The progress of another punitive Bill which strips away legal protection from migrants and will increase homelessness, ill health and destitution, seems for now to have tri-partisan support. 

The Immigration Bill finished its passage through the House of Commons on 30 January. The third reading ought to have been a last chance for MPs to consider seriously the devastating impact of the removal of the right to appeal wrong immigration decisions, the enormous accretion of powers to the executive, without whose consent judges may not grant bail in certain circumstances, or consider new grounds of appeal; the transformation of residential landlords into immigration enforcers, the denial of all shelter to those without papers. And principled opposition to the Bill, and particularly to the removal of appeal rights, the exclusion of undocumented migrants from the rental market, the introduction of policing duties for landlords and the extension of charges for NHS care, has poured in to the Bill’s parliamentary scrutiny committee from professional associations, housing charities and experts.

However, the level of scrutiny given to these careful, considered and reasoned arguments was derisory, and the level of parliamentary opposition pathetic. A small group of MPs, with Jeremy Corbyn, Caroline Lucas and Sarah Teather at its core, fought doggedly but in vain to rouse their fellows. Instead, the third reading became a battle among the wings of the Tory party as to which could be the toughest and which of the Right’s whipping-boys would be the targets – the foreign criminals, the suspected terrorists or the Romanian and Bulgarian ‘scroungers’. Provisions which turn migrants into outlaws, without remedies against illegal decisions and excluded from fundamental rights of shelter and health care, were nodded through.

Appeals system eviscerated

The Bill gets rid of all appeals against immigration decisions except for decisions to refuse asylum or humanitarian protection, or to refuse a human rights claim. Wrongful refusal of a visa, or of leave to remain for work or study, of settlement, of a certificate of entitlement, a wrongful decision to remove someone from the country as an illegal entrant or to deport them, will no longer attract a right of appeal. There will be instead a ‘robust’ internal administrative review. Such internal reviews, which currently precede all appeals, have not prevented nearly half of Home Office decisions refusing visas for work, and nearly one-third of deportation decisions, being overturned on appeal. And it does not inspire confidence to hear that Home Office staff are given incentives such as gift vouchers for successful defence of appeals.

Theresa May herself admitted in March 2013 that the UK Border Agency was ‘a troubled organisation’ whose performance was not good enough and which would take years to fix. But removal of appeal rights, seen in the context of the legal aid cuts which deny public funding to those without a year’s lawful residence in the country (with few exceptions), and the changes to judicial review including hugely increased court fees and the denial of public funding for preparation and drafting of cases, will make the Home Office effectively immune from challenge in its decision-making about migrants. The Joint Parliamentary Committee on Human Rights expressed concern, in its report on the Bill (para 39), that the provisions were incompatible with common-law rights of effective access to justice. But only a tiny band of courageous MPs supported an amendment calling for the appeals provision to be scrapped.

More executive powers, more intrusion, more force

The Bill gives the minister a complete veto on the release on bail of migrants who are scheduled for removal, instead of leaving the decision to immigration judges and a ban on judges hearing repeat bail applications, as well as an unprecedented veto on judges considering any new matter on appeal. It gives immigration officers new powers to take steps to verify the identity of all arriving passengers, which could herald the introduction of universal fingerprinting, and vastly broadens powers of search, seizure and retention of documents, and the use of force by escorts – despite the well-documented concerns about pervasive racism, dangerous restraint techniques and rewards for removal-at-any-cost voiced by (most recently) the coroner in the inquest of Jimmy Mubenga. The extension to the use of force powers comes in the wake of a legal battle over the Home Office’s refusal to ban its use in the removal of pregnant women and children. There is also a whole chapter of provisions on investigation into suspect marriages, which allows marriages to be prevented if couples fail to attend interviews and provide documents for the investigation.

Whipping boys (1): ‘foreign criminals’

The long campaign against the Human Rights Act, and specifically against ‘foreign criminals’ being able to rely on family life rights to avoid deportation, has involved the rightwing press’ blatant intimidation of the immigration judiciary by naming and shaming judges who allow these appeals. Most such appeals are now dismissed – even those of one-off and minor offenders who have been in the country for many years, and in defiance of the requirement to prioritise the best interests of the children affected. But to demonstrate that it prioritises the concerns of the Right, the Bill prevents those appealing deportation on family or private life grounds from bringing their appeal while still in the UK. It also imposes on judges deciding these cases a set of definitions of what is ‘in the public interest’ – which includes the maintenance of immigration control, the ability of migrants to speak English and to support themselves financially (thus making life very difficult for unpaid carers of UK-settled relatives), and emphasising that it is very much in the public interest to deport foreign criminals (the term used in the Bill).

The clause was partly designed to pre-empt Dominic Raab’s third-reading amendment, which sought to abolish appeals on this ground altogether for ‘foreign criminals and terrorists’ and so could not be supported by the government. since it breached the UK’s obligations under the European Human Rights Convention and the Convention on the Rights of the Child. The clause, supported by ninety-seven Tories, was defeated by a Lib-Lab alliance.

