liberty's second reading briefing on the immigration bill in the
TRANSCRIPT
Liberty’s Second Reading Briefing on the
Immigration Bill in the House of Commons
October 2013
About Liberty
Liberty (The National Council for Civil Liberties) is one of the UK’s leading civil liberties and
human rights organisations. Liberty works to promote human rights and protect civil liberties
through a combination of test case litigation, lobbying, campaigning and research.
Liberty Policy
Liberty provides policy responses to Government consultations on all issues which have
implications for human rights and civil liberties. We also submit evidence to Select
Committees, Inquiries and other policy fora, and undertake independent, funded research.
Liberty’s policy papers are available at
http://www.liberty-human-rights.org.uk/publications/1-policy-papers/index.shtml
Contact
Isabella Sankey Rachel Robinson
Director of Policy Policy Officer
Direct Line 020 7378 5254 Direct Line: 020 7378 3659
Email: [email protected] Email: [email protected]
Introduction
1. Successive administrations, in fraught attempts to look tough on immigration, have
preferred endless reams of new legislation to the rather dull task of tackling widely
acknowledged delays and inefficiency in the administration. The Immigration Bill continues
this trend. It is a deeply irresponsible piece of legislation which, far from encouraging public
confidence in the system, would allow the Government to shirk its responsibilities and
insulate itself from challenge. The provisions of this Bill add to the layers of painful
complexity which have come to characterise our immigration law, meaning that it is scarcely
understandable by trained practitioners, never mind those subject to immigration control and
the general public.
2. Part 1 of the Bill reduces protections against bad decision-making where an
individual is removed from the UK or placed in immigration detention and provides for an
open-ended extension of the circumstances in which force can be used to enforce
immigration powers. It introduces new powers to search individuals and premises which sit
uncomfortably within a confusing mass of overlapping existing provision.
3. Part 2 of the Bill addresses appeals against immigration decisions, variously eroding
appeal rights, making them practically inaccessible, curtailing judicial discretion and
shielding the Home Office from challenge. The latest statistics reveal that 32% of deportation
decisions and 49% of entry clearance applications were successfully appealed last year.1
Depressingly, the Government’s response to this high margin of error is not to seek to
improve the quality of its decision making, but rather to reduce the opportunities for
challenge.
4. Part 3 of the Bill introduces in-country immigration checks for those seeking to
access private housing, banking and obtain driving licences. This constitutes a massive
step-change for the United Kingdom – a country which ultimately rejected ID cards and has
consistently resisted in-country immigration policing. It also provides for new ‘healthcare
charges’ to be applied to those seeking immigration permission and allows for the
introduction of additional healthcare charges for those without a permanent right to remain in
the UK. If introduced in its current form, Part 3 would have disastrous implications for race
1 Number of First Tier Tribunal (Immigration and Asylum) Appeals Determined at Hearing or on Paper,
by Outcome Category and Case Type, 2007/08 to 2012/13. Available at: https://www.gov.uk/government/publications/tribunal-statistics-quarterly-and-annual-jan-mar-2013-2012-13.
relations in this country and create a system of internal checks which require individuals to
prove their identity before accessing services in the public and the private sphere. Part 3
would also create new layers of complicated bureaucracy for landlords and estate agents
and lead to a corresponding hike in rents for private tenants.
5. Part 4 of the Bill introduces sweeping changes to framework governing civil and
religious marriage, requiring all proposed unions that involve a non-EEA national to be
automatically referred to the Home Secretary for investigation. It brings marriage in the
Anglican Church within the Government’s sphere of immigration control for the first time and
poses a serious threat to couples who seek to marry or civilly partner in the UK.
6. Rather than shifting responsibility, and attacking due process, the Home Office
should be turning its attention to the long overdue task of improving its own management
systems. Liberty urges parliamentarians to reject this unfair, unworkable and wrong-headed
Bill and to focus energies on improving the performance of those formally responsible for
immigration policy in the UK.
Part 1 – Removal and other powers
Removal
7. Clause 1 of the Bill amends the removal powers available to the Home Secretary and
immigration officers. At present four categories of migrant may be removed under section 10
of the Asylum and Immigration Act 1999 (‘the 1999 Act’), namely: those who have limited
leave to remain, but have breached a condition of that leave (or remained after its
expiration); those who use deception in seeking leave; those who cease to be a refugee;
and the family members of these individuals.2 Those who face deportation on the grounds of
criminal activity are dealt with under separate provisions. The Bill makes new provision for
the removal of one broad category of individual, namely those who require leave, but do not
have it (and their family members).
2 Currently an individual can also be removed under paragraphs 8-10 of Schedule 2 of the
Immigration Act 1971 where she is refused leave to enter on arrival and where an illegal entrant is not given leave to enter or remain. Under section 47 of the Immigration, Asylum and Nationality Act 2006, removal can also occur, in relation to individuals whose leave has not expired, but who have made an application for further leave to remain or enter. The Bill repeals section 47 of the 2006 Act and replaces section 10 of the 1999 Act.
8. Liberty is concerned about the implications of this provision. The new catch-all power
appears to allow for the removal of those with pending applications, but who do not have any
form of temporary admission or leave. Clause 1 also appears to remove the current
requirement to issue removal directions, stipulating simply that removal takes place under
‘the authority of the Secretary of State or an immigration officer…’ (sub-clause 1(1)). Sub-
clause (3) provides that a direction ‘may’ be given for removal, but it appears it would no
longer be a requirement. Removal directions will still be required to exercise various powers
in relation to removal, such as physically placing an individual on-board a ship or aircraft3 or
detaining an individual pending removal.4 Clause 1 would further remove the requirement for
a family member of somebody subject to removal, including a child, to be given written
notice of a decision to remove them. Sub-clause (6) provides that the Secretary of State may
(but need not) make provision about the removal of family members, including provision
about ‘whether a family member to be removed is to be given notice’.
9. Clause 1 appears to be an attempt by the Government to speed up the removal
process and reduce procedural safeguards designed to ensure that individuals can
challenge erroneous decision-making. In recent years the Home Office and the now defunct
UKBA have been continually criticised for inefficiency and poor quality decision making.
Rather than addressing these concerns, the Government seems determined to fast-track
removal processes, insulating itself from legitimate challenge. Clause 1 of the Bill raises a
number of obvious questions. Will the Home Office take any steps to ensure that those
earmarked for removal do not have legitimate pending applications? If individuals are to be
removed, how is the fact, time, date, destination of removal (all information currently
provided in removal directions) to be communicated to an individual? Will an individual be
informed about the fact and details of removal at time which would allow them to seek legal
advice? Will the decision be put in writing? Will the children of those subject to removal be
given any notice, or will we see a return the bad old days of dawn-raids, with minors bundled
into the back of vans to be shipped out of the country?
Search
10. Schedule 1, paragraph 2 of the Bill sets out a new search power available to an
immigration officer or police constable where individuals are detained under immigration
3 Immigration Act 1971, Schedule 2, paragraph 11.
4 Section 62 of the Nationality, Immigration and Asylum Act 2002 will continue to require that
individuals may be detained by the Secretary of State pending a decision on whether to give removal directions.
powers.5 It is a suspicion-based power which can be used only to search for items on an
individual’s person which may be used to injure another, or affect escape. Such a search
cannot be carried out unless the officer has reasonable grounds to believe the individual in
question has such an object on her person and the search must be no more than is required
to discover that object. Intimate searches cannot be carried out under this section. Objects
may be seized and retained, but must be returned to the individual when she is released
from detention.
11. The proposed power itself is suspicion-based and reasonably circumscribed, but
what is not clear is why the Government considers a new search power is required.
Immigration officers and the police already have a battery of search powers which appear to
at least partially overlap with the new power proposed in the Bill. For example, there is
already a power for an immigration officer to search somebody arrested under immigration
powers, if he has reasonable grounds for believing the individual may present a danger to
himself or others. The officer may search for anything which may be used to assist escape
from custody.6 Separate search powers under the Immigration Act give immigration officers
the power to search those arrested for specified immigration offences and detained in police
custody for items liable to cause physical harm, damage property or be used to effect
escape.7 Those arrested for specified immigration offences may also be searched outside of
police custody by immigration officers under a separate power for items liable to assist
escape, or which relate to the offence for which an individual was arrested.8
12. This piecemeal growth of intrusive powers is confusing, both for those potentially
subject to search and those expected to operate the system. We now have a mass of
overlapping legislative provision, which is extremely hard for even trained immigration law
practitioners to confidently interpret. If the Government has identified a specific gap in the
search regime outlined in existing immigration legislation, Liberty believes it should
comprehensively set out one consolidated search power available to immigration officers
and provide a reasoned justification for its scope and nature.
13. A limited extension of powers to enter and search the premises of those arrested or
detained under immigration powers is set out at Schedule 1, paragraph 2. In addition to pre-
existing powers to search premises occupied or controlled by an individual or in which that
5 Specifically, where individuals are detailed under the 1971 Act (Schedule 2, paragraph 16) by an
immigration officer pending examination and a decision to give or refuse leave to enter. 6 1971 Act, Schedule 2, paragraph 25B.
7 1971 Act, Section 28 H.
8 1971 Act, Section 28 G.
person was when arrested, or immediately prior to arrest,9 other premises may now be
searched, but only where a Magistrates’ warrant is obtained. Before issuing a warrant,
Magistrates must be satisfied that documents which would establish the arrested person’s
identity, nationality or citizenship, or indicate the place from which he has travelled or to
which he proposes to travel, may be found on specified premises. The Magistrate must also
be satisfied that one of a number of listed conditions is met, for example that entry to the
premises will not be granted without a warrant,10 or that it is not practical to communicate
with a person entitled to grant access to the premises.11 Documents may be retained for as
long as the person may be liable for removal and retention of the documents may facilitate
removal (sub-clause (5)).
14. This additional power is subject to the important safeguard of judicial warrantry and is
reasonably circumscribed, but it would, again, exist uncomfortably alongside other powers to
search premises, for example powers set out in the 1971 Act which provide for search of
premises in a range of circumstances by immigration officers (with or without a judicial
warrant).12
The UK Borders Act 2007 (‘the 2007 Act’) contains further search powers,
including a power to search premises for evidence of nationality.13
It is unsatisfactory to have
such a mass of overlapping powers. We accept the need for circumscribed powers to search
premises where individuals are arrested under the immigration Acts, but if the Government
has identified an inadequacy in the current regime, it would do well to consolidate powers to
search premises and provide a clear explanation of their scope and nature.
