Immigration Bill  2013 -2014

Presentation and First Reading (Standing Order No. 57)

Explanatory notes to the Immigration Bill

These explanatory notes relate to the Immigration Bill as introduced in the House of Commons on 10th October 2013. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. These explanatory notes do not form part of the Bill and have not been endorsed by Parliament.

The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given the Bill is in 7 parts.

Part 1 of the Bill, and Schedules 1 and 2, contain powers to enable the removal of persons unlawfully in the United Kingdom ("the UK"), enforcement powers, restrictions on bail and additional powers to take biometrics.

Part 2 amends rights of appeal, limiting immigration appeals to circumstances where there has been a refusal of a human rights or asylum or humanitarian protection claim, or where refugee status or humanitarian protection has been revoked. It also provides a power for the Secretary of State to certify that to require an appellant who is a foreign criminal to leave the UK before their appeal is determined would not cause serious irreversible harm, in which case the person may only appeal from outside the UK. It also provides that a court or tribunal considering a claim that a decision is unlawful on the grounds that it would breach a person's right to respect for private and family life under Article 8 of the European Convention on Human Rights ("the ECHR") must, in particular, have regard to the public interest and sets out what the public interest requires.

Part 3, and Schedule 3, covers new powers to regulate migrants' access to services. In general, landlords will be liable to a civil penalty if they rent out premises to migrants who are not lawfully present in the UK. Migrants with time limited immigration status, such as certain categories of workers and students, can be required to make a contribution to the National Health Service ("the NHS") via a charge payable when applying for entry clearance or an extension of their leave to remain. Banks will be required to undertake an immigration status check before opening a current account and will be prohibited from opening new accounts for those who are known to be unlawfully in the UK and who are disqualified from opening an account, and those unlawfully here will be unable to obtain or retain a driving licence. Provision is also made for the enforcement of civil penalties against employers of persons without a right to work in the UK.

Part 4, and Schedules 4 and 5, contain new powers to investigate suspected sham marriages and civil partnerships and extend powers for information to be shared by, and with, registration officials. Notices of marriage or civil partnership involving a non-EEA national (without settled status or an EU law right of permanent residence and not exempt from immigration control or holding a marriage or civil partnership visa) will be referred to the Home Office for a decision whether to investigate whether the proposed marriage or civil partnership is a sham.

Part 5, and Schedule 6, strengthen the powers of the Office of the Immigration Services Commissioner ("OISC") and simplify the regulatory scheme for the immigration advice sector.

Part 6, and Schedule 7, provide for the Secretary of State to enable third parties, including carriers and port operator staff, (as 'designated persons'), to undertake embarkation checks on passengers departing from the UK. They also contain powers to direct carriers and port operators to make arrangements for a designated person to conduct embarkation checks. Part 6 also makes provision for fees to be charged for immigration applications and other functions.

Part 7 contains general provisions, including a power, by order, to make minor and consequential amendments to other enactments, general provisions about commencement and extent and provisions in respect of the parliamentary procedure to be applied to orders and regulations made under the Bill.

Bill read the First time; to be read a Second time tomorrow, and to be printed (Bill 110) with explanatory notes (Bill 110-EN).
<>House of Commons / 10 Oct 2013 : Column 317

Immigration Bill Explanatory Notes Download <>here . . . .

Immigration Bill 2013 -2014 Download <> here . . . .

Persecution of Christians in the Middle East

Lord Patten to ask Her Majesty's Government what plans they have to discuss at the United Nations the persecution of Christians in Egypt, Iran, Iraq and Syria.

Baroness Warsi: The persecution of Christians, indeed of all people on the basis of their faith or belief, is deeply troubling and we are committed to combating this wherever it happens. During the United Nations General Assembly Ministerial Week at the end of September I convened a meeting of international leaders to discuss what more politicians in particular can do to promote freedom of religion or belief and fight religious intolerance within our societies. I am determined to build strong collective leadership to tackle the rising tide of religious intolerance which affects Christians, amongst others, in many countries.

