The Immigration Act 2014 (the Act) received Royal Assent on 14 May 2014 and has brought about a number of changes, making it easier to remove those who do not have a right to be here. Amongst other things, the Act seeks to prevent illegal migrants accessing and abusing public services and taking up employment. Five of the main changes have been summarised below.
(1) Removal Directions
Previously a decision was initially made on an applicant’s immigration status and then a separate decision was then made on their removal which resulted in applicants being given multiple opportunities to challenge the decision. The Home Office have now replaced separate powers to give removal directions with a single power applicable to an individual who does not have leave to remain, whose leave has been revoked or curtailed or is in the UK unlawfully. These individuals can be removed from the UK without the need to make a separate removal decision when an application is refused. This approach gives migrants certainty on their liability for removal and a reduction of delays between refusal of an application and removal.
(2) Bail and Detention
Under the Act, if a bail application has been made within 28 days of a previous bail application being refused and there is no material change in circumstances then the First-tier Tribunal has to reject the application on the papers. Where a migrant’s removal is scheduled within the next 14 days the Secretary of State will need to consent to a grant of bail. If this does not happen, the Home Office has the power to maintain detention until the migrant is removed from the UK. Detention of unaccompanied children in an Immigration Removal Centre has been prohibited. Children being returned will not be held at ports for more than 24 hours. Families with children under the age of 18 will be provided with a 28 day reflection period after any appeal against refusal has been completed before return can be enforced. The Secretary of State has a statutory duty to consult a Family Returns Panel in relation to safeguarding the welfare of children. Families can be held in pre-departure accommodation for a maximum of 72 hours.
The power of immigration officers have also been extended in that they can search detained individuals’ premises and obtain a warrant to search the premises of a third party including a relative or a partner where there is good grounds that documents facilitating the return of the individual will be found.
(3) Biometrics and Deprivation of Citizenship
Under the Act, foreign nationals applying for transit visas must provide their biometrics. Migrants who are not from the European Economic Area (EEA) but family members of EEA nationals applying for family permits and residence cards and those apply for British citizenship will now also be required to provide their biometric information when making an application.
Under the Act, a British citizen who conducts themselves in a manner which is seriously prejudicial to the interests of the UK can be deprived of their British citizenship even if they would become stateless. Powers to deprive a British citizen remain the same in that a person can be deprived of their citizenship if it was obtained using fraud, false representation or concealment of a material fact.
(4) Appeals and Article 8
The Act has reduced the number of immigration decisions that can be appealed from 17 to 4 and has reformed the appeals system. A human rights claim must be made at the point of application to the secretary of state and cannot simply be raised when the application is refused and goes to appeal. The claim must be considered by the secretary of state before consideration by the Tribunal upon refusal. An administrative review scheme has been introduced and will apply where an immigration application is refused incorrectly due to a casework error. Applicants have a time limit of 10 days to apply for review following refusal of an application and the review is expected to take 28 days to complete. As with appeals, the applicant is not required to leave the UK while the review is pending.
Individuals liable to deportation can be deported first and then exercise their appeal unless they would be subject to serious irreversible harm, in which case removal would be suspended. Serious irreversible harm includes situations where a person claims that they will be killed or tortured upon their return to their country but does not include interference with their private life, in which case they would be removed from the UK whilst the appeal is heard.
In relation to article 8 of the European Convention on Human Rights, the right to respect for private and family life is a qualified right and must be weighed against the public interest; the courts must have regard to the public interest in cases relating to both article 8 and cases involving foreign criminals.
(5) Access to Services
• Access to the NHS – under the Act, a person who applies for entry clearance or leave to remain for more than 6 months is required to pay a health surcharge. This is one of the conditions of entry and will have to be paid at the same time an application fee is paid. Applicants who have paid the surcharge will have access to the same free NHS care as permanent residents except for more expensive treatments. Short term visitors and illegal migrants still remain liable for treatment under the NHS. Non-EEA nationals with permanent residence will continue to have access to the same level of NHS services as permanently settled persons.
• Access to privately rented accommodation – private landlords will be required to make checks on new tenants to confirm their entitlement to be in the UK and if they fail to undertake these checks or allow illegal immigrants to rent their properties, they will be faced with a civil penalty. The government will publish a draft code of practice and hope to implement the scheme from October 2014 following parliamentary approval. However, this scheme will not apply to existing tenancies and checks will only need to be carried out on new tenants from the implementation date.
• Access to bank accounts – under the Act, illegal immigrants are not able to open bank accounts as banks are required to carry out an immigration status check against an anti-fraud organisation and government databases designated by the Home Secretary. A person who does not have valid leave to be in the UK is disqualified from opening a bank account. Banks and building societies will face sanctions for non-compliance and the Financial Conduct Authority will be responsible for compliance and enforcement.
• Access to work – the Home Office has published a Code of Practice for the prevention of illegal working which will come into force on 16 May 2014 which has increased the maximum civil penalty from £10,000 to £20,000. The code sets out Consideration Framework that the Home Office uses to assess the employers liability for a civil penalty. The table is broken down into three stages which are:
1. determining liability
2. the level of breach; and
3. penalty amount for which the Home Office would refer to the ‘Civil Penalty Calculator’.
• The starting penalty for an employer who has not been found to be employing illegal workers in the last three years is £15,000 before any reductions for mitigating factors or the statutory excuse is applied. Where an employer has been found to be employing illegal workers within the previous three years the starting penalty is £20,000 before any mitigating factors are considered. The minimum penalty amount is £10,000 and a warning notice cannot be issued.
• An employer can raise an objection to the civil penalty and an administrative review of the decision will be conducted which may mean that an appeal to the civil court is no longer required. An unpaid penalty can be registered as a debt due under a court order after which enforcement can begin immediately.
• Access to driving licences – individuals who apply for a full or provisional driving licence will need to demonstrate that they are in the UK legally before they can be issued with a licence. Any driving licence held by an illegal immigrant or those that have overstayed will be revoked and those who continue to drive after revocation of the licence will be liable for prosecution, detention and immediate removal from the UK. Any vehicle that they have may also be seized.
• Access to marriage and civil partnership – from April 2015, the notice period for all marriages in England and Wales will change from 15 days to 28 days. Notices of marriage involving a non-EEA national who does not have a right to remain in the UK and could gain an advantage in relation to immigration from the marriage will be referred to the Home Office. Where the Home Office has reasonable grounds to believe that the referred marriage is a sham then the notice period can be extended to 70 days in order for the genuineness of the relationship to be investigated.
By Jasmine Shergill,
Solicitor – Immigration, HR & Employment Department for TURBERVILLES (http://www.turbervilles.co.uk/)
This blog does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.