Reasonable force
15. Schedule 1, paragraph 5 of the Bill extends the power of immigration officers to use
reasonable force where necessary, so that it applies to all immigration powers under any of
the immigration Acts, and not simply powers under the 1971 and the 1999 Act. The
complexity of our immigration legislation makes a comprehensive assessment of all powers
where immigration officers will now have leave to use reasonable force difficult. An example
of the kind of power for which would be enforceable through reasonable force under the Bill
is section 44 of the UK Borders Act 2007, under which an immigration officer can search
9 1971 Act, Schedule 2, paragraph 25A, the power can only be exercised to search for ‘relevant
documents’, i.e. those liable to establish identity, nationality, citizenship and the place from which the individual travelled or to which the individual is proposing to travel. 10
The Immigration Bill, sub-clause 3(3), new sub-section 25A(6B)(c) to Schedule 2 to the 1971 Act. 11
The Immigration Bill, sub-clause 3(3), new sub-section 25A(6B)(a) to Schedule 2 to the 1971 Act. 12
See, for example, sections 28D-28FB of the Immigration Act 1971. 13
UK Borders Act 2007, section 44.
premises for evidence of nationality, where a person has been arrested on suspicion of
committing an offence. The implications of an immigration officer having the power to use
reasonable force in situations like this are concerning and unclear. Furthermore, it appears
that new powers granted by future immigration legislation will come with an automatic
permission for immigration officers to use force; a serious concern given the rate at which
wide-ranging new immigration powers have been added to the statute book in recent years.
16. Liberty accepts that the use of reasonable force may necessary and proportionate in
relation to some immigration powers, but we are concerned by the proposal that it be
authorised across the board without any attempt to justify proportionality in particular
circumstances. Liberty has raised concerns about the use of force by immigration officers or
those contracted to carry out their functions on a number of occasions. Tragic incidents
involving the death or serious injury of those forcibly removed from the UK highlight the care
with which the Government must approach the extension of reasonable force powers for
immigration officers. Liberty believes there are serious gaps in the training provided in use of
force and in particular around the use of restraint techniques. Our concerns are exacerbated
by the Government’s apparent willingness to blithely extend the circumstances in which
force can be used, without making its case or establishing additional protections.
Bail
17. Clause 3 imposes worrying new restrictions on applications for immigration bail. The
Bill provides that where directions requiring removal within 14 days are in force, an individual
may not be granted bail without the consent of the Secretary of State (grants of bail pending
an appeal are also made subject to this restriction).14
Sub-clause 3(3) requires provision to
be made in the Tribunal Procedure Rules requiring the Tribunal to dismiss applications for
bail made within 28 days of a previous application which has been dismissed by the Tribunal
without a substantive hearing. The Procedure Rules must further specify that applications for
release on bail pending appeal are dismissed - without a hearing - when they are made
within 28 days of a prior application unless a material change can be demonstrated on the
papers.
18. Every year thousands of people are locked up in immigration detention centres.
Many are detained for months or years despite guidance suggesting that detention pending
14
The Immigration Bill, sub-clause 3(4).
removal from the UK should happen when removal is ‘imminent’.15
Government policy is not
to detain survivors of torture or those with serious medical conditions or mental health
problems except in the most exceptional circumstances;16 however in practice survivors of
rape and torture, pregnant women and those with severe mental and physical health
problems are often found to be in detention. Liberty believes that immigration detention
should only be used as an extreme last resort and for very time-limited periods where it can
be independently shown to be necessary. We are concerned that, in reality, it is frequently
used for administrative convenience and extends far beyond reasonable time-limits,
frequently due to inefficiency or disorganisation in system. The right to apply for bail and to
have that application substantively considered by a judge is an essential protection in this
system. The provisions set out in this Bill carve out dangerous exceptions and like so much
else in this Bill, seem designed to insulate the Home Office from challenge where it makes
poor decisions.
19. The simple fact of directions for removal within 14 days is not sufficient grounds to
assume that bail should not be granted. On any common sense analysis there are factors
which challenge that assumption. Those suffering psychological or physical illness, pregnant
women, the recently bereaved and those who are primary care givers to young children are
obvious examples of individuals who should be able to challenge detention notwithstanding
the existence of removal directions. These new provisions further appear to require judges to
ignore the possibility of an on-going challenge to removal directions, which is patently
relevant to a bail decision.
20. Proposed new requirements prohibiting repeat applications save where a material
change in circumstances is demonstrated are also seriously flawed. Individuals will not be
allowed to argue, at a hearing, why their circumstances have changed since a previous
application was made. An application on the papers does not afford an individual the
opportunity to fully argue her case and most particularly will deprive her of the opportunity to
address any reservations which a judge may have about a change in circumstances. The
assumption behind this provision appears to be that 28 days is a trivial period of detention
and individuals should not expect to have multiple avenues of challenge within this time.
Liberty believes that deprivation of liberty for a period of 28 days in circumstances where no
15
UKBA Enforcement Instructions and Guidance on removals and detention (Chapter 55). Available at http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/enforcement/detentionandremovals/chapter55.pdf?view=Binary. 16
Ibid, section 55.10.
offence has been committed is extremely difficult to justify. The very least individuals can
expect in these circumstances is a right to challenge their incarceration.
Biometrics
21. Clauses 4 -10 set out new provisions around biometric information in the context of
immigration applications. Clause 4 extends the range of immigration applications in relation
to which information about the physical characteristics of the applicant can be required.17
Provision may be made in regulations for this biometric information to be recorded on any
document issued (including any card or sticker issued or other method of recording
information e.g. an electronic record) where the information was provided in conjunction with
the application.
22. Clause 5 extends powers to photograph, measure or otherwise identify an individual
so that it applies not just to those actually detained under immigration powers, but those
liable to be detained. Clause 6 allows the Secretary of State to specify that applications for
registration or naturalisation as a British citizen must be accompanied by biometric
information, or enabling an authorised person to request biometric information in relation to
the application. Provisions discussed below include a requirement that biometric information
be destroyed on an individual becoming a British citizen, but this is subject to the exception
that photographs may be retained until a British passport has actually been issued.18
Where
biometric information is required, an application can be refused or disregarded if it is not
provided (clause 7). Clause 8 provides that, in order for new information about physical
characteristics (over and above information about external physical characteristics, but not
including DNA data or any information which cannot be gleaned through an external search)
to be included in the definition of biometric information, the Secretary of State must make an
order to this effect.19
Clause 9 provides that those under 16 cannot be required to provide
biometric information unless a decision to require them to do so has been approved by a
senior immigration officer and the biometric information is provided in the presence of a
parent or guardian.
17
It now includes it now includes applications for a transit visa and documents evidencing a right to be in the UK under EU law (but not for EU/Swiss nationals). 18
Sub-clause 6(3), new section (1ZC). 19
Clause 8(3), new section (1B). 1. Schedule 2 makes consequential amendments to give effect to new definition of biometric info.
23. The clauses discussed at paragraphs 12-15 above entail an extension of the
situations in which biometric information can be required and recorded. Liberty believes that
biometric information should only be collected where strictly necessary to support the proper
administration of our immigration system. We are concerned at the amount of information,
including biometrics, being held in relation to foreign nationals at present. A vaste amount of
personal information is already provided by applicants for visas, including ten images of their
fingerprints. Anyone over the age of six who requires a visa to enter and live in the UK is
required to provide this information. We are concerned about this drive to retain ever more
sensitive material and believe that the Government has not made the case for the decision
to extend retention further. We further note that, under clause 8, new types of biometric
information to be required in relation to immigration applications may be specified by the
Secretary of State. It is not clear why the Government seeks this new order making power.
There is (and there will continue to be under the Bill) provision to collect and record
information about external characteristics as part of a record of biometric information and it is
difficult to identify relevant biometric information (not including DNA or anything that cannot
be ascertained via and external search) which could be included in an order. Nonetheless,
we are concerned at the inclusion of an order making power which could allow for intrusive
additional provision in the absence of proper parliamentary scrutiny. If the Government
wishes to extend the kind of information recorded, it should do so on the face this legislation
and make its case to Parliament.
24. Our misgivings about the scope of information retained and the circumstances in
which it can be required are exacerbated by concerns about the range of bodies which have
access to this information. At present, ascertaining who has access to the personal
information held about non-nationals is very difficult as provision for data collection, retention
and access it is spread across various pieces of immigration legislation and general common
law principles. Further whilst we understand that if a person becomes a British citizen the
information is no longer retained, otherwise it seems that it may be retained almost
indefinitely. We understand that all biometric and personal information on visa applicants is
considered to remain of use even after a person has left the UK – as there is a chance that
they may return some years later.
25. Biometric requirements for immigration purposes sprung out of the requirements of
European law, however much of what has been agreed to at the European level mirrors the
practice in those European countries where ID cards are the norm for citizens and non-
citizens alike. Our requirements in this regard now far exceed those stipulated in European
law. As a country which has rejected ID cards as inimical to British traditions of liberty, we
need to seriously consider where this trend towards the ever greater retention of information
fits within our value-system.
26. Additional provision around the use and retention of biometric information is provided
for at clause 10 of the Bill. At present the UK Borders Act 2007 provides for regulations to be
made allowing biometric information to be used for a range of functions.20
Existing
regulations consequently provide for fingerprints and photographs to be used for a range of
purposes, a number of which do not relate to immigration matters.21
Clause 10 provides that
regulations must specify that biometric information may only be retained in connection with
an exercise of a function under the Immigration Acts or the exercise of a function in relation
to nationality.22
Where information is retained for one of these reasons it can then be used
for other specified purposes, including for ‘ascertaining whether a person has acted
unlawfully, or has obtained or sought anything to which the person is not entitled’ and for
such other purposes as may be specified in regulations.23
Whilst we are reassured by the
decision to tie data retention more closely to immigration purposes, we believe that an
exhaustive list of uses for this sort of information should set out on the face of the Bill and
made subject to full parliamentary scrutiny. We are further concerned by the reference to the
use of this information for ascertaining whether an individual has sought anything to which
she is not entitled. This provision must be seen in the context of recent proposals, addressed
below in relation to Part 3 of this Bill, to subject more migrants to charges for health care.
The idea that biometric information retained in relation to an immigration matter could then
be used to ascertain the extent and details of access to healthcare carries grave implications
for personal privacy. It will also potentially damage public health, as individuals are
dissuaded from seeking treatment for communicable illness.
27. At present the UK Borders Act requires that regulations must make provision about
the destruction of biometric information where the Secretary of State thinks it is no longer
likely to be of use for prescribed circumstances. The Bill replicates this provision and
includes an additional requirement that such information must be destroyed if the Secretary
20
Current section 8 of the UK Borders Act 2007 and the Immigration (Biometric Registration) Regulations 2008. 21
The full list of uses reflects the provisions of the enabling legislation (subsection 8(2) of the UK Borders Act 2007) and comprises use pursuant to (i) exercise of function under the immigration Acts, (ii) in connection with UK borders, (iii) in connection with a function in relation to nationality, (iv) in connection with the prevention, investigation or prosecution of an offence, (v) for purposes appearing to the sec of state to be required to protect national security and (vi) in connection with identifying victims of an event or situation which has caused loss of human life or human illness and injury (2008 Regulations, section 9). 22
New subsection 8(2). 23
New subsection 8(3).
of State is satisfied that the individual is a UK citizen or a Commonwealth citizen with a right
of abode.24
The Bill replicates current requirements that copies of biometric information also
be destroyed, or in the case of information held electronically, that it be destroyed or erased
or that access be blocked. Provisions entitling an individual to seek a certificate confirming
that their information has been destroyed are also replicated in the Bill.25
Part 2 - Appeals
28. Sub-clauses 11(1)-(3) of the Bill deal with the kinds of immigration decision that can
be appealed to the Immigration and Asylum Tribunal. Current sections 82, 83 and 83A of the
2002 Act are replaced by a new section 82. Whilst the old sections set out the specific sorts
of decision which could be appealed, the new provision sets out three categories of claim
which are susceptible to appeal, namely a decision to refuse a protection claim (meaning a
claim for asylum or humanitarian protection); a decision to refuse an asylum claim; or a
decision to revoke protection status. It appears that all the kinds of decision listed in the
original section 82 will still be susceptible to appeal, but only insofar as they relate to asylum,
humanitarian protection or human rights. Under this new provision, a decision by the Home
Office to refuse an application which does not involve a human rights or a claim for
international protection, but which is made, for example, on erroneous grounds or without
reference to highly relevant information, could not be challenged in the Tribunal. Whilst
Liberty’s primary concern is with the sort of cases which remain within new section 82, we
are extremely disappointed by the decision to exclude other challenges against errors. In the
face of reports of bad administration, inefficiency and poor-quality decision making, rather
than attempting to improve the system, the Government apparently wishes to insulate itself
from challenge.
