Immigration Bill: overview

A new Immigration Bill was announced in the Queen’s Speech on 27 May 2015. It implements a number of policies in the Conservative party manifesto and further proposals from the Prime Minister’s immigration speech that took place immediately after the general election.

The UK is one of the most successful multiracial democracies in the world; because of that, more people want to come here than ever before. With increased demand comes a growing number of people willing to disobey our immigration controls and others who take advantage of vulnerable migrants by promising a better life but delivering the opposite.

A new director of labour market enforcement will bring better co-ordination to existing regulators and ensure that the enforcement effort is targeted to prevent exploitation. We are increasing the penalties for those who repeatedly employ illegal migrants as a source of cheap labour. And illegal workers themselves will be committing a new offence and their earnings will be seized.

To reduce demand for migrant labour further, the bill will establish a new ‘immigration skills charge’ that certain employers will have to pay if they wish to bring certain workers into the country. The funds raised will be used to develop skills in the resident labour market. The bill will also ensure that all front-line, public-sector workers can speak fluent English.

This bill will make it harder for people to settle in the UK when they have no right to do so, building on the Immigration Act 2014 to restrict access further to services for illegal migrants. Landlords will be able to evict illegal migrants more quickly, and access to driving licences and bank accounts will be further protected as services for only the lawfully resident population.

The bill will restrict the support we give to people whose claims for asylum have been unconfirmed, and their dependants, to those who are poor and face a genuine problem in leaving the UK. We are also simplifying the basis on which local authorities in England can support migrants without immigration status. We will continue to meet all of our obligations towards asylum seekers, refugees and children but equally we should be expecting illegal migrants to leave the UK rather than providing access to support.

The bill will make it easier to remove people who shouldn’t be in the UK by introducing new powers to tag foreign national offenders released on bail, and extending ‘deport now, appeal later’ certification powers to more immigration cases. We will also be equipping immigration officers with additional search and seizure powers to better enforce our immigration laws.

Why we need to legislate again

The Immigration Act 2014 put in place many effective measures intended to reduce illegal immigration and making it more difficult for illegal migrants to live and work in the UK. This bill builds on those measures. For example, the 2014 act ‘right to rent’ scheme requires landlords to check the immigration status of their tenants.

This new bill provides landlords with additional routes to evict illegal migrants as well as creating new offences for corrupt landlords who continuously rent to illegal migrants. This bill also incorporates a number of new measures not covered under the 2014 act, for example, a raft of new measures to deny illegal migrants access to the labour market.

2.Measures

2.1Controlling migration to the UK

Measures in the bill make the UK a less attractive place for illegal migrants and those who seek to exploit them. But it’s just one part of our broader strategy for reducing net migration. As the Prime Minister has set out, we’ll improve our immigration and labour market rules, so we reduce the demand for skilled migrant labour and crack down on the exploitation of low-skilled workers, and we will renegotiate a new relationship with the European Union.

2.2Helping with the Syrian refugee crisis

The bill creates new powers to combat the facilitation of vulnerable migrants. But we should not look to primary legislation for solutions when our response can be quicker and simpler. The bill complements the immediate action we are taking to resettle 20,000 Syrian refugees and further secure border control in Calais.

2.3Cost to general public

The costs of implementing measures in this bill are compensated by the benefits. The bill creates new powers and penalties that will allow immigration officers to work more efficiently in dealing with illegal migration and limit access to services for those with no right to be here.

3.What we’re going to do

  • support working people, clamp down on illegal immigration and protect our public services
  • focus on the exploitation of low-skilled workers and increase sanctions for those involved in such practices

4.How we’re going to do it

  • introduce new sanctions on illegal workers and rogue employers
  • better co-ordination of regulators that enforce workers’ rights
  • prevent those unlawfully in the UK from accessing housing, driving licences and bank accounts
  • introduce new measures to make it easier to enforce immigration laws and remove illegal migrants

Immigration Minister James Brokenshire said:

The message is clear — if you are here illegally, you shouldn’t be entitled to receive the everyday benefits and services available to hard-working UK families and people who have come to this country legitimately to contribute.

Whether it is working, renting a flat, having a bank account or driving a car, the new immigration bill will help us to take tougher action than ever before on those who flout the law.

This bill will build on the Government’s work since 2010 to crack down on abuse and build an immigration system that truly benefits Britain – by deterring illegal migrants from coming and making it harder for those already here to live and work in the UK.

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Visa premium service centres

You must go in person to a premium service centre if you want to apply to extend your visa or to settle in the UK and get a decision on the same day. You must be applying from within the UK to use this service. Most applications are processed the same day if you bring all the information needed to your appointment.

Fees

You must pay £500 to apply at a premium service centre, in addition to the standard application fee and the healthcare surcharge (if you need to pay it).

