POLICY BRIEFING The 2014 Immigration Act

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1 The 2014 Immigration Act 2 June 2014: Rachel Salmon, LGIU Associate Summary The 2014 Immigration Act received Royal Assent on 14 May 2014 and is now law. The Act covers the whole of the UK. The Act aims to make the UK the least attractive destination for illegal immigrants by; Simplifying rules on the removal of illegal immigrants. Extending powers of the immigration authorities to check fingerprints, search for passports and verify the status of people leaving the country or those seeking to marry or enter into civil partnerships. Reducing the grounds on which a person can appeal against an immigration decision. Discouraging the use of Section 8 of the European Court of Human Rights the right to respect for private and family life, as an argument in immigration cases. Requiring private landlords to check the immigration status of their tenants and refuse accommodation to anyone living in the UK illegally. Preventing banks from opening current accounts for those living in UK illegally, Introducing Immigration checks for those applying for driving licenses, with the power to revoke the licenses of overstayers. Introducing charges for NHS services for temporary migrants. Giving new powers to the Office of the Immigration Services Commissioner to regulate the advice sector to protect migrants from exploitation and limit spurious claims. Making it easier for the Government to introduce charges for immigration services.

2 This briefing will be of particular interest to politicians and staff providing information and advice to migrants, those who commission advice on immigration from the voluntary sector and those providing registrar s services. Briefing in full Background Immigration is important to local authorities. Migrants often turn to their local authorities, council-funded voluntary organisations or local politicians for help and advice. Officers working in housing, education or social services often have to take immigration issues into account when delivering services or determining entitlement to them. Those charged with presiding over marriages and civil partnerships are required to detect whether exploitation or dishonesty is taking place. As the recent local elections have demonstrated, concerns over immigration can impact local public opinion and affect the political make-up and leadership of local authorities. It is vital that staff and politicians possess a clear, up-to-date understanding of immigration law. Summary of measures The 2014 Immigration Act is in seven parts. Part 1, schedules 1 and 2: Removal, restrictions on bail and additional powers to take biometrics Removal Section 1 replaces Section 10 of the 1999 Immigration and Asylum Act. It allows the immigration authorities to remove anyone who does not have a legal right to enter or live in the UK, Family members can also be removed if: Their legal right to enter or live in the UK depends on their relationship to the person being removed; The family member would not be entitled to enter or live in the UK in their own right, and The family member is not a UK or EU citizen. Notices to leave, given to family members under this Act, invalidate any others issued previously.

3 Directions for the removal of illegal migrants have been simplified and must now only be made in accordance with Paragraphs 8-10 of Schedule 2 of the 1971 Immigration Act, unless the person is subject to a deportation order when Schedule 3 of the 1971 Act should be used. The Secretary of State may make further provisions in relation to timeframes or the serving of notices. Children are defined as under 18 years of age in this Act. Removal of children and unaccompanied minors Section 2 extends restrictions on the removal of children from the UK in Section 78 of the 2002 Nationality Immigration and Asylum Act to allow them to remain in the UK for 28 days after any appeal has been exhausted. The parent or carer must also be allowed to remain if their removal means the child would have no parent in the country. Section 3 requires that the Independent Family Returns Panel is consulted on how best to safeguard the wellbeing of children and their families subject to removal and on the suitability of their accommodation if they are held in pre-departure accommodation. Unaccompanied children should only be detained in a short-term holding facility for a maximum of 24 hours (Clause 5). Children and their families should not be detained in pre-departure accommodation for more than 72 hours, or seven days, if authorised by a Government Minister (Section 6). Granting of Bail to those on removal orders A person cannot be granted Bail if directions for his/her removal from the UK are in force and require him/her to be removed within 14 days, unless permission is given by the Secretary of State If a first tier tribunal has dismissed a person s application for Bail, subsequent tribunals must dismiss any appeals without a hearing if it is made within 28 days of the decision unless there has been a material change in circumstances (Section 7). Biometrics Sections 8-14 extend the right of immigration agencies to take biometrics, usually fingerprints or an image of the iris for transit visas or from citizens of countries outside the EEA and Switzerland when they are applying for UK citizenship. Biometric information may be linked to immigration records and used to obtain original travel documents, which could be used to facilitate the removal of an individual from the UK. Safeguards for children

