) The New British Immigration Bill: What’s In and What’s Out?. Available at: http://bordercriminologies.law.ox.ac.uk/new-british-immigration-bill/ (accessed [date]).