Immigration Bill

Written evidence submitted by Immigration Law Practitioners’ Association (IB 56)

IMMIGRATION BILL

ILPA BRIEFING FOR HOUSE OF COMMONS COMMITTEE STAGE

CLAUSE 14 TO END OF BILL

Clause 14 of the ECHR: public interest considerations

AMENDMENT 35

Dr Julian Huppert

Clause 14, page 14, line 3, at end insert ‘or

(a) was born in the United Kingdom and has always lived in the United Kingdom;’.

Presumed purpose

Amends the definition of a qualifying child to include a child who was born in the UK and has always lived in the UK. ILPA regards this as a probing amendment that will allow the multiple deficiencies of the clause as regards children to be explored.

Briefing

Subsection 117C of the Nationality Immigration and Asylum Act 2002, proposed for insertion by Clause 14 provides that the public interest requires the deportation of a person sentenced to more than four years in prison unless one of two exceptions applies. The second exception is that the person has a genuine and subsisting relationship with a "qualifying" partner or a "qualifying" child, as defined and that the effect of the deportation on that qualifying person could be unduly harsh. That could be because the qualifying person is left behind, or because the qualifying person will leave with the person to be deported for a harsh future.

A qualifying child is defined as a child who is British or has lived in the UK for a continuous period of seven years. This leaves out a number of children, including settled children and the under sevens. This amendment would expand the definition of a qualifying child to include the under sevens born in the UK and who have never left of whatever age.

Since 1 January 1983, birth in the UK does not make you a British citizen (before that date, it did). If you are born in the UK then to be born British your mother, the husband or civil partner of your mother or (since 1 July 2006) your father where he is not married to your mother must be British or settled (i.e. with indefinite leave to remain). Thus the children this clause contemplates did not have a British or settled parent at the time of their birth. A parent may have become British or settled subsequently. If a parent becomes British or settled, the child contemplated by this clause is entitled (there is no good character test for the under tens) to be registered as a British citizen under section 1 of the British Nationality Act 1981 [1] . In any event, once a child born in the UK has lived in the UK continuously for ten years, the child, provided that s/he is a person of good character, may register as a British citizen [2] .

In the course of a debate on the situation of the under-sevens, ILPA would wish to highlight also the situation of children who are settled, i.e. children with indefinite leave to remain but have not yet become British citizens. Such a child is entitled to remain the UK for the rest of his/her life. Whereas a British citizen can return to the UK after an absence of any length, a settled person can lose that status if they stay out of the country for more than two years [3] . Thus the effect on settled children is potentially more severe than on children who are British citizens, although they share many of the characteristics of such children as described by the Supreme Court in ZH (Tanzania) v SSHD [2011] UKSC 4:

"…they have lived here all their lives; they are being educated here; they have other social links with the community here; they have a good relationship with their father here. It is not enough to say that a young child may readily adapt to life in another country. That may well be so, particularly if she moves with both her parents to a country which they know well and where they can easily re-integrate in their own community (as might have been the case, for example, in Poku, para 20, above). But it is very different in the case of children who have lived here all their lives and are being expected to move to a country which they do not know and will be separated from a parent whom they also know well."

The amendment would bring the under sevens within the terms of the exception but it would still be necessary to prove that the effect of the deportation on the child was "unduly harsh". This is the wrong test. The correct test is whether the deportation is in the best interests of the child

As a matter of law the test is not whether it would be "unduly harsh" to expect a child to leave the UK, it is whether it would be in the best interests of the child to do. If the best interests of the child are to be a primary consideration in any decisions concerning children, as the UN Convention on the Rights of Child says that they are and as the UK courts have said in ZH (Tanzania) v SSHD [2011] UKSC 4 that they are, then a relationship with any child whose best interests dictate that his/her future lies in the UK is relevant to the question of whether the adult should be removed. The Secretary of State in trying to set out her view of tests for the operation of Article 8 is at best attempting to reify the current interpretation as her view and failing to leave room for her view to develop. But here she is even managing that, she is putting forward an interpretation that is at odds with international consensus and can only cause confusion.

The UN Convention on the Rights of the Child says

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. …]

The Supreme Court said in ZH (Tanzania)

44. There is an obvious tension between the need to maintain a proper and

efficient system of immigration control and the principle that, where children are involved, the best interests of the children must be a primary consideration. The proper approach, as was explained in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568, para 32, is, having taken this as the starting point, to assess whether their best interests are outweighed by the strength of any other considerations.

Lord Kerr in his concurring opinion stated

46. It is a universal theme of the various international and domestic instruments

to which Lady Hale has referred that, in reaching decisions that will affect a child,

a primacy of importance must be accorded to his or her best interests. This is not, it

is agreed, a factor of limitless importance in the sense that it will prevail over all

other considerations. It is a factor, however, that must rank higher than any other.

It is not merely one consideration that weighs in the balance alongside other

competing factors. Where the best interests of the child clearly favour a certain

course, that course should be followed unless countervailing reasons of

considerable force displace them. It is not necessary to express this in terms of a

presumption but the primacy of this consideration needs to be made clear in

emphatic terms. What is determined to be in a child’s best interests should

customarily dictate the outcome of cases such as the present, therefore, and it will

require considerations of substantial moment to permit a different result.

Other examples include the European Court of Human Rights in Neulinger v Switzerland (2010) 28 BHRC 706, para 131,

"the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken . . . of ‘any relevant rules of international law applicable in the relations between the parties’ and in particular the rules concerning the international protection of human rights". The Court went on to note, at para 135, that "there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount ".

Adrian Berry, Chair of ILPA said in his oral evidence to the Committee (29 October, 2 nd session, pm, col 78)

Clause 14, which deals with article 8 of the European convention on human rights, seeks to put down a legislative marker as to what factors should be considered in the public interest. In so far as it does that, Parliament has the right to specify what it considers to be in the public interest. Whether it should specify the measures that are specified in clause 14 is a different question. We have concerns about the way in which it has gone about that task. So long as power is reserved to the judges to decide substantively whether there has been a violation of article 8, which is a task granted to them under the Human Rights Act 1998, there may be a sufficient safeguard. In its operation, however, clause 14 directs attention to some measures at the expense of others.

To give you the most obvious example, the best interests of the child must be considered as a priority and must be considered first. The question is not whether the impact on the child is unduly harsh. The question is: what are the best interests of the child, and is there a sufficient public policy interest to swing against that? Clause 14, as currently drafted, is not compatible with that formulation, which is prescribed by the Supreme Court in the case of ZH (Tanzania).

Briefing

CLAUSE 14  

ILPA considers that Clause 14 should not stand part of this Bill.

Article 8 of the European Convention on Human Rights reads:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The language of public interest is found nowhere in Article 2. It is necessary in a case where she is interfering with individual rights for the Secretary of State to identify the particular interest(s), one or more of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others , that she seeks to protect by her action.

Parliament can set down what it considers to be in the public interest, although in making reference to this in the course of proceedings under Article 8 it will be necessary to link it with one or more of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others so that it sits within Article 8(2).

Parliament should not, we suggest, try to set down its view of what constitute private rights (to family and private life as per Article 8(1)) in the broad and general terms found in this clause. Human rights judgments require an analysis that looks at the facts of the particular case. The Human Rights Act 1998 assigns that task to the judiciary. That task cannot be carried out in advance of the specific facts of a particular case being known. What will be the effect on this child of the deportation of this parent? Rules applied to people in different circumstances than the mischief aimed at can have disproportionate outcomes, as illustrated by, for example by R (Quila & Anor) v SSHD [2011] UKSC ([2010] EWCA Civ 1482), in, the case on raising the age for marriage with a non-EEA national to 21, which was found to be unlawful.

As to weighing private rights against public interest, that is the job of judges. It is assigned to them by the Human Rights Act 1998. There is a clear and principled division between the legislature, which has decided that Article 8 is directly enforceable in the UK; the Executive, which is required to apply Article 8 when taking decisions; and the judiciary, which is required to interpret the requirements of Article 8 and apply them in the context of individual decisions.

Lord Bingham for the House explained this very carefully in Huang v SSHD; Kashmiri v SSHD [2007] UKHL 11; [2007] 2 AC 167:

20. In an article 8 case ... the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality.

Exceptionality might be a prediction, it was not, held Lord Bingham, a legal test. Lord Bingham in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41stated As to the House of Lords cases relied upon to reach these conclusions, Lord Bingham s in EB Kosovo [2008] UKHL 41 quoted the passage above and then said:

…the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires.

See the European Court of Human Rights in AA v UK (App No, 8000/08, 20 September 2011, Fourth Chamber),

the weight to be attached to the respective criteria will inevitably vary according to the specific circumstances of each case. Further, not all the criteria will be relevant in a particular case

R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004], sets out the process to follow in assessing whether a person’s exclusion or expulsion from the UK will give rise to a breach of Article 8. It is there held that in a case where removal is resisted in reliance on article 8, the questions are likely to be:

(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant‘s right to respect for his private or (as the case may be) family life?

(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(3) If so, is such interference in accordance with the law?

(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?

In Huang and Kashmiri v Secretary of State for the Home Department [2007] UKHL 11, [2007], the House of Lords, reviewed all of the relevant cases from the UK and from Strasbourg. It set out, on the one hand, factors which would weigh in favour of exclusion or removal:

[16] The [Tribunal] will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under article 8(2). There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on.

It then set out, again on the basis of a reading of caselaw, the factors which weigh against removal:

[18] Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant‘s dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant.

Adrian Berry, chair of ILPA summarised the position in his oral evidence to the Committee (29 October, second session, pm Column number: 79):

Adrian Berry: … the question is not whether Parliament can give a view of the public interest; the question is whether it should formulate it in the terms that are currently drafted in clause 14.

... There is nothing wrong, in a society based on self-rule, with specifying the public interest. The question is whether you should do it in such a way as to cause variance with the convention rights as they are understood and applied under the Human Rights Act.

If I can return to the example of the best interests of the child, it should not be about whether the impact on the child is unduly harsh. It should be: what are the best interests of the child, and is there a sufficient public policy interest to override them? Introducing alternative formulations, variable geometry in legal tests and a series of terms that are being loaded with meaning creates circumstances in which lawyers will pick over those meanings rather than simply applying article 8 in order to understand the first question-has the statutory meaning been satisfied?-before coming on to the second question: what does article 8 require?

The Secretary of State has taken a variety of positions before the courts.

See the case of MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 (08 October 2013) Available at (http://www.bailii.org/ew/cases/EWCA/Civ/2013/1192.html ).

The U[pper] T[ribunal] in Izuazu recorded the Secretary of State's submission in response to the question what difference the new rules had made on the case law on article 8 in these terms:

"….the Rules make a substantial difference to the case law and essentially restore the exceptional circumstances test disapproved of by the House of Lords in Huang v SSHD [2007] UKHL 11, [2007] 2 AC 167 because their Lordships were considering a set of immigration rules that did not spell out the UK's response to Article 8 issues whereas the present rules before us do so."

That was a surprising submission to make in view of the round terms in which an exceptionality test was rejected by the House of Lords in Huang at para 20: see also EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, [2009] 1 AC 1159 at paras 8, 12, 18, 20 and 21.

But the thrust of the case advanced on behalf of the Secretary of State in the grounds of appeal in the present case was different. ..

..It is true that, as the UT pointed out at para 38 of their determination, the new rules are not a perfect mirror of the Strasbourg jurisprudence. But Ms Giovannetti [for the Secretary of State] concedes that they should be interpreted consistently with it.

…In view of the strictures contained at para 20 of Huang, it would have been surprising if the Secretary of State had intended to reintroduce an exceptionality test, thereby flouting the Strasbourg jurisprudence. At first sight, the choice of the phrase "in exceptional circumstances" might suggest that this is what she purported to do. But the phrase has been used in a way which was not intended to have this effect

We do not attempt herein a detailed commentary on the Human Rights Memorandum issued with the Bill, although we are happy to provide commentary on particular parts of it if this would be helpful. We do give a couple examples of problems. For example the case of Rodrigues da Silva and Hoogkamer v Netherlands (2007) 44 EHRR 34. ILPA highlighted in our 2011 response to the consultation on family migration which preceded the writing of immigration rules addressing Article 8 that the presentation of the case in the consultation was misleading. It is also misleading in the Human Rights Memorandum. It is cited in the context of a discussion on precariousness without explaining that the applicants in da Silva were successful, despite Ms da Silva’s having remained unlawfully in the Netherlands and having established her private life and family life when her status was precarious. The Supreme Court describing the case in ZH (Tanzania) [2011] UKSC 4 at 20 as

".. a relatively recent case in which the reiteration of the court's earlier approach to immigration cases is tempered by a much clearer acknowledgement of the importance of the best interests of a child caught up in a dilemma which is of her parents' and not of her own making".

In precariousness cases, as in other cases, there is no one size fits all rule. What if a person does not know their situation is precarious- for example someone brought to the UK as a domestic worker who was not told her employer had not kept her paperwork up to date? Or someone who has lived most of their life in the UK not realising that their country of origin’s becoming independent of the British Empire while they were in the UK has meant that they are no longer entitled to a British passport – a far from uncommon scenario amongst, for example, London-based communities originating from the Caribbean. What if the British partner is too ill to travel, or is caring for an elderly parent?

Definition of precarious

It is ILPA’s understanding, although this could usefully be clarified, that it is intended that "precarious" should mean not only persons with no leave or with temporary admission but also persons with limited leave, including those who, if they chose to extend their leave, could eventually settle in the UK. Many such people will qualify for leave as a spouse or partner under the rules but not all – for example where the requirements of the rules as to English language competence, or cannot be met.

In what follows we highlight concerns about particular aspects of the formulation of the clause

English language

A person coming to the UK under the Tier 1 Investor Category is not required to speak English. A person coming to the UK under as a Tier 2 Intra-company transferee is not required to speak English. Clearly the public interest is not as clear-cut as this clause assumes. Why then is it assumed to be in public interest in every case that those relying on Article 8 should be able to speak English before they come to the UK? English language tests may be expensive and inaccessible overseas. Persons may learn much more quickly in an English speaking country, surrounded by English speakers. There may be another language in which they communicate perfectly well with family members who can assist in teaching them English.

Financial independence

It is not always those who are financially independent who save the UK most money. Statement of Changes in immigration rules HC 194, which changed the family immigration rules in July 2012, prohibited relying on a third party to support and maintain the applicant. Those relying on third party support might not be financially independent, but neither would they rely on the State. If a person wishes to sponsor their spouse and child to come to the UK and the grandparents of that child are prepared, as third parties, to contribute to support and maintenance, there does not appear to be any mischief in that arrangement. A person who comes to the UK to care for a spouse or partner or for a child with disabilities may not be financially independent but may free up another person to work and may obviate the need for paid carers, thus saving the State money.

Prior to July 2012 the test for those joining family members in the UK was whether they could support and maintain themselves without resource to public funds as defined in the immigration rules. Subsequent to July 2012 the rules were changed to a minimum income threshold starting at £18,600. A modification of these rules will shortly be extended to cover members of the armed forces wishing to sponsor family members.

The court in MM v SSHD [2013] EWHC 1900 found the income threshold to be unlawful in the particular cases before it, those of British citizen and refugee spouses and partners. Since then the Home Office has "paused" decision-making in cases that turn only on the income threshold and involve British citizen and refugee spouses and partners. Those people are waiting and have been waiting since mid-July. There is a risk of another backlog and it would be useful to hear about how that is to be avoided and when decision-making will start again.

Non-EEA national family members were never permitted recourse to public funds as defined, [4] or the British or settled family member additional public funds on account of the presence of the non-EEA national. We are not aware that there is any evidence or indeed suggestion that successful applicants, who are bound by an obligation not to have recourse to public funds, have been found to have claimed any public funds, or to be a burden upon the State and we understand from correspondence that at the time of the consultation on family migration in October 2011 the then UK Border Agency had no evidence of this [5] . The Minister was asked for it in the 19 June 2013 debate [6] Any financial requirement set higher than "no recourse to public funds" discriminates on the grounds of wealth, for cost to the State is the same whether one meets this threshold by a narrow margin or a large one.

In entry clearance cases, the exchange rate may determine whether a threshold can be met. The All-Party Parliamentary Group on Migration’s report records a submission from South Africa: "As barristers, we are top earners here, but when converted into pounds we fall short." [7] Exchange rates and levels of earning in different countries also affect whether savings requirements can be met.

The Royal College of Nursing stated in evidence to the All Party Parliamentary Group that the majority of NHS health care support workers earn between £14,153 and £17,253 per annum. [8] The Group records submissions from shop attendants, security guards, office administrators, those studying to be vets or teachers and persons in religious communities unable to meet the threshold [9] . The All Party Group reports that the Migration Observatory estimated that 47% of British citizens in employment in 2012 would not qualify to sponsor a non-EEA partner on the basis of earnings [10] .

In certain circumstances those who fall short of this figure could make good the shortfall by demonstrating savings held in a personal bank account in cash for six months. Only savings above £16,000 count and these are subject to a multiplier so that an applicant relying solely on savings for an entry clearance application or an application for leave to remain needs to have £62,500 untouched in a bank account for six months.

The changes do not make a difference to the ability of the family to call on the public purse. Nor can it be assumed that the family will be poorer if reunited in the UK. Remittances may be being sent overseas, the presence of the non-EEA national family member may make it possible for their partner to go out to work, or to work more, and they may themselves work.

The separation of families where income is higher than this minimum results from the detail. Not only do the immigration rules set out a minimum income threshold, but they also define what income will be taken into account, how income will be calculated and time periods during which such income must have been received.

The following types of income are not taken into account:

· Financial support from family members as detailed above;

· The applicant’s current and future income from employment or self-employment where an entry clearance application is being made (only that of the British spouse or partner is relevant) [11] ;

· Earnings from self-employment in the individual’s current financial year [12] ; and

· Savings, unless they have been held for a full six months.

Furthermore, the rules specify how "gross annual income" is to be calculated. For example, where an individual is in the United Kingdom and has worked for an employer for six months or more, gross annual income will be his/her gross annual salary at its lowest point in the last six months, rather than his/her actual annual salary. Delay is a problem. Return to the UK may be triggered by finding that a British partner is pregnant, or because of illness or other difficulties of family members in Britain. In such cases, there is no time for waiting six months to be able to evidence having held savings for six months.

A person who can meet the financial requirements but cannot or does not supply all of the required evidence (even where the evidence s/he relies upon does show that s/he or his/her partner has the required sum of money), will not meet the requirements of the rules.

The effect of the requirements is much greater where earnings are low relative to the UK and /or the currency weak. Since average earnings of women in the UK are lower than those of men [13] , the rules indirectly discriminate on grounds of gender. More women than men work part-time [14] . The indirect discrimination against female sponsors and male applicants is exacerbated in entry clearance cases where only the earnings of the sponsor are taken into account. Maternity leave and maternity pay affect women’s earnings and there is a risk that the income thresholds, the details of these and of the ways in which one must evidence meeting them will give rise to discrimination on the grounds of pregnancy and maternity, both protected characteristics under the Equality Act 2010, for example in cases where British or settled women wish to return to the UK to be near to family and friends when they have a baby. Since average earnings are lower for persons of certain ethnicities [15] , the rules indirectly discriminate on grounds of race.

Under section 55 of the Borders, Citizenship and Immigration Act 2009, the Home Office is supposed to have due regard to the need to safeguard and promote the welfare of children (who may be British or from overseas) in the discharge of its immigration and nationality functions. The All Party Parliamentary Group records breast-feeding mothers separated from their children and fathers who have never met their children and whose partners are struggling alone. [16] The risks of breach of the legal duty are very high.