On 9 September at the UN Human Rights Council we raised our concerns about the recent events in Egypt, including the increased sectarian violence. We have also lobbied in support of UN General Assembly resolutions on the human rights situation in Iran, which have covered the persecution of religious minorities including Christians, and will continue to do so. We will continue to monitor the state of religious freedom in these countries, and in Iraq and Syria and will respond either bilaterally or with other international partners—whichever we judge will be most effective in each case. With EU partners we will also table a resolution at the UN this autumn which stresses the importance of promoting and protecting the right to freedom of religion or belief worldwide.
<> House of Lords / 9 Oct 2013 : Column WA31

Austerity Measures Weaken Human Rights Protection In Spain

"Cuts in social, health and educational budgets have led to a worrying growth of family poverty in Spain. This has had a particularly negative impact on the enjoyment of human rights by children and persons with disabilities. The Spanish authorities should do more to ensure that the human rights of vulnerable groups are better respected in the context of austerity measures", said today Nils Mui?nieks, Council of Europe Commissioner for Human Rights, releasing a report on his visit to Spain carried out on 3-7 June 2013.

"The growing child poverty, malnutrition and inadequate housing are issues of serious concern because of their potentially devastating long-term impact on children and the country. The Spanish authorities must implement effective strategies to solve these poverty-related problems and increase the protection of socio-economic rights". The Commissioner stresses that a systematic assessment of the impact that austerity measures have on children and other vulnerable social groups, in close co-operation with civil society and the national and regional ombudsmen, is a particularly important step to this end. He also recommends accession by Spain to the revised European Social Charter and its mechanism of collective complaints.
Nils Muiznieks, Commissioner for Human Rights, <> 09/10/13

Asylum Worker Hands Back Medal to Queen In Protest

Dave Smith, the founder of the charities Mustard Tree and the Boaz Trust, based in Manchester, received the British Empire Medal in last year's Birthday Honours. But he has now written to the Prime Minster, as the Conservative Party Conference takes place in the city, to complain that advice from him and others is being ignored.

In his letter to David Cameron, he said that by accepting the award, he had hoped that it might "highlight the immense difficulties faced by those we are helping. "I have responded to several government consultations, and wrote to Damien Green when he was Immigration Minister, outlining ways to deliver a fairer asylum system. Mr Green did not reply, and none of the recommendations were implemented.

"It is clear that those on the front line, who are picking up the pieces caused by austerity measures, are not being heard." Recent proposals, he wrote, left him "with little doubt that the Government has no intention of treating asylum-seekers humanely".

He told the Church Times: "There just a very big disconnect: you can't give me a medal for doing what I am doing, and at the same time treat these people the way you are. . . "I have taken part in government consultations, and thought, nothing is coming back - the situation is actually being made worse. In many ways, my participating seemed like window-dressing. But it's not just the Conservatives. All of the parties are fighting shy of even mentioning the word 'asylum', because they know it's a vote loser."

by Paul Wilkinson, <>Church Times 04 Oct 2013

US: "Day of Dignity and Respect" for Migrants

Rallies took place in more than 150 cities across the U.S. on Saturday in an effort to restart the push for comprehensive immigration reform led by a group of bi-partisan lawmakers earlier this year.

Organizers of the "Day of Dignity and Respect" events in cities from New York to Los Angeles hope to draw fresh attention to an issue that was at the forefront of the national dialogue in July when the Senate passed an immigration bill that would have included a path to citizenship for the millions of undocumented individuals in the U.S., but House Speaker John Boehner, R-Ohio, has refused to put to a vote.

Meanwhile, Democrats in the House introduced a similar measure Thursday, which will likely also face opposition from House Republicans, many of whom are wary of supporting anything that could be perceived as "amnesty" for individuals who broke immigration laws to get to the U.S.

House Republicans have also let it be known that they prefer a more step-by-step approach to the immigration issue in contrast to the broader measures in the Senate bill.

Some of those who took part in Saturday's events said their personal stories have been what has compelled them to take an active role in trying to make their voices heard and see meaningful legislation that would change their lives and the lives of their families by bringing stability that can come with citizenship.
Read more: Aljazeera, <> 05/10/13

Humiliating Defeat For Theresa May In Supreme Court Appeal

Home Secretary, Theresa May, lost her landmark Supreme Court appeal today in the case of a former Iraqi refugee granted British nationality and who was later stripped of his citizenship which he said left him stateless.