You don’t have to pay the premium service fee if you’re applying for anEuropean Economic Area (EEA) registration certificate or to work in the UK as a Croatian national.

Your application may take longer than a day if extra checks are needed. If your application is delayed for other reasons, eg IT problems or a fire evacuation, you may be able to get a refund of the premium service fee.

You won’t get a refund of the fee if you haven’t paid the correct amount of healthcare surcharge before your appointment.

Not all types of application can be made in person.

Contact ICS Legal on 0207 237 3388 to book your visa premium appointment or e-mail us your details including the type of application you wish to apply under on info@icslegal.com. 

At your appointment

You must arrive for a security check 15 minutes before your appointment.

After the security check, you must provide the following at the reception:

  • your payment confirmation
  • your completed application form
  • all necessary supporting documents for your visa application
  • your IHS reference number (if you need one)

If your appointment is outside office hours, you’ll need to take a credit or debit card to pay the £63 fee.

Your ‘biometric information’ such as fingerprints and a photograph will be taken at your appointment.

Who should come with you

Any dependants named on your application must come with you to your appointment.

You can also bring any other people you need at your appointment, eg carers, family members or legal representatives.

How long it takes

You’ll be told on the day:

  • how long it’ll take to process your application (most applications are processed within 2 hours 30 minutes)
  • whether your application can be processed that day – and, if it can’t, what your options are

If your application can be completed that day:

  • your documents will be given back to you
  • your biometric residence permit will be ordered (it will take 7 to 10 days to arrive)

You can wait while your application is being processed, or leave and come back later.

Your biometric residence permit will be sent to your home address unless you tell the premium service centre to send it somewhere else.

If your appointment is cancelled

Your appointment may be cancelled and you won’t get a refund of the £100 booking fee if you:

  • applied to use the service but weren’t eligible
  • didn’t bring the right documents or a completed application form
  • cancelled your appointment too late – unless there were exceptional circumstances, eg a medical emergency or severe weather
  • didn’t pay the correct fees
  • didn’t pay the healthcare surcharge (or didn’t pay the right amount) and you weren’t exempt from paying.

When you can’t use the service

You can’t use the premium service if you’re applying under Tier 1 (Investor).

You can’t use the premium or super premium service if you’re:

  • a business person, innovator, sole representative or investor
  • a Turkish business person
  • a self-employed lawyer
  • applying under Tier 1 (Graduate Entrepreneur)
  • applying under Tier 1 (Entrepreneur)
  • applying for Stage 1 endorsement under Tier 1 (Exceptional Talent)
  • a seaman
  • a Gurkha
  • a retired person of independent means
  • an elderly dependant
  • someone whose case is complex because of personal circumstances
  • someone whose case isn’t covered by the Immigration Rules
  • sponsored by a member of staff at a premium service centre
  • applying for a Home Office travel document
  • applying for naturalisation or registration as a UK national
  • applying as a victim of domestic violence
  • applying for an European Economic Area (EEA) residence card or permanent residence card
  • applying for an EEA registration certificate as an unmarried partner
  • applying for an EEA registration certificate and you’re not a qualified person
  • applying for proof of a right of abode

You also can’t use the premium or super premium service if you’re applying for discretionary leave to remain or humanitarian protection unless:

  • you’re applying under the transitional arrangements to extend your discretionary leave after 3 years
  • you’re applying to settle in the UK after 6 years discretionary leave

Applying for registration certificates

EEA nationals

If you’re an EEA national you can’t include your family in your application. They must apply separately by post as an EEA family member or an EEAextended family member.

Croatian nationals

If you’re a Croatian national, you can only include your EEA family in your application if they’re your:

  • spouse or civil partner
  • child or grandchild aged under 21

Family who aren’t EEA nationals, other relatives and unmarried partners must apply by post as non-EEA family of a Croatian national.

Applying to settle if you’ve spent time in the Channel Islands or Isle of Man

You can’t apply in person if you’re applying for settlement in one of the categories below, and your continuous residence period includes time spent in the Channel Islands or the Isle of Man.

The categories are:

  • tiers 1, 2, 4 and 5
  • work outside the points-based system, eg work permit holder, overseas domestic worker in a private household
  • UK ancestry

Applying on behalf of other people

You usually can’t apply on behalf of someone else at a premium service centre.

In exceptional circumstances (eg if someone is physically unable to attend for health reasons) you can submit an application on another person’s behalf if you’re their husband, wife, civil partner, sister, brother, parent or legal guardian. You must carry a letter of authorisation signed by the applicant.

Legal representatives can’t use the premium service on behalf of clients unless they’re registered with the Office of the Immigration Services Commissioner and have sent the Home Office a written request.

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Immigration Bill 2015/16 Factsheet – Enforcement Officer Powers

What are we going to do?