The new rules on adult dependent relatives have received relatively little attention despite having some of the most difficult effects of any of the changes. Since July 2012, all relatives including parents must show a need for "… long-term personal care to perform everyday tasks" and that even with the sponsor’s practical and financial help they cannot get it where they now live "because either it is not available and there is no person in that country who can reasonably provide it or it is not affordable" [17] . The current application of the rules requires such a state of dependency that many elderly relatives will be unable to travel by the time they meet them.

There must be no reliance on public funds in providing adequate support for the relative in the UK for at least five years. In the Home Office’s own guidance [18] , the following example is given, which highlights how restrictive these rules are:

(e) A person (aged 85) lives alone in Afghanistan. With the onset of age he has developed very poor eyesight, which means that he has had a series of falls, one of which resulted in a hip replacement. His only son lives in the UK and sends money to enable his father to pay for a carer to visit each day to help him wash and dress, and to cook meals for him. This would not meet the criteria because the sponsor is able to arrange the required level of care in Afghanistan.

The Lord Taylor of Holbeach responded to a parliamentary question by the Lord Avebury [19] by a letter of 18 December 2012 stating that in the period from 9 July to 31 October 2012 only one visa was issued to an adult dependent relative. It is not recorded whether that person was well enough to travel.

The justification is stated to be saving public funds through ensuring that elderly relatives do not use the National Health Service. Given the numbers involved, the costs of any access to the National Health Service are tiny and it is not a proportionate response to deny British citizens and those settled in the United Kingdom the right to care for their elderly relatives. According to the UK Border Agency’s 2011 Family Migration: a consultation [20] , 2,700 adult dependent relatives were granted entry clearance in 2010. The overall family migration statistics [21] have shown a decrease in family migration in 2011 and 2012, although the actual statistics for adult dependant relatives are not disaggregated [22] .

In its evidence to the All Party Parliamentary Group on Migration the British Medical Association provided first-hand accounts from skilled British citizens who are medical professionals who had taken the decision to leave the UK because they wanted to care for their elderly dependent relatives [23] . For example:

BMA member

British citizen, now living in Singapore

I am a British citizen, and work as consultant forensic psychiatrist (on an employment pass/work permit) in Singapore I am 44 years old, and at the peak of my career… I also have one younger sister living in UK, who is also a British citizen. She is a consultant psychiatrist in learning disabilities, and also an associate medical director in an NHS Trust … Her husband, also a British citizen, is an eminent trauma and orthopaedic surgeon… I relocated to Singapore because it allowed my parents to stay with me, uninterrupted, as long as my employment pass was valid. Now my sister and her family are also considering relocating here so that the family could be together. However, we do not wish to make Singapore our home; our home is the UK. At the same time we cannot neglect our parents who left no stone unturned to provide us with the best of education and support…

Perhaps at this stage what is most important is to stand back and consider the broad policy position. Is the message to those whose elderly parents are not British, and to those who have a spouse civil or unmarried partner, who is not an EEA national that they should not expect to make a future in the UK with their children? Is the message to those who will see family members friends and colleagues go abroad to be with parents, spouses and partners that this separation is public policy? If it is, then why?

Legal aid

Finally, we point out that those seeking to argue the points of fact and law in these cases will have to do so without the assistance of a lawyer if they stand in need of legal aid because legal aid is no longer available for immigration cases.

Although narrowing the scope of legal aid, we intend to provide a safety net. The exceptional funding scheme established in the Bill will provide funding for an excluded case where failure to do so would amount to a breach of a person's right to legal aid under the Human Rights Act or European Union law.  Lord McNally [24]

Heavy reliance was placed during the passage of the bill that became the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on exceptional funding as the means by which access to justice would be preserved. Exceptional funding under section 10 of the Act has proven no answer at all. As of 1 July 2013, a mere six grants of exceptional funding had been made of which one was in immigration. None had been made to persons who were unrepresented. As of 6 September 2013, that figure was 11 grants, with no details of how many were in immigration. Also of concern, only 270 applications for exceptional funding had been made as of 1 July 2013. That would extrapolate to 1080 in the course of a year, far below the original estimate of 70,000. By 6 September, the number of applications had increased only to 624, which extrapolates to some 1497.

An application for exceptional funding involves completing three forms [25] : the usual "means" and "merits" forums and the exceptional cases form [26] which runs to 14 pages plus an 11-page Exceptional Cases Funding – Provider Information Pack [27] .

Whether excluded cases receive exceptional funding under section 10 of the Act is related to the question of Article 6’s having been held not to cover immigration proceedings [28] . The Lord Chancellor’s Exceptional Funding guidance does contemplate exceptional funding where not to fund would be a breach of Articles 8 (and by extrapolation other articles) or 13 but says of immigration:

59. Proceedings relating to the immigration status of immigrants and decisions relating to the entry, stay and deportation of immigrants do not involve the determination of civil rights and obligations [footnote: Maaouia v France (2001) 33 EHRR 42; Eskelinen v Finland (2007) 45 EHRR 43 13.]

60. The Lord Chancellor does not consider that there is anything in the current case law that would put the State under a legal obligation to provide legal aid in immigration proceedings… to meet the procedural requirements of Article 8 ECHR.

Therefore, for the Lord Chancellor, not only is no obligation to fund immigration cases derived from Article 6, no obligation derives from the procedural requirements either.

While Airey v Ireland [29] and P, C and S v United Kingdom [30] were both family law cases, there is nothing in the case law that suggests that a different approach to rights other than rights under Article 6 should be taken in immigration cases. Rights must be rendered not "theoretical and illusory", but "practical and effective" [31] . In P, C and S v United Kingdom (App.No.56547/00) (2002) 35 EHRR 31 the European Court of Human Rights recalled that:

Whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 [32] .

The residence test proposed in Transforming Legal Aid would mean many people are not eligible for judicial review, the only aspect of Article 8 cases that remains within the scope of legal aid. The proposed protections for trafficked persons and for survivors of domestic violence do not extend to judicial review. They are very limited. Children are not protected from the residence test.

The residence test purports to limit legal aid to those lawfully resident and can show 12 months continuous [33] lawful residence at some stage in the past. Entitlement to legal aid and access to justice is made dependent upon where a person is in the world and on their personal status, regardless of their means and of the strength of their case.

Victims of domestic violence and forced marriage

Victims of domestic violence and forced marriage will be entitled to legal aid in some situations and not others. The difference the proposals in Transforming legal aid will make to them is that they will no longer be able to obtain legal aid for judicial review if they fail the residence test. The exception for them does not extend that far.

As debated during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 [34] , not all survivors of violence fall within the scope of legal aid. The required evidence of domestic violence to obtain legal aid is proving a barrier in practice. Many GPs were not providing letters in support, partly because, it has been suggested [35] the Legal Aid Agency is asking them to warrant more than they feel able to say as to the cause of injuries. Other GPs were imposing charges: plans to ensure adequate communications and agreement prior to the coming into force of the Legal Aid, Sentencing and Punishment of Offenders Act 2013 not having resulted in these problems being averted [36] . The Government has just amended its guidance on evidence in the hope of addressing some of these problems.

Persons under immigration control who are not applying under the domestic violence rule, such as wives of refugees whose relationships break down because of domestic violence, are not entitled to legal aid.

Trafficked persons are in a similar position. The difference the proposals in Transforming legal aid will make to them is that they will no longer be able to obtain legal aid for judicial review if they fail the residence test. The exception for them does not extend that far.

See further ILPA’s evidence to the Joint Committee on Human Rights at

http://www.ilpa.org.uk/resources.php/21039/ilpa-evidence-to-the-joint-committee-on-human-rights-enquiry-br-into-the-implications-for-access-to-

Chapter 1 RESIDENTIAL TENANCIES

Key interpretation

Clause 15

Mr David Hanson

Helen Jones

Phil Wilson

AMENDMENT 49

Clause 15, page 15, line 7, after ‘Chapter’, insert ‘subject to the provisions set out in section [Consultation with the devolved administrations]’.

NEW CLAUSE 1 Consultation with the devolved administrations

To move the following Clause:-

‘(1) Prior to the implementation of sections 15 to 32 the Secretary of State shall consult with the Scottish Government, the Northern Ireland Executive, and the Welsh Government on the implementation and principles of these sections.’.

Presumed purpose

New Clause 1 would require consultation with the devolved administrations before the provisions of part III Chapter 1 came into force. Their consent is not required. Amendment 49 is a peg on which to hang a debate on the new clause.

Briefing

Checks by landlords and landladies would be a new stage in the privatisation of immigration control, a step change from the current system of checks by employers and educational institutions. We consider that the proposals are not workable. Checking immigration status is not a simple task. Individuals and families would be prejudiced as a result of problems with record keeping and delays in the Home Office, the First-tier Tribunal and the Upper Tribunal. For example, the proposals take no account of those who do not have leave but have an outstanding application which clearly meets the provisions of the Immigration Rules.

We consider that the proposals give rise to a real risk of increased homelessness, including of families, and of exploitation. Provision needs to be made for those without leave. If an employee becomes an overstayer s/he can stop work. The equivalent in this regime is to become homeless. Inter alia, we do not consider that making the children of those here without leave homeless is compatible with the duties of the Home Office under section 55 of the Borders, Citizenship and Immigration Act 2009. Nor has any adequate consideration been given to the result burden on local authority social services departments who often bear the burden and cost of accommodating otherwise homeless unlawfully present migrants. We consider that the cost to local authorities and the devolved administrations of manufacturing homelessness persons in this way has not been considered adequately. It is on them that the cost of housing migrants unlawfully present often falls. Even if the local authority or devolved administration has no obligation to provide housing or shelter, it must still process an application for this. Obligations vary across the country; they are different in the devolved administrations. No adequate account has given as to how the extra cost will be met at a local level.

Schedule 3 illustrates the complexity of the scheme. Insofar as any scheme would make it more difficult for British citizens, persons lawfully present and others to find accommodation in the private rented sector, these are the types of alternative accommodation likely to be put under pressure.

AMENDMENT 50

Mr David Hanson

Helen Jones

Phil Wilson

Clause 15, page 15, line 7, after ‘Chapter’, insert ‘subject to the provisions set out in section [Pilot of residential housing provisions]’.

AND

NEW CLAUSE 2 Pilot of residential housing provisions

Mr David Hanson

Helen Jones

Phil Wilson

Mr David Hanson

To move the following Clause:-

‘(1) Sections 15 to 32 shall not come into force until-

(a) a pilot of these measures has been undertaken in-

(i) one London borough;

(ii) one local authority in a county in England;

(iii) one local authority in a county in Wales;

(iv) one local authority in a county in Scotland; and

(v) one local authority in a county in Northern Ireland.

(2) Each pilot shall last for a period of six months

(3) At the conclusion of each pilot, the Secretary of State must prepare and

publish a report and must lay a copy of the report before Parliament.

(4) Each report shall contain an evaluation of the effects of sections 15 to 32 on

the level of discrimination in the private rental housing sector.

(5) A Minister of the Crown must, not later than three months after the report

has been laid before Parliament, make a motion in the House of Commons in relation to the report.

(6) If a motion under subsection (5) has been approved by the House of

Commons, the provisions of sections 15 to 32 come into force on whatever day or days the Secretary of State appoints by order made by statutory instrument.’.

Presumed purpose

New clause 2 requires the scheme set out in chapter one to be piloted in five areas, including one in each of the devolved administrations. A pilot must be for at least six months after which reports will be laid before parliament, one for each pilot. The report must focus in particular upon discrimination. Each report must be the subject of a vote in the House of Commons. I If the vote approves a motion from the Minister then Part III chapter 1 can come into force. It appears that there would need to be six separate votes on six separate motions; it is unclear whether they would all have to be carried or whether one will suffice. Amendment 50 simply serves as a peg on which to hang a debate on the new clause.

Briefing

The amendment and new clause appear to prove an opportunity to probe whether the scheme is workable.

A local pilot can never be a perfect replica of a national scheme as many people affected can move from the area. This is particularly the case where the pilot is in one part of a town or city but is true wherever there is somewhere just outside the area to go.

We welcome both the focus on whether the scheme is workable and the focus on discrimination.

What is proposed is very different to the system for employers. The civil penalty scheme for employers is, in its current incarnation, backed by the sponsor licensing system (whether the person subject to immigration control is also sponsored)and in practice the two are interlinked. It is not proposed to licence all private landlords and landladies (the government rejected proposals made by the previous government to have such a register [37] ) and the costs and bureaucracy involved in so doing would be prohibitive. But this creates enormous challenges even in communicating with them. Landlords and landladies are no longer permitted to hold deposits other than via bond companies, see the Deposit Protection Scheme and the Housing Act 2004 as amended, but not all of them take deposits. As to those that do, case law on tenancy deposit schemes, where the landlord must place the deposit in an authorised scheme and provide information to a tenant, is instructive as an illustration of the practical difficulties in many cases of making landlords and landladies aware of new regulatory obligations and of ensuring compliance with them [38] .

Employees and would-be employees have routes of redress if they are treated badly, including if they are victims of discrimination. It is much more difficult to challenge discrimination, victimisation and harassment by a private landlord or landlady under Part 4 of the Equality Act 2010. Private landlords and landladies come in all shapes and sizes and many manage the letting of their property with a minimum of formality. They may be relaxed about matters such as subletting or persons succeeding to the tenancy. According to the Department of Communities and Local Government, in 2010 individual private landlords and landladies had responsibility for 71% of all private rental properties in England [39] . That survey showed that 78% of all landlords and landladies in England had only one rental property.

In 2013 Shelter estimated that some nine million people in England rent [40] . Tenancies are often granted for a short period, typically six to 12 months, and then renewed. Many persons will rent more than one property in the course of a year. Persons with sub-tenancies change perhaps more rapidly.

It was but a few short months ago, on 28 March 2013, that the Home Secretary abolished the UK Border Agency. She said [41]

     

However, the performance of what remains of UKBA is still not good enough. The agency struggles with the volume of its casework, which has led to historical backlogs running into the hundreds of thousands; the number of illegal immigrants removed does not keep up with the number of people who are here illegally; and while the visa operation is internationally competitive, it could and should get better still. The Select Committee on Home Affairs has published many critical reports about UKBA’s performance. As I have said to the House before, the agency has been a troubled organisation since it was formed in 2008, and its performance is not good enough.

     

…. I believe that the agency’s problems boil down to four main issues: the first is the sheer size of the agency, which means that it has conflicting cultures and all too often focuses on the crisis in hand at the expense of other important work; the second is its lack of transparency and accountability; the third is its inadequate IT systems; and the fourth is the policy and legal framework within which it has to operate. I want to update the House on the ways in which I propose to address each of those difficulties.

     

…the third of the agency’s problems is its IT. UKBA’s IT systems are often incompatible and are not reliable enough. They require manual data entry instead of automated data collection, and they often involve paper files instead of modem electronic case management.      

The final problem I raised is the policy and legal framework within which UKBA has operated. The agency is often caught up in a vicious cycle of complex law and poor enforcement of its own policies, which makes it harder to remove people who are here illegally. …

UKBA has been a troubled organisation for so many years. It has poor IT systems, and it operates within a complicated legal framework that often works against it. All those things mean that it will take many years to clear the backlogs and fix the system, ..."

ILPA considers all the remarks quoted above to be fair and accurate and concurs that it will take many years to clear the backlogs and fix the system. At the moment we experience a demoralised management and workforce floundering.

We do not consider that the Home Office is in a position to take on a challenge of this scale. We urge caution. This project sets the Home Office up to fail. Again.

We have seen in the past year the Home Office subcontract to Capita Plc. to text and telephone migrants allegedly with no leave telling them to leave the UK. British citizens, nurses, investors with a million pounds invested in the UK, all have been recipients of these texts. This is no surprise. Capita has been working from the Home Office database which both reflects the complexity of current immigration law and is not up to date [42] .

Both the Capita exercise and the Go HOME campaign involving vans have been of questionable legality and the subject of widespread condemnation [43] . Both are object lessons in how difficult it is to produce a workable and efficient system against the backdrop of an enormously complex immigration system and longstanding problems and delays in Home Office immigration casework and record keeping. Both are object lessons in the extent to which there is at best a cavalier attitude to promoting equality or ensuring that the actions of the Home Office do not leave people, be they persons under immigration control or British citizens, vulnerable to abuse and victimisation.

The consultation paper stated:

34. Many landlords will meet a number of prospective tenants. There is no requirement to check the immigration status of all of them – only the people with whom the landlord actually proceeds. Checks should be performed on a non-discriminatory basis (i.e. without regard to race, religion or other protected characteristics as specified in the Equality Act 201020) on all adults who will be living at the property.

This paragraph perfectly encapsulates the risk that racial profiling will take place before a tenancy is offered.

Three thousand pounds is a considerable sum and will cover the cost of many properties standing empty for months. It will cover a considerable amount of repair. In other words, a landlord or landlady would have an incentive not to accept a person who otherwise appears to be a model tenant if there is any risk of having to pay the fine. Any stereotype or prejudice might weigh with a person with multiple offers on the property, not because they feared having a particular individual as a tenant, but because they feared a fine, making the assumption that that person was more likely to be a person under immigration control whose documents would be complicated to check. When will a landlord perceive a risk of a fine? When will a landlady start worrying that a person’s passport is false or otherwise unsatisfactory? All too often this is likely to depend on what people look like, what they sound like, what their names are and how those names are spelt, and what place of birth is identified in their passports. We recall the problems when in 2006 when attempts were made to identify foreign national prisoners. Prison records showed place of birth. British citizens born overseas, for example those who were children of members of the armed forces, were frequently wrongly identified. People from black and ethnic minorities would be likely to find it more difficult to rent property than the white population. Those with indefinite leave to remain, or permanent residence under European Union law, including those born in the UK, would be likely to find it more difficult to rent property than British citizens.

Were the proposals implemented, a landlord or landlady would be aware of the immigration status of their tenants and would know, and hold on file, all information that is contained in their passports or other acceptable documents. Will they keep that information confidential? Or store the documents safely? Or destroy them safely? There are risks to having private citizens hold such data on each other.

Need for letting agents to register with the Office of the Immigration Services Commissioner

One option for a landlord or landlady is to work through a letting agent. If landlords and landladies are companies, or if they do not check the status themselves but contract with a third party company to do this on their behalf then that company will need to ensure that the checks are being done by a solicitor, barrister, legal executive or person registered with the Office of the Immigration Services Commissioner because advice on a person’s status will fall within the definition of immigration advice under Part V of the Immigration and Asylum Act 1999. For all save regulated or exempt persons to give such advice is a criminal offence [44] .

That the advice is given to the landlord or landlady rather than the person under immigration control matters not for the purposes of the Act; it is given in respect of a particular individual [45] . Even if an exemption is given, we recall the matters aired in the discussions on whether social workers should be given an exemption to advise separated children (which ended in consensus that they should not – the Home Office, the Ministry of Justice, the Local Government Association, ILPA and the Office of the immigration Services Commissioner were among those involved in the discussions). Even if an exemption is given in the form of a Ministerial Order under s.84 (4)(d) of the Immigration and Asylum Act 1999, under Schedule. 5 paragraph 3 (3) of the Act, they still have to comply with the Commissioner’s Code of Standards. The requirements of the Code include:

· Professional Indemnity Insurance

· Continuous Professional Development

· Acting in the best interests of the client

· Not acting where there is a potential conflict of interests [46] .

Landlords do retain liabilities when they instruct a letting agent. Under the Equality Act 2010, section 109 the principal is vicariously liable for the prohibited conduct of their agent. Thus the landlord is liable if the letting agent refuses to let to a particular prospective tenant because of race, sex, sexual orientation, etc. or treats a prospective tenant less favourably, regardless of whether the landlord instructed the letting agent to discriminate or knew that the agent was discriminating.  Section 110 of the Act makes the agent liable if they do something which would be prohibited conduct if done by the principal.

The higher the stakes on compliance the more landlords and landladies are likely to take a risk adverse approach and discriminate against migrant tenants, black and ethnic minority tenants and persons, including British citizens, who do not hold a UK passport.