29. Sub-clause 11(4) deals with grounds of appeal and exacerbates the concerns
referred to above. Current section 84 of the 2002 Act sets out a number of grounds on which
appeals can be brought, including that the decision is not in accordance with the immigration
rules, or is otherwise not in accordance with the law. Proposed new section 84 significantly
restricts the grounds on which appeals can be brought, so it extends only to claims that
removal or the decision to remove violates the UK’s international protection obligations or
would be a breach of human rights law. The Tribunal would no longer be able to consider
whether a Home Office decision was unlawful for other reasons.
24
This mirrors provision made under the 2008 Regulations in relation to fingerprints and photographs (section 11). 25
This reflects the provisions of section 143 of the 1999 Act, ss 11-13.
30. The option to raise challenges to unlawful decision making before the High Court in
judicial review proceedings will remain and to the extent that this option is practically
available, the valuable time of High Court judges will be used up in pointing out basic errors
in Home Office decision making. For many, however, and particularly in light of proposed
reforms to judicial review funding,26
judicial review will not be practically accessible, leaving
individuals without any form of redress and the Home Office with no imperative to improve its
processes.
31. Sub-clause 11(5) restricts the extent to which the Tribunal can consider a ‘new
matter’. This means that where the claimant has a new and valid ground of appeal not
previously considered by the Home Office, they will not be able to raise that in relation to an
on-going appeal unless the Home Office grants them permission to do so. Presumably this
means that a claimant will have to make further representations to the Home Office in
relation to the new ground of appeal and a separate decision will need to be made, which
will generate new appeal rights, but only after creating more work for the Home Office and
extra cost for the claimant.
32. Clause 12 deals with the location from which an appeal may be brought, replacing
section 92 of the 2002 Act. The old section 92 specified a series of circumstances in which
an appeal could be brought within the UK, including an appeal against a decision to make a
deportation order and any appeal against a refusal of leave to enter the UK where the
appellant is in the UK at the time of refusal. Proposed new section 92 provides that, where
an appeal is brought on asylum or humanitarian protection grounds (under new section 82),
the appeal is to be brought from within the UK unless it is certified as clearly unfounded,
under existing provisions. Existing provisions allow for certification where an individual would
be removed to one of a list of designated ‘safe’ countries or because the Secretary of State
determines there is no reason to think that an individual’s human rights would be breached
on return, or that an individual can be removed to a country in conformity with the refugee
Convention.27
In so far as claims relate to asylum and humanitarian protection, there is no
substantive change as to the location of the appeal. However if deportation is challenged on
human rights grounds, a proposed new certification provision would apply. New section 94B
which would be inserted by sub-clause 12(3) of the Bill, would remove the in-country appeal
26
Including the removal of legal aid for those who cannot satisfy a residency test and the decision to make payment for preparatory work on judicial review applications dependant on a grant of permission. 27
The 2002 Act, section 94.
right wherever the Home Secretary ‘considers’ that removal would not breach human rights.
This requirement is elaborated at subsection 94B(3) as including, in particular, a conclusion
that removal would not expose the appellant to ‘a real risk of serious irreversible harm’.28
33. Current certification provisions set out in the 2002 Act already provide cause for
concern. They rely on a unilateral assertion by the Home Office that an individual’s human
rights would not be violated on return to a specified location. This assertion is likely to be
hotly contested by the individual (indeed this is probably their reason for resisting removal).
The addition of a new certification power extends and compounds this situation. The new
certification power is similarly based on the Home Office pre-empting the decision of the
Tribunal on the substantive issues in dispute and sending somebody to a country simply
because they assert their rights will not be violated in the process. There is an attempt, at
new section 94B(3) to deal with those situations in which, if an individual is returned, they
face serious and irreversible harm. But again, this assessment is made by the Home Office,
without the appellant having an opportunity to challenge its reasoning or conclusions before
an Immigration Judge. Whilst the decision to certify a case under proposed new section 94B
could be challenged in judicial review proceedings, recent attacks on judicial review and in
particular the proposed removal of legal aid funding for many who cannot meet residence
requirements, will mean this option is not practically available. To the extent this provision is
based on the need to have faith in the decision making of Home Office officials, we should
remember that 1 in 3 deportation cases are successfully appealed.29
34. These changes must be viewed in conjunction with disastrous proposals to cut legal
aid provision for all those who cannot satisfy a residency test unless they fall within a
number of tightly circumscribed categories of case. On its face this new provision will simply
make the High Court the first port of call for those opposing deportation decisions. The new
power to certify will be subject to judicial review in the same way as existing certification
powers. However proposed legal aid cuts and reforms to judicial review funding, mean that
many will simply be unable to bring such a challenge, leaving their lives in the hands of the
Home Office who may make irrational, illegal or perverse decisions with impunity.
28
New section 94B(2)-(3) of the 2002 Act, as inserted at sub-clause 12(3). 29
Number of First Tier Tribunal (Immigration and Asylum) Appeals Determined at Hearing or on Paper, by Outcome Category and Case Type, 2007/08 to 2012/13. Available at: https://www.gov.uk/government/publications/tribunal-statistics-quarterly-and-annual-jan-mar-2013-2012-13.
35. Clause 13 deals with those deportation decisions in relation to which no right of
appeal lies under proposed new section 82 of the 2002 Act.30
Where such a case is also
certified on national security grounds, new section 2E provides for challenges to the decision
to certify to be heard before the Special Immigration Appeals Tribunal (SIAC) rather than the
High Court. The grounds of challenge and available redress will remain that which would
apply to judicial review proceedings before the High Court, but SIAC procedures allow for
greater secrecy, including hearings held in closed session from which the appellant and his
lawyers are excluded.
Article 8
36. Clause 14 makes detailed legislative provision about how the balance is to be struck
in immigration decisions between the right of an individual to respect for her family and
private life and the wider public interest in removing that individual from the country. This is a
balance which is already at the heart of the Article 8 protection for private and family life
enshrined in the Human Rights Act 1998. Article 8 requires that a public authority balance
the rights of the individual against the wider social interest, including in public safety, the
UK’s economic health, prevention of crime and disorder and other peoples’ rights and
freedoms.31
37. Proposed new subsections 117B(1)-(3) make stipulations about certain matters
which should form part of the public interest under Article 8. Proposed new subsection
117B(1) specifies that immigration control is in the public interest. This is a well-established
premise and the need to ensure effective immigration control is always weighed in the
balance when considering immigration claims under Article 8.
38. New subsections 117B(2)-(3) and (6), by contrast, make specific provision about
what is in the public interest (or not in the cases of subsection (6)). In the case of
subsections (2)-(3), specific provision is made about what is in the economic interest of the
UK – namely an ability to speak English and financial independence on the part of a migrant.
These considerations form part of decision-making in many Article 8 cases in this context
already. However, whilst there will be many cases in which English language capability, or
the level of income is a useful and relevant piece of information, the advantage of the broad
30
Or a right of appeal lies, but issues would be raised which may not be raised which do not fall within permitted grounds of appeal. 31
European Convention on Human Rights, Article 8.
principled guidance set out in Article 8, is that it gives decision makers the chance to
consider the demands of an individual case.
39. Overly prescriptive requirements will lead to unjust outcomes in individual cases.
Hence subsection (6) prescribes that, in non-deportation cases, the public interest does not
require removal if there is a genuine and subsisting relationship with a child who is a British
citizen or a long term British resident,32
and it would not be reasonable to expect that child to
relocate. The intent behind this provision is apparently to prevent an obvious and unjust
harm from arising, but provisions like this only become necessary to address concerns
arising out of inappropriately specific provision about what the public interest demands.
40. The reality is that an individual may be unable to speak English because she is
apathetic and unwilling to learn, alternatively, she may be desperate to learn and participate
in her community, but come from a country where women are subjugated and kept in the
home, she may provide care for young children, have been unable to gain a formal
education, and learning a language may be an obstacle which will take her a long time to
surmount. The risk is that provisions like those set out at subsections 117B(2)-(3) will be
read as an indication that factors such as English language capability are to adopt
disproportionate importance and usurp other relevant factors, such as the contribution
somebody makes to her community through voluntary work. Whilst this risk remains, Liberty
believes that the vast majority of judges will continue to take account of the practical realities
of a case and make nuanced and meaningful decisions which respond to the ethical
complexities of real life. The rationale behind human rights protection is a recognition that
people are individuals not reducible to crude categories with a certain set of capabilities or
characteristics.
41. These new provisions are intensely political, responding to the Government’s belief
that public support for a policy depends on strong-sounding statements about the
importance of not burdening taxpayers and the need to seem tough on immigration. The
inclusion in the Bill of references to protecting UK tax-payers from the burden of migrants
who can’t speak English and the specification that language and financial facility lead to
better integration, serve no useful purpose in the legislation and read like a party political
broadcast. Whilst these provisions are unlikely to have any effect on the outcome of
individual cases, they reflect a cynical and unprincipled approach to legislation and set an
extremely poor precedent.
32
I.e. they have lived in the UK for more than seven years.
42. Proposed new subsections 117(B)(4)-(5) are more problematic. They relate to the
weight to given to private or family life in defined circumstances and therefore go to the heart
of the judicial function. Subsection (4) provides that judges should give little weight to private
or family life established at a time when an individual was in the UK illegally and subsection
(5) specifies that private life established at a time when immigration status is precarious
should be given little weight. These provisions are seriously confused. Consideration of
whether somebody has lived in the UK illegally goes to the issue of the public interest in
immigration control not the strength of any family life. To ask a judge to purposefully obscure
the reality of strong family life in her decision-making is to distort the judicial process and
require the judiciary to adjudicate on the basis of a legislative fallacy. The inescapable reality
is that a strong family life may be created by somebody who can be condemned for not
respecting our immigration laws. Judicial consideration of such a case should involve a
realistic assessment of the strength of family life, balanced against the clear immigration
consequences of people flaunting the system. Where judges are allowed to perform their
vital role and adjudicate independently on the basis of the facts as they are (and not as the
Government would prefer them to be perceived), justice will follow.
