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Immigration Act 2014 Immigration Act 2014 A short guide for immigration practitioners by Colin Yeo 2nd edition www.freemovement.org.uk (c) Colin Yeo 2015 All rights reserved. Copying, circulation not for personal use and printing prohibited without written permission. Quite a lot of effort went into producing these materials: please report breach of copyright. 2nd edition Image credits Cover: by ukhomeoffice, on Flickr Cedars: by ukhomeoffice, on Flickr Thumbprint: image courtesy of Ambro / FreeDigitalPhotos.net Barbed wire and fence: by Dan Gregory, on Flickr European Court of Human Rights: by Dominik Kreutz, on Flickr Gear stick: by coffee bee, on Flickr Wedding rings: by M.G. Kafkas, on Flickr Pound coins: by William Warby, on Flickr CONTENTS Introduction 6 Commencement 9 Summary 10 Wave One: from 20 October 2014 10 Wave Two: from 2 March 2015 11 Wave Three: from 6 April 2015 12 Existing judicial review applications 16 Part 1: Enforcement and removal 17 Section 1: new removal power 17 What is the effect of the new removal power? 17 To whom does the new removal power apply? 19 Relevant text 20 Section 2: grace period 23 Section 3: Independent Family Returns Panel 23 Section 4: enforcement powers 24 Section 5: safeguards on detention of children 25 Section 6: Cedars family pre departure accommodation 26 Section 7: immigration bail 27 Sections 8 and 10-14: biometrics 29 Section 9: detention powers 31 Part 2: Appeals 32 Section 15: rights and grounds of appeal 32 Commencement 32 Rights and grounds of appeal 33 Appeals in EU rights cases 38 Importance of making a human rights claim 39 Importance of a human rights decision 40 What issues can be argued in a human rights appeal? 41 Can new matters be raised at appeal? 44 Duty to keep the Home Office informed 45 Administrative Review 46 Section 3C and extension of leave 49 Analysis of impact 51 Choice of remedy: choose wisely 53 Section 16: review of administrative review 56 Section 17: venue of appeals 57 Ordinary appeals 57 Deportation appeals 59 Origins of the serious irreversible harm test 61 Home Office policy 63 Commencement 65 Challenges to a section 94B certificate 67 Section 18: SIAC 69 Section 19: statutory human rights considerations 70 Commencement 70 Having regard 71 Considerations in all cases 73 Considerations in deportation cases 76 Conflict between the Act and the Immigration Rules 79 Part 3: Access to services 82 Chapter 1: residential tenancies 83 Chapter 2: NHS, banks and driving licences 84 NHS health charge 84 Banks and building societies 86 Driving licences 86 Part 4: Marriage and civil partnership 88 What has changed about getting married? 88 Who is affected? 89 What is a “sham marriage”? 90 Further reading 91 Part 5: OISC scheme 92 Part 6: Citizenship and other matters 93 Section 65: end to gender bias 93 Context 93 New provisions 94 Section 66: Citizenship deprivation 96 What has changed? 96 Analysis 99 Sections 68, 69 and 70: immigration and nationality fees 100 Section 71: duty towards children 101 Part 7: Administrative matters 102 Schedules 103 Commencement Table 104 INTRODUCTION The Immigration Act 2014 is already having a profound impact on the lives of undocumented migrants and on anyone suspected of being undocumented: it is likely that the ethnic minority community in the UK will feel the effects of enhanced in-country immigration control measures as employers, universities and colleges, landlords, marriage registrars, banks, building societies, doctors and the DVLA attempt to implement their legal duties to single out and discriminate against undocumented migrants. The Act and the hostile environment it seeks to create will affect everyone, though. In theory, any person renting a private property in future will need to prove their immigration status to their landlord or agent. Any person opening a bank account will need to prove their immigration status as well as their identity. The notice period for all marriages will be extended from 15 days to 28 days. For immigration lawyers the effects are profound. The Government has predicted a 67% fall in the number of immigration appeals. This may be an overestimate and it may well be counterbalanced to some extent by an increase in applications for judicial review, but it will nonetheless have an important impact on the everyday work of lawyers. These appeals provisions took full effect on 6 April 2015. And the major changes are not confined only to appeal rights. This ebook runs through the Act section by section, providing an explanation of the changes made, setting out amended versions of relevant legal provisions and explaining commencement provisions. Where relevant links to Page !6 (c) Colin Yeo 2015 legislation, cases and Home Office policy documents have been included in the text. The first part examines the new