On 3 July 2013 the Residential Landlords Association issued a news release with the results of a survey showing that 82% of landlords and landladies opposed the plans: Landlords oppose Government’s immigration plans [47] [47] The Chair of the Association, Alan Ward said:

The private rented sector is already creaking under the weight of red tape so it is little wonder that landlords are so clearly opposed to this flagship Government measure.

"Whilst the RLA fully supports measures to ensure everyone in the UK is legally allowed to be here, this proposal smacks of political posturing rather than a seriously thought through policy.

"For a Government committed to reducing the burden of regulation it is ironic that they are now seeking to impose a significant extra burden on landlords making them scapegoats for the UK Border Agency’s failings.

The article describes the Home Office as giving assurances that it will take a "light touch" approach to regulation. This terminology is familiar to us from the employers’ civil penalty and sponsor licensing schemes. In our experience it means different treatment for different employers with no objective basis for this. That is a climate in which discrimination can flourish.

Sub-tenancies and licences

The clause envisages these being part of the scheme. We anticipate that if this sort of agreement were made subject to the duty to check lodgers or subtenants’ records this would lead to a large number of these arrangements going undeclared, being hidden and, if discovered, presented as friendly, non-commercial transactions, with the consequent evasion both of tax and of obligations under legislation designed to protect standards of accommodation.

The prohibition on discrimination under Part IV of the Equality Act 2010 is very much less robust in the case of "small premises" into which category these arrangements appear to us to fall.

Small premises are defined as premises where the person or their relatives reside and intend to continue to reside in another part of the premises and the premises include parts shared with residents who are not members of the first person's household.  The premises must include accommodation for at least one other household and be let or available for letting on separate tenancy agreement(s), and not normally sufficient to accommodate more than two other households.  The premises are also small if they are not normally sufficient to provide residential accommodation for more than six persons in addition to the first person and their relatives.

The prohibition of discrimination, harassment and victimisation under the Equality Act 2010 applies to the characteristic of race in the let of small premises but otherwise it will be lawful to discriminate in the disposal (etc.) of tenancies in small premises. A visa may reveal other things about a person, for example that they are in a civil partnership and thus their sexual orientation. A landlord or landlady in "small premises" could treat people differently on this ground.

As to discrimination on the grounds of race, this may be very difficult to prove unless advertisements bar particular nationalities as there are a multitude of reasons that an individual can advance for not sharing their home with another person and the burden of proving that it was not one of the these but the lodger’s nationality that led to the refusal of a particular lodger or licensee (or tenant) is a heavy one. A claim against a landlord or landlady for discrimination is brought in the county court but no statistics are available to show how often such cases succeed. We suggest the Home Office obtain and publish information on whether there have been any and/or any successful claims against landlords and landladies of small premises under the Equality Act 2010.

Arrangements where an owner occupier takes in a paid lodger are often very informal. The sums of money changing hands can be very low. The arrangements are often at the lower end of the rental market. Lodgers or licensees have less protection from eviction under the Protection from Eviction Act 1977 than those who are sole occupants of property under a formal tenancy. The chances of a landlord or landlady’s taking fright and putting lodgers who are ill-placed to find alternative accommodation onto the street, retaining deposits including money deposited against payment of any possible fine under these measures, are high.

An approach that includes sub-tenants would be unworkable. How would responsibility be assigned, and how would it be aligned with having knowledge of, and responsibility for, a person’s being in the property? However, an approach that excluded sub-tenants might result in subtenancy becoming the preferred arrangement, with the role of head tenant becoming a specific paid job. Landlords and ladies often impose restrictions on subtenancies; this would encourage them to do the reverse.

Checks are difficult

ILPA is familiar with dealing with persons under immigration control and makes the following comments. These are in part based on our experience of the civil penalty system for employers, see further our August 2013 response to Strengthening and simplifying the civil penalty scheme to prevent illegal working [48]

A "UK passport" does not mean that a person is a British citizen. There are many types of UK passport and some people who hold a UK passport are not exempt from immigration control.

A naturalisation certificate does not prove that a person has British citizenship. The person may have renounced that citizenship subsequently or have had it taken away.

A person with a right of abode certificate is not necessarily a British citizen.

Many EEA nationals and non-EEA nationals who are lawfully present are still reliant on leave to remain that is endorsed in passports, e.g. those who applied for indefinite leave to remain before the end of February 2012 when Biometric Residence Permits were introduced for all.

The Home Office does not issue letters saying that a person has an outstanding appeal. Communications come from the Tribunals

There are currently very severe delays at the Tribunals. It can take over two months or even longer to receive a Notice of Hearing.

Family members of EEA nationals are not required to obtain EEA family member residence cards, etc. The introduction of these checks would force such family members to obtain documents if they wish to rent accommodation and raises questions under European Union law.

What of those who have made in-time but invalid applications and then resubmitted them within 28 days as permitted by the Immigration Rules or those who overstay without making an in-time application but fit within the Immigration Rules?

Getting in touch with the Home Office enquiry services can be time-consuming. They may give different answers at different times. This can be as a result of their understanding of a person’s status or because the Home Office database has not been updated, the latter is a problem that can last for considerable periods.

A very much larger operation than the employers’ checking service would be required. Large numbers of additional staff (or subcontractors) would be needed. They would have to be trained and quality control would be required. The online guidance mentioned at paragraph 54 would have to be drafted. If wrong information were given, there would need to be schemes for redress and compensation. How is all this to be paid for at a time when cuts are being made to government expenditure?

It is stated in paragraph 99 of the consultation paper that while landlords and landladies need not check children they may have "to satisfy themselves that the people concerned are children." It is a complicated matter, with potentially grave consequences, to have professional social workers call into question a child’s age, as is set out in ILPA’s When is a child not a child Asylum, age disputes and the process of age assessment [49] . To set up a scheme where private landlords and landladies are doing so can only run counter to the Home Office’s duties under section 55 of the Borders Citizenship and Immigration Act 2009 to safeguard and promote the best interests of a child.

Provision needs to be made for those without leave. If an employee becomes an overstayer s/he can stop work. The equivalent in this regime is to become homeless. Inter alia, we do not consider that making the children of those here without leave homeless is compatible with the duties of the Home Office under section 55 of the Borders, Citizenship and Immigration Act 2009. Nor has any adequate consideration been given to the result burden on local authority social services departments who often bear the burden and cost of accommodating otherwise homeless unlawfully present migrants.

AMENDMENT 25

Mr David Hanson

Helen Jones

Phil Wilson

Clause 15, page 15, line 24, leave out ‘order’ and insert ‘regulations’.

AND

AMENDMENT 26

Clause 15, page 15, line 27, at end add-

‘(8) Regulations under subsection (6)-

(a) shall be made by statutory instrument, and

(b) may not be made unless a draft has been laid before, and approved by

resolution of, each House of Parliament.’.

Presumed purpose

We are not entirely clear. If "(6)" is a misprint for (7) then these concern the power of the Secretary of State to add, remove or amend a description of excluded agreement by order and requires it to be subject to the affirmative procedure. But it already is (see Clause 63(2)(a) If "(6)" relates to proposed new clause 2 then the amendment would require the affirmative procedure to bring Part II chapter 2 into force. However, it appears to us that new clause 2 already achieves this.

Briefing

No briefing .

Schedule 3

AMENDMENT 30

Mr David Hanson

Helen Jones

Phil Wilson

Schedule 3, page 55, line 22, after ‘hostel’, insert ‘night shelter or domestic

women’s refuge’.

Presumed Purpose

To exclude night shelters and refuges for women (from the Part II chapter 2 scheme.

Briefing

A person who flees domestic violence may well leave documents that prove their nationality behind. Those using night shelters are often persons with no home and no place to store papers.

It is not infrequent for persons with lawful leave and British citizens leading chaotic lives, including those who have mental health problems, to find it extremely difficult to lay their hands on documents evidencing entitlements. These are people who already find it difficult to secure private rented accommodation.

The amendment also provides an opportunity to try to understand what the definition of "hostel" in schedule 3 might encompass. We have a particular interest in this because of the question of Approved Premises, managed by the National Offender Management Service are excluded from the scheme.

We have raised concern that Approved Premises have not been excluded from the scheme with the Bill and have been told that the discretion provided to the Secretary of State (presumably under clause 16(3) in relation to foreign nationals disqualified from occupying premises under a rental tenancy agreement can be used in this situation to the extent that it is necessary. It is necessary and we consider that if a form of accommodation is identified for which no provision has been made, then its exclusion from the scheme should be addressed in the Bill. If discretion, presumably under section 16(3) were the way to go, then there would be no schedule 3 at all.

Numbers are small but the omission of this type of accommodation has implications for offender management of person who cannot prove that they have a relevant nationality or a right to rent. They may be British.  People tend not to have the right documentation on them when they are being prepared for discharge from prison.

Is the definition of a hostel wide enough to cover Approved Premises? If not, then separate provision is needed for no provision has been made for rental accommodation dealing with ex-offenders despite 32% of deportation appeals being successful [50] and a proportion of foreign nationals being released to the community from detention. There is no provision in the bill to exclude from these provisions those foreign nationals required by the National Offender Management Service to live in Approved Premises for the purpose of effective risk management.

Approved Premises operated by the National Offender Management Service must be excluded from the scheme otherwise detainees who are required under the terms of their release licence to reside in Approved Premises (because bail accommodation under s 4(1)(c) of the Immigration and Asylum Act 1999 is not suitable) will not be able to apply for release on bail. Immigration detainees needing a bed in Approved Premises have no other option.   This is likely to be unlawful.

See further http://www.justice.gov.uk/about/noms/noms-directory-of-services-and-specifications/approved-premises

We anticipate that hostel accommodation would come under considerable pressure from those unable to rent elsewhere. Shortages in such accommodation would hit hardest the very people for whom it is designed.

AMENDMENT 31

Mr David Hanson

Helen Jones

Phil Wilson

Schedule 3, page 56, line 35, leave out paragraph 8.

Presumed purpose

Removes the exclusion for premises to which the Mobile Homes Act 1983 applies.

Briefing

As explained in our briefing to new clause 1, Schedule 3 illustrates the complexity of the proposed scheme. Insofar as any scheme would make it more difficult for British citizens, persons lawfully present and others to find accommodation in the private rented sector, the types of accommodation listed in Schedule 3 se are the types of alternative accommodation likely to be put under pressure. Mobile homes constitute just one example.

AMENDMENT 59

Paul Blomfield

Meg Hillier

Schedule 3, page 57, line 4, leave out from ‘building’ to the end of line 26 and

insert ‘between-

(a) a landlord, as defined in Clause 15(3); and

(b) one of the following-

(i) an applicant for a Tier 4 visa holding a certificate of acceptance of studies issued by an authority-funded educational institution;

or

(ii) an applicant for a student visitor visa for a period longer than six months.’

Presumed Purpose

To exclude from the scheme persons with a certificate of acceptance for studies issued by public educational institutions and applicants for student visas. Replaces the current exclusion for halls of residence managed by specified institutions.

Briefing

We are unclear why the amendment refers to an "applicant" for a Tier 4 visa/student visitor visa as opposed to a person holding such a visa.

This may be to highlight the position of students attempting to secure accommodation before they arrive in the UK. Many workers and students secure accommodation before they arrive in the UK. Students will have the number of their Certificate of Acceptance for Studies which they will use during the visa application process. Checks prior to agreeing to tenancy are not possible in these cases. Where a person is confident that a visa will be awarded, or is prepared to take the risk, they may secure accommodation before they have leave. The provisions of the bill would make this impossible. While it was suggested in the consultation paper that an agreement could be made conditional upon a satisfactory check on arrival, neither the person letting the property nor the person renting is likely to be enthusiastic about an agreement that could be voided at such a late date.

Or it may be because the amendment is concerned with the student /student visitor establishing his/her right to rent in the initial period after arrival. A Certificate of Acceptance for Studies is only valid for six months from the date it is issued. Students applying for entry clearance from outside of the UK are supposed to apply no earlier than three months of the course start date. But students can apply for their Tier 4 visa from inside the UK, provided they do not do so any earlier than 28 days before the course start date. At this stage they will have only their Certificate of acceptance for studies.

We consider that the amendment points the way to a broader exclusion from the scheme for student issued a Certificate of Acceptance for Studies. The educational institution sponsoring the student will be complying with all the (onerous – see the 104 pages of guidance http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/pbsguidance/guidancefrom31mar09/sponsor-guidance-t4.pdf?view=Binary ) requirements of a sponsor licence. They are likely to be a "Highly Trusted Sponsor" [51] . They will check the individual student and the student will go through the visa application process. Therefore why not extend the exclusion to cover all accommodation arranged through the university and not just halls of residence?

CLAUSE 15 AND SCHEDULE 3 STAND PART

Clause 15 defines a residential tenancy agreement. It is defined broadly to include a lease, licence sub-lease or sub-tenancy made with any adult. The clause introduces Schedule 3 which sets out the properties excluded from the arrangements. The Secretary of State is empowered to include in the scheme agreements formerly excluded, exclude those formerly included or amend a description of an exclusion.

This is problematic. If the status of a type of housing in relation to the scheme is precarious that could cause problems of its own. Landlords and landladies may be reluctant to rent excluded property to persons who cannot prove their relevant nationality or right to rent for fear that they might not be able to keep them as tenants.

We have identified apparent omissions to the schedule, but the response has been that they can be dealt with by an exercise of discretion, giving the impression that the hard work on the schedule is considered over. If an exercise of discretion were the way to exclude properties from the scheme, why include Schedule 3 at all.

We highlight some our concerns here.

Persons seeking asylum do not have a right to rent under this Bill. Provision is made in Schedule 3 paragraph for accommodation for persons seeking asylum provided by the Secretary of State under section 95 of the Immigration and Asylum Act 1999 to be excluded from the scheme and similarly for accommodation provided for those whose claims have failed and who are accommodated under section 4 of the 1999 Act. But the bill will force all asylum-seekers and failed asylum seekers into this accommodation. This would greatly increase both destitution and public expenditure on asylum support.

We raised the omission with the Bill team and were told that it could be dealt with by an exercise of discretion. This does not seem to us good enough when it has been identified at this stage that the provision made in the Bill is inadequate.

The second group about whom we are concerned are immigration detainees seeking release on bail, some after many months or years in detention. The majority currently use rented accommodation with friends and family as a bail address, typically residing as a lodger on release. The Bill at clause 17(1) provides that "A landlord must not authorise an adult to occupy premises under a residential tenancy agreement if the adult is disqualified as a result of their immigration status".   Family and friends in rental accommodation, especially local authority or other housing where permission to take in lodgers is required, will no longer be able to offer bail accommodation to detainees who will be "disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement".   The combination of making provision for those on bail, temporary admission and temporary release should ensure that persons currently detained are able to apply for bail and that if they get it, they are allowed to reside at the address to which they have been bailed.

Bail for immigration Detainees estimates that the majority of their detained clients have no leave to enter or remain in the UK. Disqualified from occupying rental accommodation they would instead need to apply to the Home Office for Section 4 (1)(c ) bail accommodation to apply for release from detention, at a cost to the Home Office where previously there was none.

There is currently a provision to seek Section 4 (1)(c ) bail support if bailed to a private address if that arrangement later breaks down, i.e. from the community rather than detention, which would continue to offer a safeguard).

There are concerns that the provisions will be problematic not only for people who cannot prove on leaving prison or other type of establishment that they are not disqualified by the provisions of the bill.  People, whether British or not, tend not to have the right documentation on them when they are being prepared for discharge from prison.

We have concerns about the provision that is made in the schedule.

As to "social housing " (Schedule 3, paragraph 1) , what would happen if it turned out that as a matter of law no duty was owed to the person under the homelessness legislation? Would the landlord be liable for having failed to carry out the check? What happens where the duty is discharged and the person continues to be a tenant of that same accommodation? Has consideration been given to the subtle and various ways in which s 193(5)-(12) of the Housing Act 1996 regulates the cessation of duties owed to homeless persons?

**

As to "hospices"" and "care homes ", what would be intended to happen in a non-commercial arrangement where a person takes a dying friend or family member into their own home to care for them? Would they be expected to check that person’s documents?

Notable omissions in the Schedule include:

· Accommodation provided under the Children’s Act 1989 (see paragraph 6, although this is accommodation from or involving local authorities it is not provided under homelessness legislation;

· Accommodation in which persons are housed under mental health legislation.

PART III Chapter 1I Health

INTRODUCTION

The combination of these checks, the proposals for landlords to check their tenants and existing checks, such as those carried out by employers and educational institutions, amount to a system of identity checks for foreign nationals. What this means in practice is a system of identity checks for all, since it is necessary for British citizens or persons with permanent residence to prove that they are lawfully present in the UK. Aneurin Bevan made this point in the context of access to the National Health Service:

However, there are a number of more potent reasons why it would be unwise as well as mean to withhold the free service from the visitor to Britain. How do we distinguish a visitor from anybody else? Are British citizens to carry means of identification everywhere to prove that they are not visitors? For if the sheep are to be separated from the goats both must be classified…" [52]

We recall the Home Secretary’s introduction of the Identity Documents Bill at second reading:

     

The national identity card scheme represents the worst of government. It is intrusive and bullying, ineffective and expensive. It is an assault on individual liberty which does not promise a greater good. [53]

     

We are a freedom-loving people, and we recognise that intrusive government does not enhance our well-being or safety. In 2004 the Mayor of London promised to eat his ID card in front of

   

"whatever emanation of the state has demanded that I produce it."

     

I will not endorse civil disobedience, but Boris Johnson was expressing in his own inimitable way a discomfort even stronger than the discomfort to be had from eating an ID card. It is a discomfort born of a very healthy and British revulsion towards bossy, interfering, prying, wasteful and bullying Government. [54]

It is not the mere fact of a card that produces discomfort or that those carrying out the checks are remote emanations of the State: private citizens checking upon each other. British citizens, EEA nationals and third country nationals alike would be required to produce identity documents at many turns in schemes that would be intrusive, bullying, ineffective and expensive and likely racist and unlawful to boot .

The consultation paper is wrong in suggesting [55] that National Health Service funding was founded upon a model "based on our established, permanently resident population". It was not, as Aneurin Bevan made explicit in the passage that precedes the one quoted above:

One of the consequences of universality of the British National Health Service is the free treatment of foreign visitors. This has given rise to a great deal of criticism, most of it ill-informed and some of it deliberately mischievous. Why should people come to Britain and enjoy the benefits of the free Health Service when they do not subscribe to the national revenues? So the argument goes. No doubt a little of this objection is still based on confusion about contributions … The fact is, of course, that visitors in Britain subscribe to the national revenues as soon as they start consuming certain commodities… [56]

A system that ensures access for all in need must ensure that all individuals receive both immediately necessary and urgent treatment as defined in the evidence document that accompanied the Department of health consultation [57] . Without this, individuals suffer, there is the risk of increased costs of providing treatment for a more serious condition at a later date and public health may be jeopardised.

Persons in grave need of health care will chose not to present for it. Persons eligible for health care will be wrongly denied it, often because they have been unable to prove their eligibility. Changes in law and policy will result in persons it was intended be eligible for health care not being eligible.

These provisions must be read with the provisions of Clause 1 and the loss of appeal rights in Clause 3. A wrongful refusal by the Secretary of State could jeopardise a person’s access to health care. Health care could be denied while the person pursued a judicial review against the wrongful decision. This may lead to people pursuing an administrative review or human rights appeal in parallel with a judicial review, simply to preserve their entitlements during the period of challenge, increasing the work that must go into resolving the challenge. The consequences of refusal will increase pressure on courts and tribunals to conclude judicial reviews rapidly.

The Bill contains only enabling provisions on limiting migrants’ access to the National Health Service and the Government’s response to the consultations on the National Health Service has yet to be published. ILPA responded to both the Department of Health and the Home Office consultations [58] . We argued against this extension of identity checks to the population as a whole.