43. Proposed new section 117C is also problematic. It follows the approach taken at
subsection 117B (1)-(3) and (6), in dictating what is in the public interest but makes even
more tortuously specific provision which would place a strait-jacket on judicial discretion and
make it almost impossible for judges to respond to the circumstances of a particular case.
Subsection 117C requires judges to view deportation of certain foreign criminals as ‘in the
public interest’, the more serious the offence, the greater the public interest. These
provisions expand on automatic deportation provisions already on the statute book.33
If the
Bill is enacted in its current form, deportation will be required for prisoners sentenced to a
period of less than four years, unless one of the specific exceptions set out at subsections
(4) and (5) applies.34
An extra layer of prescription is then set out at subsection (6) requiring
‘very compelling circumstances’ over and above these requirements, for those sentenced to
more than four years imprisonment.
33
UK Borders Act 2007, section 32. 34
Either that the individual has been lawfully resident in the UK for most of her life, is socially and culturally integrated, and there would be very significant obstacles to her integrating in the country to which she would be deported (117C(4)), or she has a genuine and subsisting relationship with a qualifying partner or child and the effect of deportation would be unduly harsh on the partner or child (117C(5)).
44. In reality, offending behaviour has always been a strong factor mitigating in favour of
deportation, requiring very significant countervailing factors to be outweighed in the balance.
The obvious intention behind this provision is to make it almost impossible for judges to carry
out any kind of judicial balancing exercise when assessing the Article 8 rights of offenders in
the immigration system. This is merely the next in a series of erosions of judicial discretion in
this regard. It is clear that senior figures in Government do not believe that foreign nationals
who have committed an offence should be able to avail themselves of rights protections. In
the absence of a wholesale decision to exclude such people from protection, this provision
requires judges to decide almost all Article 8 cases in this context in the way the
Government prefers and without reference to the full facts of a case. With proposed
subsection 117C, the Government is, for all practical purposes, carving out exceptions to the
reach of Article 8 and compromising the universality of rights protection.
Part 3 - Access to Services
45. Part 3 of the Bill deals with access to services. In summary it introduces in-country
immigration checks for those seeking to access private housing, banking and obtain driving
licences. It also provides for new ‘healthcare charges’ to be applied to those seeking
immigration permission and allows for the introduction of additional healthcare charges for
those without a permanent right to remain in the UK.
46. The UK Government has traditionally undertaken immigration control at the point of
entry and exit. Contrary to the approach taken elsewhere in Europe, it has not generally
been British practice that the authorities or private sector service providers can demand that
you prove your identity and legal status away from the border. This Bill proposes an
unprecedented shift in this approach.
47. The Government is yet to acknowledge the full scale of checks that all individuals will
now be subject to and the societal shift that will result. While the Bill does not envisage a
new national system of identification (such as the identity card scheme and accompanying
National Identity Register, repealed in 2010)35
it does, alongside other concurrent proposals,
introduce a new system of routine identity checks for access to essential public and private
services. For the first time immigration control will be brought within the private sphere - the
home, the bank – and will become a routine feature of access to healthcare. Proposals in
Part 4 of the Bill, will for the first time bring immigration checks into the Church, requiring
35
Identity Documents Act 2010.
those who wish to have an Anglican marriage to first be referred to the Home Secretary.
Parallel proposals – including a 12 month residency test for access to legal aid - will mean
that in a range of ordinary every day encounters people in the UK – foreign nationals and
British citizens - will be required to produce identity documents in a manner not seen since
the Second World War.36
48. Recent experience demonstrates that for many in our country, speculative and
aggressive in-country immigration control is offensive and profoundly un-British. In July
2013, the Home Office began a series of aggressive “CROPs” - street operation spot checks
in diverse areas. This followed a temporary suspension of such operations after Liberty
hwrote to UKBA in 2012 expressing concern about the legal basis of the operations following
contact by concerned members of the public.37
UKBA temporarily suspended its street
operations nationwide and reviewed its guidance before resuming operations at the end of
last year. While the legal basis for such operations remains unclear, this summer operations
were stepped up and rolled out alongside a poster campaign urging those in the UK illegally
to "Go Home". Eye witness accounts recorded that non-White members of the community
were targeted by immigration officials at transport hubs in London. These twin strategies led
to a significant public backlash and genuine community fears about increased victimisation.38
This recent experience provides a neat illustration of the societal impact of bringing
responsibility for immigration control away from the border.
Discrimination and Damage to Race Relations
49. While the impact of regular and routine identity checking will affect all members of the
community, it is clear that these policies will be most keenly felt by ethnic minority individuals
or those who appear to be from outside the EEC by reason of their name, skin colour or
accent. If the Government choses to continue with this approach it must accept that it will (1)
encourage landlords and other service providers to discriminate against minority individuals
(2) make it more difficult for minority ethnic and non-EEA individuals to access vital services
and (3) cause damage to delicate race relations in the UK.
36
ID cards were first introduced in Britain two days after the outbreak of World War II and remained in force until 1952. They were originally issued for three functions only: conscription, rationing and national security. By 1950 this had mushroomed to 39 different functions. 37
The Home Office says there have been 228 immigration spot check operations since 2008. 38
BBC: Immigration Spot Checks: Equality Watchdog Investigates, 3rd
August 2013 available at - http://www.bbc.co.uk/news/uk-23552088. Following the summer operations, the Equality & Human Rights Commission launched an investigation into suspected racial profiling by immigration officials; the then Shadow Immigration Minister, Chris Bryant, wrote to the Immigration Minister questioning the legal basis for the arrests and the UKIP leader, Nigel Farage said the government was "panicking", trying to "sort the problem out in an overly fast and heavy handed manner".
50. At present, Government appears happy to skate over these implications. The
consultation that preceded the new landlord obligations stated simply that “checks should be
performed on a non-discriminatory basis (i.e. without regard to race, religion or other
protected characteristics as specified in the Equality Act 2010)”.39
Clause 28 of the Bill
requires the Home Secretary to issue a code of practice specifying what a landlord or agent
must do and must not do to ensure that in seeking to avoid liability they also avoid
contravening the Equality Act 2010 so as it relates to race or the Race Relations (Northern
Ireland) Order 1997. However, enforcement appears not to be a priority; clause 28(5)
clarifies that a breach of the code does not make a person liable to civil or criminal
proceedings. Despite the existence of equalities legislation, outsourcing immigration
responsibilities to public and private sector service providers with accompanying penalties
will lead to discrimination in practice. It is inevitable that some landlords and letting agents
seeking to protect themselves from possible liability will chose not to consider non-white
tenants or those with non-European sounding names or accents on the assumption that they
are more likely than their white or European counterparts to have irregular immigration
status. While such direct discrimination in the provision of services would represent a breach
of the Equality Act 2010, that does not mean it won’t happen and will be incredibly difficult to
prove in practice. In some areas of the country there is fierce competition for private rented
housing and it is not difficult to imagine a two-class property market developing whereby
those individuals considered more likely to have irregular status are not considered for
housing or unable to access private rented housing altogether. As a spokesperson for KIS
Lettings in the North East has already said in response to the proposal –
“How will you stop landlords being left in the ridiculous position of inadvertently
discriminating on the grounds of race to be on the safe side? …Longer term I can
see this proposal having all the impact of an inflatable hammer. As is so often the
case with issues like this, the vast majority of responsible, sensible landlords will
already be ensuring their tenants have a legal right to live in the UK, as deported
tenants tend not to pay their rent. The dodgy landlords who don’t, still won’t. Of
course immigration is a hugely important issue, as are landlords who put tenants in
39
Tackling illegal immigration in the privately rented sector, Home Office consultation paper, available at http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/consultations/33-landlords/, paragraph 34.
substandard properties and who line their pockets from people’s misery. This
proposal does nothing to tackle any of those issues.”40
51. One of the main and most successful arguments against the ill-fated ID card scheme
was that routine identity checks would prove disastrous to race relations in the UK. Arguably
it is the absence of such cards and accompanying checks - and the stereotyping and offence
they cause - that has allowed for lesser levels of racial tension and division in the UK than
for example on mainland Europe. There is no doubt that this policy will make Britain a less
friendly place to be non-white or have a foreign sounding name. The Migrants’ Rights
Network (MRN) has found evidence that the complicated nature of immigration
documentation and the fear of ‘getting it wrong’ has already led to problems and racial
discrimination in relation to the employer’s duty. Worse still the new requirement has even
facilitated the wider exploitation of undocumented workers.41 If it proceeds the Government
must accept that it will encourage discrimination and disproportionately undermine the ability
of non-white and non-EEA members of the community to access housing, healthcare and
other essential services.
Unprincipled
52. The stated aim of these policies is to “encourage” those with irregular status to leave
the country. While fair and proportionate enforcement of immigration control is the
Government’s prerogative, a policy of forced destitution (through the combined effect of
homelessness; lack of healthcare etc.) as a tool of immigration control - for those who may
already be highly vulnerable and facing exploitation - has obvious grave ethical implications
for any society.
53. It is also unprincipled to place requirements on landlords, lettings agents, healthcare
professionals, lawyers and others to actively enforce the Government’s immigration policy.
Immigration policy is by its nature a highly political area of public policy on which there are a
wide spectrum of views. Some would have no national borders and allow the free movement
of persons not only within the EEC but beyond. There are others that would implement an
immediate cap on migration from any country whether inside or outside the EEC and there
40
Ajay Jagota, of KIS Lettings in the North-East available at http://www.lettingagenttoday.co.uk/news_features/Landlords-as-border-control-officers-plans-under-fire. 41
Migrants’ Rights Network, Landlord immigration checks consultation, July 2013, available at http://www.migrantsrights.org.uk/publications/briefing-papers/landlord-immigration-checks-consultation.
are very many whose views fall between these standpoints. Given its political nature and the
range of legitimate views in this area, placing obligations on individuals to enquire about
immigration status and banning the provision of services to those with irregular status,
represents an unwelcome interference with freedom of conscience.
54. This unprecedented collective extension of immigration responsibility and the
Government’s failure to acknowledge the implications of principle, raise further concerns as
to where the line may be drawn in future. This first stage of reform brings lawyers, landlords,
banking and healthcare professionals within scope for immigration responsibility; what
private and public services will be next? Will internal travel eventually be made subject to
immigration checks? Or access to other goods and services? If we are moving towards a
system of comprehensive internal immigration control, the Government should be pressed to
make clear any future ambitions.
Disproportionate
55. While accurate figures concerning suspected numbers of irregular migrants are
understandably difficult to obtain, available data suggests that this policy is alarmingly
disproportionate to the problem it seeks to solve. As MRN have pointed out – “Research
conducted by the LSE in 2009 estimated that 618 000 irregular migrants lived in the UK in
2007. Even if they were all privately renting, this would still be less than 1% of the 8.5 million
people known to live in private rented accommodation in England alone”.42
Implementing
new systems of burdensome regulation for landlords and tenants in order to address an
issue that at most involves under 1% of private tenants – and possibly many less – is
excessive and unwise. The same applies for, banking and the provision of driving licences
etc.