4 Children under 16 years are not required to give biometric information unless the decision is confirmed by a chief immigration officer and the information is taken in the presence of a parent or person taking responsibility for the child. Part 2 Grounds for appeals to immigration tribunals Sections limit the grounds for appeals to immigration tribunals. Under Part 5 of the Nationality, Immigration and Asylum Act 2002 a person can appeal to a tribunal on a variety of grounds e.g. that the decision breeched immigration rules or that it contravened Section 19B of the Race Relations Act The Immigration Act 2014 amends this part so that a person may now only appeal to an immigration tribunal if s/he believes that their removal from the UK would breach the UK s obligations under the Refugee Convention to grant humanitarian protection or that the UK would contravene Section 6 of the 1998 Human Rights Act public authority not to act contrary to Human Rights Convention. Appeals should be brought from outside the UK, if a person s application for Asylum has been refused and s/he has been removed to a third country; if the person was living outside the UK when making a Human Rights claim; or they were living outside the UK when the decision to revoke his/her protection status was made. Persons can be deported before their appeals are exhausted following criminal convictions or if the deportation is conductive to the public good, provided the Secretary of State believes they face no real risk of irrevocable harm in the country to which they are deported. Appeals against these deportations can be made to the Special Immigration Appeals Commission. Use of Section 8 of the European Convention on Human Rights Under Section 19 courts and tribunals must take into account public interest considerations when determining whether deportation could contravene a person s right to a family and private life under Section 8 of the European Convention on Human Rights. These considerations include maintaining effective immigration controls; whether a person speaks English; is financially independent; or is a foreign criminal, unless s/ he has been living in the UK for most of their life or is socially and culturally integrated in the UK. Part 3 Access to services

5 Renting from a private landlord POLICY BRIEFING Under sections and Schedule 3, people who do not have a leave to enter or remain in the UK are prohibited from renting or leasing property from a private landlord unless they have permission from the Secretary of State. The Act also allows for a person who has leave to enter or remain to be subject to a condition preventing [them] from occupying the premises. Persons with a limited right to enter and remain in the UK have a limited right to rent. Landlords or agents can face civil penalties such as fines if they fail to carry out immigration checks and rent a property to those who do not have the required immigration status, whether they are named in the tenancy agreement or not, or if they allow a person with a limited right to rent to continue living in the property after they have been disqualified. Landlords and agents have the right to appeal against these penalties. A Code of Practice will be published to guide landlords and agents. The Act applies to new tenancy agreements made after the Act comes into force. These measures do not apply to social housing, as social landlords already have a duty to check immigration status. They also do not apply to residential care homes; hospitals; hostels; refuges; private accommodation arranged by a local authority to meet a statutory homelessness duty or by the NHS when exercising a statutory duty; accommodation supplied to asylum seekers; housing supplied to employees whose immigration status would have already been checked by the employer; colleges renting accommodation to students; and tenancy agreements covered by the Mobile Homes Act Charges for NHS services Sections 38 and 39 allow for charges for NHS services to be levied on those who are not normally resident in the UK. This is likely to include nationals of countries other than the EEA and Switzerland seeking to migrate to the UK for a limited period, which could include tourists and asylum seekers. It is not yet clear whether UK nationals who normally live and work abroad will be charged. Migrants may be asked to pay a fixed fee into a central fund, expected to be around 200 per year, when they apply for thier visas, or they could be asked to pay for individual services. In December 2013 the Government announced its intention that primary care services such as consultations with nurses and GP s would remain free, but migrants may be asked to pay for items like minor surgery and physiotherapy. Prescription charges will be extended. Migrants not entitled to free healthcare may have to pay higher charges for optical and dental services which are highly subsidised. A & E services and emergency