What we see on the face of the Bill are proposals to confine entitlement to the National Health Service to British citizens and settled persons (clause 34) with the entitlements of others to be controlled by regulations (clause 33). Some of those not automatically entitled will be able to secure entitlement to all or some services, as determined by the Secretary of State, by paying a levy.

The suffering of individuals and the risks to public health militate against the proposal. Checks risk preventing or deterring persons, including British citizens, who cannot prove their status at the time when this is needed from accessing health services for themselves and their children.

CLAUSE 33 STAND PART

Clause 33 empowers the Secretary of State to impose a levy on all or some persons making an application to come to the UK from overseas or to remain in the UK. The Secretary of the State has the power to impose a charge on anyone with limited leave.

The proposal is not that migrants should pay an additional sum for their health care. What is proposed is that migrants should pay an additional sum for their health care and that of other migrants.

The National Health Service is currently paid for through a system of general taxation, from each according to his/her liability to taxation to each according to his/her needs to use the service [59] .

The proposal that a group be singled out and its members required to support each other is here applied to migrants. A similar approach could be taken to the elderly, the obese, smokers, those having children, or those with chronic conditions.

Not everybody makes a contribution to the National Health Service now. Babies and children do not and some children, including those who have made the most demands upon the health service in their childhoods, do not reach adulthood. Some severely disabled persons never make a contribution. Similarly with some persons with caring responsibilities. Persons who remain long term unemployed may never get the opportunity to make a contribution. As identified in the evidence paper that accompanied the Department of Health consultant, migrants are as likely, and given their demographic profile, may be more likely, than British citizens and the settled to contribute more than they put in [60] .

The principles of a workable system and one that does not increase inequalities support each other and addressing health inequalities can bring "real economic benefits and savings [61] . The Government has long been on notice of the need to undertake a cost benefit analysis of charging for health care. The House of Commons Health Select Committee said back in 2006 that its members:

were astonished that by the Department’s own admission, these changes [were] introduced without any attempt at a cost-benefit analysis [62]

Such cost benefit analysis as has been carried out does not appear to support charging. The evidence paper that accompanies the Department of Health consultation says that the effect of the charges deterring persons from coming to the UK is unlikely to exceed 0.5% of Gross Domestic Product in a given year. [63] But 0.5% of Gross Domestic Product in 2012 was eight billion pounds. [64] If, as per the consultation document, charges levied will total about one billion and will not all be collected, then it would appear that the costs look set starkly to outweigh the financial benefits. What is the point of spending funds the National Health Service does not have in levying charges that it cannot recover?

We reproduce the table 3 from the Department of Health evidence annexe [65] . It is a rough and ready calculation but it does serve to cast doubt on the £200 per year calculation and suggest that this is too high to accord with most notions of fairness. The justification for treating migrants differently from the resident population is stated to be the latter’s long term connection with the UK. But if that is correct then over the course of a lifetime the British citizen or settled person will make the greater demands on the National Health Service associated with increasing age. Those migrants who remain in the UK long enough to make these demands will remain in the UK long enough to make contributions akin to those made by a British citizen or settled person. The figures for each age bracket are averages and include persons making very heavy demands on the National Health Service because of disability or chronic conditions. We suggest that such persons are under-represented among ‘temporary’ migrants and that a consideration of the demographic evidence as to the health of migrants is required. Many migrants faced with, for example, a serious illness or an underlying health problem will chose to return to the country of origin to have it treated (as the Department of health consultation paper identified in Part Six is the case for British citizens). Against the spectre of health tourism, unquantified and ill-defined in the consultation and challenged by other careful studies [66] , is the question of the circumstances in which migrants draw less heavily on the National Health Service than they are entitled to do.

Table 3: 2011-12 age- health care costs summary

Source: Estimates based on Nuffield G&A and Mental Health age cost indices and scaled to 2011 ONS Census population and spend from the 2011-12 DH Annual Report & Accounts.

The Government has long been on notice that it and its predecessors have failed to produce any evidence that would allow the existence of health tourism to be identified or its prevalence to be quantified. As long ago as 2007 the Joint Committee on Human Rights found that

"the Government has not produced any evidence to demonstrate the extent of what it describes as ‘health tourism’ in the UK" .

As identified in the Department of health evidence document [67] a levy may lead to those who have paid it viewing themselves as having paid for National Health services and thus accessing these more than they would otherwise have done. While the evidence document inclines to conclude that this risk will not materialise, evidence from research should lead to caution [68] . The 2012 review identified that "…exempt visitors tend to use the NHS no more, and usually less, than the resident population. [69] " Those who have paid the levy may be anxious to get their money’s worth, rather than, as is often the case at the moment, impressed at, and grateful for, the service they receive and keen to moderate their demands upon it.

We emphasise that very far from all those whom it is proposed to charge have a biometric residence document. Persons have an enormous variety of (non-biometric) different documents evidencing entitlement.

Many persons who do not yet have permanent residence are on a route to settlement and will settle in the UK. It is artificial to ignore this. It is not currently a requirement for UK nationals and the settled that they have made sufficient contribution to UK tax and National Insurance before they can access the National Health Service, indeed many people cost the National Health Service more in their early years than they do again until they reach old age.

However, very many persons who will ultimately settle in the UK spend a very long time in the UK before they do so. Application fees are one reason: while paying for repeat applications for temporary leave could result in spending more than the settlement fee, a person may not have the larger fee at a given time. Some people do not manage to pass the English language test for many years, if at all. Others have criminal convictions. Criminal convictions that are spent are not treated as spent for immigration and nationality purposes [70] . A person sentenced to any period of imprisonment, however short, will have to wait at least seven years to be considered for indefinite leave to remain [71] .

Changes to the immigration rules in July 2012 [72] result in persons given leave to remain because of the UK’s obligations under Article 8 of the European Convention on Human Rights being given limited leave and not being eligible for settlement until they have spent 10 years in the UK with limited leave [73] . In the light of this, it would appear inequitable to focus on immigration status and leave aside all considerations of length of residence.

It was suggested in the Department of Health evidence document [74] that permanent residents would be defined as those who have lived in the UK for a minimum of five years or those who have indefinite leave to remain in the UK and we consider that a cut-off is a necessary additional restriction in the light of the considerations identified above.

It is open to migrants to have private health insurance just as this is open to British citizens. We anticipate that many of those able to pay for private health insurance would chose to pay any National Health Service levy as well and we can think of few if any circumstances in which we should recommend that those able to do this did not do it.

If there is a health levy payable prior to arrival consideration should be given to tailoring it, through use of a multiplier such as those used in assessing earnings in the points-based system to ensure it does not present a barrier for those nationals of countries where earnings are low and currencies weak relative to the UK. This is also a reason for not making a person pay the levy for their entire period of leave up front: to do so exacerbates the effect of existing disparities. A person coming to work in the UK even from a poor country may see their earnings increase rapidly after arrival.

Any payment made as part of an application would have to be refunded if that application were unsuccessful.

Pregnancy

It was suggested in the consultation that additional charges would be levied for maternity services. We identify a risk of harassment in the context of identifying "pre-existing pregnancies". Pregnancy is not an illness and is thus arguably one area where people are most likely to attempt to manage alone. We have seen instances of this and there is evidence to support it in research among undocumented migrants [75] . Research has identified that some 83% of women first seek maternity care through their General Practitioner [76] . In their cross-European study, Doctors of the World found that on average 79% of respondents were not accessing antenatal care [77] . There is evidence, including from the report Treatment of Asylum Seekers by the Joint Committee on Human Rights, that charges deter pregnant women from getting medical help or lead to their being denied help [78] . There is evidence that starting antenatal care after 20 weeks gestation is a risk factor for maternal death, as is not attending antenatal appointments, and screening [79] . There are also risks to the health of the child, and of increased infant mortality [80] .

Domestic violence

Women are more likely to be victims of domestic violence than men [81] and thus to be left without entitlement in the case of relationship breakdown on these grounds. Doctors may be the first people outside the home to learn of domestic violence [82] . Medical evidence may be needed by survivors of domestic violence whose relationship with their British or settled UK spouse or sponsor has broken down and who are seeking leave to remain under the domestic violence rule [83] .

CLAUSE 34 STAND PART

Clause 34

In the case below, determined during the lifetime of this consultation, the Home Office had at the outset accused the appellant of health tourism.

[…] (health claim: ECHR Article 8) [2013] UKUT 00400 (IAC), 24 July 2013

[…] [1] … lived alone in Nigeria after being widowed … She was able to come to the United Kingdom in 2004 having secured, in the face of fierce competition, a scholarship … Soon after arriving in the United Kingdom to commence her studies… the appellant was diagnosed with end stage kidney failure. It is now accepted and no longer in dispute that she was unaware of this potentially fatal illness, or even that she was unwell at all, until after her arrival. The evidence establishes that to be unsurprising as the nature of that condition is such that a person in the claimant’s position would most likely not have noticed any symptoms. …The claimant required dialysis…to remain alive … Her leave was progressively extended and, despite having to undergo dialysis several times each week, she graduated in 2008. Although granted a final extension of leave… so that she could attend her graduation ceremony, thereafter the respondent has refused all subsequent applications for further leave to remain…

In July 2009 the claimant received a kidney transplant and thereafter required carefully monitored medication to ensure that the level of that medication in her body is maintained at an appropriate level so that the transplanted organ is not rejected. Quite apart from that, monitoring is essential as too high a level of that medication in the body can prove fatal. She will always remain particularly at risk of infection, … While the claimant remains in the United Kingdom her life expectancy and her quality of life will be normal. It is, now at least, accepted by the respondent that she would not be able to access treatment in Nigeria and so would die within weeks. That is not because appropriate treatment and living conditions are not available in Nigeria but because she would not be able to afford to pay for them…

The issue at that appeal was a simple one but it was also a stark one: Was the refusal to grant leave, with the accepted consequence that the claimant would die soon after removal, such as to breach the claimant’s right to respect for her private life, as protected by article 8 of the ECHR, or was it a proportionate interference with that right, given that the claimant is not a national of this country and had been admitted for a temporary purpose which has now been concluded?...

The appeal came before First-tier Tribunal Judge […] on 21 November 2012….the judge… allowed the appeal. Our task is to examine the challenge brought by the respondent to that decision…The judge summarised the respondent’s case as it was argued before him as follows: "…. [The respondent’s representative] conceded that she could not afford the treatment in Nigeria and would therefore inevitably die… It was however proportionate to remove her" [2]

The evidence demonstrated that the Home Office was wrong to accuse the appellant of health tourism. The Home Office then resisted the conclusion that were the appellant returned to Nigeria she would die within weeks from kidney failure. The evidence showed that the Home Office was wrong. For cases started after 1 April 2013, there has been no legal aid for immigration, as opposed to asylum, cases and thus it is very likely that there would have been no successful challenge to the accusation of health tourism. The Home Office then argued that the appellant’s death was a proportionate price to pay for immigration control. This is a question that falls to be answered by reference to the law on Article 8 of the European Convention on Human Rights. Again, for cases started after 1 April 2013 there is no legal aid to assist an appellant in putting a case and this appellant, given her straitened circumstances, would have had to represent herself and herself make the case as to why she should be allowed to live.

The Health and Social Care Act 2012 placed duties upon the Secretary of State [84] and on Clinical Commissioning Groups [85] to go beyond not increasing health inequalities and to reduce health inequalities [86] . These obligations are not currently being met [87] .

We have seen in the past year the Home Office subcontract to Capita Plc. to text and telephone persons who are allegedly migrants with no leave telling them to leave the UK. British citizens, nurses, investors with a million pounds invested in the UK, all have been recipients of these texts. Which is no surprise. Capita has been working from information from the Home Office database which both reflects the complexity of current immigration law and is not up to date [88] .

The proposed system would increase inequalities, both among the population whose eligibility is limited and the British or settled persons, EEA and foreign nationals entitled to access to the National Health Service.

In recent months we have seen the Home Office launch a campaign with advertisements on vans in particular London boroughs saying that there are 106 [89] "illegal immigrants" in the area and advising those persons to send a text to get in touch with the authorities to arrange to "go home" or face arrest. Following a legal challenge based on the Government’s failure to comply with the public sector equality duty under the Equality Act 2010, the Government confirmed that if any further campaigns of a similar nature are planned, they will carry out a consultation with local authorities and community groups [90] .

Both the Capita exercise and the campaign involving the vans have been of questionable legality and the subject of considerable controversy [91] . Both are object lessons in how difficult it is to produce a workable and efficient system against the backdrop of an enormously complex immigration system, longstanding problems in Home Office record keeping and delays and backlogs in immigration casework. Both are object lessons in how a failure to promote equality can leave people, be they persons under immigration control or British citizens, vulnerable to abuse and victimisation.

A survey of 1449 people who visited the charity Doctors of the World in London found that 73% of these persons were not registered with a General Practitioner even though they were eligible for registration and that some 20% were deterred from seeking care for fear of the immigration control consequences [92] . This is in line with the experiences of ILPA members working with poor migrants.

Insofar as poor migrants live in poor areas, in poor housing, or work in exploitative environments, where they are poorly paid, they are likely to come into contact with poor British citizens and settled persons also living in that poor housing or work in those environments. Insofar as the proposals affect migrants’ access to healthcare in respect of infectious diseases, they are likely disproportionately to affect those poor British citizens and settled persons. Thus not merely failing to reduce inequality but exacerbating existing inequalities.

Imposing charges hits those who have least money to pay hardest. These are also the people least likely to possess documents such as passports (because they cannot afford them and/or not need them because they cannot afford to travel.) Many of the protected characteristics are also relevant to a person’s ability to speak up for themselves and negotiate complex bureaucracies. Those least able to negotiate officialdom will be hit hardest by the new bureaucracy [93] .

Many persons in the UK without leave will be unable to pay. They may be persons whose claim for asylum has failed but who cannot be returned to their country of origin because they cannot be documented or because travel to their country is too unsafe to be undertaken, or because of their own general health or circumstances: for example they may be dying and too ill to fly, or they may be unable to fly by reason of pregnancy. They may be overstayers or persons who have so far escaped detection. It is likely that if they face registration and if they face charges for treatment these people will not present for treatment [94] . If they are charged, they will not be able to pay. This is thus a policy question: how does the Department of Health want them to behave?

We recall that in 1999, when the Home Office was setting up the now notorious "National Asylum Support Service" it considered the circumstances of those who presented as destitute but had wealth about their person, for example in the form of a gold wedding ring. It was suggested by the Home Office that a person should sell their wedding ring to be treated as destitute. It was put to the Home Office: what did they want to achieve? What did they want to happen to the person who, although homeless and starving, would not sell their wedding ring? [95] In the end the Home Office opted for according a nominal value to wedding rings, etc. This proved too bureaucratic and the controversial proposals were never enforced.

The ordinary residence test has a complex history as it has developed through case law but the meaning now established by the courts gives effect to the policy intentions that shaped the definition and guidance addresses its application in a broad range of circumstances [96] . It is now a bespoke product. The guidance highlights that "The well being of people is paramount in all cases of dispute."

The current definition is not affected by changes in particular immigration categories. Such changes are extremely frequent as an examination of the statements of changes in immigration rules reveals [97] . For example this year there have been statements of changes in January, February, March (twice), April and July. Changes often take place at very short notice because the Home Office is trying to avoid a flurry of people squeezing in "under the wire" between the announcement of a change and a change being made.

Trafficking

It was stated in the 2012 Review of overseas visitors charging policy, that the majority of migrants charged by the National Health Service are persons without the required immigration clearance or documentation [98] . They include refused asylum seekers (some, but not all, of whom would benefit from an exemption for those receiving support under section 4 of the Immigration and Asylum Act 1999) and overstayers. Many will be unable to pay the charges for healthcare they receive. Charges levied are likely never to be recouped. See the conclusion in the evidence document accompanying the consultation: debt recovery is difficult and "in most cases the burden falls on the state" [99] . Again, there is a risk that people do not access healthcare until they require a (costly) emergency intervention.

We highlight particular risks to persons unlawfully present who have been trafficked to the UK and have not yet been identified as trafficked. The UK Human Trafficking Centre in its 2012 baseline assessment identified that over half (54%) of all potential victims of trafficking in the UK were not referred for identification by the "competent authority" within the "National Referral Mechanism [100] . In the press release introducing the 18 April 2013 Department of Health guidance on trafficked persons [101] it is acknowledged that

In many cases, victims need treatment for health problems so NHS staffs are uniquely placed to spot, treat and support victims of trafficking [102] .

Similarly there is a risk that because families stay away from health professionals, child abuse and child neglect are not identified [103] .

Other groups at risk

Children and care leavers/former relevant children 18-25 years old as defined under leaving care legislation [104] .

Persons granted humanitarian protection or discretionary leave to remain. Persons with humanitarian protection are unable to return to their country of origin as are many people with discretionary leave whose claims are often founded on human rights.

Those persons whose claims for asylum have failed but who are not, or not yet, in receipt of section 4 support. There are people who remain in the UK after their claims for asylum have failed and all appeal rights have been exhausted, or when they are otherwise at the end of the line, for example because documents cannot be obtained on which they could be removed, because they are stateless, because it is not safe to travel to their country or because they are unable to travel, for example because they are in the advanced stages of pregnancy, or are very ill. Support is provided under section 4 of the Immigration Asylum Act 1999 to those persons in this situation who are destitute. As part of the application it is necessary to evidence that one is unable to leave the UK. Some persons would be eligible for section 4 support because they are destitute but are unable to evidence that they are unable to leave the UK without evidence of their current state of health. They are in a chicken and egg situation if they cannot get health care until they have obtained section 4 support; they cannot demonstrate eligibility for section 4 support without getting health care.

Clause 35 Prohibition on opening current accounts for disqualified persons

The Explanatory notes to this clause state:

The second condition is that the bank or building society has been unable to carry out a status check because of circumstances that cannot reasonably be regarded as within its control. This might occur, for example, if it were unable to perform a check because of operational difficulties being encountered by the checking service for an extended period.

This scheme is intended to work through subcontractors such as CIFAS as set out in the Home Office factsheet. The former UK Border Agency should be required to manage its subcontractors adequately, ensuring that any data passed to them is passed in accordance with the law and with data protection principles, including that it is accurate. If it cannot do so, in particular for an "extended period" that should not form the reason either for an individual to be prevented from opening a bank account or for preventing a bank from doing business with a particular client who would otherwise be allowed to open a bank account, having passed all identity and anti-fraud and anti-money-laundering checks required of anyone, wishing to do so..

There is also the question of the basis on which the former UK Border Agency has passed this data to CIFAS etc. in the first place. ILPA first entered into correspondence with Jonathan Sedgwick, then Deputy Chief Executive of the UK Border Agency, about the UK Border Agency’s membership of the Credit Industry Fraud Avoidance System (CIFAS) in June 2010. Damien Green MP, then Minister for Immigration, said in his letter of 5 July 2010: "I acknowledge the freedom of information and data protection act concerns your members have registered."

The data held by members of the Credit Industry Fraud Avoidance System may be held outside the jurisdiction and may be accessed by persons who are outside the jurisdiction. Some of the companies may be incorporated in countries other than the UK.

The Home Office’s use, sharing, storage and retention of data on individuals is dealt with in standard paragraphs on application forms or read at the beginning of interviews and recorded as part of the interview record. The forms of standard consent have changed over time. Particularly in the case of those who have been in the UK, with or without leave, for some time that they will have signed different versions of consent forms that are not the same as those currently in use. We consider that, at the very least, very many of the forms of consent that we have seen over the years do not form a basis for asserting that an individual has given any consent, let alone informed consent, to the sharing of their data with the Credit Industry Fraud Avoidance System, nor to the retention, use or storage of their data by the Credit Industry Fraud Avoidance System.