56. Experience of the operation of the employer’s duty gives an indication of the
relatively small number of irregular migrants that may be identified under this new system. In
the 2012-13 financial year the Home Office says that there were 5000 illegal worker
operations resulting in 4500 arrests.43
Information is not available as to how many of those
arrested were found to have irregular status. Even if all were, this is an incredibly small
fraction of the total number of irregular migrants estimated to be in the UK. This figure is
further dwarfed by the 28 791 migrants – who might otherwise have been irregular – that left
42
Ibid at footnote 12. 43
BBC: Two thirds of fines for illegal workers uncollected, 1st August 2013, available at -
http://www.bbc.co.uk/news/uk-23535938.
voluntarily in 2012.44
We understand it is also the case that, unlike Home Office enforcement
of the employer’s duty, the Home Office does not plan to undertake enforcement operations
in private rented properties, banks and the DVLA. If this is the case, it is likely that even
fewer numbers of suspected irregular migrants will be identified.
Unintended consequences
57. Liberty has further concerns about the unintended consequences of the new
regulatory scheme for vulnerable individuals that may have legal status but are unable – for
whatever reason – to evidence it. The Bill somewhat naively assumes that all those with
legal status to be in the UK will be able to produce timely evidence of this when they seek to
rent property in the private sector, open a bank account, obtain a driving licence etc. This
ignores the situation of those who may not have documentation readily to hand. For example
those with chaotic lives or possibly fleeing domestic abuse. Or those whose immigration
documents have been caught up in the notoriously ill-managed Home Office bureaucracy
awaiting an application or appeal decision. These individuals who for whatever reason do
not have access to documentation proving their right to be in the UK would not be able to
access vital services until they have retrieved documents from past abusers or negotiated
administrative hurdles to obtain new documents. In the meantime they may well find
themselves homeless, further exacerbating existing vulnerability.
58. The landlord consultation paper accepted “a marginal risk that the policy may impact
people seeking to quickly move accommodation because of domestic violence where
availability of necessary identity documents may be an issue”.45
To deal with this, the paper
suggests Guidance and Codes of Practice “to take account of the need to provide for
compassionate circumstances and flexibility in some exceptional cases” and that the
exemption of women’s refuges will plug the remaining hole. This suggested approach
reveals in equal measure a disturbing disregard for the needs of those fleeing abuse and a
puzzling ignorance of the practical realities of the rental market. It is highly unlikely that those
without documents will be prioritised for accommodation when competing with those whose
documents are readily to hand. The consultation paper also proposes a helpline for landlords
allowing them to check the immigration status of prospective tenants’ whose documents are
in the immigration system. Given the chaotic administration and record keeping of the Home
44
Consultation paper, paragraph 11. 45
Tackling illegal immigration in the privately rented sector, Home Office consultation paper, paragraph 95.
Office and UKBA, the idea that the helpline will be able to provide prospective landlords with
timely information about the immigration status of all migrants whose decisions are pending
UK is fanciful.
Chapter 1 – Residential tenancies
59. This section sets out unprecedented obligations on private landlords to check the
immigration status of their tenants and those that occupy their rental properties. All rental
agreements where a person seeks to occupy a property as their main or only residence in
return for payment will be captured by the new scheme, unless the arrangement is
specifically excluded under Schedule 3.46
Licences, sub-leases and sub-tenancies are also
covered.47
60. Clause 17 sets out the prohibition that “a landlord must not authorise an adult to
occupy premises under a residential tenancy agreement if the adult is disqualified as a result
of their immigration status”. Breach of this restriction may occur in two different ways. Either
by entering an agreement which allows a “disqualified” person to occupy a property or by
entering an agreement that allowing occupation by someone with limited immigration status
whose status later lapses while they remain in occupation.
61. Clause 16 sets out a list of “disqualified persons” broadly these are (a) people with
neither British, EEA or Swiss nationality who require leave to enter or remain here which
they do not have48
or (b) people whose leave is subject to a condition that would prevent
them from occupying the premises. Clause 16 also sets out people that have a “limited right
to rent property” because of their immigration status. Broadly these are those who have
been granted leave to enter or remain in the UK for a limited period of time, and those who
do not need leave to enter or remain as they are qualifying family members of EEA nationals
or others with the right to reside in the UK.
62. Clause 17(5) contains obligations for the landlord to make reasonable enquires of the
tenant as to the occupiers and to check that the person entering the tenancy agreement will
46
Schedule 3 excludes a number of residential arrangements including, among other things, care home occupation; occupation in a hospital or hospice or hostel; local authority arrangements where the local authority is acting in response to a statutory power owed to the individual; rights of occupation that accrue for certain asylum seekers, failed asylum seekers and others under the Immigration & Asylum Act 1999 etc; occupation granted by an employer to an employee; student hall of residence accommodation; leases that are more akin to home ownership than a traditional landlord tenant arrangement etc. 47
Clause 15(3). 48
Whether by reason of curtailment, revocation, cancellation, passage of time or otherwise.
be the same person occupying it (i.e. to prevent circumvention of the rules). Clause 17(6)
prevents Landlords relying on clauses in tenancy agreements prohibiting occupation of
premises by a person disqualified by their immigration status where they knew such a term
would be breached. As such, it forces Landlords to investigate the circumstances of
prospective tenants and other possible occupiers and enforce these measures.
63. The penalty for non-compliance is a fine up to £3,000 for each disqualified adult
allowed to occupy the property (clause 18(2)). This will be enforced by way of penalty notice
issued by the Home Secretary to either a landlord or an agent. Landlords/agents may lodge
an objection to the penalty notice stating that (i) he is not liable for the penalty, (ii) the
landlord has a defence (clauses 19 or 21) or (iii) the penalty is too high. Having objected, the
landlord/agent may also appeal to court on the same grounds. Penalties are enforced, and
are recoverable, as if it were an order of a county court (clause 26). This proposed £3000
limit can be amended by secondary legislation by the Secretary of State.49
64. There are some limited defences open to landlords and agents and these are set out
at Clauses 19 and 21. Broadly, it a defence to a pre-grant penalty notice that the landlord or
agent undertook the prescribed checks before entering into the agreement and for post-grant
penalty notices it is a defence for the landlord to report the matter to Secretary of State as
soon as is practicable.
65. The Provisions of this chapter of the Bill are fleshed out by a Code of Practice
(clause 27) which will contain guidance on the regime generally (including holiday lettings
and business travel) and the enquiries a landlord should make to determine the identity of
occupiers. A further Code of Practice will relate specifically to race discrimination and
contain provisions stating what landlords and agents should and should not do to ensure
they do not racially discriminate and act in accordance with the Equality Act (clause 28).
Breaching this code will not result in civil or criminal liability but may be taken into account by
a court or tribunal.
Bureaucratic
66. In addition to race relations and other principled objections to this policy, there are
many more practical objections. First, it will impose a heavy new regulatory burden on
landlords, businesses and tenants while not necessarily helping to identify those with
irregular status. Presumably in anticipation of landlord concerns the Home Office is quick to
49
Clause 18(6).
describe the landlord duty as a “light-touch” and “proportionate” regime.50
It is also keen to
stress perceived similarities with the employer duties already in operation – “The duty to
check the status of new employees is now a well-established procedure, which is well
understood by employers (including small businesses operating on a scale comparable to
small private landlords)”.51
However it is misleading to suggest that the small businesses
required to undertake employment checks are operating on a scale comparable to private
landlords. In England, 78% of landlords in the private rented sector own just one rental
property.52
It is clear then that the regulatory burden will predominantly be felt by those who
seek to bring in income by owning one extra property; generally a much smaller and more
informal endeavour than those who run a small business.
67. Myriad complications and difficulties underpin the effective discharge of the duties
and the enforcement of a new and vast administrative scheme. Landlords will be expected to
check all adults that live in their rented accommodation as a main or only home. This will
include making enquires to establish whether it is a main home; checking the age of
prospective tenants; checking identity documents of all adult tenants; ascertaining the
legitimacy of documents presented and that they correspond with the identity of the
prospective tenants. The requirement to making continuing checks where a tenant has
limited leave to remain will - given the large numbers of migrants with limited leave to remain
– impose a huge secondary burden.
68. Given the complexity of immigration law, there are a number of documents that
landlords will need to recognise and understand in order to discharge their duties. These
include –
UK passport
Naturalisation certificate
Right of abode certificate
Birth certificate or adoption certificate plus either national insurance number or UK
driving licence
50
Tackling illegal immigration in the privately rented sector, Home Office consultation paper, paragraph 17. 51
Tackling illegal immigration in the privately rented sector, Home Office consultation paper, paragraph 10. 52
DCLG - Private Landlords Survey 2010.
EEA or Swiss passport
National identity card issued by EU member state or Switzerland
European Union Laissez Passer
Biometric Residence Permit (held by temporary and permanent residents)
Visa or passport stamp held by short term visitors
Home Office letter confirming the person has an outstanding immigration application
or appeal which permits them to remain (and only if verified by the Home Office
enquiry service)
Diplomatic passports
NATO identification card
International Red Cross travel document
UN Laissez Passer
Residence certificate or card issued by the Home Office
Certificate of Application (and only if verified by the Home Office enquiry service)
Application Registration Card held by asylum seekers (and only if verified by the
Home Office enquiry service)
Home Office letter of authorisation held by asylum seekers (and only if verified by the
Home Office enquiry service)
69. It is also difficult to imagine how the Home Office plans to prove (and how a landlord
can therefore disprove) that someone has been living in a property when it comes to enforce
the duty? Post received at the address is not necessarily indicative of who actually lives
there, particularly given the high turnover of tenancies in the private rented sector. Similarly it
is unclear how main or only residence is to be defined. What of someone who spends a few
nights a week at a property visiting a partner or friend? Or a few weeks in a particular month.
What thresholds will be set to determine whether accommodation is someone’s main
residence and what evidence will be used to demonstrate occupancy? Home Office
experience in trying to enforce the employer’s duty to check immigration status is instructive.
In August 2013 a Freedom of Information request found that the Home Office has so far
issued £80 million in fines but collected just £25 million.53
Costly
70. Liberty is puzzled as to why the Government has not yet produced a costed analysis
of this radical proposal. The consultation document accepts that there will be costs to
landlords and small business associated with the checks and foresees that these will be
passed on to private tenants, but makes no attempt to calculate the extent or impact of the
cost. The scale of this new proposed scheme is vast and the costs will be significant. While
there is presently no central register of landlords, it is understood that there are over 4
million privately rented properties in the UK and 8.5 million people are known to live in
private rented accommodation in England alone.54
This means that a huge administrative
burden will be created requiring the checking, verification, copying and retention of millions
of documents every year.
71. If - as expected - letting agents and other firms pick up the task of conducting checks
- these administrative costs will be passed on to private landlords who in turn will pass the
costs on their tenants. It is likely that tenants will also pick up the cost of the new financial
risks the scheme creates for landlords. Landlords concerned that they may inadvertently fall
foul of the law and face fines may well increase rents to insure against any future liability. In
effect then, private tenants will bear the cost of implementing the Government’s immigration
policy. From a public policy perspective this smacks of double unfairness, requiring British
citizens and others legally resident here to subsidise immigration control and penalising
those renting in the private sector while having no impact on owner-occupiers. Further, no
attempt has yet been made to calculate any anticipated financial benefit of this policy. This is
likely due to obvious problems with its workability and enforcement.
