Thu 15 May 2014

The Immigration Act 2014 - What it actually means

On 14 May 2014 the Immigration Act 2014 received Royal Assent. It will begin to come into force over the coming months and has received significant media attention over the last few months. However, amongst the media coverage of debates about the removal of British citizenship from suspected terrorists and anti EU amendments, a number of key changes have been overlooked. Here is a brief summary of some of the key aspects of the legislation.

Rights of appeal

For migrants and immigration lawyers this aspect of the Act has the potential to be the most significant. Currently if the Home Office refuses an application for an extension of leave because they have misunderstood the person's circumstances or because a document has been overlooked that person can usually appeal to the First Tier Tribunal and argue that the decision is inconsistent with the immigration rules or that discretion should have been exercised. The Act will remove rights of appeal and replace them with a right to seek an administrative review of the Home Office decision.

On the face of it, this change may seem minor as applicants can still argue the original decision was flawed albeit under a different process. However previous figures have suggested that around 50% of immigration appeals before independent judges are successful whereas 18% of administrative reviews carried out by the Home Office are successful.

Appeals will still be possible in asylum cases and where a human rights claim has been refused. However where it is a question of the application of the immigration rules or Home Office guidance then it would appear there will be a lower chance of success in challenging the decision as the Home Office will be reviewing their own decisions under the administrative review procedure.

Landlord immigration checks

The Act will not only impact upon migrants but it will also have a significant impact on anyone who is renting out private accommodation. Originally it was intended to require all landlords to confirm a tenant's right to remain in the UK before agreeing to rent property to them.

Due to a number of political concessions it has now been agreed that this aspect of the Act will initially be a pilot scheme restricted to one geographical area. Where the pilot scheme will take place has not yet been announced but this potentially onerous requirement may eventually come into force UK wide and landlords should ensure they keep up to date with developments.

Access to the NHS

The Act will also allow for temporary migrants to be charged for using some NHS facilities. The Government will be able to add a "health surcharge" to the cost of applications for entry clearance or leave to remain.

The exact details of this scheme are currently being worked on and will be announced at a future date. Previous Government responses to consultations indicated that the likely cost of the surcharge would be around £150 - £200 however it is not clear what services, if any, would incur additional costs beyond this.

It is also unclear how this aspect of the Act will apply to Scotland as health is a devolved matter and the Scottish Government has previously issued its own guidance on NHS charges to migrants.

Article 8 right to family and private life

The tension between the Government and Immigration Tribunals on how the human right to a private and family life should be applied in cases has previously been the subject of much discussion.

Whilst in 2012 the Government amended the immigration rules to reflect their view of Article 8 rights tribunals have continued to apply previous case law in many cases. The Immigration Act aims to strengthen the "public interest" argument used by the Government in some cases by including it in primary legislation.

The impact of this aspect of the Act will need to be assessed once it has come before the tribunals and courts. Tribunals will continue to have to apply the Human Rights Act 1998 and European Convention on Human Rights however they will need to reconcile previous law with the new stronger "public interest" argument. Whether judges will consider that this public interest justifies interference with human rights is likely to be dependent on the facts of any given case.

Deprivation of citizenship

The final issue debated by Parliament in relation to the Immigration Act was the Government proposals to deprive naturalised British citizens of their passport where their conduct was considered to be "seriously prejudicial" to the interests of the UK. This power would essentially allow the Home Office to make some people stateless.

As a result of Parliamentary debate the Government introduced an amendment only allowing the power to be used where the Secretary of State has "reasonable grounds" to believe the person can acquire another nationality, however the Act does not require the Government to demonstrate that the person can acquire another nationality and this is likely to be the subject of future litigation.

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