removal power under the new section 10 of the 1999 Act and its implications, before moving on to removal and detention involving children and families and new provisions on enforcement, bail, biometrics and detention. The second part looks at appeals. I examine and set out the new rights and grounds of appeal, the problems that arise and analyse how the human rights jurisdiction might be used to argue that cases that would previously have succeeded under the abolished ‘not in accordance with the immigration rules’ or on ‘not in accordance with the law’ grounds. This section also looks at the expansion of administrative review, the new provisions on in and out of country appeals, on out of country appeals against deportation and at the controversial new statutory Article 8 considerations imposed on judges. The third part looks at the new duties on private landlords, banks and building societies and driving licenses as well as the future NHS charge or levy. The fourth part examines the new provisions on marriage and civil partnership and the scheme for reporting of sham marriages, which the Home Office estimates will lead to 35,000 referrals to the Home Office per year and 6,000 investigations. The fifth part briefly examines the new powers for the Office of the Immigration Services Commissioner and changes to the OISC scheme. The sixth part looks in particular at changes to citizenship laws, some positive and some less so, as well as new provisions on the future setting of immigration fees. Page !7 (c) Colin Yeo 2015 I am grateful for the assistance of Alison Harvey in getting to grips with some of the citizenship provisions. Any errors are mine, however! I hope the ebook is useful and interesting. If you would like to claim CPD hours for reading this material, head over to www.freemovement.org.uk and sign up as a member. Membership starts at £50 per person for groups of 10 and gives access to a growing suite of immigration training resources. Do get in touch if you have comments or suggestions. April 2015 Page !8 (c) Colin Yeo 2015 COMMENCEMENT From a lawyer’s perspective, the most important changes wrought by the Immigration Act 2014 are to appeal rights and removal powers. These changes have been brought into effect in parallel, at the same time. The way in which they have been brought into effect (“commenced” in the language of the law) has been exceedingly complex, however. This first section of the ebook addresses commencement and transitional arrangements for appeals and removals before going on to examine the substance of the changes. There have been three waves of commencement for these provisions, beginning on 20 October 2014 for “foreign criminals” as defined in the commencement orders and for certain Tier 4 students, then for all Points Based System migrants from 2 March 2015, then generally in all cases from 6 April 2015 but with transitional arrangements. It is hard to believe that a more complex way of drafting the commencement orders could possibly have been devised. The full list of commencement orders is available for reference as follows: • Immigration Act 2014 (Commencement No. 1, Transitory and Saving Provisions) Order 2014 (SI 2014/1820) • Immigration Act 2014 (Commencement No. 2) Order 2014 (SI 2014/1943) • Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (SI 2014/2711) • Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 (SI 2015/371) • Immigration Act 2014 (Commencement No. 5) Order 2015 (SI 2015/874) Page !9 (c) Colin Yeo 2015 Summary The commencement of the new appeals regime and removal powers have been in three waves. In short, the waves were: 1. Foreign criminals and Tier 4 applications (including family members) made on or after 20 October 2014 2. Tier 1, 2 and 5 applications (including family members) made on or after 2 March 2015 3. Against any decision on or after 6 April 2015 but, other than the above exceptions, not where the application was made prior to 6 April 2015, unless the decision on or after 6 April 2015 includes an asylum or human rights decision. At the same time as the third wave removed traditional full rights of appeal, the system of Administrative Review under the Immigration Rules was expanded. This is covered in the ebook and will the subject of another blog post later on. It is useful to note that Administrative Review was not expanded to cover short term students, visitors, partners or children of members of the Armed Forces and some Appendix Armed Forces decisions, family members under Part 8 or Appendix FM, asylum decisions under Part 11 and some others. All these types of applicant should if refused and if there are grounds to do so pursue a right of appeal under the new amended section 82 of the Nationality, Immigration and Asylum Act 2002, albeit on human rights or refugee grounds only.
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