Unworkable
72. While Liberty is relieved that the Bill does not contain powers to allow intrusive
searches of rented property to verify occupancy we are, as a result, unsure how the Home
Office proposes to police the new duties to ensure compliance. If comprehensive compliance
checks of landlord and estate agent records are not undertaken, landlords may over time
53
Ibid at footnote 19. 54
Shelter, 2012.
cease to comply with the checking duty. If comprehensive compliance checks are carried out
by the Home Office the additional administrative, financial and resource implications will be
vast.
Ineffective
73. The Home Office has produced no convincing evidence that the policy will affect
numbers of those present in the UK with irregular status. In fact, the net impact of the policy
may well be to push those with irregular status further under the radar, increasing
vulnerability and exploitation by creating another black market in private rented property. As
best, it’s not hard to imagine how those with irregular status could join friends and family in
rented accommodation after the initial check has been undertaken. Additionally, as the
proposed policy entirely excludes the purchase of homes, tourist accommodation (eg.
hostels) those who – for whatever reason - do not have legal status or who have breached
the conditions of their leave to remain could easily continue to remain here without needing
to rent in the private sector. At worst, the policy could create another black market in the
immigration sphere whereby landlords or individuals seek to profit from providing or
facilitating accommodation to those without legal status. In short, the Bill proposes another
layer of expensive bureaucracy for immigration enforcement with little or no guarantee of its
effectiveness.
Response of landlords and lettings industry
74. The glaring problems with this proposal have been widely acknowledged in the
landlord and letting industry. The vast majority of landlords don’t support the proposals to
compel them to carry out immigration checks – 82% according to a survey by the Residential
Landlords Association. The Chairman of the Residential Landlords Association, Alan Ward,
has said -
“The private rented sector is already creaking under the weight of red tape so it is little
wonder that landlords are so clearly opposed to this flagship Government measure.
Whilst the RLA fully supports measures to ensure everyone in the UK is legally allowed
to be here, this proposal smacks of political posturing rather than a seriously thought
through policy. For a Government committed to reducing the burden of regulation it is
ironic that they are now seeking to impose a significant extra burden on landlords making
them scapegoats for the UK Border Agency’s failings.”55
55
See, Landlords Oppose Government’s Immigration Plans, 3rd
July 2013, RLA newshub available at - http://news.rla.org.uk/landlords-oppose-governments-immigration-plans/
The Royal Institution of Chartered Surveyors has said –
“The Government has stubbornly refused to look at introducing better laws to protect
both landlords and tenants – it is unacceptable that it expects the property industry to
deliver its immigration policy.”56
Lettings agents have also questioned the appropriateness and ability of landlords to
accurately check immigration status and acknowledged the likelihood that landlords will
attempt to protect against liability by discriminating against prospective tenants. Head of
lettings at Sequence has said -
“If it’s to be the responsibility of all landlords to check passports and visas of foreign
tenants, that will lead to questions about how equipped an amateur landlord is at
carrying out and verifying these checks. These proposals are just passing off the onus of
implementation of the Immigration Act on to landlords.”57
Chapter 2 – healthcare, banks, employers and driving licences
Healthcare
75. Clauses 33 and 34 construct the framework for the Government’s new policy of
charging categories of migrant for healthcare. The substance of the policy is to be set out in
secondary legislation which may provide for charges to be imposed in relation to immigration
applications which will entitle an individual to access healthcare. The Secretary of State may
specify, by order, the level of the charge, the means by which it is to be paid, the
consequences of failure to pay and make provision for exemptions, reductions and waiver of
any charge. Liberty responded to the Government’s detailed policy proposals which were set
out in parallel Department of Health and Home Office consultation documents during the
summer.58
56
Stephen Thornton, director of external affairs for RICS available at http://www.lettingagenttoday.co.uk/news_features/Landlords-as-border-control-officers-plans-under-fire. 57
Stephen Nation, head of lettings at Sequence, available athttp://www.lettingagenttoday.co.uk/news_features/Landlords-as-border-control-officers-plans-under-fire. 58
Liberty’s response is available here: http://www.liberty-human-rights.org.uk/pdfs/policy13/Liberty%27s-response-to-the-Home-Office-and-Department-of-Health-Consultations-on-access-to-NHS-services-August-2013.pdf.
76. Our principled concerns about proposals which introduce or expand exceptions to
service provision and threaten the integrity of a system of free, universal healthcare remain.
Whilst proposals to introduce a levy are preferable to moves to extend direct charging for
individuals, Liberty is particularly concerned at indications that the levy will not cover certain
types of treatment, amongst them healthcare for pre-existing pregnancies (women who were
pregnant on arrival) and organ transplantation. Unfortunately the framework powers set out
in the Bill are so skeletal, that we cannot even have confidence that the Government would
implement this scheme in a limited way. Sweeping order-making powers mean that the
categories of individual subject to a new levy can be changed without proper parliamentary
scrutiny, charges could be raised to sky-high levels, exemptions and waivers designed to
accommodate vulnerable groups could be removed. Such moves would place healthcare
beyond the reach of those who need it and would have obvious implications for public
health.
77. New clause 34 lays the groundwork for another aspect of the Government’s plans
and is designed to expand the range of individuals who may become subject to charges
including direct charges for healthcare services. Legislation currently provides for migrants
who are not ordinarily resident in the UK to face such charges where prescribed in
legislation. The Government’s consultation proposals indicate a current intention to charge
visitors and those without status directly for a range of services. Our concerns about these
proposals are set out in detail in Liberty’s response to the Government’s consultation
exercise.59 Imposing charges on more individuals for health care services will mean that
vulnerable people are unable to access the provision they need and will lead to the spread
of communicable illness to the detriment of all in society. Furthermore, the provisions of the
Bill do not limit the Government to its stated policy objective. If implemented, the Bill would
allow for direct charges to be placed on any migrant without a permanent right of residence.
78. Although not elaborated upon in the Bill, Liberty further has concerns about the
regime of data storage and sharing which would be required to implement a charging regime
of the extent and complexity proposed. The Government’s plans, built as they are on the
need to establish identity and therefore entitlement of all patients, appear to require
something akin to a healthcare ID card for the population at large.
59
Available at: http://www.liberty-human-rights.org.uk/pdfs/policy13/Liberty%27s-response-to-the-Home-Office-and-Department-of-Health-Consultations-on-access-to-NHS-services-August-2013.pdf.
Bank Accounts
79. Clause 35 is another in the barrage of measures designed to bring immigration
control away from our borders and comes complete with troubling new provision for data
sharing. Clause 35 provides that in relation to any person who is attempting to open a bank
or building society account in the UK who does not have the required leave to remain in the
UK, banks and building societies must carry out ‘status checks’ before opening accounts to
ascertain that their customer has not been disqualified from opening a bank account by the
Secretary of State. A status check involves checking with a specified anti-fraud organisation
or data matching authority (sub-clause 35(3)(a)).
80. Provision is made for regulation of the system by the Financial Conduct Authority
(‘the FCA’). The Treasury may make regulations allowing the FCA to make arrangements for
monitoring and enforcing compliance. Regulations may provide for them to have access to
personal information and carry out investigations (including powers of entry, injunctions,
financial disciplinary measures etc). Further categories of financial institutions or types of
account can be included in the regime via secondary legislation (clauses 36-38).
Employers
81. Clause 39 introduces changes to appeal rights against penalties imposed in relation
to those employers who are found to have employed immigrants without valid leave. It
requires employers to exercise their right to object to the Secretary of State against a penalty
before they can appeal. Clause 40 alters the recovery regime for the penalties incurred by
employers in this regard by ensuring debts can be enforced straight away as if there were a
court order in place, as opposed to the current system where the Secretary of State must
issue a claim for a sum and the employer has an opportunity to raise a defence. Whilst this
may appear to be a discreet and minor change, it is problematic because it will make it
harder to employers to defend themselves against erroneous charges.
Driving licences
82. Clause 41 imposes a residency requirement which must be satisfied before
individuals can get a driving licence. Clause 42 provides for a driving licence to be revoked
where the Secretary of State considers that somebody does not satisfy residence
requirements. Somebody who fails to surrender a licence revoked in this way will face
criminal sanction. Appeal against the decision to revoke a driving licence will be to the
Magistrates Court. Magistrates will not be permitted to consider whether an individual has
been erroneously refused leave by the Home Office when considering whether a driving
licence has been properly revoked, nor will Magistrates be able to take account of the fact
that leave has been granted to the individual in question since her driving licence was
revoked.
83. Like so much of this Bill, clause 42 appears to be partly designed to insulate the
Government from effective challenge against erroneous immigration decisions. If the Bill is
passed in its current form, the Home Office will be able to rely on mistakes in immigration
decision making to revoke an individual’s licence. The individual will only be able to
challenge such mistakes through judicial review, or by launching an immigration challenge
and hoping the Home Office reconsiders revocation if their immigration status is corrected by
the Courts.
Part 4 – Marriage and Civil Partnership
84. Liberty believes that the aim of reducing disingenuous applications for leave to enter,
remain or settle in the UK is a valid one. It further goes without saying that we must not
tolerate practices such as forced marriage and domestic violence which represent serious
human rights violations. In a world divided along national borders it is justifiable to have a
clear set of rules for those seeking to settle in another state and it is of course reasonable to
demand that spousal migration is firmly linked to genuine marital arrangements.
85. However, there is already a system in place whereby those responsible for
registering civil marriages are required to report ‘suspicious marriages’.60 There is also a
robust regime in place for those seeking leave to enter and remain in the UK via the spousal
route which includes onerous evidence requirements, an English language test,
maintenance guarantees and a requirement for continuous evidence of the subsisting
relationship for those who wish to progress down the settlement route. With this in mind, the
proposals contained in this section of the Bill, and the investigatory and enforcement scheme
set to be created in parallel, are seriously disproportionate. They also pose a serious threat
to couples genuinely seeking to marry or form a civil partnership in the UK.61
60
Section 24 of the Immigration & Asylum Act 1999. 61
Clauses in this part apply to England & Wales and clause 48 provides for the scheme to be extended to Scotland and Northern Ireland.
86. The Bill makes sweeping changes to the framework governing civil and religious
marriage. First, it extends the marriage/civil partnership notice period for all couples from 15
to 28 days.62 This will cover British citizen couples as well as couples where one partner is a
non-EEA national. To give an idea of the number of couples this will affect, in 2011, 292 200
marriages and civil partnerships were registered in the UK.63 The Bill then introduces a new
system whereby all civil and Anglican marriages that involve a non-EEA national (that is not
exempt)64 will be referred to the Secretary of State.65 The Secretary of State will then choose
which of these proposed marital and partnership unions she wishes to investigate further.66
87. The new regime will, for the first time, bring Anglican marriage within the
Government’s sphere of immigration control. Those seeking an Anglican marriage, where
one or both partners is not a British citizen, EAA or Swiss national, will need to be referred to
the Home Office before they are permitted to be married by the Church. Specifically clause
51 amends the Marriage Act 1949 so that where such a couple want to get married in the
Anglican Church, the banns process and common licence process will not be available to
them. They will instead have to obtain superintendent registrar’s certificates subject to the
Home Office referral and investigation scheme. Similarly, under clause 52, those seeking to
civilly marry or partner will be automatically referred to the Home Office.