6 services would be free at the point of delivery, but migrants may be asked to pay later. Maternity and antenatal services would also be charged for. The Government estimates that it could recoup 500 million a year from overseas migrants use of NHS services. Further details of the NHS charging scheme will be published by the Department of Health. Current accounts According to Section 40, banks and building societies must carry out checks on those wishing to open current accounts. They cannot open accounts for those who do not have leave to enter and remain in the UK. This applies to joint accounts, accounts where a person is a signatory or beneficiary or where their names are added to an existing account. The Treasury may ask the Financial Conduct Authority to monitor and enforce compliance. Employer s rights to appeal against fines Sections 44 and 45 amend Sections 17 and 18 of the Immigration, Nationality and Asylum Act 2006 so that employers fined for being in breach of their duties must first appeal to the Secretary of State before they can appeal to the civil courts. If the appeal is declined the Secretary of State can recover the fine as if it were a debt to the civil courts. Driving licenses Sections 46 and 47 amend Section 96 of the Road Traffic Act 1988 so that a person applying for a driving license must be normally resident in the UK or attending a course of study for at least six months prior to the date of application and have the right to enter and remain in the UK. Those not living in the UK legally can have their licenses revoked under the Act. Part 4 and Schedule 4 Marriages and Civil Partnerships Sections enables the immigration authorities on behalf of the Secretary of State to investigate proposed marriages or civil partnerships reported by registrars or the registration authority if they believe that one or both of the parties is not ordinarily resident in the UK and is subject to immigration controls. Immigration authorities must inform each of the parties in the proposed marriage or civil partnership and the registering authority of their decision to investigate, known as a Section 48 notice, and convey their decision, with reasons, within 70 days. Each of the parties must comply with the investigation. The immigration authorities can take the degree to which they have complied into account when determining the outcome.

7 Schedule 4 and 5 outline when, and how registration authorities should refer proposed marriages and civil partnerships for investigation. A registrar may refuse to issue a marriage of civil partnership certificate if s/he thinks false information has been provided. These schedules amend the Marriage Act Schedule 6 outlines what information the immigration authorities and registering authority can disclose to each other when referring a proposed marriage or civil partnership for investigation. Section 56 amends the Immigration and Asylum Act 1999 so that registrars have a duty to report proposed marriages and civil partnerships for investigation if they receive information about them beforehand that gives cause for concern. If a couple wishes to marry in the Anglican Church and either or both are not relevant nationals UK, EEA or Swiss, they must first obtain permission from the registrar, including undergoing the necessary investigations, before they proceed unless the Archbishop of Canterbury has granted a Special License or where notices of marriage are posted on board one of HM ships at sea. Section 58 amends Section 19 of the Asylum and Immigration Treatment of Claimants Act 2004 and Schedule 23 of the Civil Partnership Act 2004so that those proposing to marry or enter into a civil partnership who are not relevant nationals or who are not exempt from immigration controls are under an obligation to inform the registry office beforehand. Part 5 and Schedule 7 Providers Immigration Advisors and Immigration Service Sections 63 and 64 and Schedule 7 amend Part 5 of the Asylum and Immigration Act 1999 so that all immigration advisers will have to register with the Immigration Services Commissioner and pay a fee, which can be waived by the Secretary of State - organisations who do not charge for services are likely to have their fees waived. The Commissioner will be able to cancel the registration of advisers deemed to be no longer competent or unfit. A first tier tribunal can direct the Commissioner to cancel an adviser s registration. The Commissioner must cancel an adviser s registration if they are found guilty of an immigration offence. A first tier tribunal may apply to the Commissioner to suspend an adviser s registration if s/he is charged with: an offence involving dishonesty or deception; an indictable offence; or certain immigration offences. The suspension will apply until: the adviser is acquitted; the charge is withdrawn; the proceedings are discontinued; or an order is made for the charge to lie on the file. Where the adviser is convicted, the suspension will continue to apply until the Commissioner has cancelled the adviser s registration (in cases where she is required to do so), or decided whether or not to cancel it (where she needs to exercise judgement about whether s/he is competent or fit).

