Immigration Bill: Will it cut abuse and costs?

Dominic Casciani
Home affairs correspondent
@BBCDomCon Twitter


When you average them out, there's been one immigration bill roughly every two years since 1997 and the system apparently still needs fixing.

Each bill has seen a minister take legislation to Parliament and tell MPs that this is the one that will sort it all out.

We've had sound bites galore from home secretaries. Back in 1999, Jack Straw's was "Firmer, Faster, Fairer". His successor, David Blunkett, gave us "Secure Borders, Safe Haven". The latest immigration minister, Mark Harper, promises an immigration system that is "fair to hard-working people".

The pitch may change - but what exactly is the point behind yet another immigration bill?

This legislation has one focus: enforcement against illegal immigration.

The legislation doesn't talk about reforming border controls. Instead, Home Secretary Theresa May is proposing measures to make it harder for people to stay in the UK when they have no right to be here .

In essence, the plan requires more people to face more checks so that they can be identified and asked to leave.

One of the key measures will see landlords check the documents of their tenants or face fines.

But landlords don't like it. The Residential Landlords Association says there are 404 potential European identity documents alone, never mind those from further afield. And they and others predict that the measures will lead to discrimination because landlords will refuse to house foreign nationals for fear of falling foul of the new rules.

The landlord scheme will be similar to the one already imposed on employers which, separately, is also being changed. Ministers say that it will be simplified and fines for illegal workers will rise to up to £20,000.

Derek Kelly, the managing director of Parasol - a firm that helps employers with these checks - says the proposals are a missed opportunity.

"Doubling the maximum fine per illegal worker from £10,000 to £20,000 is all well and good, but it doesn't get to the heart of the problem," he says.

"Companies that exploit workers who aren't legally entitled to work here will continue to do so. Directors of rogue companies should face the threat of a jail term or having their personal assets seized."

Other measures include bank identity checks and measures to prevent illegal immigrants getting driving licences. There will also be a pre-arrival NHS surcharge - although the government hasn't published figures explaining how much temporary migrants cost the NHS.

What it all amounts to, in the government's view, is a package that will make the UK "less attractive and less accommodating to those in the UK unlawfully".

Appeals - but at what cost?

One area that needs closer scrutiny is the home secretary's plan to reduce the number of decisions that can be appealed from 17 to four. Some critics say it amounts to a substantial erosion of legal rights - including those of children, as the Coram Children's Legal Centre explains in this briefing.

The government's focus is cutting abuse and costs. But it's not clear by how much the measures will slash the bill.

The Home Office's target is a list of decisions which can lead to an appeal before the Immigration and Asylum Tribunal.

The Nationality, Immigration and Asylum Act 2002 sets out 14 different immigration decisions that can be appealed against, including:

  • A refusal to allow someone to enter the UK
  • A refusal to alter someone's right to be in the UK, meaning they must leave
  • Decisions to deport or remove someone from the UK

There are then three other types of decisions that can be appealed against:

  • Decisions in asylum cases
  • Decisions to revoke refugee status
  • Decisions which breach EU law (ie freedom of movement)

The government wants to replace that list of 17 decisions with four appeal categories:

  • Cases which involve a human rights claim
  • Cases where someone says they need humanitarian or asylum protection
  • Cases where such protection has been revoked
  • And finally, cases where someone has a right to stay under EU law

The government says that in the case of a foreign criminal, their appeal on human rights grounds would only be heard after they had been removed from the UK - unless there was a risk of serious and irreversible harm.

On top of all of this, the government wants to change the way courts interpret the right to private and family life, to make it much harder for someone facing deportation to stay in the UK unless they have a clear and substantial connection.

Now, the four categories do not include cases in which the applicant argues that the decision against them was just plain wrong because officials didn't take all the facts into account or follow their own rules.

Applicants making that argument could usually try to judicially review a minister - the process which sees a judge look at how a decision was taken and whether it was fair and within the rules.

Ministers of all hues don't like judicial reviews because they are a direct attack on their decisions and they are legally expensive. So the new system will try to minimise JRs by sending disputed non-appealable cases into a swift and fair internal "administrative review".

All of these changes to appeals could mean 40,000 fewer court cases a year, saving £219m over a decade.

But here's the interesting detail. All new bills come with a document called the Impact Assessment - a kind of official version of the sums scribbled in the margins. And the Impact Assessment for the Immigration Bill says "there may be an increase in judicial reviews".

It goes on: "The Home Office could see an increase in air fare costs from situations where it has to remove failed applicants from the country and also where it subsequently has to fly back any migrants who are successful in their appeal."

Ministers believe that even if Judicial Reviews increased and the government ended up forking out to fly people back to the UK, the costs would be massively offset by the savings made by slashing appeals.

But the Home Office doesn't really know what the costs would be, so the precise savings are somewhat hypothetical.

Critics say the real problem is not the appeals - but that too many cases are poorly assessed in the first place.

And until the initial decision-making improves in the new-look immigration system, there will still be cases that end up in the courts.

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