The long promised Immigration Bill, consisting of 66 clauses and 8 schedules, has now been published.  It is accompanied by explanatory notes and a detailed memorandum by the Home Office intended to show that the Bill is compatible with ECHR rights.

‘Highlights’ include: 

• Clause 1 replaces section 10 of the Immigration and Asylum Act 1999 with a power to remove a person who requires but does not have leave to enter or remain and a power to remove members of such a person’s family.  It is intended to provide a single, compendious power to remove in place of the current range of powers to remove those refused leave to enter, illegal entrants, overstayers and so on.
• Clause 2 and Schedule 1 give further powers to immigration and police officers to search individuals and premises.
• Clause 3 requires the tribunal to refuse bail applications made within 28 days of an unsuccessful application for bail, absent a change of circumstances.
• Clauses 4 – 10 enlarge the state’s powers to record, use and retain biometrics.
• Clause 11 replaces section 82 of the Nationality, Immigration and Asylum Act 2002 with a new s. 82.  The result will be that there is no longer a right of appeal against 17 or so immigration decisions such as refusal of leave to enter or remain, a decision to deport or a decision to remove.  They are to be replaced by new rights of appeal against refusal of a ‘protection claim’ (i.e. a claim for refugee status or humanitarian protection), refusal of a human rights claim or a decision to revoke a person’s protection status.  The array of grounds of appeal that were provided by s. 84 (e.g. that a decision is not in accordance with immigration rules or with the law) are replaced by 3 grounds: that removal would breach the UK’s refugee convention obligations; its obligations to a person eligible for humanitarian protection or the person’s ECHR rights.  Section 85 is amended so the tribunal may only consider matters arising after the decision being appealed against if the Secretary of State consents to it doing so.
• By clause 12, an appeal must be brought from within the UK unless the Secretary of State certifies the protection or human rights claim as clearly unfounded.  In the case of a ‘foreign criminal’ who has made a human rights claim, the appeal must be brought from outside the UK if the Secretary of State certifies that the person’s removal, pending the outcome of the appeal, would not breach human rights.
• Whilst clause 11 does away with the right of appeal against deportation decisions, clause 13 provides for a right of appeal to SIAC against deportation decisions taken on national security grounds.  However, it is intended that the appeal should be on judicial review principles rather than a full merits review.
• Clause 14 dictates to the courts and tribunal what they must consider when assessing proportionality in an article 8 case.  So, for example, they must regard English speakers and the financially independent as being less of a burden on tax-payers than non-English speakers and the less wealthy.  Private life and relationships established whilst the person’s status was unlawful or precarious are to be given ‘little weight’.
• Clauses 15-32 set up a regime making it unlawful to rent accommodation to a person who requires but does not have leave to enter or remain or a person who has leave subject to a condition preventing him or her from renting.  A landlord who rents property to such a person is liable to a penalty of up to £3,000.
• Clause 33 confers a virtually unconstrained power on the Secretary of State to make regulations allowing for a charge to be imposed on a person applying for leave to enter or remain or entry clearance.  The only constraint is that the Secretary of State must have regard to the range of health services likely to be available free of charge to a person given leave to enter or remain.
• Clause 35-40 make provisions to stop persons who require but do not have leave to enter or remain opening bank or building society accounts.
• Clauses 41 introduces an immigration status requirements for the issue of a driving licence and clause 42 allows the Secretary of State to revoke a driving licence if it appears that the holder is not lawfully resident.
• Clauses 43-56 deal with the investigation marriages and civil partnerships.
• Clause 57 and Schedule 6 make provision about the registration of immigration service providers.
• Clause 58 and Schedule 7 provide for ‘designated persons’ as well as immigration officers to examine persons embarking from the UK.
• Clauses 59-60 extend the powers of the Secretary of State to charge fees for the carrying out of ‘functions in connection with immigration or nationality’.

More analysis and comment to follow.