8 Advisers who are suspended will not be treated as registered for the period of their suspension. The Commissioner is required to record the suspension on the Commissioner s Register of Advisers and Organisations and remove references to it where appropriate. The Act modifies the Commissioner s powers of entry when investigating noncriminal matters so that she must now first obtain a warrant from a magistrate, or sheriff in Scotland. This warrant may also be used for inspection. Premises may include private residences where advice services are provided. The Commissioner may cancel an adviser s registration if s/he fails to allow access without a reasonable excuse. The Commissioner may enter the premises and investigate complaints against an adviser whose registration has already been cancelled. Part 6: Miscellaneous Citizenship children born out of wedlock Section 65 amends Section 4D of the British Nationality Act 1981 to enable a person born before 1 July 2006 to an immigrant mother, who was not married to the natural father, to become a British citizen automatically, and entitles children born out of wedlock to have the same rights as those of married parents. Children born after 1 July 2006 already have these rights. Deprivation of citizenship Section 66 amends Section 40 of the British Nationality Act 1981 so that the Secretary of State can remove British citizenship from a naturalised citizen, if their conduct is seriously prejudicial to the vital interests of the United Kingdom. This could include cases involving national security, terrorism, espionage or taking up arms against British or allied forces even if removing citizenship could result in them being made stateless. This power will be reviewed after a year and every three years after that. Embarkation checks Section 67 and Schedule 8 amends Schedule 2 of the Immigration Act 1971 so that designated persons e.g. airline staff can conduct immigration checks of people leaving the UK. This may include checking passports and requiring that other documentation be provided as evidence for further investigation. They can retain passports but must deliver them to an immigration officer as soon as possible. Searches will be carried out by immigration officers. Fees for immigration services Clauses allow the Secretary of State to introduce fees for immigration services more than once a year. The Act enables her to vary fees to meet particular objectives e.g. routes which encourage economic growth and

9 provides for the introduction of enhanced fees for bespoke services where, for example, a Home Office official would fly to a person s home country. Chargeable fees and rates will be set out in a series of fees orders and regulations. Comment The Act contains some helpful modifications and clarifications e.g. limiting the time period when children can be detained; its main effect, however, will be to speed up the deportation process for many migrants and limit their ability to appeal negative decisions especially from within the UK. Speaking for the Labour Party at the Bill s Second Reading, Shadow Home Secretary Yvette Cooper suggested some measures were "sensible" including charging more immigrants to use the NHS, restricting access to driving licences and the provisions relating to sham marriages. But she questioned how the system requiring landlords to check the immigration status of private tenants would work and raised "serious concerns" about the removal of appeal rights for most immigrants, suggesting that many immigration decisions are overturned at present: The Government got it wrong in 50 percent of entry clearance cases that went to appeal. In managed migration cases that went to appeal, they got it wrong in 49 percent of decisions. In the majority of those cases the problem was Home Office error, so why not just put a bit of effort into getting the decision right in the first place? If those appeal rights are removed, many cases will cite human rights grounds to get an appeal and more cases will go to judicial review. The Government's own impact assessment shows that that could cost 100 million, halving any savings the Home Secretary might hope to make, she said. Ms Cooper said measures to penalise employers who take on illegal migrant workers did not go far enough. Health workers have expressed concerns that they will be asked to act as border guards or tax collectors when measures to introduce charges for NHS services are introduced. Dr Mark Porter, Chairman of the British Medical Association Council said: They are likely to create a complex patchwork of charging and access entitlements where some services remain free, such as GP appointments, while others will be chargeable, including A&E visits and other services provided via many GP practices, such as physiotherapy. Responding to the Government consultation on the Immigration Bill the Residential Landlords Association, which represents private landlords, wrote: The proposals will not be effective in practice. The proposals have too many holes and anomalies to be of any use for identifying illegal immigrants. For instance, the consultation document

10 fails to answer concerns about sub-letting and landlords obligations in regards to sub-tenants. Furthermore, as the RLA s consultation survey shows, the scope of checks already being undertaken by landlords means that the intended target for the checks will already be living within the hidden economy rather than in bona fide private rented accommodation. Related briefings Cities, Growth and Poverty, a review of the evidence DFE consultation on draft regulations on the care of unaccompanied asylum seeking or trafficked children For more information about this, or any other LGiU member briefing, please contact Janet Sillett, Briefings Manager, on janet.sillett@lgiu.org.uk