Immigration Act 2014 A short guide for immigration practitioners by Colin Yeo 2nd edition www.freemovement.org.uk
(c) Colin Yeo 2015 All rights reserved. Copying, circulation not for personal use and printing prohibited without written permission. Quite a lot of effort went into producing these materials: please report breach of copyright. 2nd edition Image credits Cover: by ukhomeoffice, on Flickr Cedars: by ukhomeoffice, on Flickr Thumbprint: image courtesy of Ambro / FreeDigitalPhotos.net Barbed wire and fence: by Dan Gregory, on Flickr European Court of Human Rights: by Dominik Kreutz, on Flickr Gear stick: by coffee bee, on Flickr Wedding rings: by M.G. Kafkas, on Flickr Pound coins: by William Warby, on Flickr
CONTENTS Introduction 5 Part 1: Enforcement and removal 8 Section 1: new removal power 8 What is the effect of the new removal power? 8 To whom does the new removal power apply? 10 Relevant text 11 Commencement of new removal power and appeal rights 13 Section 2: grace period 20 Section 3: Independent Family Returns Panel 20 Section 4: enforcement powers 21 Section 5: safeguards on detention of children 22 Section 6: Cedars family pre departure accommodation 23 Section 7: immigration bail 24 Sections 8 and 10-14: biometrics 26 Section 9: detention powers 28 Part 2: Appeals 29 Section 15: rights and grounds of appeal 29 Commencement 29 Rights and grounds of appeal 30 Appeals in EU rights cases 35 Importance of making a human rights claim 36 Importance of a human rights decision 37 What issues can be argued in a human rights appeal? 38 Can new matters be raised at appeal? 41 Duty to keep the Home Office informed 42 Administrative Review 43 Section 3C and extension of leave 46 Analysis of impact 48 Choice of remedy: choose wisely 50 Section 16: review of administrative review 53 Section 17: venue of appeals 54 Ordinary appeals 54 Deportation appeals 56 Origins of the serious irreversible harm test 58
Home Office policy 60 Commencement 62 Challenges to a section 94B certificate 64 Section 18: SIAC 66 Section 19: statutory human rights considerations 67 Commencement 67 Having regard 68 Considerations in all cases 71 Considerations in deportation cases 73 Conflict between the Act and the Immigration Rules 77 Part 3: Access to services 79 Chapter 1: residential tenancies 80 Chapter 2: NHS, banks and driving licences 81 NHS health charge 81 Banks and building societies 83 Driving licences 83 Part 4: Marriage and civil partnership 84 What has changed about getting married? 84 Who is affected? 85 What is a sham marriage? 86 Further reading 87 Part 5: OISC scheme 88 Part 6: Citizenship and other matters 89 Section 65: end to gender bias 89 Context 89 New provisions 90 Section 66: Citizenship deprivation 92 What has changed? 92 Analysis 95 Sections 68, 69 and 70: immigration and nationality fees 96 Section 71: duty towards children 97 Part 7: Administrative matters 98 Schedules 99 Commencement Table 100
INTRODUCTION The Immigration Act 2014 is already having a profound impact on the lives of undocumented migrants and on anyone suspected of being undocumented: it is likely that the ethnic minority community in the UK will feel the effects of enhanced in-country immigration control measures as employers, universities and colleges, landlords, marriage registrars, banks, building societies, doctors and the DVLA attempt to implement their legal duties to single out and discriminate against undocumented migrants. The Act and the hostile environment it seeks to create will affect everyone, though. In theory, any person renting a private property in future will need to prove their immigration status to their landlord or agent. Any person opening a bank account will need to prove their immigration status as well as their identity. The notice period for all marriages will be extended from 15 days to 28 days. For immigration lawyers the effects are profound. The Government has predicted a 67% fall in the number of immigration appeals. This may be an overestimate and it may well be counterbalanced to some extent by an increase in applications for judicial review, but it will nonetheless have an important impact on the everyday work of lawyers. These appeals provisions took full effect on 6 April 2015. And the major changes are not confined only to appeal rights. This ebook runs through the Act section by section, providing an explanation of the changes made, setting out amended versions of relevant legal provisions and explaining commencement provisions. Where relevant links to Page 5 (c) Colin Yeo 2015
legislation, cases and Home Office policy documents have been included in the text. The first part examines the new removal power under the new section 10 of the 1999 Act and its implications, before moving on to removal and detention involving children and families and new provisions on enforcement, bail, biometrics and detention. The second part looks at appeals. I examine and set out the new rights and grounds of appeal, the problems that arise and analyse how the human rights jurisdiction might be used to argue that cases that would previously have succeeded under the abolished not in accordance with the immigration rules or on not in accordance with the law grounds. This section also looks at the expansion of administrative review, the new provisions on in and out of country appeals, on out of country appeals against deportation and at the controversial new statutory Article 8 considerations imposed on judges. The third part looks at the new duties on private landlords, banks and building societies and driving licenses as well as the future NHS charge or levy. The fourth part examines the new provisions on marriage and civil partnership and the scheme for reporting of sham marriages, which the Home Office estimates will lead to 35,000 referrals to the Home Office per year and 6,000 investigations. The fifth part briefly examines the new powers for the Office of the Immigration Services Commissioner and changes to the OISC scheme. The sixth part looks in particular at changes to citizenship laws, some positive and some less so, as well as new provisions on the future setting of immigration fees. Page 6 (c) Colin Yeo 2015
I am grateful for the assistance of Alison Harvey in getting to grips with some of the citizenship provisions. Any errors are mine, however! I hope the ebook is useful and interesting. If you would like to claim CPD hours for reading this material, head over to www.freemovement.org.uk and sign up as a member. Membership starts at 50 per person for groups of 10 and gives access to a growing suite of immigration training resources. Do get in touch if you have comments or suggestions. April 2015 Page 7 (c) Colin Yeo 2015