Guest post by Celia Rooney, currently enrolled in the Graduate Diploma in Law at City University, a member of Lincoln’s Inn at Court, and an alumna of the University of Glasgow and the University of Oxford BCL.
Last week, on 14 May, the Immigration Act 2014 was given Royal Assent. According to the Home Office, the Act will ‘ensure our immigration system is fairer to British citizens and legitimate migrants,’ while being ‘tougher on those with no right to be here.’ Indeed, Home Secretary Theresa May was explicit when the Bill was introduced that its purpose is to create a ‘hostile environment’ for migrants in the UK. Unsurprisingly, then, the passage of the Bill has been controversial and heavily criticised. Pressure groups such as Migrants’ Rights Network have called the Bill unfair and unworkable, while Movement Against Xenophobia damningly crowned it as ‘the most racist and discriminatory piece of legislation’ seen in many years.
Although a number of amendments were made in the House of Lords, the substance of the Bill remains largely unchanged. Minor concessions on high profile issues, such as citizenship revocation, appear to have appeased the Lords and distracted the opposition from persisting problems in the legislation.
The following is a brief summary of the Act’s key provisions:
1. Reduced Range of Appeals
A key provision of the Bill, which made it into the final Act unscathed, concerns the reform of immigration appeals. Notably, the number of immigration decisions that can be challenged by way of appeal has been cut from 17 to 4. ‘Harmful’ individuals facing deportation, can now be removed before their appeal, as long as they will not face serious irreversible harm as a result. ‘Serious irreversible harm’ includes death or torture, but doesn’t include violations to the right to family and private life. These changes to the appeal system are particularly concerning given the poor quality of initial decision-making by the Home Office. It’s unlikely that judicial review will act as an effective alternative, particularly in the wake of legal aid cuts, while the ‘administrative review’ proposed by the Home Office isn’t sufficiently independent to act as a substitute.
2. Public Interest Considerations in Article 8 Claims
Anti-immigration rhetoric and human rights scepticism have put increasing pressure on the UK courts and judiciary. In particular, their interpretation of the right to private and family life (Article 8) under the European Convention on Human Rights in the immigration sphere has come under fire as being too generous to migrants. In response, the Immigration Act 2014 aims to ensure that the courts have regard to the public interest, and Parliament’s view of it, when interpreting Article 8. Justice
, however, have highlighted the risk of doing so, noting their concern that ‘any attempt to ask Parliament to entirely predetermine the proportionality of fact-sensitive immigration decisions which engage the right to private or family life will either be unworkable or could lead to the violation of the UK’s international human rights obligations in practice.’
3. Landlord Checks
The Act introduces new provisions requiring private landlords to check the immigration status of their tenants, and to refuse to provide accommodation to anyone who cannot demonstrate his or her right to remain in the UK. Some exceptions were secured for student accommodation, homeless hostels, women’s refuges, and for vulnerable individuals in immediate need of accommodation. The checks are also confined to those who pay rent to the landlord. The requirements are nonetheless worrying. Not only do they draft private individuals into the government’s anti-immigration campaign, but they also fail to take account of the difficult situations that many migrants find themselves in, whereby for legitimate reasons, they may be without their papers.
4. National Health Service (NHS) Surcharges
Under the new amendments, migrants who apply to stay in the UK for more than six months will have to pay a ‘health surcharge’ to the NHS. This will be £150 per year for students and £200 for other non-EEA migrants. Presented as a means by which to cut down on ‘health tourism,’ such payments will be mandatory regardless of whetheror not foreign citizens make national insurance contributions. Concerns have been raised that the new charging regime will hit vulnerable groups the hardest. The lacklustre reassurances of Lord Taylor, that the Government is committed to giving ‘further thought’ to strengthening exemptions for such persons, does little to ease such worries.
5. Deprivation of Citizenship
A late amendment to the Bill by the Home Secretary Theresa May introduced new powers to revoke citizenship from individuals considered ‘prejudicial’ to the UK, even where doing so would render them stateless. The powers have made it in to the final Act, with a late concession that the Home Secretary can only exercise the power where she has reasonable grounds to believe that the person is able to become a national of another country. Lord Pannick, who tabled the amendment, has called the change ‘substantial.’ However, although this may create increased opportunities for judicial oversight of citizenship revocation, doubts remain. In particular, it’s unclear what happens in a situation where, despite the Home Secretary’s reasonable belief to the contrary, the individual is unable to acquire another nationality. Ruth Grove-White, writing for the Migrants’ Rights Network
, notes that the question of citizenship revocation has distracted criticism from other aspects of the Bill, acting as a ‘show-stealing government clause.’ The late concession achieved on the issue of citizenship deprivation is unlikely to be much consolation.
6. Bail and Detention Reforms
There have also been changes in the area of detention and bail. Firstly, unaccompanied minors should no longer be held in immigration removal centres. Likewise, when children are being returned, they should not be held at a port for more than 24 hours. Secondly, families should be given a 28-day ‘reflection period’ between refusal and return. The Secretary of State now has a statutory duty to consult the Family Return Panel in order to safeguard the welfare of children. In addition, families should not be held in pre-departure accommodation for more than 72 hours. Thirdly, where a bail application is made within 28 days of a previous refusal, and there is no material change in circumstances, the application should be refused on paper. Bail cannot be granted without the permission of the Home Secretary if the individual is facing return in the next two weeks.
7. Sham Marriages
Finally, from April 2015, the notice period for marriages and civil partnerships will change from 15 to 28 days. Any non-EEA nationals who intend to marry in the UK, and do not have a right to remain, must notify the Home Office if they could gain any advantage from the union. If it’s suspected that the marriage is a ‘sham,’ the Home Office may extend the notice period to 70 days for further investigation.
Looking to the Future
The Immigration Act 2014 is a draconian piece of legislation. In the attempt to make life harder for undocumented migrants, politicians have chosen to punish an already vulnerable group in society, turning a blind eye to the suffering that the new Act is likely to cause. In this regard, it should not be forgotten that most irregular migrants have not been tried with or found guilty of a criminal offence in a court of law, but rather have only breached civil law by entering the UK without papers. Moreover, although undocumented ‘economic migrants’ are often distinguished from asylum seekers―with the latter fleeing persecution and not ‘just poverty’―by demonising the former, the government has reinforced the fallacy that such a bright line distinction can be drawn. The Immigration Act 2014 is also likely to cause problems for legitimate migrants, who are included in the new healthcare surcharge and who may well be treated with increased suspicion by private landlords.
Although the full implications of the Act are not yet clear, the lack of opposition that the Bill faced in Parliament is also alarming. The House of Lords raised some concerns, yet only small victories were won on a select number of eye-catching issues. The real substance of the Immigration Act 2014 went largely unchallenged, particularly in the Commons. In the run up to the General Election next year, a cross-party consensus on directing hostility towards migrants seems to be set.
How to cite this blog post (Harvard style):
Rooney C (2014) The UK Immigration Act 2014: Last Minute Amendments – Too Little, Too Late? Available at: http://bordercriminologies.law.ox.ac.uk/uk-immigration-act-2014/ (accessed [date]).