Under data protection principles a person cannot consent to an open-ended use of data. The reasons given for keeping and using the data are, in many of the standard consents, too broad, in light of the legitimate bases for processing data as listed in the Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

The Council of Europe Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data [105] , ratified by the UK in 1987, provides in Article 2 that ‘Personal Data’ is defined as any information relating to an identified or identifiable individual - known in all subsequent texts as ‘data subject’. Article 6 describes ‘special categories of data’ including ‘racial origin… health’ which ‘may not be processed automatically unless domestic law provides appropriate safe guards’.

Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data, requires member States to enact domestic legislation on the processing of personal data to ensure and protect the fundamental rights and freedoms of natural persons as recognised under Article 8 of the European Convention on Human Rights and in the general principles of EU Law. The Data Protection Act 1998 is the relevant UK law.

In S & Marper v UK (2008) (Application nos. 30562/04 and 30566/04) the Grand Chamber of the European Court of Human Rights criticised the UK Government’s ‘vague’ definitions regarding its procedures. It is essential to have clear rules governing the scope and application for measures, and ‘minimum safeguards concerning duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for its destruction.’ [106]

The companies who are members of the Credit Industry Fraud Avoidance System have many staff and these are spread across the globe. The chances of information about, for example, a person who has sought asylum or humanitarian protection falling into the hands of their persecutors appears to us high. Even if the person’s initial claim for international protection was rejected, the sharing of the information may increase the risk to them taking them above the threshold whereby they are found to be in need of international protection. In the case of those who remain in the UK but whose initial claims for asylum were rejected some time ago, circumstances in their country of origin may have deteriorated. The dangers of providing not only an individual’s personal biographical information but also an address in such cases are very clear.

There will be other migrants, in whose cases there is no risk of persecution, who could find themselves disadvantaged by the sharing of information between the Home Office and the Credit Industry Fraud Avoidance System. Fraud information and alerts posted by the financial services sector may not be accurate, or may not be sufficiently detailed to identify whether an individual has done anything wrong. The risk of discrimination on the grounds of race or nationality is high. The information held by the Home Office is not in our experience sufficiently accurate or complete to ensure that the financial services agencies with which it shares information are not misled.

The clause as drafted appears to exclude persons on temporary admission from its ambit. Those most likely to be on temporary admission for very lengthy periods are persons seeking asylum. Many will be very poor, but some, for example those whose claims have been pending for more than a year and who can find work in a shortage occupation may be allowed to work. Some persons seeking asylum may be able to get some money out of their country of origin when they flee or even subsequently. It is rare, but it does happen. Those persons should be able to have a bank account. The Secretary of State could indicate that she will exercise her discretion under subclause 25(3)9c) in their favour. But they should not be forgotten.

Clause 35 is very strangely drafted. In our experience parliamentary counsel find tidy forms of words to give effect to the intent behind a clause and therefore the drafting alerts us to difficulties with the intent behind the clause.

The clause starts with a negative, a status check must illustrate that a person is "not a disqualified person" (subclause 35(1)(a)). If it does, a bank cannot open an account for that person.

We then expect to find out what a disqualified person looks like. But we do not. Sub-clause 35(2) is wholly self-contained. It defines a person falling within sub-clause 35(2). It defines that person as in the UK, requiring leave and not having it, in other words a person with no leave, including an illegal entrant and an overstayer, or a person on temporary admission, such as a person seeking asylum.

We turn to subclause 35(3). There we learn that disqualified persons are a subset of persons within subclause 35(2). They are persons in the UK, requiring leave and not having it, "for whom the Secretary of State considers that a current should not be opened. We search in vain in the Bill for any criteria on which that decision could be based. We look to the Explanatory Notes. These state:

The Secretary of State therefore has discretion as to who should be barred from opening current accounts. This is because there will be some individuals who face legitimate barriers which prevent them from leaving the UK, even though they do not have leave. The Secretary of State may enable these persons to open a current account.

This looks benign. But:

· Where will the criteria on which the Secretary of State bases her decision be set out?

· What options are open to a person unable to open a bank account who wants to challenge the Secretary of State’s refusal to let him/her do so?

The Government says it wants to make the UK "a more hostile place for illegal migrants." [107] There is no question that clause 35 will create a more hostile place, but for whom? There are three basic problems with the approach. Firstly, it will adversely affect those for whom the hostility is unintended. Secondly, it is blind to the real culpability of any affected individual, and will likely fall far more heavily on the innocent, naïve and minor transgressor while failing to touch the most culpable abuser of immigration controls. Thirdly, it will establish a place in which those who profit by criminal and exploitative behaviour may flourish.

In his Foreword to a detailed report [108] on Financial Inclusion amongst New Migrants in Northern Ireland, Andrew Barnett, Director of Calouste Gulbenkian Foundation (UK), noted:

"In today’s climate, when economic constraint threatens heightened racial sensitivity, it is critical that we find practical ways to support inclusion and lessen exclusion, whether social or financial, of all groups, including new migrants and ethnic minorities. It is likely that demand for financial advice will continue to rise in the coming months and years and our ability to keep people involved with and actively contributing to our economy will be crucial in ensuring we make it through without the need for further cuts or devastating bail- outs. the significant minority of migrants residing in Britain should be supported and encouraged to engage with the financial system here too rather than conducting transactions on the fringes."

Whereas the report highlighted that some of those the Government intends to target (overstayers and undocumented migrants) have difficulty accessing financial services, it also identified refugees as often excluded. However, the report also identified others as having had difficulties, e.g. an EU national who was rejected by two institutions who demanded documentation another did not need; and a refugee who had trouble because of delays by the Home Office issuing his status papers. [109] Clause 35 can be expected to accentuate barriers that already exist, particularly for those who do not hold a British passport, have some other status document (concerning British or European citizenship, or immigration status), which is readily identifiable to the relevant financial institution. The concerns of Andrew Barnett will similarly be aggravated. This is despite the Home Secretary’s previous recognition of the wider danger to civil liberties resulting from a general introduction of identity cards in the UK: "The national identity card scheme represents the worst of government. It is intrusive and bullying, ineffective and expensive." [110] Having abandoned the previous administration’s commitment to identity cards, the Government is now establishing an environment where the establishment of identity, and particular aspects of that identity concerning citizenship and immigration status, are to become routine.

And to what purpose? At Second Reading, the shadow Home Secretary said: "How much difference will [the hostility-creating measures] actually make in practice... One does not need a driving licence to drive in Britain and one does not need a British bank account to take cash out of a cash machine or to earn some cash on the side." [111] Anyone who is sufficiently organised prior to entry or overstaying can establish an accessible overseas account. Thus, those who deliberately and knowingly set out to exploit their ability to evade immigration controls can be expected to escape the impact of clause 35. By contrast, the innocent, naïve, exploited and minor transgressor will be caught. This may include the person born in or brought to the UK and overstaying as a child, who does not even realise he or she has no permission to be in the UK; the person who becomes an overstayer by the incompetence of the Home Office in processing his or her application, or perhaps the incompetence of his or her legal adviser, or a minor mistake in an application or over a deadline; the person who is exploited by a trafficker or other controller. It is an unhappy irony that the Government is greatly extending these prospects befalling many migrants by its ongoing widespread removal of legal aid, and hence access to legal advice and justice, for those most at risk. It is critical that Parliament recognise that those vulnerable to trafficking, exploitation and control related to their immigration status is not limited to those trapped e.g. in brothels (where the degree of control would necessarily exclude their access to a bank account), but extends to a much wider range of persons – e.g. migrants trapped in abusive relationships, or forced to provide service or labour. Control in such circumstances may include psychological, emotional, financial, violence, and control over an immigration status document or passport. Clause 35 will increase the capacity for exploitative and abusive persons to exercise control to migrants caught in these situations.

While those of most concern may escape the affect of clause 35, and those not intended to be targeted or most innocent may fall foul of the hostile environment it creates, that very environment is one providing ever greater opportunity to the flourishing of crime and exploitation. This is not merely the case for those who exploit and abuse migrants, who might otherwise establish some greater independence by accessing a bank account. The clause creates a whole new ground for those who engage in the forging and trade of false documents.

In answer to the shadow Home Secretary’s concerns at Second Reading, it is surely the case that this measure will have a substantial impact in practice. However, that impact may well be to impede or exclude the access of lawful migrants and citizens to bank accounts, to add further to social problems of exploitation and criminal activity, while failing to impede the daily lives of those most intent and hence prepared on evading and abusing immigration controls.

Clause 36 Regulation by Financial Conduct Authority

Subclause 36(3) adds nothing to the bill as by subclause 36(2)(b) regulations may make provisions corresponding to any provision whatsoever of the financial Services and Markets act 200. Such a broad power suggests that how this scheme will work has not been thought through.

Many banks, for anti-money laundering and other checks, require production of documents proving identity. The proposals in the Bill to put this on a statutory footing make still further demands on the overstretched former UK Border Agency.

These provisions must be considered with clauses 1 and 11 of the Bill on removal and appeals. A person who has quite lawfully made an in-time application to extend his/her leave may be wrongly refused. Under clause 1 and this clause s/he and family members will suddenly find themselves with no leave. They may have no right of appeal. They may end up applying for administrative review not because they think that it will do a blind bit of good but because they want to protect their position (since, by the terms of Schedule 8, leave continues on the same terms and conditions while an administrative review is pending). They may even make an application for administrative review that they know is hopeless (because the Home Office has a settled position on a point) while applying to challenge the Home Office position by judicial review. Part III makes the consequences of a wrongful refusal, the consequences of delay, much greater, at a time when nothing has been done to lower the chances of a wrongful refusal or of a lengthy delay.

CLAUSE 38

Clause 38 contains Henry VIII powers and as such should be subject to special scrutiny. It is subject to the affirmative procedure but the affirmative procedure is not a get out of jail free card where such powers are concerned. It may provide a safeguard where such a power is considered by parliament to be essential but does not obviate the need to scrutinise whether the power is essential. Something has gone wrong with the Delegated Powers Memorandum on this point, for it says

...it is possible that in future the government may need to amend the definitions in order to alter the range of institutions falling bring other institutions within the scope of the restriction

As drafted the clause could be used to deny persons without leave, including persons seeking asylum, anywhere where they could safely deposit their money. That is a Henry VIII power indeed and parliament should withhold it.

Work

CLAUSE 39 Appeals Against Penalty Notices

ILPA considers that there should be an option to waive the objection and move straight to an appeal. There is no point in spending time and money on an objection in circumstances where the Home Office disagrees with the analysis of law or fact and will not change its mind. Nor should a person be obliged to incur the costs associated with an objection including legal fees.

In the event of an appeal, where the respondent concedes the appellant is right (e.g. because a civil penalty was wrongly imposed), an order has to be drawn up that addresses costs. The Civil Procedure Rules Practice Direction 52 and Costs Practice Direction are in point. The former provides that where a settlement has been reached disposing of the application or appeal, the parties may make a joint request to the court for the application or appeal to be dismissed by consent. If the request is granted the application or appeal will be dismissed. Where the Home Secretary has conceded the issue, she has no basis to resist a costs order. When the appeal is settled so that it is withdrawn as the underlying decision is accepted to be wrong, the default position that costs follow the event applies.

These provisions provide an opportunity to discuss the civil penalty regime. ILPA has opposed employer sanctions since their inception in 1996. They serve to encourage and promote discrimination in the workplace, affecting not only those with limited leave to be in the UK but also settled persons and British citizens, in particular from ethnic minority backgrounds [112] .

Employer sanctions have also, particularly since the introduction of the sponsor licensing schemes under the Points-Based System [113] , greatly increased the regulatory burden for businesses. They have increased businesses’ reliance on lawyers.

All too often illegal working is in exploitative, sometimes dangerous conditions [114] . We recall the analysis in the report [115] of the TUC Commission on vulnerable employment [116] : "…firms that are found to be non-compliant in one area are often non-compliant in others." Disregard for the rights of migrant workers is likely to go hand in hand with disregard for health and safety, and for more general employment law and workplace standards [117] . The Commission said:

… it is the weak position of migrant workers that has made them vulnerable. If you increase the supply of vulnerable workers then the unscrupulous will come along to exploit them. So the worst way to respond to concern about migration is to further reduce migrant workers’ rights. That will simply cause an even greater downwards pressure on standards.

We have therefore concluded that there is a need for the scope of government enforcement agencies to be extended to cover a wider range of workplace rights.

This recommendation should be revisited. The current regime fails to concentrate on the worst employers or on the workers most vulnerable to exploitation. It does nothing to contribute to the general raising of employment law standards that would protect migrant workers and ethnic minorities in the labour market. Instead it creates red tape and can contribute to an atmosphere in the generality of workplaces that is at best unhappy and at worst oppressive.

Given that the maximum penalty is already £10,000 per head, ILPA is unconvinced that increasing the maximum penalty will serve significantly to affect employer behaviour. It is difficult to see how increasing the maximum penalty will offer any more of a disincentive to the exploitative employer who intentionally employs somebody without permission to work: we suggest that the fear of detection is a far greater deterrent than the severity of the penalty.  For those employers who have failed to comply with the legislation by mistake or because of error, in members’ experience the level of penalty is seen of little relevance to them until it is too late.  The proposed change thus appears thus to be symbolic, of style rather than substance. We have seen no statistics or other analyses to suggest that the increase of the maximum civil penalty from £5,000 to £10,000 on 29 February 2008 increased compliance.

Employers have statutory employment law responsibilities as well as responsibilities under their own terms and conditions of employment. We have seen too many cases where persons subsequently given leave to remain have in the meantime lost their jobs. Employers who have wrongfully and peremptorily dismissed employees on an assumption that they have lost the right to work have lost unfair dismissal cases in the employment tribunals but by that time reinstating the employee in work may no longer be possible, for example because there is no subsisting relationship of trust and confidence between employer and employee.

Where the immigration status of an employee is unclear and that employee cannot provide documents that give the employer a defence against a civil penalty, the employer will be in violation of employment law if it suspends without pay or dismisses an employee who does have the right to work.

For example, there are significant and ongoing problems with the application process for EEA residence documents and the timely obtaining of certificates of application by those who have applied for such documents. These delays are leading to third country national family members being unable to access employment and can lead to problems with existing employers and have in some cases led to suspension and dismissal.

There are significant ongoing problems with the accuracy and efficiency of the Home Office’s Employer Checking service. A third country national’s inability to provide "List B" documents will not (and should not) give an employer any protection against any claim in employment law following non-recruitment, or suspension or dismissal on these grounds alone where the third country national is, in fact, exercising EU Treaty rights.

The latter point is well illustrated in the case of Okuoimose v City Facilities Management (UK) Ltd, UKEAT/0192/11/DA, where a third country national family member employee’s claim for unlawful deduction of wages, relating to a period of suspension without wages following her inability to provide her employer with List B documents on the date her existing EEA residence document ‘expired’, was upheld by the Employment Appeal Tribunal. The judge, Jeremy McMullen QC said that section 15 of the Immigration, Asylum and Nationality Act 2006, s.15 ‘has no application here’. He emphasised the wording of Directive 2004/38/EC, Art 25:

‘ 1. Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proo f.’

Employees have been treated harshly by employers who dismiss them in circumstances where the employee does have the right to work but cannot prove this with documents that meet the requirements for a statutory defence against a civil penalty. This was the case in Kurumuth v NHS Trust North Middlesex University Hospital UKEAT/0524/10/CEA where the employee had been waiting for a decision on her immigration application for a number of years. The Employment Appeal Tribunal held that it was acceptable for the employer to rely upon the Home Office guidance on preventing illegal working to decide whether or not the employee should be dismissed. This was despite the employee’s having the right to work in the UK, although in a way not covered in the guidance. The failure of the Home Office guidance adequately to address all the bases of a right to work in the UK results in people losing their jobs. Non-EEA nationals and ethnic minorities are more likely to be affected than British citizens and thus the shortcomings in the guidance give rise to discrimination on the grounds of race. Thus, for employers, shortcomings in the guidance can result in legal expenses.

Guidance should identify as a mitigating factor the employer’s having taken prompt action that respects employment law obligations on discovering that somebody may be working unlawfully.  For example, suspension on full pay while a fair investigative procedure is followed.

There are implications of checks for relationships in the workplace between all migrant workers, whether or not they have permission to work, and their employers. Employers will not always "know" that an employee does not have the right to work; they may have a concern that this may be the case. In such cases the required documents to check status are not always available, for example when a person’s leave is shortly to expire and those documents are with the Home Office, supporting an in-time application or when an EEA national of family member of an EEA national has applied for residence documentation. Employers are not always the sponsors of the migrant workers they employ. For example, an employer may employ a person who has permission to work as a family member of a British citizen, EEA national or settled person. To report an employee as a person who does not have permission to work or to share information that should be confidential under the contract of employment in the course of trying actively to cooperate with the Home Office investigation may put the employer in breach of responsibilities under the contract of employment, employment law statutes and other statutes.

There are situations in which an employer tries to carry out checks but makes a mistake in following the guidance. In very many of the situations where persons have been found to be working unlawfully there has been an error. For example, in one case an individual applied for further leave to remain and did not include the correct fee.  The application was rejected as invalid by which time his leave had expired.  In another case, the individual failed to sign the cheque that accompanied the application. The application was returned as invalid but the individual’s leave had in the meantime expired.  Applications that employer and employee thought were in order have been refused for technical reasons such as payslips or bank statements in formats that do not meet the requirements being provided. In these cases, the employer was then employing the individual unlawfully. 

A partial check may be evidence of good faith. The Home Office consultation on the Strengthening the Civil Penalty Regime proposed refusing to continue to treat such a check as a mitigating factor in certain cases. This risks fettering the Secretary of State’s discretion to take it into account, resulting in the unreasonable and potentially unlawful imposition of a penalty. During audits members frequently identify that employers have not complied with all the requirements set out in the legislation. For example they have not copied the documents before the first day of employment and have instead taken the copies on the first day.  There are also many cases where the employers have not photocopied the cover pages of a passport.  We consider it wrong that employer could not rely on the partial check in circumstances such as these where the error is technical and has made very little substantive difference.  The guidance should permit those who carry out checks on the first day of employment to maintain the statutory defence.

Any changes to the civil penalty regime short of abolition must improve legal certainty and mitigate the discriminatory effect of penalties, inter alia by:

· making provision for all documents that evidence a right to work, for example in the situations described above, to found a defence against the imposition of a civil penalty when they have been checked;

· making clear that civil penalties can only be imposed where an employee is not permitted to work, not for not making the checks on an employee who does have the right to work, save insofar as any checks have been carried out in a discriminatory manner;

· providing guidance that helps employers accurately to determine the right to work of their employees in situations where this is not clear; and

· providing for a defence against a civil penalty where an employer reasonably believes after reasonable investigation that an employee does have the right to work in the UK.

We consider it essential that it continue to be possible to issue a warning letter for a first time breach of the right to work checks.

The impact of a civil penalty on a Tier 2, 4 or 5 sponsor or an organisation that wishes to become such a sponsor goes far beyond financial sanctions. A Tier 2, 4 or 5 sponsor will lose its licence for receiving a penalty of the maximum possible amount [118] . This is mandatory. There is no right of appeal against this decision; the only challenge is by way on an application for judicial review. The sponsor cannot apply for a new licence for six months from the date of the revocation [119] . A Tier 4 sponsor cannot obtain Highly Trusted Sponsor status for three years after receiving any civil penalty. A Tier 4 sponsor that cannot renew its Highly Trusted Sponsor status will have its sponsor licence revoked. An organisation cannot obtain a Tier 4 sponsor licence within 12 months of receiving any civil penalty.

A warning letter should not be automatic: there is a difference between a person who has made a mistake or been careless and a person who is exploiting and ill-treating migrant workers. Warnings are more appropriate in the former case where the consequences of a civil penalty are disproportionate.

