Analysis: Immigration bill proposals
- 8 May 2013
- From the section UK
The Queen's Speech proposes changes to the immigration system ministers say will make it easier for the UK to deport convicted foreign criminals - and harder for people to come to the UK and claim benefits or access public services to which they may not be entitled.
Both of these are complicated areas of law and policy - so let's have a look at the detail.
Deportation and removal - the question of rights
One of the proposals is to change the way the courts decide cases in which someone with a criminal conviction is appealing against removal from the UK by arguing their family life is here, rather than abroad.
It is worth stressing these legal battles have nothing to do with the prolonged case of the radical preacher Abu Qatada.
He's not a convicted criminal and his deportation to Jordan hinges on the entirely different question of that country's record on torturing people into giving evidence against others. His right to family life is not an issue in that particular battle.
The bill proposes to bring the "full force of legislation" to a policy in which there is a presumption the "public interest" lies in deporting somebody rather than letting them stay. So do we need legislation when the rule already exists?
In 2012, the Home Office changed the immigration rule book in criminal deportations. The new rule said if someone was convicted of a serious criminal offence, typically meaning one that had led to a year in jail, then the Home Secretary's deportation order should trump the offender's right to family life in the UK. That general right is set out in Article 8 of the European Convention on Human Rights.
In a little-known immigration case, a judge then ruled the new rules were not good enough because they had been nodded through by MPs, rather than properly debated by all of Parliament. Well, the home secretary has now come back with the full monty.
The question is whether the new legislation would be any more successful than the controversial rules?
If this legislation goes through without a hitch, it will strengthen the home secretary's legal hand because she will have the will of Parliament behind her. Judges generally do not like to be seen to be flouting the will of Parliament unless a law is completely incompatible with other laws, particularly the European Convention on Human Rights.
And here's the thing. All British courts - from the Immigration and Asylum Chamber to the Supreme Court - have made clear that when it comes to a right to family life, one size does not fit all. They say judges have a duty to examine the merits of each case.
That's why more than 150 convicted criminals in the past two years have successfully avoided deportation on the basis of an Article 8 claim. Some won because they have lived almost their entire life in the UK and have no real ties to another country. Others did so because their children are in the UK, even if they do not live with them.
So it is very difficult at this stage to see how a new law would eliminate these kinds of deportation battles - but it may in time make it easier for the Home Secretary to win.
Access to Services
The other major proposal is to restrict the access some migrants have to public services.
The Home Office says temporary migrants would lose access to public services. It says this would ensure those who use the NHS are making a contribution.
Health care is a devolved matter in the UK - so it is not clear whether the proposals will apply to the whole country or just England.
Currently, GPs treat temporary patients - meaning someone who is in an area for more than 24 hours but less than three months - free of charge.
And some NHS services are free irrespective of where somebody normally lives. These include accident and emergency care, family planning and sexual health.
GPs can refuse to register a patient - but they are under no obligation to check someone's immigration status.
Separately, hospitals have a duty to charge patients who normally live overseas.
Some doctors have already voiced concerns about the new proposals, with one leader already saying people should not overestimate the size of the problem, and that GPs should not become a new border agency.
The measure is however backed by MPs from the Cross Party Group on Balanced Migration who say they have long called for NHS restrictions.
"The Queen's Speech provides another important success for the Cross Party Group on Balanced Migration. Restricting free access to health care for people who have recently arrived in this country and those who have stayed illegally has been a measure that the Group have long been calling for. We welcome the announcement of a new Bill, which clearly responds to voters' strong views."
The government also proposes requiring private landlords to check the immigration status of their tenants and banning illegal immigrants from obtaining driving licences.
Labour has already attacked this proposal as inadequate because there is no statutory register of private landlords. There is also the question of how to stop unscrupulous landlords who cram migrant labourers into homes - a practice that sometimes sees two workers using the same bed at different times.
The Home Office says that by splitting the UK Border Agency into two - creating an immigration-and-visa service and a separate law-enforcement body - it aims to stop abuse of the system.
Now, what's not clear is what happens next - and when. Downing isn't saying that the changes will come in before restrictions on Romanian and Bulgarian workers are lifted next year.
But crucially, the proposed requirement to make landlords check the immigration status of their tenants - and the move to restrict access to the NHS - are going out for consultation.
In other words - there's no final policy as of yet to put into a bill - which means we can't even be sure when the proposals will go before Parliament.