THE immigration bill 2015 was published on September 17 and paves the way for it to build upon its mighty predecessor, the Immigration Act .
Immigration practitioners have raised concerns that the new bill is too far-reaching and makes an already complicated area of law extremely difficult.
They also worry that it infringes on the human rights of those without lawful status in the United Kingdom who have a genuine claim to live in the UK.
The new bill has a false assumption that the Home Office makes correct decisions all the time. Under the new bill, all appeal rights on human rights grounds – namely Article 8 of the European Convention on Human Rights (ECHR) – will be removed. This means you will be separated from your family in the UK and removed, and not be physically present while your appeal is heard in the UK.
This would affect individuals who have lived in the UK since early childhood as well as all their family members who are British citizens and have no connections left with their birth country.
It is worrying that this removal of appeal rights is being proposed at a time when statistics show that 40 per cent of appeals were allowed by independent immigration courts – which means that the Home Office made the incorrect decision 40 per cent of the time.
The home secretary proposes to remove an individual from the UK and only then can they can appeal – while outside the UK. Surely, a common-sense approach would reveal that this is fundamentally unfair, given the person being removed cannot represent themselves in court physically.
This is a clear breach of Article 6 of the ECHR which states that everyone enjoys a “right to a fair trial”. It will be a logistical nightmare to conduct your appeal from abroad, ie giving instructions to your solicitors, collecting evidence to provide to the courts (which may be in the UK), funding legal representation at court. The odds are stacked against the person being removed.
The separation from family members may be for a long time while the appeal is ongoing, and the damage done by long-term separation may be not reparable, as in the cases of parents separated from their British citizen children and partner. The bill will also extend the Right to Rent scheme across the UK, which was introduced last year. This requires landlords to check their tenants’ immigration status documents.
Landlords will face heavy fines if they are found to be renting their property to those without status. It would also give landlords new powers to evict persons whose immigration status means that they have ‘no right to rent’. It begs the wider question of who will train landlords – who are not immigration experts – in determining which of their tenants are lawful UK residents.
Banks will be under a legal duty to periodically check the immigration status of current account holders and notify the Home Office if the person does not hold the correct legal status, and freeze the bank account. It is unclear as to how the banks will decide whose immigration status to check – will it be solely based on a ‘foreign sounding name?’
If so, positive based discrimination will become legally sanctioned. This is frustrating, given many British citizens will be asked to prove that they are British and may have only been selected to prove their immigration status in the UK on the basis of their name. In addition, the bill will introduce a new criminal offence of driving while not lawfully resident in the UK, and gives immigration officers and police constables powers to impound vehicles owned by the person.
The Immigration Act 2014 created a legal environment under which renting a property, access to health care, driving a car, having a bank account, was only permissible if you could prove your immigration status in the UK. It gave the government powers to remove people even without having their appeals heard.
This new bill is an extension of what became the law last year, targeting not only ‘immigrants’, but now involving the banks, driving licence agencies, the NHS, airlines and airport staff; you could say much of the Home Office work has now been “outsourced”. It is an uncomfortable thought to know that you may be asked to prove your immigration status in the UK based on the colour of your skin, your name, your accent, even though you may be a British citizen.
The new bill applies to everyone, not just immigrants, and there are fears that it would create unnecessary bureaucracy and, if applied inadequately, would create a hostile environment for everyone.
Shabab Hamid is an immigration solicitor at Freemans Solicitors