Currently, the page of the Home Office website dealing with Preventing Illegal Working [120] provides links to some eight separate current documents, totalling some 194 pages. List A of acceptable documents [121] goes on for 12 pages and list B for 11 [122] . This gives some notion of the difficulties employers face.

The problems with documents stem from the guidance’s being based upon a civil penalty regime that does not include all the documents that could evidence a person’s right to work. The circumstances that are not catered for are principally:

· British citizens born outside the UK (and therefore without a UK birth certificate) who do not have a UK passport;

· People with leave under sections 3C or 3D of the Immigration Act 1971;

· Family members of EEA nationals exercising Treaty rights in the UK who do not have a current family permit or residence card. As a matter of EU law, these documents are not required, although families are entitled to obtain them; and

· Individuals from EU accession states who have the right to work, e.g. where they have been working lawfully for another employer for a period of 12 months. It is often very difficult for Romanian and Bulgarian nationals to demonstrate their right to work, for example where they have been working lawfully for another employer for a period of 12 months. This is also likely to be the case for Croatian nationals who have been working lawfully in the UK for 12 months on 30 June 2013. 

The system is meaningless if a person who has the right to work cannot prove it. Meanwhile, checks properly carried out do not evidence a right to work. For example the documents asked for in lieu of passports at the moment do not necessarily prove that someone has the right to work.  At the moment in the guidance [123] under List A someone can produce a birth certificate and an official document bearing their National Insurance number.  Neither of which bears a photograph. These documents prove nothing for someone born after 31 December 1982 when birth in the UK ceased to confer British citizenship without more. Furthermore, where leave is curtailed, this is extremely unlikely to be shown on a vignette or biometric residence permit.

The Home Office should issue a letter immediately upon receipt of an in-time application for leave to remain. This would state what the person’s current leave is and that it continues until the application has been determined and all appeal rights have been exhausted. Such a letter would be useful to an employee with continuing leave and mention of it could also be incorporated into guidance to avail the employer of a defence against a civil penalty for a specific period.

At the moment reliance on biometric residence permits is impossible, as most people with a right to work in the UK do not have a biometric residence permit. This will continue to be the case for a very considerable period of time. There will always be a need even for a person with a biometric residence permit to be able to rely on alternative documents to evidence their right to work, for example in cases of loss or theft of the document, or when it expires but the person has continuing leave.

The employer getting in touch with the Employers’ helpline receives either confirmation that there is an application with the Home Office or is told that the Home Office cannot confirm that it has received such an application. The Home Office never confirms that it has not received an application. Where the Home Office cannot confirm that it has received an application, the employer is left having to investigate the employee’s immigration status on its own, for example by taking evidence of the employee having posted their application.

Employers are not infrequently given inaccurate information when they check with the Employers’ helpline. Even if the helpline accurately reports what is on the Home Office database, what is on that database may be inaccurate because an application has not been entered on the database. We have seen for example situations where the Home Office computer only has records of the main applicant's name and application and perhaps 'plus one dependant' without the name of that dependant or perhaps no record of the family member at all. The Employers Checking Service will then say there is no record of the person who has made a valid in-time application. Examples include where there is no record of a spouse or partner. The employer needs confirmation from the Employer Checking Service to establish a defence and, given inaccurate or incomplete advice, may dismiss or suspend a worker, including on terms not compatible with employment law.

There were a lot of delays in getting settlement applications in protection cases entered on to the computer for a long time, resulting in employees being sacked, or not being considered for jobs. Many employers will not take the trouble to get in touch with the Employers Checking Service, with the result that people do not get jobs, or risk losing their jobs. One member gives the example of a woman who applied in December for settlement after six years’ discretionary leave as a wife and has no answer. She reports that every time sees see the administrative staff in the school where she works, those staff ask why she has not heard from the Home Office but they will not undertake the check themselves.

There can be very lengthy delays in updating the database, this is one of the causes of the problems with Capita PLC’s phoning and texting people allegedly in the UK without lawful leave but all too often in practice British citizens or persons with leave. Capita is consulting a database that is both difficult to understand and not up to date.

Capita case December 2012

A client of mine received a text message on his phone from Capita Plc. and messages say they need to leave the UK and a phone number to call them on. He has also been getting phone calls from them - quite a few on a daily basis. Needless to say that our client is actually waiting for his application to be reviewed and we have a letter to confirm this, but obviously Capita have not been informed of this and he was extremely concerned.

I called them and asked if we could have a letter and I was told they only send it to the individual immigrants not to their legal representatives ... Interestingly enough they phoned my client again straight after my call.

Capita case December 2012

… one of my clients who informs me that she received the following message: " Message from UK Border Agency. You are required to leave the UK as you no longer have the right to remain. Please contact us on 08443751636 to discuss".

She received the message at 11:08AM yesterday and then, this morning at 09:32AM, received a missed call from the number 08452930035, which is possibly related.

Our client is currently on a Tier 1 (General) visa valid until 02 March 2013.

Capita case December 2013

I attach "statement of intention to depart"(!) sent to my client by Capita. …He's a new client so I don't know much about him but he does appear to have a SET (O) application outstanding and his wife's case is in the C[ase] A[udit] and A[ssurance] U[nit].

Capita case December 2012

The student has ...only been given until the 1 Jan 2013 to respond… (I’m assuming most institutions will not be operating an Independent Student Advisor service until term starts…).

…the student previously had a Tier 1 visa that was due to expire in 2011. … in 2010 the student obtained Tier 4 entry clearance to study a PhD. This leave is valid from 1 May 2010 until August 2014 and was stamped on entry on 10 May 2010. .. the Capita case ID has been logged on the UKBA system against this student but she could not see any record of the student’s Tier 4 leave. It therefore looks like the UKBA (and Capita) think that the student has been an overstayer since his Tier 1 leave expired in 2011 – very alarming since as far as X knows the student doesn’t in fact have any irregularities on his history to prompt this kind of confusion / action.

Capita January 2013

…some of my clients are still receiving letters directly from Capita despite the fact that they have outstanding applications and also the UKBA has our details on records as the legal representatives. One of the family's Human Rights application was lodged in November 2009, the UKBA acknowledge receipt of the application and my client has been reporting monthly since 2008.

It is very difficult for family members of EEA nationals to demonstrate they have the right to work in the UK without applying to the Home Office and potentially being without their passport for lengthy periods of time. The guidance on the documents that must be produced by the family members of EEA nationals is in ILPA’s view in breach of EU law and should be changed. Paragraph 4 of List B in the Home Office guidance [124] specifies the documents that can provide a statutory excuse for a third country national family member of an EEA national whose application for an EEA residence card is outstanding. These are:

A certificate of application issued by the Home Office or the Border and Immigration Agency to or for [a person who has applied under regulation 18A(1) of the Immigration (European Economic Area) Regulations 2006, or to or for] a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old when produced in combination with evidence of verification by the Border and Immigration Agency Employer Checking Service.

It is presumed that these, and other EEA residence documents, were included in List B as an attempt to provide appropriate protection to employers in relation to the employment of third country national family members. However, the current regime is significantly deficient both for prospective/current employees and employer.

List B should be supplemented with such documents as would adequately evidence to an employer:

(i) the relationship between the family member and their third country national family member; and

(ii) that the EEA national is a ‘qualified person’ (in the terminology of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003)). This would apply only to family members listed at Article 2(2) of Directive 2004/38/EC.

We highlight a need for better guidance in transfer of undertakings (TUPE) cases about a transferee’s position. Normally under TUPE, all terms and conditions affecting the employee are considered as if prior to the transfer, for example, health and safety checks are deemed valid post transfer, even if done by the Transferor prior to the transfer date. It would be helpful if the Home Office followed this approach and respected checks undertaken by Transferor, instead of requiring Transferee to carry out fresh checks. The Home Office’s 28 day grace period post transfer is inadequate and needs to be lengthened to at least six months to allow Transferee adequate opportunity to do right to work checks. Many large scale employers bring across thousands of employees under one transfer, and it is impractical and onerous to expect them to undertake comprehensive right to work checks within 28 days of the transfer date.

See ILPA’s response to the consultation about these proposals [125] .

CLAUSE 40

ILPA opposes the proposal to change the rules on enforcement of a penalty to allow enforcement as though the penalty were a debt due under a court order. In other cases where debts accrue under a statutory scheme, such as child support or council tax debts, there is a prior stage where a liability order is made. Here, efforts are being made to avoid such a stage (at which it is possible to contest the making of the order), or the equivalent stage of seeking a civil judgment that a debt is owing, and move directly to the equivalent of the post-making-of the-liability-order stage, where all that remains is for the debt to be enforced as if under court order.

The change is likely to make the system easier for the Secretary of State but more difficult for employers including those on whom a penalty has been wrongly imposed.

Driving licences

CLAUSE 41

While debating driving licences parliament should consider the position of persons seeking asylum, who may have a lengthy wait for a decision and in the meantime lose skills that will help them integrate as refugees, or help them on return.

As to an inspiring story of how driving can promote integration, see the 2013 winner of the Big Society award, UR4Driving at The Upper Room. UR4Driving is not a project for refugees or migrants but for ex-offenders, although in its more general work the charity works with British citizens and migrants together. See http://www.theupperroom.org.uk/ur4-driving/background/

Clause 41 and 42 are among the measures by which the Government seeks make the UK "a more hostile place for illegal migrants." [126] Clause 41 amends section 97 of the Road Traffic Act 1988 so as to add to the circumstances, in which a British driving licence must be provided, the new requirements of new section 97A (to be added by clause 41). The new requirements essential require lawful residence on the part of the applicant, who must not be a person requiring but not have leave to enter or remain (new section 97(A)(2)). However, as the shadow Home Secretary alluded to at Second Reading, the current position is that, save for nationals of a European Economic Area country, six months’ leave is required to obtain a British driving licence. [127] The clause makes provision for Northern Ireland.

Placing the scheme on a statutory footing risks adding to the workload of the already much overstretched former UK Border Agency.

Clause 42 Revocation of driving licences on the grounds of immigration status

Clause 42 amends section 99 of the Road Traffic Act 1988 to empower the revocation of a British driving licence where "it appears to the Secretary of State" a person is not lawfully in the UK. The clause makes provision for Northern Ireland.

We consider that the limitations imposed on the appeal are not adequate to ensure a fair trial. The Home Office could make a wholly erroneous decision and revoke a person’s driving licence on the basis of this. They might have reconsidered that decision the very next day (although admittedly this is unlikely), still the revocation would stand.

At Second Reading, the shadow Immigration Minister cautioned: "I still think that someone who is here illegally is not going to worry too much about not having a driving licence, but we can test that idea in Committee." [128] It may be that those who intentionally and knowingly evade immigration controls will be equally willing to drive without licence. It is, however, far from clear how the Committee can test this idea. It has received no evidence on the matter, and there may be no direct evidence available by which to test this. Nonetheless, there is evidence that a significantly disproportionate number of driving accidents involve those who are without a licence. In 2007, the Department of Transport presented evidence that:

"Young male drivers (17-29, by no means all novices) are about three times more likely to be involved in a crash than all drivers, but unlicensed young male drivers are between 3.25 and 11.6 times more likely to be involved in a crash than all drivers. For all unlicensed drivers the increased risk is between 2.7% and 8.9%." [129]

Others are permitted to drive on a valid (i.e. genuine and not expired) driving licence from within the European Economic Area, or on a valid driving licence from any other country. While in the latter case, the additional stipulation that the person is within the period of 12 months of his or her arrival in the UK, for all practical purposes it is clear that many of those without leave to enter or remain in the UK nonetheless may hold or be in a position to obtain a driving licence validating or on its face validating his or her driving in the UK.

Some will continue to drive on their overseas licence for as long as possible. Others may drive without a licence. This invalidates their insurance. The Government factsheet states "We will also send a message to uninsured drivers that it is not worth the risk. The net is closing in on uninsured drivers, be they UK residents or illegal immigrants..." But is it? The "dire consequences" the factsheet describes are dire consequences for all of us, not just for those who drive without a licence. The potentially adverse consequences resulting from someone driving without valid insurance by virtue of these provisions are obvious and serious. As with other measures, the Government will surely succeed by clauses 41 and 42 in creating a more hostile environment, but those who may suffer from this hostility may turn out to be British citizens or lawful migrants. By contrast, it is far from clear what impact, if any, these clauses will have in deterring or reducing illegal entry or overstaying.

If a person is wrongly refused leave, and has no right of appeal, they lose their licence while they pursue any judicial review.

The Home Office’s human rights memorandum (para 141) states that this measure is ‘partially intended to have a deterrent effect on those who are unlawfully in the UK.’ It would be worth asking the Minister what are the other intentions?

Marriage and civil partnership

Chapter 1

Referral and investigation of proposed marriages and civil partnerships

CLAUSE 45 Conduct of investigation

The drafting of clause 45 is astonishing in the latitude it leaves to the Secretary of State. We know very little more about the scheme when we have finished reading it than when we started. The amendment can be used to highlight the extent to which parliament is being asked to write the Secretary of State a blank check. It is moreover wholly reasonable that a requirement that could lead to the denial of the right to marry and found a family, the absolute right protected by Article 12 of the European Convention on Human Rights, be set out at the very least on the face of secondary legislation.

The Home Office already has power to deny a person an immigration benefit as a result of their marriage or civil partnership where finds that the marriage or civil partnership is one of convenience. The Bill does not increase those powers. Interviews and checks can all be carried out in the context of the immigration application interfering with the generality of couples’ absolute right to marry and found a family under Article 12 of the European Convention on Human Rights. Whether a person gains an immigration advantage by marrying is a matter for Government; we suggest that the marriage itself is not.

The Bill extends the period for giving notice of all marriages and civil partnerships, not just those involving a non-EEA national, from 15 to 28 days. For the first time all marriages involving a non-EEA national, including those in the Church of England the Church in Wales, will be subject to civil preliminaries. The registrar must refer all marriages involving a non-EEA national to the Secretary of State. The Secretary of State must decide within the 28 day notice period whether to extend the notice period for the couple to 70 days to check the marriage. Non-compliance with the requirements she imposes during the 70 days will lead to refusal to allow the marriage to take place. Otherwise, whether or not the Secretary of State thinks the marriage one of convenience, she will allow it to take place but can if she chooses to do so, move to enforcement action. We have seen cases where a person has been apprehended on the steps of the registry office and is then unable to go through with the ceremony because s/he has been detained.

The Government lost the case of R ( Baiai et ors) v SSHD first in the High Court, then in the Court of Appeal then in the Supreme Court [130] and the case of O'Donoghue et ors v UK ( Appl. no. 34848/07) in the European Court of Justice. It lost because it was held that in its efforts to crack down on an unquantified number of marriages of convenience, it was interfering disproportionately in all marriages to a non-EEA national. It was found to have acted in a discriminatory fashion, by treating marriages solemnised in the Church of England differently from marriage rites of other faiths. It lost the case of R (Quila) v SSHD [2011] UKSC 45, where it tried to ban entry for settlement of foreign spouses or civil partners unless both parties were aged 21 or over. In that case, Lord Wilson described the way in which it had interfered with all marriages to catch an unquantified number of suspected forced marriages as "On any view it is a sledge-hammer but she has not attempted to identify the size of the nut."

The risk of interference with the generality of couples whose getting married or forming a civil partnership is increased if the former UK Border Agency is unable to detect which relationships are marriages of convenience. We have concerns about this.

In its 2011 consultation on family immigration the UK Border agency set out possible factors/criteria which could highlight cases which require further scrutiny of applications on the basis of marriage or partnership. The initial suggestions included: the relationship was entered into voluntarily; the relationship was not entered into solely for the purpose of obtaining an immigration advantage; the couple are able to provide accurate personal details about each other; the couple are able to communicate with each other in a language understood by them both; and the couple (or their families) have had a discussion or made definite plans concerning the practicalities of the couple living together in the United Kingdom.

These factors are uncontroversial. Entry clearance officers across the world can, and do, refuse applications if they have concerns about the relationship on the basis of these factors.

ILPA did object however to the further suggested indicators of marriages of convenience listed including the age of the sponsor and the applicant at the time of the wedding; the nature of the wedding ceremony or reception (for example, if there were very few or no guests, and whether the couple eloped); whether the sponsor has previously been sponsored for a marriage visa or sponsored a marriage application; and whether the applicant has a compliant history of visiting or living in the United Kingdom.

It is already open to decision makers to look at such matters, and they do. However,

the UK Border Agency also suggested that indicators included the age of the sponsor and the applicant at the time of the wedding; the nature of the wedding ceremony; whether the sponsor has previously been sponsored for a marriage or civil partnership visa or sponsored a marriage or civil partnership application and whether the applicant had a history of compliance with immigration law, none of which, we suggest, are reliable indices of a marriage of convenience. ILPA’s responded to the consultation and set out its concerns in detail [131] .

CLAUSE 46 Investigations supplementary

The period of preparation for a wedding or civil partnership ceremony may be stressful but it is supposed to be stressful in a happy way, not to entail a couple living for 70 days under the shadow that one of them may be detained and even removed and that the ceremony they want to plan may never take place. Rather than concentrate on the immigration consequences of a marriage or partnership of convenience the provisions of Part IV of the Bill interfere with the marriage itself thus causing strain and unhappiness for couples whose marriage or partnership is in no way a sham.

The drafting of clause 46 is astonishing in the latitude it leaves to the Secretary of State. We know very little more about the scheme when we have finished reading it than when we started. The amendment can be used to highlight the extent to which parliament is being asked to write the Secretary of State a blank check. It is moreover wholly reasonable that a requirement that could lead to the denial of the right to marry and found a family, the absolute right protected by Article 12 of the European Convention on Human Rights, be set out at the very least on the face of secondary legislation.

Clause 46 (4) says "The Secretary of State may, by regulations, impose on relevant parties requirements relating to the conduct of investigations." This is meaningless. Such content as it might have been given by subclause 46(5) is reduced to nought by the words "in particular" which mean that subclause 46(5) does nothing to confine the ambit of the requirements imposed.

Clause 54 Regulations about evidence

The words "in particular" mean that the list of what may (not will) be in the regulations is meaningless as anything else could be there too. A chance to press to see whether there is any clear idea of how this scheme will function that would allow the impact with lawful relationships to be assessed.

The right to marry under Article 12 of the European Convention on Human Rights is an absolute right. Meanwhile Article 8 of the Convention, the right to private and family life, is a qualified right – it is permitted in certain circumstances to interfere with that right, but only if the interference is proportionate. This scheme is not.

Part V OVERSIGHT

CLAUSE 57 and SCHEDULE 6

The best protection against poor advice is the ready availability of good advice. Good advice for those with limited means is difficult to obtain, impossible for some, particularly after the ending of legal aid for most immigration, as opposed to asylum, matters in April 2013. It is thus important to support all sources of good advice and representation to continue.

Not-for-profits assist some, although not all, of those who have no other access to advice whether by providing advice and representation for free, or on a cost-recovery basis, or both. Community groups may be able to provide basic advice. Everything possible should be done to encourage and support them to join and remain in the Office of the Immigration Services’ Commissioners’ scheme. If they are to invest in training and resources they need assurances that exemption from paying a substantial fee, as proposed in the Regulatory Triage Assessment, will not suddenly disappear. The question of the time taken to satisfy the Commissioner on an annual basis that they are fit and proper persons to give immigration advice should be the subject of realistic assessments of the time and resources needed.

The Office of the Immigration Services Commissioner has recently provided a list of over 200 organisations which it has ceased to regulate in the 18 months since April 2012. Although the Office of the Immigration Services Commissioner requires organisations to store their client files in these circumstances, it has no powers to enforce this and has not been given the resources to ensure that the files be placed with another organisation from which they can be retrieved. This has proved a problem in too many cases, especially when the Refugee Legal Centre and the Immigration Advisory Service closed down, with consequences for the then UK Border Agency, the tribunals and the courts which are still felt today. ILPA was closely involved in dealing with the administrators for both organisations and went to court in 2012 to obtain a three month window during which Immigration Advisory Service clients could retrieve their files.

