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The UK Immigration Act

Expat Briefing Editorial Team
23 June, 2014


The Immigration Act 2014, which received Royal Assent last month, gives the United Kingdom Government wide-ranging new powers to tackle the problem of illegal immigration into Britain. The new legislation isn’t without its controversies, however.

The main aims of the Immigration Act are to make the Government’s life considerably easier when it comes to removing illegal immigrants from the country, and to restrict their access to housing, public services, state benefits and the National Health Service while they are in the country. Controversially, this confers new responsibilities on landlords to check the immigration status of prospective tenants before letting their properties, and imposes charges for the use of NHS treatments by temporary migrants (see our previous Expat Briefing feature on NHS charging). Additional measures also limit the ability of returning British nationals to claim certain benefits.

According to the Government, the measures in the Immigration Act, taken as a whole, aim to make the UK “the least attractive destination for illegal immigrants” while reinforcing the message that legal immigrants who make a contribution to British society and its economy are welcome.

Immigration Minister Mark Harper said:

“The United Kingdom has a long and proud history of immigration. Our immigrant communities are a fundamental part of who we are and we are a richer and stronger society because of them”.

“But the public expects and deserves an immigration system that is fair to British citizens and legitimate immigrants and tough on those who abuse the system and flout the law”.

“The Immigration Bill will stop migrants abusing public services to which they are not entitled, reduce the pull factors which draw illegal immigrants to the UK and make it easier to remove people who should not be here”.

“We will continue to welcome the brightest and best migrants who want to contribute to our economy and society and play by the rules. But the law must be on the side of people who respect it, not those who break it”.


Summary of the Immigration Act

The legislation is split into six parts: removals, appeals, access to services, marriage and civil partnerships, oversight and miscellaneous provisions

The legislation makes it easier to identify illegal immigrants by extending the Government’s powers to:

  • Collect and check fingerprints;
  • Search for passports;
  • Implement embarkation controls;
  • Examine the status and credibility of migrants seeking to marry or enter into civil partnership.

The legislation makes it easier to remove and deport illegal immigrants by:

  • cutting the number of decisions that can be appealed from 17 to 4 – preserving appeals for those asserting fundamental rights;
  • extending the number of non-suspensive appeals. Where there is no risk of serious irreversible harm, foreign criminals will be deported first and have their appeal heard later;
  • ensuring the courts have regard to Parliament’s view of what the public interest requires when considering Article 8 of the European Convention of Human Rights (a right to respect for one's "private and family life, his home and his correspondence") in immigration cases;
  • restricting the ability of immigration detainees to apply repeatedly for bail if they have previously been refused it.

And the legislation makes it more difficult for illegal immigrants to live in the UK by:

  • requiring private landlords to check the immigration status of their tenants, to prevent those with no right to live in the UK from accessing private rented housing;
  • making it easier for the Home Office to recover unpaid civil penalties;
  • prohibiting banks from opening current accounts for migrants identified as being in the UK unlawfully, by requiring banks to check against a database of known immigration offenders before opening accounts;
  • introducing new powers to check driving licence applicants’ immigration status before issuing a licence and revoking licences where immigrants are found to have overstayed in the UK.

In addition the Immigration Act also contains measures to:

  • introduce a new requirement for temporary migrants who have only a time-limited immigration status to make a contribution to the NHS;
  • give the Office of the Immigration Services Commissioner new powers to better regulate the immigration advice sector, to protect migrants from exploitation and prevent spurious and inappropriate applications which waste public funds and delay the handling of immigration cases;
  • simplify the current fees legislation, which is spread across a number of different Acts, amending the criteria and process in regards to the Home Office’s ability to charge fees for immigration services.

Although there is nothing in the bill to restrict migrants’ access to UK state benefits, the Government has already introduced measures to make it harder for immigrants to claim them, and intends to take further steps in this area. Such measures do not require changes to primary legislation.

For example, the Department for Work and Pensions (DWP) has taken powers in the Welfare Reform Act to prevent illegal migrants from receiving contributory benefits and statutory payments (such as Statutory Maternity Pay) if they have no right to work in the UK at the point of claim.

In addition, the Home Office is creating a new statutory presumption that the EU right to reside as a jobseeker, and consequently access to benefits, will stop after six months – unless the person can prove they are actively seeking work and have a real chance of getting a job. To introduce this measure the Government is amending the Immigration (European Economic Area) Regulations 2006, effective from January 2014.

Furthermore, the DWP is also strengthening the Habitual Residence Test, and all migrants, including British nationals returning from a period living or working abroad, have to satisfy the test to claim income related benefits.

Key parts of the legislation relating to the healthcare contribution and landlords’ checking tenants’ right to rent will be piloted before implementation. Predictably however, the latter measure has generated a great deal of criticism, both form the point of view of landlords’ ability to carry out this function, and the delays that could be experienced by legitimate migrants in the search for accommodation.

“We question whether landlords are equipped to review a tenant’s right to stay in the UK”, commented tax and advisory firm Deloitte. “Individuals wishing to rent accommodation will be faced with delay if they cannot prove their right to reside in the UK. This may also have an impact on British nationals without a valid British passport, who will be required to provide extra documentation to prove their nationality”.

Whilst letting agents are well equipped to carry out checks, and do so on behalf of landlords’ clients every day, many are concerned about the new legal requirement to continuously monitor an individual’s immigration status.

The UK Association of Letting Agents said during the consultation phase of the Immigration Bill that it was “deeply concerned that the Bill’s requirements will further restrict access to housing for people from outside of the UK”.

“UKALA agrees that landlords and letting agents should act responsibly to ensure that only tenants with the proper permission to reside in the UK are granted new private tenancies. However, we believe it is not appropriate to make housing professionals responsible for policing the country’s borders”.

The Government expects to start implementing the major elements of the Immigration Act this summer.




 

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