88. Under clause 43(5), once a proposed marriage or civil partnership has been referred
to the Secretary of State, she can carry out an investigation if she has reasonable grounds
for suspecting the proposed marriage or civil partnership is a sham. The Bill creates a new
definition of “sham marriage” and “sham civil partnership” that introduces an assessment of
the genuineness of the relationship.67 The accompanying Impact Statement predicts 35,000
referrals each year and suggests that approximately 6000 per year will be investigated. In
making a decision whether to investigate the Home Secretary must have regard to any
guidance published and investigations will be conducted in accordance with secondary
regulations.68
89. It is unclear how the Home Office will determine which proposed marriages and civil
partnerships will be subject to investigation. While the legislative requirement is that there is
reasonable grounds to suspect a sham, the Impact Assessment uses much looser language
62
Schedule 4, Paragraph 10 amends the notice period in section 31 of the Marriage Act 1949. 63
Home Office, Tackling Sham Marriage, Impact Assessment, 11 September 2013. 64
Clause 44. 65
Clause 47 and Schedule 4. 66
Clause 43(2). 67
Clause 49. 68
Clause 43(6) and 45.
that appears to pave the way for racial and nationality profiling “A Home Office unit would
assess the referrals against intelligence based risk profiles…”69 Previous Home Office
guidance in this area under the now defunct Certificate of Approval scheme suggests that
the guidance will be blunt and arbitrary (for example targeting individuals on the basis of
their immigration status – such as those with short periods of leave remaining).
Nationality/racial profiling combined with blunt guidance will not yield intelligence-based
investigations and will therefore be unlikely to produce accurate results as to sham
marriages.
90. Those that the Home Office choose to investigate further will be notified that their
notification period is being extended to 70 days. Regulations will set out what can be
required as part of the investigation and can include requests for further information and
evidence and require the couple to attend for interview or be visited at home.70 As part of the
investigation the Home Secretary must decide whether the couple has complied with the
investigation (the ‘compliance question’). If she decides that they haven’t, notice of her
decision, with reasons, must be given within 70 days.
91. It is unclear whether failure to fulfil the ‘compliance question’ will mean that a couple
is prohibited from marrying or civilly partnering. Oddly, the consequences of failure to comply
are left to secondary regulations.71 There is also nothing in the legislation about the
consequences of a Home Office decision that a proposed union is a “sham”. However the
proposed draconian sanction in these circumstances is clearly laid out in the accompanying
Impact Statement –
All couples subject to the 70 day notice period, provided they complied with the
Home Office investigation, would then be issued with the certificates/Schedule
enabling them to marry or enter into a CP, even where the Home Office considered
that the marriage/CP was a sham. However, in such a case the Home Office could
use the evidence established by the investigation – that the relationship was not
genuine and the marriage/CP was a sham – as the basis of an enforcement decision
under existing immigration powers, against the non EEA national involved eg.
curtailment of any extant leave and removal of an overstayer or illegal entrant. The
Home Office could also use that evidence as the basis for refusing a subsequent
69
Home Office, Tackling Sham Marriage, Impact Assessment, page 10. 70
Clause 46. 71
Clause 45(8).
immigration application based on the sham marriage/CP, subject to a fresh
assessment at that stage of the couple’s genuineness.”72
The Impact Statement further claims that 2,500 removals from the UK will be generated in
the first year alone.
92. Looking at all relationships between British residents/citizens and non-EAA nationals
through a prism of mistrust sends a dangerous message about mixed (inter-racial and inter-
national) relationships in a diverse and multi-ethnic society. Laying down targets for the
number of mixed relationships that the Government seeks to disrupt and the number of
couples it plans to separate (2,500) is offensive and will cause untold stress, pain and hurt to
many genuine couples.
93. Worse still, seeking to remove people that have been granted immigration status on
the basis of their proposed marriage is grossly heavy handed. It will discourage couples from
marrying for fear that initiating the marriage process could lead to removal of the non-EEA
partner. It will also undoubtedly mean that the Government seeks to remove and separate
engaged couples whose marital plans are sincere.
94. Even for those that don’t face removal from the country at the end of the investigation
process, it will likely still be incredibly stressful - automatic referral to the Home Office; a
possible three month investigation; the disruption or delay of marriage plans possibly at
significant cost; a decision that you have failed to comply with the investigation leading to
possible further delay; and no matter the eventual outcome of the investigation, it could be
followed by almost immediate action to remove a partner despite him or her having
immigration status. Even after a successful appeal against a removal decision, the strain,
stress, delay and huge expense will cause untold misery to thousands of people in the UK.
95. Parliamentarians should also be conscious of the record of the immigration service in
decision-making. In 2011/12, 45% of immigration appeals were successful in the First Tier
Tribunal. Applying this statistic to this proposed policy, we should expect that nearly half of
the engaged couples the Home Office seeks to separate or remove will successfully overturn
the decision at appeal. Others, including genuine couples, may not. An engagement should
be a happy time in any person’s life; if this policy is pursued it will be turned into a nightmare
- leading to potential separation - for thousands of couples. The Impact Statement casually
acknowledges this impact but either naively or cynically brushes it aside –
72
Home Office, Tackling Sham Marriage, Impact Assessment, page 10.
Some genuine couples may fail to persuade the Home Office that their relationship is
genuine. The Home Office has mitigated against this by maintaining a right of appeal
against enforcement and other immigration decisions based on an assessment of
sham. It is not possible to quantify this impact as the proportion and impact is
unknown.73
For all the reasons, outlined above, appeal rights in this context are not sufficient.
96. Given the Government’s stated commitment to the institution of marriage, Liberty is
surprised that it has brought forward this policy. In a speech in 2011 the Prime Minister
stressed his commitment to the family, his message was clear; a “family test” should be
applied to all domestic policy, “if it undermines commitment, if it tramples over the values
that keep people together, or stops families from being together, then we shouldn't do it.”74
Liberty agrees. It is therefore deeply disappointing that the proposals herein for tackling
sham marriage afford so little concern for the rights of couples to marry. Is the Home Office
exempt from applying the Prime Minister’s ‘family test’?
Current law and policy
97. Under section 24 of the Immigration and Asylum Act 1999, registrars are required to
report any marriage about which they have concerns to the Home Secretary straight away –
where such reports are received caseworkers can consider visiting the couple or otherwise
conducting an interview.75
98. Before a partner, spouse or civil partner is granted limited leave to enter or remain in
the UK with a British citizen, EAA or settled partner they are required to prove, amongst
other things, that they have met, that their relationship is genuine and subsisting, that they
intend to live together permanently, that they meet the suitability requirements, that they
meet the English language requirement and that they meet the maintenance requirement.76
Documentary evidence is required to prove all of these criteria, including evidence that the
applicants have lived together for the past two years. They also must pay a significant fee.
Operational guidance used by UK Border Agency (UKBA) officials further establishes that:
73
Home Office, Tackling Sham Marriage, Impact Assessment, page 13. 74
Prime Minister’s speech, Witney, 15th August, 2011.
75 Immigration Directorate Instructions, Chapter 8, Section 1, paragraph 3.4.
76 Appendix FM of the Immigration Rules.
Intention to live permanently with the other means an intention to live together,
evidenced by a clear commitment from both parties that they will live together
permanently as husband and wife immediately following the outcome of the application
in question or as soon as circumstances permit.
The timing and nature of a decision regarding residence, who took the initiative and the
way in which the decision was reached may be important factors in assessing whether or
not the couple intend to live together permanently. The ECO should consider:
- If the couple have not discussed and agreed where they will live, if only in the short
term, why is this?
- If the couple have discussed where they will live; when, how and by whom was the
decision taken?
- Is the marriage conditional upon the applicant securing admission to the UK?
- If the marriage is conditional upon this, who made the condition and why?
- If the application is unsuccessful would the sponsor live with the applicant in his / her
present country of residence or elsewhere?
99. There is also guidance on the assessment of the validity of the marriage in
accordance with national laws and on the approach to documentary evidence in spousal visa
cases. In the case of fiancés operational guidance provides that an assessment of freedom
to marry should be made. The Home Offices Immigration Directorate Instructions encourage
UKBA staff to make further enquiries when there are any grounds for suspecting that a
marriage is not genuine – caseworkers are encouraged to target cases, for example, where
the paperwork suggests a marriage is not valid in the UK, cases where there is an allegation
or other information suggesting that the marriage is not genuine, is forced or the couple are
not living together or cases where, having been admitted, an individual marries someone
else. Guidance further provides for interviews or home visits to be carried out where, for
example the applicant has married, in a short space of time, a person with whom he had no
substantial prior acquaintance, or where evidence has come to light that a couple are no
longer living together.
100. Those that are successful are granted only a limited right to remain – a visa
which lasts 33 months. They are then able to apply for further leave to remain in the UK for a
period of 30 months if they continue to meet the specified requirements. Only after they have
completed 5 years in the UK as the partner of someone who is British or settled in the UK
can they apply for indefinite leave to remain.
101. It is clear that a robust regime of documentary evidence requirements and
continuous assessment and checks is already in place in relation to partner and spousal
visas. In this context it is unclear why a new burdensome administrative regime is required to
regulate and penalise intended partners and spouses in the UK.
Article 12 of the European Convention on Human Rights (Right to Marry)
102. Article 12 of the European Convention on Human Rights77 provides protection
for the right to marry. While not absolute, strong protection has been afforded to this right in
the European Court of Human Rights in Strasbourg78 and by our domestic courts.79 Heavy
handed Home Office policy in the area of marriage and family reunion is not new. Nor does it
enjoy a successful track record in the Courts when tested against the right to private and
family life (Article 8) and the right to marry (Article 12).
103. Under section 19 of the Asylum and Immigration (Treatment of Claimants,
etc) Act 2004 civil marriage registrars were prohibited from entering marriages into the
marriage notice book unless satisfied that non-EEA national partners that required leave to
enter or remain in the UK had the written permission of the Secretary of State to marry in the
UK. The fee payable for written permission to marry was £295 and the Secretary of State’s
policy provided for denial of permission to marry to all those who were in the country without
leave, or whose grant of leave to enter or remain in the UK did not total more than six
months or who didn’t have at least three months remaining at the time of making the
application for permission. In R (Baiai) v Secretary of State for the Home Department the
High Court concluded that the section 19 scheme was disproportionate and constituted a
substantial interference with Article 12 rights and that the scheme was discriminatory and so
violated Article 14 (equal treatment) of the Convention in conjunction with Article 12. The
Court of Appeal and later the Supreme Court agreed.80 The Supreme Court re-iterated that
while Article 12 was not absolute (in that it doesn’t protect the right of anyone in the
jurisdiction to marry any other person irrespective of age, any existing marriage etc.) it
should not be subject to conditions that impaired the essence of the right.