This amendment would provide new powers for the Office of the Immigration Services Commissioner, in particular to retain and store client files and ensure that the client can have access to these where a firm or company closes down.

This is vital for the person in obtaining advice in the future and for the new adviser to know what had happened. Although it is possible for people to make freedom of information Subject Access Requests to the Home Office for any papers that they hold, advisers are likely to hold additional documents, including attendance notes. This amendment would require further resources for the Office of the immigration Services Commissioner but these are resources that are essential for it to provide an adequate level of service. This issue has been highlighted by the Legal Standards Board .

Part VI MISCELLANEOUS

Embarkation checks

CLAUSE 58 AND SCHEDULE 8 EMBARKATION CHECKS

Clause 58 appears to pave the way for the wholesale privatisation of embarkation checks. We are extremely wary of this approach following the experience of Capita Plc. being tasked with urging persons with no lawful leave to leave the country. The information from the former UK Border Agency from it is working is not sufficiently up to date or clear for Capita staff accurately to determine a person’s status. Many British citizens and persons with lawful leave have been were wrongly told, in some cases repeatedly, that they should leave the UK.

The Home Office factsheet says

These provisions will allow those who currently have a role in outbound passenger processes to be designated and trained to perform the basic checks required to establish a passenger’s identity, to collect the data necessary to identify threats or persons of interest and to confirm departure.

This involves highly technical decisions on a person’s status. What record will there be of any interview etc. that could assist later in establishing

The immigration rules make provision for a series of "re-entry bans" for persons who have overstayed by more than 28 days. Their applications will fall for refusal for set periods of leave following their overstay, depending on their mode of departure. Therefore it is of tremendous importance that departures are recorded accurately and that there is an audit trail. Similarly, persons applying for citizenship and nationality are permitted a certain number of days absence from the UK in the years leading up to the application. Absences from the UK also have implications for liability to pay taxes. Embarkation controls can also assist in detecting victims of human trafficking, for example

The proposal in the Schedule, to outsource these functions and to impose criminal sanctions on carriers who do not comply looks like the Home Office trying to do embarkation controls on the cheap.

Schedule 7

These powers extend to all persons who "have arrived" in the UK, which the Home Office interprets as set out in the Enforcement Instructions and Guidance Chapter 31, following the judgment in Singh & Hammond , as authorisation for exercises within the UK, such as checks at tube stations. The clause would impose a duty on all those examined, including British citizens within the country, which is too broad and open-ended. It if is necessary to assist another person, that person should be called over.

subparagraph 6 which would permit a person who is not an immigration officer to take and retain a passport. This power is open to abuse and fraud. If a passport is required to be taken and retained, an immigration officer should be summoned. The amendment provides an opportunity to probe in what circumstances in which this would not be possible – for example is the case that designated persons could be operating at location where no immigration officers are present?

The new paragraph on designated persons is drafted in broad and general terms that provide no reassurance as to who will be designated or how they will exercise their powers.

The Home Office’s record in contracting out its enforcement functions is not as happy one, as witness the death of Jimmy Mubenga. There have been repeated criticisms of the management of contracted out detention and enforcement functions.

Where the Home Office has contracted out checking, for example in its contract with Capita Plc. to text and phone persons identified as having no lawful leave, mistakes have been legion. ILPA members have seen and continue to see British citizens, investors, nurses, all people with every entitlement to be in the UK, receiving messages to say that they have no right to be in the UK and telling them to leave. These messages have caused considerable distress. The amendment provides an opportunity to call the Home Office to account for the actions of those with whom it has contracted to carry out its functions.

The power to make directions contained in new paragraph 5A is broad and general. A failure to comply might take the form of a technical or more substantive error. Why has it been determined that it is appropriate to make compliance a criminal offence, as opposed to a civil infraction giving rise to a fine etc?

Fees

CLAUSE 59 FEES

The Home Office in the exercise of its immigration and nationality functions has a history of making extremely costly mistakes, especially in respect of IT, one of latest examples of which is the e-borders project. As the Chief Inspector of Borders and Immigration wrote in his report on e-borders this year

The e-Borders programme has been in development for over a decade now, and has cost "nearly half a billion pounds of public money, with many millions more to be invested over the coming years."

The report catalogues a litany of costly failures. For example

9. We found that the e-Borders programme had failed to deliver the planned increases in API and this had a detrimental impact on the delivery of all anticipated benefits. In light of these difficulties, revised data collection targets were set in early 2012, but by the time of our inspection even these targets had been dispensed with, primarily because of:

· Legal difficulties surrounding the collection of API on travel routes within the European Union; and

· a failure to test the e-Borders concept in the rail and maritime sectors.

10. The failure to identify these risks in the 2007 business plan meant that the original data collection targets, set out in the e-Borders delivery plan, were unrealistic and were always likely to be missed. As a result, at the time of our inspection API was collected in respect of just 65% of total passenger movements; this is against an original target of at least 95% by December 2010. However, since April 2012, API was being received in relation to all non-EU flights.

11. The failure to meet key programme milestones resulted in the contract with the IT supplier being terminated in July 2010. This meant that e-Borders continued to rely on the original pilot Semaphore IT platform, although enhancements had been made over time to ensure continuity of service. (See http://icinspector.independent.gov.uk/wp-content/uploads/2013/10/An-Inspection-of-eborders.pdf )

Individuals should not have their level of fees affected by other expenditure that he Home Office chooses to incur, or incurs by managing projects badly.

People are paying enormous sums in immigration and nationality cases for poor quality decision-making and lengthy delays. It would seem appropriate, in setting fees, to look at the quality of service.

Many of the fees charged now are very much above the cost to the Home Office of dealing with the application. [132] For example, some fees from April 2013:

Fee for partner visa, abroad £851 Cost to Home Office £407

Fee for elderly dependants settlement visa, abroad £1906 Cost to Home Office £407

Fee for partners applying for leave to remain £578 Cost to Home Office £281

Fee for settlement, in the UK £1051 Cost to Home Office £403

Fee for naturalisation £874 Cost to Home Office £187

Partners now have to apply for an initial visa, which may be granted for 30 months, then for an extension of stay for a further 30 months, then for settlement, and ignoring any possible increases, would pay £2207 in fees if this all took please in the UK, and £2480 if this included entry clearance. People who have been granted discretionary leave to remain in the UK with their families will have to apply for four 30-month periods, to reach ten years before they can qualify for settlement, at a cost of £3363.

The November 2013 report of the Home Affairs Select Committee The Work of the UK Border Agency sets out just some of the problems with the standard of service that the former Agency provides, including detailing the enormous backlogs, each one composed of individual cases, people in limbo.

There are certain circumstances in which regulations make provision for a fee to be waived, for example in respect of persons applying under the domestic violence rule who are destitute. If the rules made no provision for this, it would not be possible to waive fees. This would be unlawful as set out in the case of R(Osman Omar) v Secretary of State for the Home Department (Rev 1) [2012] EWHC 3448 (Admin) (30 November 2012) where it was held that a fee could not be required where to do so was incompatible with the Convention right.. It is possible to secure a waiver of a fee, in particular following that case, but it is very difficult and involves a persistent legal representative, even in cases of, for example, domestic violence. If an application is made without the required fee, it may be rejected as invalid, and the person may thus become an overstayer through lack of funds.

The government’s Bill factsheet on fees sets out that the intention behind this clause is to make it easier to change levels of fees more rapidly and "in line with the government’s objectives and priorities." It also states that "we want to increase income from fees, to ensure that those who use and benefit directly from our services pay more towards them, while UK taxpayers pay less."

People under immigration control also benefit the UK, by working, by studying and researching, by caring for children and the elderly. The factsheet repeats a false dichotomy between migrants and taxpayers; migrants are taxpayers too, whether this is through working and paying income tax and national insurance, or in the future paying a new health levy, or VAT on most purchases they make.

Although the Home Office has recently set up a procedure for people applying outside the rules to ask that their fee should be waived, this is a cumbersome and insecure procedure and people cannot place any reliance on when they may qualify under it.

The fee for a dependent child’s application for settlement is £788 (cost to Home Office, £403) and for an extension, £433 (cost to Home Office, £281). There is no provision to adjust this in relation to their family’s ability to pay or to reflect the level of service that they are getting. ILPA is aware of families where a mother has applied for further discretionary leave but has not applied for the children because she could not afford the extra fees, or where a family has worked on the assumption that the children would not be threatened with removal were the parents granted leave.

Under section 55 of the Borders, Citizenship and Immigration Act 2009, the Secretary of State must have regard to the need to safeguard and promote the welfare of children who are in the UK in relation to ‘any function in relation to immigration, asylum or nationality.’ This must include making it affordable for the children and their families to make immigration applications for a secure status.

The Home Office repeatedly states that the fee is for the administration of an application, not for the granting of it; but when the administration does not meet Home Office published standards, then there should be at least a partial refund.

Since 19 December 2011, fees have been payable when certain immigration appeals are lodged, as provided in the First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011 (SI 2011/2841) and the rule 23A(2) of the Tribunal Procedure Rules. If an immigration judge allows the appeal, he or she may make an award to refund all or part of the appeal fee paid. The President of the Tribunal has written guidance to immigration judges on deciding on fee awards. This includes:

"If an appellant has been obliged to appeal to establish their claim, which could and should have been accepted by the decision-maker, then the appellant should be able to recover the whole fee they paid to bring the appeal."

This guidance has been followed, and the practice has generally been that when an appeal is allowed because of new evidence submitted after the refusal, or to the judge, the fee will not be refunded, or only be partially refunded.

The fee refund is made by HM Courts and Tribunals Service, as this is the body to which the fee was paid, but HM Courts and Tribunals Service recoups the money monthly from the Home Office. But this Fees Order makes no provision for refunds when the immigration decision appealed against is withdrawn and the case never goes to hearing. Lord Avebury raised this omission in the debate on the First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011 in the House of Lords on 12 October 2011, [133]

"Where the UKBA decides to revoke the decision that it has made before the appeal has been heard, presumably on the basis that it cannot justify the refusal, it would be manifestly unfair not to refund the fee that has been paid, and in any case the administrative costs in these cases must be even less than in the cases that are determined on paper alone."

Lord McNally’s response did not fully address this issue:

"...the order provides that the tribunal may instruct UKBA to refund the fees of successful appellants, thus ensuring that they do not have to pay to correct the errors of the agency. That in itself will incentivise the agency to improve its initial decision-making - I take the point made by my noble friend Lord Avebury about that - and will reduce the rate of successful appeals to the tribunal."

The Home Office has consistently refused to refund appeal fees paid when it has realised, without a case going to court, that its decision is wrong, as it does not go before a tribunal judge to make any award. Official correspondence has set out [134] the view that

"…fee awards are not payable when a decision is withdrawn. If a decision is taken to withdraw a case, it is not an acknowledgement that the case could and should have been accepted by the initial decision-maker. It does not follow that the initial decision was incorrect. Decisions may well have been taken correctly at the time of the original decision but been rendered unsustainable because new information has been received which was not available to the original decision maker. In situations where new evidence has been made available by the applicant, it is appropriate to withdraw the case so as to avoid the unnecessary public expense. It is for these reasons that it would not be reasonable for us to adopt a policy of refunding fees where a decision has been withdrawn."

When the appellant or sponsor provides new information later, this refusal to refund the fee may be justified. But when the grounds of appeal reiterate the information and evidence which was put in with the application but not properly considered or understood, it is not. For example, a wife who was refused entry clearance because she had provided evidence of her English language exams, showing that she had passed the relevant listening and speaking and reading tests, but not the writing test. Reading and writing were not required under the rules but she was refused because of that failure, even thought she had achieved more than was required by the rules. After she lodged an appeal, and following repeated representations from her legal representatives, the entry clearance manager realised the mistake and withdrew the refusal. But as the case had not gone before an immigration judge the Home Office has refused a fee refund. This is unjust.

It would therefore be appropriate for this Bill to make provision for the Home Office to refund appeal fees in these circumstances.

CLAUSE 62 AND SCHEDULE 8

Section 76, which is amended by this provision provides the Secretary of State with a power not a duty to revoke leave and assurances could usefully be sought as to how the power will be exercised We should expect, for example, the questions of whether the person with indefinite leave knew that it had been obtained by deception and the length of time that they had lived in the UK, as well as family ties, to be relevant considerations.

Part 2 of Schedule 8 applies the new provisions on bail to proceedings before the Special Immigration Appeals Commission. By amendments effected by clause 3, paragraph 29 of Schedule 2 to the Immigration Act 1971 is amended to the effect that the consent of the Secretary of State to a bail hearing will be required if removal directions in force require the person’s removal from the UK within 14 days.

In cases before the Special Immigration Appeals Commission the Secretary of State would be required to consent in every case because it is a matter of settled law that the alternatives to a bail hearing, viz. an application for habeas corpus or judicial review of the lawfulness of detention, are insufficient to comply with Article 5 of the European Convention on Human Rights in cases before the Commission.

Article 5(4) of the Convention provides that:

‘everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’.

The Government’s view is that:

The bail provisions in the Bill have the potential to engage art 5(4) ECHR but they are compatible because: i) the provisions requiring the FTT and SIAC to reject bail applications without a hearing limit, rather than remove, the power to grant bail; and ii) the provisions allowing the Secretary of State to prevent bail being granted within 14 days of removal do not require the Secretary of State to prevent bail in these circumstances, in any event bail applications in the FTT do not determine the lawfulness of detention – judicial review and habeas corpus are the appropriate remedies and even those subject to SIAC bail (which may review lawfulness) may still apply to the High Court for judicial review or a writ of habeas corpus. See Immigration Bill, European Convention on Human Rights, Memorandum by the Home Office, paras 25-26.

The Secretary of State (and her agents) is not a ‘court’ for the purposes of Article 5(4). The question is, therefore, whether the remedies of judicial review and habeas corpus are sufficient to secure compliance with Article 5(4).

In Chahal v United Kingdom (1996) 23 EHRR 188 (paragraphs 58-61), the European Court of Human Rights held that neither judicial review nor habeas corpus provided an adequate basis for challenging a deportation on national security grounds because closed material could not be disclosed in these proceedings. These principles can be applied to challenging a decision to detain. The High Court would not be able to undertake a full review of the lawfulness of the detention sufficient to comply with article 5(4). The point is not addressed in the Government briefing which assumes that judicial review and habeas corpus provide adequate remedies. ILPA has already drawn this concern to the attention of the Home Office.

Persons whose cases are being dealt with by the Special Immigration Appeals Commission are frequently held in high security provisions. They are held by administrative fiat, without limit of time and without being brought automatically before a court in conditions normally reserved for those serving lengthy criminal sentences. They have not been convicted of a crime. To bar them from the courts for 28 days would be oppressive indeed.

Paragraph 7 repeals section 143 of the Immigration and Asylum Act 1999 which provides for the destruction of fingerprints of Commonwealth citizens as soon as reasonably practicable and provides that they shall be retained for no longer than ten years.

Paragraph 10 repeals section 126 of the Nationality, Immigration and Asylum Act 2002 which provides, inter alia, that regulations must make provision for information to be destroyed at the end of 10 years beginning on the day on which it is obtained.

Appeals

Section 40(1)(a) of the British Nationality Act 1981 should be retained. This is an important provision that can be used by an immigration judge hearing an appeal against deprivation of nationality to direct following a successful appeal that an order depriving a person of his/her British nationality is to be treated as having had no effect.

The repeal of section 40(1)(a) does not appear to be consequential on any part of the Appeals section of the Bill. Indeed, the appeal against deprivation of British citizenship is preserved by the Bill.

There are important consequences to this power. For example, if a person has a child during the period when s/he is deprived of his/her British citizenship the child will not be born British through him/her (in some circumstances the child will be British through the other parent). Other rights and entitlements may be affected by the interruption of the British citizenship. The current law allows a tribunal judge or judge to preserve the position.

The Schedule proposes abolition of the monitor of entry clearance cases with no right of appeal other than human rights grounds (currently human rights and race discrimination grounds). Since the creation of the Chief Inspector of Borders and Immigration there had been no dedicated monitor of entry clearance cases without right of appeal other than on human rights and race grounds, but the Chief Inspector has carried out this function. The results of inspections of entry clearance posts abroad have provided vital information As a result of this Bill, if clause 11 is passed, there will be more persons with only human rights grounds of appeal and the monitoring, for example of how any administrative reviews are being carried out, will become all the more important. This amendment provides an opportunity to confirm that the Chief Inspector will continue to be given the resources and the power to continue to monitor entry clearance posts abroad. It also provides an opportunity to highlight some of the findings in the reports of the Chief Inspector.

ILPA opposes the repeal of s 86(3) of the Nationality, Immigration and Asylum Act 2002 which states that the Tribunal must allow an appeal insofar as it thinks that

"(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules)

(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently"

T he "not in accordance with the law" jurisdiction means that an appeal can be allowed not because it breaches someone’s rights, but because it is wrong. The decision-maker may have applied the rules wrongly, or misunderstood the evidence. We know from the Government’s own appeals impact statement that the Home Office loses some 50% of managed migration appeals. These are appeals brought by workers, students or family members with lawful leave, applying under the immigration rules. It is Government policy that their applications should succeed when they fit within those rules, but they do not, because of poor decision-making. There must for the reasons discussed in our briefings to Part II, be redress beyond the department against such errors.

ILPA opposes the repeal of section 87 of the Nationality, Immigration and Asylum Act 2002. It is unclear why this repeal is found within the Schedule as there is nothing consequential about it. There will still (we trust) be successful appeals. A direction might demand that the Home Office do something within a particular timescale or take particular steps, for example to assist in bringing a person back to the jurisdiction. See above re its special place when it comes to appeals against deprivation of nationality (which will continue to exist) under the British Nationality Act 1981.

We question why it is felt necessary to remove the definition in Part V of the Nationality, Immigration and Asylum Act 2002 that a reference to varying leave to enter or remain does not include a reference to adding, varying or revoking a condition of leave.

The Schedule provides that if a person "P"’s circumstances have changed since the Secretary of State or an immigration officer was last made aware of them then P must serve a statement of additional reasons for remaining in the UK as soon as reasonably practical. How is, who is likely to be unrepresented given the removal of legal aid for immigration cases in April 2013, to know that s/he is supposed to provide such a statement? If s/he does know, for example because it was mentioned at the time of the first notice having been given and P understood that notice, how is P, unassisted, going to identify and articulate those grounds? The expectation is not a reasonable one. If there is no properly resourced system of advice and representation for persons under immigration control then there will be requirements with which they are unable to comply.

November 2013


[1] British Nationality Act 1981, s 1(3).

[2] British Nationality Act 1981, s 1(4).

[3] Immigration Rules HC 395, paragraphs 18-20 Returning Residents

[4] See Statement of Changes in Immigration Rules HC 395, paragraph 6.

[5] Wesley Gryk solicitors’ letter to the Immigration and Border Policy Directorate of the Home Office of 7 September 2011 and reply from Ms Helen Sayeed of the Immigration and Border Policy Directorate of 3 October 2011.

[6] 19 June 2013 Col 277WH, question by Mr Roger Godsiff (Birmingham, Hall Green)

[7] Ibid., page 26.

[8] Cited in the report at page 22.

[9] Ibid.

[10] Ibid.

[11] See for example the case of Ms Bailey cited by the BBC in the BBC on 10 June 2013 UK’s new visa rules causing "anguish" for families: http://www.bbc.co.uk/news/uk-22833136 (accessed 17 June 2013).

[12] Ibid., for the case of Mr Shillingstone.

[13] European Commission, Gender Pay Gap statistics, United Kingdom, available at http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Gender_pay_gap_statistics (accessed 17 June 2013).