  • Tackle illegal immigration and minimise its impact on public services, communities and businesses in the UK.
  • Facilitate greater collaboration between immigration enforcement, the police and other government agencies.

How are we going to do it?

  • Equip immigration officers with enhanced search and seizure powers to collect evidence that will help to secure more civil penalties and removals.
  • Work more closely with police by aligning existing warrant powers.

Immigration Minister James Brokenshire said:

“Clamping down on illegal immigration – and the unscrupulous people who seek to exploit it for their own gain – requires many different government departments and agencies to work together.

“Enhancing the powers immigration officers have will not only help them carry out their own work more effectively, but will also be of benefit to other law enforcement agencies who are working hard to tackle crime.”

Background

  • Immigration officers currently have powers to examine, arrest and detain illegal migrants for the purpose of removal. They also have search powers to find passports and travel documents to aid removal. But if they find other evidence of use to law enforcement partners they cannot always act.
  • The Immigration Bill will give immigration officers powers to seize and pass on evidence where there are reasonable grounds to believe it has been obtained through, or is evidence of, a crime and where it is necessary to prevent it being concealed, damaged or destroyed.
  • Operation Nexus is an ongoing operational and intelligence partnership between Immigration Enforcement and the police, focusing on foreign criminals. This has led to over 3,600 people being removed from the UK since 2012, including 352 “high harm” criminals.
  • The Bill creates new powers to allow officers to search for and seize evidence of illegal working (such as payslips or timesheets) or of illegal renting (tenancy agreements and letting paperwork).
  • Detained migrants and prisoners facing deportation are subject to routine searches for items which may pose a threat to security, but not for nationality documents. This Bill creates new powers to search for and seize these documents which will help speed up removal.
  • The Bill ensures warrants for immigration officers to enter premises are aligned with police warrants.
  • The Bill also ensures that public authorities have a clear basis on which to pass on information for immigration purposes and allows immigration officials to obtain nationality documents where they are held by listed authorities.
  • The Bill provides a power to cancel leave extended by statute where conditions of leave have been breached or the applicant uses or has used deception in seeking leave to remain.

 

Key Questions and Answers

 

  • Why do immigration officers need even more powers of entry and search – don’t they have enough already?

Immigration officers currently do not have powers to search for and seize evidence where the intention is to take administrative action, either to remove an illegal migrant from the UK or to serve a civil penalty notice on an employer or landlord. This Part of the Bill provides additional powers of search and seizure, but no extra entry powers.

 

  • Surely collecting evidence of a crime is a job for the police. Why are we giving these powers to immigration officers?

Immigration officers are trained in searches and evidence collection. It is perverse that immigration officers would either have to ignore evidence of a non-immigration crime when they come across it, or risk it being removed or destroyed whilst waiting for the police. We are legislating to close this gap.

 

  • In directing authorities to pass on nationality documents, won’t you be turning them into immigration officers?

No, we will not require authorities to seize nationality documents from people on our behalf.  We will only direct them to pass documents to us where we are seeking to remove an illegal migrant and we believe that a particular authority has a document or copy already in their possession.

 

  • If these new powers are important, why didn’t we include them in the Immigration Act 2014?

We keep our immigration enforcement powers under regular review, but it is important that we create new powers incrementally to allow one package of new measures to be implemented and embedded before we create more. That is the approach that we have taken here.

 

  • Why are you are adding a power to cancel leave extended by statute?

It is right that it should be possible to cancel a person’s leave where that person breaches the conditions of their leave or uses or has used deception to obtain leave. Leave can be cancelled in this way but, following changes in the Immigration Act 2014, it is currently not possible to cancel leave extended by statute. We are restoring the position to what it was before the Immigration Act 2014 by making it possible to cancel leave extended by statute where conditions are breached or deception is used.

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Immigration Bill 2015/16 Factsheet – Labour Market Enforcement

Immigration Minister James Brokenshire said:

“Exploiting or coercing people into work is not acceptable. It is not right that unscrupulous employers can force people to work or live in very poor conditions, withhold wages or mislead them into coming to the UK for work.

“Some employers seem to think that by employing workers who are less likely to complain, including vulnerable migrants, they can undercut the local labour market and mistreat them with impunity.

The UK has a strong legal framework in place to ensure that minimum standards are met for workers. There are three main public bodies responsible for enforcing these requirements: a team in HMRC which enforces the National Minimum Wage; the Gangmasters Licensing Authority; and the Employment Agency Standards Inspectorate (“the enforcement bodies”).