Whipping boys (2): suspected terrorists

A new clause was inserted just in time for third reading, permitting naturalised citizens with no other citizenship to lose it and become stateless if they appear to the Home Office to be engaging in conduct ‘seriously prejudicial to the vital interests’ of the UK. It was drafted partly as a riposte to the Supreme Court, which in October 2013 ruled that Hilal Abdul-Razzaq Ali Al-Jedda could not be deprived of citizenship, as this would make him stateless. He had lost Iraqi citizenship when he became British. The new clause would allow the Secretary of State to take account of conduct pre-dating the Act, and although a court’s permission is required, it must be given unless the decision is ‘obviously flawed’. Against the spirit of the Convention on the Reduction of Statelessness, the clause narrowly complied with its letter, by restricting its bite to naturalised citizens, and was passed with a resounding majority – a human sacrifice giving satisfaction to the Tory rebels. (Although appeal against deprivation of citizenship is theoretically possible, it is virtually meaningless, conducted from abroad, without the benefit of public funding, with its subject excluded, and often on almost entirely secret evidence – making grave injustice inevitable.)

Whipping boys (3): ‘illegal immigrants’

Much of the Bill is designed to ‘make it harder for people to live in the UK illegally’, in Theresa May’s words (Hansard 30 Jan 2014 Col. 1029). She means it literally: the idea is to make living so impossible for those without permission to be in the country that they will leave. As well as having no recourse to the courts, they will have nowhere to live, as residential landlords shoulder their new immigration-control burdens (on pain of £3,000 fines for each illegal tenant) and refuse to rent rooms to those unable to prove their right to be here. (The fact that landlords will probably not bother to check but will simply, in a seller’s market, refuse to rent to anyone looking or sounding foreign, was perhaps one of the factors leading the Lib Dems to insist on a pilot before the scheme is adopted nationally.)

The enforcement of immigration policing by proxy is already entrenched in the field of employment, where, as fines are set to double to £20,000 per worker, it is the small BME owned enterprises – the kebab shops, the small groceries and take aways and nail bars – which bear the brunt of the penalty scheme. The picture was the same in the field of higher education, where until the targeting of London Metropolitan University, it was the small colleges teaching business studies and English which were disproportionately penalised for inefficient policing of their students. With sanctions extending to rented housing, we can expect ethnic minority landlords to bear the brunt of immigration raids and fines.

Those in the country without permission will not be able to open or operate bank accounts or apply for driving licences. Those without leave will, we are told, be charged for hospital treatment, even (although this is not on the face of the Bill) emergency treatment. (In this context it is ironic that foreign nationals play a key role in health care, providing, up to 11 per cent of all NHS staff.) The provisions will apply to anyone who has no leave to be in the UK – including refused asylum seekers who cannot return home because their country is a war zone or a site of natural disaster, or because of illness or pregnancy; including those wrongfully refused extensions of stay as students or workers or for family reasons, once the decision has been confirmed on review.

These measures, in combination, will ensure that ‘sans-papiers’ will be driven deeper underground, into Dickensian conditions, as service providers become police. This is not the creation of an underclass, but of an outlaw class.

Whipping boys (4): Romanians and Bulgarians

This set of whipping boys were the subject of a large number of amendments to the Bill, calling on restrictions on their entry for work to be continued and reinstated, for monitoring of numbers and for measures to be put in place to prevent the accession of poor member states. But in the event, none were debated, whether because the May and Raab amendments filled the parliamentary time, or because of embarrassment caused by the pitifully small ‘migrant flood’ from those countries which actually transpired.

The commodification of legal migration

Legal migrants are simply forced to pay more for being here. They will pay for the NHS through their taxes (as most legal migrants work), and they will pay a health charge or levy, on admission to the country and annually. Charges which used to apply only to visitors are extended to all without permanent settled status. Finally, the Bill makes it easier to increase the fees for issuing visas and other immigration documents. Commercial fees can already be charged, to reflect the value of the visa to the customer rather than just covering the administrative cost, and current fee levels are already prohibitive: it costs £850 for a visa to enable a partner or child to come to the UK, over £1,000 for a settlement application, and £1,900 to bring in an elderly dependent relative. The message that the welcome to Britain is strictly in proportion to the depth of the pocket comes over, as it is meant to, loud and clear.

The Bill has its second reading in the House of Lords on 10 February.

Related links

Read an IRR News story: ‘Landlords as immigration police?‘

Read an IRR News story: ‘May plans to make British citizens stateless‘

Read an IRR News story: ‘Deprivation of citizenship: judges restrain the minister‘

Read an IRR News story: ‘Policing immigration through the NHS‘

Read an IRR News story: ‘Unabashed anti-migrant, anti-welfare election strategy‘