[14] Op.cit. The Gender Pay Gap statistics document looks at which gender is in part time work, and compares the number of women with children who work with the number of women with no children who work.

[15] Migration Advisory Committee, 2011, Review of the minimum income requirement for sponsorship under the family migration route. Available at: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/workingwithus/mac/family-migration-route/family-migration-route.pdf?view=Binary .

[16] Report, op. cit. at page 27. See also the BBC 10 June 2013 UK's new visa rules 'causing anguish' for families at http://www.bbc.co.uk/news/uk-22833136 (accessed 17 June 2013). See also the cases of Shona and Elie Bakarat and Gillian and Tsuyoshi in the BBC article British mother had abortion because of visa rules, of 10 June 2013 http://www.bbc.co.uk/news/uk-22868332 (accessed 17 June 2013).

[17] Immigration Directorate Instructions, Appendix FM Annex 6.0, Adult Dependent Relatives (December 2012). Available at: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/chp8-annex/section-FM-6.0.pdf?view=Binary (accessed 16 June 2013)

[18] Ibid.

[19] HL Report 23 Oct 2012 : Column 189

[20] Paragraph 5.5.

[21] See Immigration Statistics, April to June 2012 at http://www.homeoffice.gov.uk/publications/science-research-statistics/research-statistics/immigration-asylum-research/immigration-q2-2012/family-q2-2012

[22] Migration Advisory Committee report, op cit., figure 3.4 page 31.

[23] BMA Memorandum of Evidence 23 January 2013. See also the case of "Alex" on http://britcits.blogspot.co.uk/ , earning over £100,000 a year but seeking an international posting.

[24] HL Report, 21 Nov 2011: Column 821. See also HL Report 5 Mar 2012: Column 1570.

[25] Form CIV ECF 1.See http://www.justice.gov.uk/legal-aid/funding/exceptional-cases-funding

[26] Available at http://www.justice.gov.uk/downloads/forms/legal-aid/civil-forms/ecf1.pdf

[27] Available at http://www.justice.gov.uk/downloads/legal-aid/funding-code/ecf-provider-pack.pdf

[28] Maouiaa v France Application 39652/98 [2000] ECHR 455 (5 October 2000).

[29] (1979-80) 2 EHRR 305.

[30] (2002) 35 EHRR 31.

[31] See for example, Airey v Ireland Series A, No.32, (1979-80) (1979) 2 EHRR 305.

[32] Paragraph 119 of the judgment.

[33] See Transforming Legal Aid: next steps, Ministry of Justice, 5 September 2013, paragraph 2.16, breaks of up to 30 days, at a time or in aggregate, will be permitted.

[34] See e.g. HC Report 17 Apr 2012: Column 218-252.

[35] Law Society Legal Aid Agency Civil Contracts Consultative Group 9 September 2013.

[36] Ibid.

[37] HC Report, 3 June 2013, col. 1232.

[38] See for example Boyle v. Musso, 25 October 2010, Bristol County Court; Soens-Hughes v. Lewis 22 December 2010, West London County Court; Green v Sinclair Investments Limited Clerkenwell and Shoreditch County Court, 11 June 2010; Shepley v. Yassen, Tameside County Court, 13 January 2011; Woods v Harrington, Haverfordwest County Court 19 May 2009; Delicata v Sandberg, Central London County Court. 2 June 2009. We have concentrated here on a selection of cases in the lower courts the facts of which illustrate what happens in practice, rather than cases in the higher courts on the correct legal interpretation of the very complex applicable provisions.

[39] Private Landlords Survey 2010, Department of Communities and Local Government, October 2011.

[40] See http://england.shelter.org.uk/campaigns/fixing_private_renting (accessed 12 August 2013).

[41] Hansard HC Deb 6 Mar 2013 : Column 1500.

[41]

[42] See further Capita’s work for the UK Border Agency, Oral and written evidence 29 January 2013, Paul Pindar, Chief Executive, Andy Parker, Joint Chief Operating Officer, and Alistair MacTaggart, Managing Director, Secure Border solutions, Capita Plc , report of the Home Affairs Select Committee HC 914-I,published on 11 April 2013.and ILPA’s August 2013 response to the Home Office consultation Strengthening and simplifying the civil penalty scheme to prevent illegal working.

[43] Examples include: Capita’s work for the UK Border Agency, op.cit, supra. 'You are required to leave the UK': Border Agency contractor hired to find illegal immigrants sent them TEXTS Daily Mail 11 January 2013, available at http://www.dailymail.co.uk/news/article-2260667/UK-Border-Agency-contractor-hired-illegal-immigrants-send-TEXTS-warning.html#ixzz2bm4JCfg2 (accessed 12 August 2013); ICO to investigate SMS messages sent to immigrants by Capita, Computer World 15 January 2013; Nigel Farage attacks Home Office immigrant spot checks as 'un-British', The Telegraph, 2 August 2013; Vince Cable MP, BBC 28 July 2013, available at http://www.bbc.co.uk/news/uk-politics-23481481 (accessed 12 August 2013), Bishops condemn Home Office 'go home' campaign , Ekklesia, 12 August 2013, available at http://www.ekklesia.co.uk/node/18785 (accessed 12 August 2012), non-governmental organisations such as Show Racism the Red Card (see http://www.srtrc.org/news/news-and-events?news=4511 accessed 12 August 2013) and Liberty "Go Home" vans, nasty racist and likely unlawful 1 August 2013, see https://www.liberty-human-rights.org.uk/news/2013/go-home-vans-nasty-racist-and-likely-unlawful.php (accessed 12 August 2013).

[44] Immigration and Asylum Act 1999 s 84 read with s 91.

[45] Immigration and Asylum Act 1999 s 82(1).

[46] This was discussed at length in the context of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in the specific context of whether social workers could be given an exemption under the Act. See the letter of 5 October 2012 from Clyde James, Office of the Immigration Services Commissioner to Rebecca Handler of the Legal Strategy Team in the Immigration and Border Policy Directorate of the Home Office.

[47] Available at http://news.rla.org.uk/landlords-oppose-governments-immigration-plans/ (accessed 12 August 2013). The report defines "recent" as having arrived within the last five years.

[48] http://www.ilpa.org.uk/data/resources/19317/13.08.20-ILPA-response-to-strengthening-civil-penaltiespdf.pdf

[49] Heaven Crawley for ILPA, May 2007.

[50] Home Office 15/7/12 Impact Assessment of Reforming Immigration Appeal Rights, p7 http://bit.ly/1cygmWm

[51] See http://www.ukba.homeoffice.gov.uk/business-sponsors/education-providers/HTS/

[52] In Place of Fear, Bevan, A., (1952), chapter 5.

[53] HC report 9 Jun 2010: Column 345.

[54] Op. cit. Col 350.

[55] Paragraph 2.10.

[56] In Place of Fear, Bevan, A (1952), chapter 5.

[57] Op.cit page 9.

[58] ILPA’s response to the Department of Health consultation is available at http://www.ilpa.org.uk/resources.php/20831/ilpa-response-to-the-department-of-health-consultation-sustaining-services-ensuring-fairness-a-consu

[59] Review of overseas visitors charging policy, Summary report, Department of Health, April 2012, paragraph 7.

[60] Evidence to support review: policy recommendations and a strategy for the development of an Impact Assessment, Department of Health, July 2013, page 14 and the references cited therein. See also Migration and health in an increasingly diverse Europe’, Health in Europe 5, Rechel, B. et ors, The Lancet, Vol 381, April 6, 2013, pp1235-1243.

[61] Fair society, healthy lives: the Marmot Review: strategic review of health inequalities in England post-2010, Marmot, M., 2010. Accessed 22 August 2012 at http://www.marmotreview.org/AssetLibrary/pdfs/Reports/FairSocietyHealthy

[62] House of Commons Health Select Committee (2006) ‘NHS Charges: Third Report of Session 2005-2006’, HC 815-I, London: The Stationary Office. See also Early Action: Landscape Review, National Audit Office 2013.

[63] Department of Health, Evidence to support review 2012 policy recommendations and a strategy for the development of an Impact Assessment, July 2013, page 20.

[64] Gross Domestic Product for 2012 was £1,623.48 billion.

[65] Sustaining services, ensuring fairness: Evidence to support review 2012 policy recommendations and a strategy for the development of an Impact Assessment, Department of Health, 3 July 2013.

[66] See, e.g. The Myth of HIV Health Tourism, National AIDS Trust, 2008.

[67] Page 18, disadvantages.

[68] ‘A Fine is a Price’, Gneezy, U & A Rustichini (2000) Journal of Legal Studies, Vol XXIX, January 2000. See ‘Zero as a Special Price: The True Value of Free Products’ Shampanier, K et ors (2007) Marketing Science, Vol 26, No. 6.

[69] Op.cit. page 15, paragraph 53.

[70] UK Borders Act 2007, s 56A, see the Legal Aid Sentencing and Punishment of Offenders Act 2012, ss 140 and 141.

[71] See the Home Office Modernised guidance, General grounds for refusal, About this guidance: reasons for refusal and checks, Criminal history, Sentence thresholds, applications for indefinite leave to remain at http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/general-grounds-refusing/about.pdf?view=Binary The "Modernised Guidance" is as hard to navigate and understand as it appears at first sight, if not worse.

[72] Statement of Changes in Immigration Rules HC 194.

[73] See e.g. the Immigration Directorate Instructions, Chapter 8, Annex, Guidance on application of EX.1, Op cit. – consideration of a child’s best interests under the family rules and in article 8 claims where the criminality thresholds in paragraph 399 of the rules do NOT apply, Home Office, at http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/chp8-annex/ex1-guidance-1.pdf?view=Binary (accessed 23 August 2013).

[74] Op. cit. page 13.

[75] Sigona, N., and V. Hughes, No Way Out, No Way in, Irregular migrant children and families in the UK Compas, 2012, (accessed 22 August 2012) at http://www.compas.ox.ac.uk/fileadmin/files/Publications/Reports/NO_WAY_OUT_NO_WAY_IN_FINAL.pdf

[76] M. Redshaw, R. Rowe, C. Hockley, & P. Brocklehurst, Recorded delivery: a national survey of

[76] women’s experience of maternity care 2006, National Perinatal Epidemiology Unit.

[77] Doctors of the World, Access to Health Care for Vulnerable Groups in the EU in 2012, 2012, page 10.

[78] The Treatment of Asylum-Seekers, Tenth report of session 2006-07, HC 60-I and II, HL 81-I and II. Joint Committee on Human Rights, 2007, London, The Stationery Office Maternity Action and Medact (2009); First do no harm: denying healthcare to people whose asylum claims have failed, Kelly, N. & J. Stevenson, 2006, London, Oxfam and Refugee Council; Money and Maternity: charging vulnerable pregnant women for NHS care UK Public Health Association Conference, Brighton

[79] Lewis, G., J. Drife Why mothers die 2000-2003, Sixth report of the Confidential Enquiries into Maternal Deaths in the UK London: Royal College of Obstetricians and Gynaecologists , 2003. See also Centre for Maternal and Child Enquiries, 2011, Perinatal Mortality 2009: United Kingdom, London.

[80] Health Inequalities Unit (2007) Department of Health Review of Health Inequalities Infant Mortality PSA Target

[81] See the Office for National Statistics Statistical Bulletin: Focus on violent crime and sexual offences , 2011/13, England and Wales, 07 February 2013, available at http://www.ons.gov.uk/ons/dcp171778_298904.pdf (accessed 23 August 2013).

[82] See Identifying domestic violence: cross sectional study in primary care, Richardson, J., BMJ 2002 : 324.

[83] Immigration Rules, HC 395, paragraphs 289A to 289C.

[1] We have omitted the name in this public submission.

[2] See endnote.

[84] National Health Service Act 2006, s 1C.

[85] National Health Service Act 2006, s 14T.

[86] Health and Social Care Act 2012, section 62(4); National Health Service Act 2006, s 1C, 13G and 14T.

[87] See, for example, Growing up in the UK – Ensuring a healthy future for our children, British Medical Association (2013).

[88] See further Capita’s work for the UK Border Agency, Oral and written evidence 29 January 2013, Paul Pindar, Chief Executive, Andy Parker, Joint Chief Operating Officer, and Alistair MacTaggart, Managing Director, Secure Border solutions, Capita Plc , report of the Home Affairs Select Committee HC 914-I,published on 11 April 2013.and ILPA’s August 2013 response to the Home Office consultation Strengthening and simplifying the civil penalty scheme to prevent illegal working.

[89] In all the areas the same figure "106 arrests" was used, a matter that is now one of the subjects of an investigation by the Advertising Standards Authority.

[90] Home Office Agree Never To Run Van Adverts Telling Migrants To Go Home Again Without Consulting, Press release by Deighton Pierce Glynn solicitors of 12 August 2013.

[91] Examples include: Capita’s work for the UK Border Agency, op.cit, supra. 'You are required to leave the UK': Border Agency contractor hired to find illegal immigrants sent them TEXTS" Daily Mail 11 January 2013, available at http://www.dailymail.co.uk/news/article-2260667/UK-Border-Agency-contractor-hired-illegal-immigrants-send-TEXTS-warning.html#ixzz2bm4JCfg2 (accessed 12 August 2013); ICO to investigate SMS messages sent to immigrants by Capita, Computer World 15 January 2013; Nigel Farage attacks Home Office immigrant spot checks as 'un-British', The Telegraph, 2 August 2013; Vince Cable MP, BBC 28 July 2013, available at http://www.bbc.co.uk/news/uk-politics-23481481 (accessed 12 August 2013), Bishops condemn Home Office 'go home' campaign , Ekklesia, 12 August 2013, available at http://www.ekklesia.co.uk/node/18785 (accessed 12 August 2012), non-governmental organisations such as Show Racism the Red Card (see http://www.srtrc.org/news/news-and-events?news=4511 accessed 12 August 2013) and Liberty "Go Home" vans, nasty racist and likely unlawful 1 August 2013, see https://www.liberty-human-rights.org.uk/news/2013/go-home-vans-nasty-racist-and-likely-unlawful.php (accessed 12 August 2013).

[92] Doctors of the World UK The importance of equitable access to healthcare for people in England: a policy briefing, 2013, see http://www.appgmigration.org.uk/sites/default/files/Doctors%20of%20the%20World%20-%20access%20policy%20briefing%2009072013.pdf (accessed 23 August 2013).

[93] See Stagg, H.R. et. al., Poor uptake of primary healthcare registration among recent entrants to the UK: a retrospective study, 2012; 2:e001453, doi :10.1136/bmjopen-2012-001453.

[94] See First do no harm: denying healthcare to people whose asylum claims have failed, Kelly, N. & J. Stevenson, 2006, London, Oxfam and Refugee Council .

[95] See Immigration and Asylum Bill, Special Standing Committee Tuesday 11 May 1999http://www.parliament.the-stationeryoffice.co.uk/pa/cm199899/cmstand/special/st990511/am/90511s09.htm Ms Abbott: Is the Minister suggesting that asylum seekers should sell their jewellery, perhaps their wedding rings, as an alternative to the Government meeting their moral and international responsibilities to provide a reasonable level of support? Mr. O'Brien: I certainly am suggesting that.-[Interruption – [recorded in contemporary accounts as a Conservative back bencher saying ‘You'll be wanting the gold fillings out of their teeth next' – see for example D Guttenplan’s review of Louise London’s book Whitehall and the Jews 1933-48, in the London Review of Books, Vol. 22, No. 13 , 6 July 2000 pages 28-29.

[96] See ORDINARY RESIDENCE: Guidance on the identification of the ordinary residence of people in need of community care services, Department of Health, April 2013 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/185851/Guidance_on_the_identification_of_the_ordinary_residence_of_people_in_need_of_community_care_services__England_V2.pdf accessed 25 July 2013.

[97] See Statements of Changes in Immigration Rules (accessed 25 July 2013), at http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/statementsofchanges/

[98] 2012 review of overseas visitors charging policy: Summary Report, International Policy Team, Department of Health, 2013.

[99] Department of Health, Evidence to support review 2012 policy recommendations and a strategy for the development of an Impact Assessment, July 2013, page 11.

[100] A baseline assessment on the nature and scale of human trafficking in 2011 UK Human Trafficking Centre 2012, Serious and organised crime agency Intelligence Assessment.

[101] See https://www.gov.uk/government/news/help-for-nhs-staff-to-spot-and-support-trafficking-victims (accessed 22 April 2013).

[102] The guidance is Help for NHS staff to spot and support trafficking victims: Department of Health, 18 April 2013.

[103] Safeguarding Children Across Services: Messages from research on identifying and responding to child maltreatment, Davies, C., and H. Ward, H, 2011 available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/184882/DFE-RBX-10-09.pdf (accessed 22 August 2013) and see the Department of Education ‘s Working together to safeguard children: A guide to inter-agency working to safeguard and promote the welfare of children , 2013.

[104] The Children Act 1989 as amended by the Children (Leaving Care) Act 2000.

[105] CETS No.: 108, 1981.

[106] S99 Ibid

[107] Home Secretary, Second Reading, 22 October 2013 : Column 163

[108] A December 2010 report of Information Centre about Asylum and Refugees with Citizens Advice Belfast, available at http://www.icar.org.uk/FINI%20Final%20Report.pdf

[109] ibid, page 32

[110] Identity Documents Bill, Report, Hansard, 9 Jun 2010 : Column 345

[111] Second Reading, 22 October 2013 : Column 172

[112] See the Migrants’ Rights Network ‘Papers please’: The Impact of the Civil Penalty Regime on the Employment Rights of Migrants in the UK, November 2008.

[113] 27 November 2008.

[114] See, for example, the Joseph Rowntree Foundation Programme Paper: Forced labour and UK immigration policy: status matters? Peter Dwyer, Hannah Lewis, Lisa Scullion and Louise Waite, October 2011.

[115] Hard Work; Hidden lives, the full report of the TUC Commission on vulnerable employment, 7 May 2008.

[116] See http://www.vulnerableworkers.org.uk/ .

[117] Hard Work; Hidden lives, the full report of the TUC Commission on vulnerable employment, op. cit.

[118] See paragraph 677 (d) of the Home Office Tier 2 and 5 of the Points Based System Policy Guidance for Sponsors (version 07/13)).

[119] Op.cit. paragraph 678.

[120] http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/ (accessed 12 August 2013).

[121] Full guide for employers on preventing illegal working in the UK, UK Border Agency May 2013, page 14. Available at http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/currentguidanceandcodes/comprehensiveguidancefeb08.pdf?view=Binary (accessed 12 August 2013).

[122] Full guide for employers on preventing illegal working in the UK, UK Border Agency May 2013, page 26.

[123] Full guide for employers on preventing illegal working in the UK, UK Border Agency May 2013, page 14).

[124] Op.cit.

[125] ILPA’s response can be found at http://www.ilpa.org.uk/resources.php/19317/ilpa-response-to-the-home-office-consultation-strengthening-and-simplifying-the-civil-penalty-regime.

[126] Home Secretary, Second Reading, Hansard, 22 Oct 2013 : Column 163

[127] Hansard, 22 Oct 2013 : Column 171

[128] Hansard, 22 Oct 2013 : Column 253

[129] Memorandum submitted by the Department of Transport to the Transport Select Committee, paragraph 3.17, reproduced with the Select Committee’s Seventh Report of Session 2006/07

[130] 2009] EWHC Admin 3189; [2010] EWCA Civ 1482;2008] UKHL 53.

[131] See http://www.ilpa.org.uk/data/resources/13813/11.10.13-Family-Migration-response.pdf

[132] See table with latest announcement of fee rises, from April 2013, at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/230717/HO_-_Immigration_Fees_Regs_Commons_-_2013.2.25.pdf

[133] House of Lords Hansard, 12 October 2011, cols. 1796 - 1808

[134] E.g. in a letter to Fiona Mactaggart MP of 2 October 2013

Prepared 20th November 2013