Background

  • However, because of an increase in organised criminal activity engaging in labour market exploitation, we believe that there is exploitation in the labour market that none of the enforcement bodies is designed to deal with. This kind of worker exploitation often appears to involve migrant workers.
  • Part of the Government’s response to this problem is to establish greater co‑ordination and leadership of the enforcement bodies to drive effective activity.
  • Therefore, this Bill will create a new Director of Labour Market Enforcement, appointed by and reporting to, both the Home Secretary and the Secretary of State for Business.
  • Their primary functions will include:
    • setting the strategic direction and budgets of the enforcement bodies;
    • publishing an annual report assessing the success of action in meeting the objectives and priorities in the previous year’s plan; and
    • leading an intelligence hub, with information drawn from the enforcement bodies and beyond, to provide a single view of risk and priorities across the spectrum of non-compliance – from accidental payroll errors to serious criminality.

The Government is consulting on broader reform to tackle worker exploitation to support the role of the Director. The consultation can be found at: : https://www.gov.uk/government/consultations/labour-market-exploitation-improving-enforcement. The consultation closes on Monday 7th December.

Key Questions and Answers

Will the Director cover immigration enforcement?

The Director’s remit will cover labour market breaches, not immigration offences.  The Director and the enforcement bodies will work closely with immigration enforcement wherever labour market breaches are linked to illegal immigrants or people working in breach of their visa conditions.

When will the Director be appointed?

An appointment to the statutory role could be made only after the Bill is passed, obviously subject to Parliamentary approval of these provisions.

 

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Best interest of children and immigration law

The power to certify that removal pending appeal against a refused human rights claim would not cause serious irreversible harm or breach human rights will in some cases impact on children.

There is a clearly established framework of legislation, judicial decisions, guidance and procedure around how immigration decisions which affect children are made, which will apply to any decision to certify a refused human rights claim. The “children duty” Section 55 of the Borders, Citizenship and Immigration Act 2009 establishes a statutory duty on the Secretary of State to have regard to the need to safeguard and promote the welfare of any child in the UK who will or may be affected by any immigration decision. This duty will apply to a decision to certify a human rights claim. In any case, where the decision maker is aware that there is a child who is affected by her decision, the decision maker will have regard to the best interests of that child as a primary consideration in deciding the human rights claim and also in deciding whether to certify the claim so that the appeal is heard after the person has left the UK.

Individual circumstances of each case While the best interests of the child are a primary consideration, they are not the only or an overriding consideration. The decision maker must have regard to all the circumstances of the case in reaching the decision on whether or not to certify the case. There is published guidance for decision makers on how to take into account the best interests of any child affected by the decision.

When considering whether to certify the decision maker is considering the effect of temporary interference with family/private life while the appeal is being determined. In some circumstances a non-suspensive appeal will not be appropriate because, although the appellant would normally return to the UK if the appeal was successful, the temporary removal would create a real risk of serious irreversible harm or otherwise breach human rights .

This may be the case in some decisions concerning children. There will also be some circumstances where any impact on a child would not give rise to such a breach. Many people around the world reasonably and legitimately take their children to live in another country either temporarily or permanently and many people temporarily live apart from their families for work or other reasons.

Assessment

The impact on a child of a decision to certify will vary depending on the child and the family circumstances. Those being removed will be asked to give reasons why their case is not suitable for certification prior to a decision on certification being made.

Those reasons can include the impact on any children. All such reasons will be carefully considered. The courts have been clear (for example in Behary v SSHD [2013] EWHC 3575 (Admin)) that it is for the person to set out their reasons. The family of the affected child will be best placed to identify the potential impact of certification in their particular circumstances. There are no restrictions on the evidence a family can submit, including evidence from the child’s school, or medical practitioners, or any other evidence of the impact on the particular child.

Whether the decision maker will contact external agencies to establish the likely impact on a child will depend on the facts of the case. For example, where the decision maker is aware that social services are involved with the child, further enquiries may be made of social services if the decision maker thinks those enquiries are appropriate and necessary.

There is no obligation to make proactive enquiries in every case, as confirmed by the Court of Appeal in SS (Nigeria) [2013] EWCA Civ 550. Safeguards The Secretary of State’s decision that removal pending appeal will not give rise to a risk of serious irreversible harm or otherwise breach the person’s human rights (or those of their child or other family members) can be challenged in judicial review proceedings.

Unaccompanied children

This power does not apply to asylum claims and so will not apply to unaccompanied asylum seeking children. Where the asylum claim is refused, a child will be granted leave until they are 17½ years old unless adequate reception arrangements are in place for them in their home country. Where a child has been in the UK for 7 or more years they may be entitled to be granted leave to remain on the basis of private life if it would not be reasonable to expect them to leave the UK.

However, there may be circumstances where it would be appropriate to use this power involving unaccompanied children, for example if a child who is living in the UK with members of their wider family has made a human rights claim which has been refused, and they have parents in another country to whom they can return and who can support them with any appeal.

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