77
As incorporated into domestic law by the Human Rights Act 1998. 78
Hamer v UK. 79
R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53. 80
R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53
104. Similarly, reforms made to Immigration Rules in 200881 that banned entry for
settlement of foreign spouses or civil partners unless both parties were aged 21 or over were
found to be disproportionate by the courts. When the policy was first proposed Liberty
warned that “an increase in the minimum age for marriage to an overseas spouse would be
a severely disproportionate means of achieving the identified problem. A blanket increase in
age automatically catches everyone that may wish to marry an overseas spouse between
the ages of 18 and 21 years. This will necessarily include a great many couples genuinely
wishing to marry and begin a life together, for whom coercion plays no part in their
decision.”82 Surely enough in October 2011 the Supreme Court found that the ban infringed
the Article 8 rights of those to whom it was applied.83 Noting the similarity of the measure to
the previous ban on marriage for those subject to immigration control who lacked the Home
Secretary’s permission, the Court found that the Home Secretary had failed to exercise her
judgment and establish that the measure was no more than necessary to accomplish her
objective. The measure was a sledgehammer but the Secretary of State had not attempted
to identify the size of the nut.
105. Most recently the High Court has found that the minimum income requirement
for spouses – a central plank of Coalition’s tough immigration policy was – ruled
disproportionate. The rule, introduced by the Home Office last year, meant that British
citizens or others settled in the UK who want to bring a foreign spouse into the country have
to show that they are earning more than £18,600 a year. This was a fixed figure, regardless
of circumstances, and it was more than three times higher than the previous rules required.
Those applying for spousal visas have always had to show that the family will be able to
maintain itself without recourse to public funds, but this was the first time a specific income
figure had been set. And it was set so high that it was bound to be an impossible
requirement for many ordinary hard-working people. Someone working full time on the
national minimum wage, for example, would only earn just over £13,000 a year. In the
current climate of low wages and high unemployment, this was a cruel policy bound to
separate genuine families. At the time the policy was introduced we warned that it was likely
to breach Article 8 of the Human Rights Act - “at best, this will lead to more legal challenges
and foster uncertainty in the UK’s immigration system. At worst, the Rules will be struck
down in the Courts if they are found to be incompatible with Article 8. On closer analysis
these proposals have more to do with cutting net immigration, regardless of the
81
“Paragraph 277 of the Immigration Rules which took effect on 27 November 2008. 82
Liberty’s response to Home Office consultation Marriage to Partners from Overseas, February 2008. 83
R (Quila) (Bibi) v Secretary of State for the Home Department [2011] UKSC 45.
consequences for genuine families, than discouraging abuses or reducing burdens on the
British taxpayer.”84
106. In July the High Court ruled that the income requirement was a
disproportionate interference with the rights of British citizen sponsors and refugees to enjoy
respect for family life. Mr Justice Blake said that aims relied on by the Government –
protecting the economy and transparency – could not justify a rule that “very severely
restrict[s] the ability of many law abiding and decent citizens of this nation who happen not to
earn substantial incomes in their employment from living with their spouses in the land of
their nationality”.
107. The Government has now suspended the policy and must rethink. Pushing
through a bad policy in order to look tough has only caused delay, confusion and more
hardship to families, not to mention the enormous amount of wasted public money.
108. Unfortunately, by way of Part 4 of the present Bill, the Home Office looks set
to repeat past public policy mistakes. The awkward legislative scheme envisaged leaves a
huge amount to secondary legislation and enforcement. It appears that the Government is
seeking to evade breaching human rights law by setting the scheme up in this way.
Nonetheless the legislative scheme as proposed represents a substantial interference with
Article 8 and Article 12 rights and also engages Article 14. The lack of guidance in primary
legislation exacerbates these interferences as it will leave couples uncertain as to the
consequences of an investigation. A system of enforced removals on the basis of Part 4
investigations will likely breach human rights.
109. In addition to the problems of principle, conflict with human rights law, and
punitive impact it is unclear whether the scale of the blanket scheme proposed and its
associated costs are justified. The Home Office estimates that 35,000 marriages and civil
partnerships a year in the UK involve a non EAA national and so proposes that all of these
proposed unions are now referred.85 In 2012, 1891 section 24 “suspicious marriage” reports
were made by registrars.86 The Home Office Impact Statement attempts to present these
figures as high and growing. This conveniently ignores the fact that in 2004 there were
around 3500 such reports and numbers have fluctuated over several years. The Impact
84
Liberty’s response to the Home Office’s consultation on Family Migration, October 2011. 85
Home Office, Tackling Sham Marriage, Impact Assessment, page 3. There is currently no record of how many non-EEA nationals marry or enter into a CP in England and Wales, Scotland and Northern Ireland. 86
Ibid at page 4.
Statement also acknowledges that the number of reports made is not a reliable indicator as
to level of the problem – “not all of these referrals can be assumed to involve a sham
marriage” - but in no way tries to provide better statistical evidence. Taking the figure at its
highest, it represents 5.4% of marriages and civil partnerships that involved a non-EEA
national and a fraction of the total number of migrants to the UK. We are further told that in
January to June 2013, UKBA conducted 460 sham marriage operations and made 212
arrests. No information is provided as to how these arrests were related to, how they were
ultimately disposed of and whether a sham marriage was uncovered. Nonetheless these
figures demonstrate the disparity between immigration service suspicions and results
yielded. The Home Office then goes on to estimate that 4000 - 10,000 applications a year
may be based on a sham marriage. The statistical basis for these estimates is extremely
unclear.87
110. A costs analysis is provided in the Impact Statement and the costs include set
up, Home Office staff time, increased appeal costs etc as well as a reduction of income for
the Anglican Church. The costs are significant and estimated at between £72 million – £81
million over ten years. The financial benefits calculated are highly speculative and seem to
rest most on deterrence and reduced pressure on public services.
Part 6 – Embarkation checks
111. Clause 58 and Schedule 7 make provision for a system of embarkation
checks of those leaving the country to be undertaken by “designated persons”. Powers of
examination, and to require information and documents, are currently exercised by
immigration officials (under the 1971 Act) when people arrive in the UK. Under clause 58
these intrusive examination powers are to be introduced for those the Secretary of State
chooses to designate. Wide discretion is left to the Secretary of State as to who shall
exercise such powers88 but it is understood that the Government intends these powers to be
principally exercised by carrier and port employees. The powers of examination will apply to
people embarking or seeking to embark in order to leave the UK. Examined persons will be
required to provide all information in his or her possession for the purposes of the functions
under this section.89 Powers extend to examining and detaining a passport or other
document produced during an examination and requiring a passenger to provide biometric
information, including fingerprints or features of the iris or any other part of the eye.90
87
Ibid at footnote 2. 88
Schedule 7, paragraph 5. 89
Schedule 7, paragraph 3(2). 90
Schedule 7, paragraph 3, subparagraphs (6) and (7).
112. Paragraph 4 further amends the 1971 Act to enable the Secretary of State to
by order require passengers embarking in the UK to produce embarkation cards. As there is
no existing system of embarkation checks, it is unclear what will be contained on such a
card. While the Bill does not extend powers of detention to designated persons it envisages
additional powers for immigration officers, including the power to detain an individual in
circumstances where a designated person has commenced an examination and to examine
and detain a passport or other document, found in the course of an examination by a
designated person.
113. Schedule 7 also contains a power to compel carrier and port operator staff
and others to carry out these checks. The Secretary of State may direct an owner or
manager of a port to make arrangements for designated persons to conduct embarkation
checks including at specific ports at specific times and dates and in relation to a description
of persons by reference to the destination to which they are travelling, the route they are
travelling or the date and time of travel. Failure to comply without reasonable excuse is a
criminal offence.
114. Liberty understands that these powers are driven by the Government’s desire
to implement ‘exit checks’ by 2015 and for carrier and port operator staff to carry out this
function. Details are currently scant but the Immigration Minister has said “this will help
improve our already robust security at the border, while causing as little disruption to
passengers as possible. Our aim is to make it harder for offenders to flee British justice and
to better identify those who are in the UK illegally.”
115. Liberty is extremely concerned about proposals to extend sensitive
examination powers traditionally reserved for the immigration service and intended to
regulate admission to the United Kingdom to carriers and their employees. Liberty does not
believe that airport staff engaged in the business of facilitating travel should be required to
undertake immigration or police functions nor required to exercise intrusive and coercive
powers. Liberty does not see the justification for exit checks. Entry checks are undertaken
for the purposes of immigration control. It is difficult to see exit checks for everyone leaving
the UK will contribute to this aim nor how it is a proportionate way of pursuing the legitimate
aim of preventing and detecting crime. By the same token, exit checks applied to certain
routes and destinations will discriminate against certain passengers and likely
disproportionately affect certain nationalities and minority groups. Further, alongside broad
and vague enabling powers there is insufficient detail set out on the face of the Bill as to how
this system would operate in practice. This is another inappropriate piecemeal extension of
police-like powers for an unclear purpose. It confuses commercial air travel departure
arrangements with immigration control and with the detection of crime. It also places
onerous obligations on carrier and port operator staff, at risk of criminal penalty, that is
unjustified.
Conclusion
116. This Bill represents a profound step-change in the British tradition of
immigration control. It introduces novel and spurious mechanisms for insulating the Home
Office from challenge, taking border control in-country and contracting out public sector
immigration control functions to landlords, estate agents, banks, healthcare professionals
and airport staff.
117. These policies must be considered in context. The administrative failings of
the Home Office and UKBA in administering immigration and border control are well
documented. Following five unhappy years, the UKBA was disbanded earlier this year and
the Agency’s functions have now once again been subsumed by the Home Office. The
Home Affairs Select Committee (HASC) has raised concerns at the apparently sudden
decision to abolish UKBA; the lack of clarity around the new system; and has questioned
how another transfer of functions will improve the longstanding failings of immigration
administration. On 11 June 2013 Sarah Rapson, Interim Director General of UK Visas and
Immigration was asked by HASC if she thought the immigration service would ever be fixed.
She replied “I don’t think so”. In July 2013 HASC reported that –
“We were alarmed to discover in Sarah Rapson’s evidence session a further backlog
of 190,000 cases in the temporary and permanent migration pool that were never
revealed to the Committee before. The total figure for the number of cases in the
backlog has reached over half a million (502,462). “This could fill Wembley Stadium
to capacity six times over. It has risen by 56% in just three months. At the current
rate it will take 37 years to clear and the Home Office cannot confirm that this is the
last of the backlogs.”91
It is against this backdrop of spiralling administrative chaos, that the Government now
believes that private service providers should take on new responsibilities for immigration
control. Before proposing new onerous duties and regulatory burdens on the private sector,
91
See HASC press release, Backlogs hit half a million at the immigration service, 13th July 2013,
http://www.parliament.uk/business/committees/committees-a-z/commons-select/home-affairs-committee/news/130713-ukba-rpt-published/
Liberty would expect at least some explanation from Government as to why ministerial and
departmental energy shouldn’t instead be focussed on improving administration. To this end
Liberty urges parliamentarians to carefully consider the policies proposed herein which
would allow the Home Office to dangerously shirk its responsibilities and shield itself from
accountability at significant individual and societal cost.
Rachel Robinson
Isabella Sankey