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New Immigration Bill: No wonder talent will go elsewhere

Date posted: 22 October 2013

Deprives lawful residents of appeal right, creates 10,000’s of overstayers overnight, and puts 1,000’s at risk of homelessness.

The Coalition Government is proposing to make radical changes to the immigration legal system in a new Immigration Bill, to be debated for the first time by Parliament today.

The Home Secretary has pronounced the intention to create a ‘hostile environment for illegal migrants’.  But there are real fears that the Bill, in what appears to be an on-going bid to appease perceived anti-immigrant sentiments within the UK, serves not only to legitimise this rhetoric, but could have a damaging impact upon all migrants in the UK, regardless of their immigration status.

The consequences of this would not only be divisive for communities within the UK, but could have significant economic repercussions – with international students and businesses no longer coming to the UK. The Bill proposes profound changes, including:

  • The removal of almost all rights of appeal against Immigration Decisions made by the Home Office except where a ‘protection claim’ has been made – i.e. a claim for Refugee status or Humanitarian Protection; a refusal of protection based Human Rights or a decision made to revoke protection status, such as Refugee Status.

  • Provisions making it unlawful to rent private accommodation unless prospective tenants can prove they have lawful leave to remain in the UK; with landlords to be under an obligation to check this (and with those falling foul to face a penalty of up to £3,000).

  • Those without leave to remain to be unable to open bank accounts as Banks and Building Societies to be compelled to carry out status checks before opening any accounts.

  • Provisions making the possession of leave to remain in the UK a requirement for obtaining a driving license and powers for licenses to be revoked where holder is not lawfully resident.

These provisions could lead to thousands of completely lawful migrants being made homeless if the Home Office refuses an application. By compelling all landlords to undertake complex assessments on immigration status, mistakes will inevitably be made – people lawfully resident in the UK and making valuable contributions to society will most certainly be affected. The government is set to create an environment in which discrimination on ethnicity will be ripe. Those made homeless could include families and children and local authorities will have to fund accommodation, out of council tax funds, for people not able to rent legally.

There are concerns too about how these provisions would affect the treatment of tenants within an already discriminatory housing market; the divisive effect they would have on communities across the UK – and the cumulative effect of all of the proposed changes in creating a hostile environment for all migrants regardless of their immigration status.

By removing a wide variety of appeal rights (following immigration decisions made by the Home), the possibility of having an independent judge review decisions made would be removed in most cases.

Lawyers fear that by making migrants unable to challenge often very poor quality immigration decisions this would damage both public faith in the Immigration system and its reputation internationally (and therefore the UK’s capacity to attract top talent and investment). These concerns appear well founded given that such a high rate of immigration decisions are subsequently overturned on appeal, primarily due to having been incorrectly made in the first place.

The Home Office often do not even attend appeal hearings to try to defend large numbers of obviously poorly made decisions.  Furthermore there is a pattern of Home Office lawyers withdrawing decisions on the morning of the appeal because they realise a decision could not be defended. This tactic of withdrawing decisions distorts the appeal outcome figures in the Home Office favour. Tribunal statistics record around 20% of appeals are withdrawn and it is widely believed that most of those withdrawals are by the Home Office.

We recommend looking at a snap shot of the appeals that actually did proceed. In April – June 2013, 4,745 managed migration cases had substantive appeal hearings before independent Immigration Judges. Of these,  52% of those appeals were successful ie 2,467. Managed migration includes Points Based and family cases.  What the government should be doing is finding out why the Home Office gets it wrong in over half the cases.

The impact of the Bill will be to deprive those 4,745 appellants a right of appeal. They will be given instead administrative review, which is essentially another look at the case by another Home Office official. They will be rendered illegally present in the UK at the point that the ink dries on the Home Office decision (or decision on the administrative review).  See 3 and 4 below.

We have grave concerns about how administrative review will work in practice.  If past experience is anything to go by, the Home Office will allow yet another backlog to accumulate.

Anita Vasisht, Partner in Wilson Solicitors LLP comments:


This bill is all about creating illegality. It seeks to cover up appalling incompetence at the Home Office and to put shoddy decision making beyond judicial scrutiny.”