The decision paves the way for Hilal Abdul Razzaq Ali Al-Jedda, who was once held as a terrorist suspect, to return to the UK from Turkey where he currently lives with his family. In a humiliating verdict the five justices said that if Mrs May's had paid more attention to her own guidance she would have realised the "fallacy" of her appeal.

It is the first case on the issue of deprivation of nationality to reach the Supreme Court and legal experts believe it will be important in the context of the prevention of statelessness.
Read more: Paul Gallagher, <> Indpendent, 10/10/13

Deportation of Foreign Criminals

New immigration rules are a "Complete code"

In what circumstances can a foreign criminal resist deportation on the basis of his right to family life under Article 8 of the Convention? Until 2012 this question was governed entirely by judge-made case law. Then rules 398, 399 and 399A were introduced into the Immigration Rules HC 395.

The rules introduced for the first time a set of criteria by reference to which the impact of Article 8 in criminal deportation cases was to be assessed. The intention of the legislature in introducing these rules was to state how the balance should be struck between the public interest and the individual right to family life:

a decision taken in accordance with the Rules will, other than in exceptional cases, [is] compatible with Article 8.

…the new Rules reflect the Government's view - which Parliament will be invited to endorse - of how the balance should be struck between individual rights under A8 and the public interests in safeguarding the UK's economic well-being in controlling immigration and in protecting the public from foreign criminals. (Home Office Statement, 13 June 2012)

In the context of deportation of foreign criminals, the new rules set out thresholds of criminality (by reference to length of terms of imprisonment) so that the Article 8 private life claims brought by foreign criminals can only succeed if they not only have certain periods of residence but can also show their criminality has fallen below these thresholds - unless there are "exceptional circumstances".

This appeal raises important questions as to the proper interpretation of the new rules, and in particular, how these "exceptional circumstances" may be assessed.
Read more: Rosalind English, <> UK Human Rights Blog, 09/10/13

Asylum Research Consultancy (ARC) COI Update Volume 64
This document provides an update of Country Guidance case law and UKBA publications and developments in refugee producing countries between 23rd September and 6th October 2013  - Volume 64  <> here . . .

Egypt: 44 Protesters Killed As Rival Factions Tear Cairo Apart

Clashes erupted across Egypt as the country's two largest political factions gathered in rival commemorations of Egypt's participation in the 1973 war with Israel, a day of deep significance for many Egyptians. Both opponents and supporters of the country's ousted president, Mohamed Morsi, rallied in their thousands – ostensibly to mark the 40th anniversary of the Yom Kippur war which is viewed in Cairo as an Egyptian victory, despite ending in a stalemate that favoured Israel. But rather than emphasising Egypt's unity, the different messages conveyed by each faction's demonstrations underscored divides.
Read more: guardian.co.uk, <> 07/10/13

Nnamdi Onuekwere v SSHD, 3 October 2013, CJEU-109/12
The Upper Tribunal invited the 'Court of Justice' of the European Union to clarify whether a period of residence in prison could be regarded as legal residence within the meaning of Article 16(2) of Directive 2004/38. The Court found that imprisonment did not count as legal residence. Consequently, any period of imprisonment could not be taken into account in the calculation of the five years required for the acquisition of permanent residence. Secondly, periods of legal residence before and after imprisonment cannot be aggregated for the purposes of calculating that five year residence.
For the full judgment, click <>here . . . .

R (application of SS) v SSHD, Court of Appeal (Civil Division)
A rare but positive judgment in a delay case in which the Court of Appeal found that the Home Secretary's six-year delay in deciding an asylum seeker's application for asylum had been inordinate and without excuse and it was appropriate to make an order requiring a decision to be made by a certain date.

SSHD (Appellant) v Al-Jedda (Respondent) [2013] UKSC 62

Judgment:The Supreme Court unanimously dismisses the appeal by the Secretary of State. The Court rejects the Secretary of State's alternative argument. From a plain reading of the statute and surrounding guidance, it is clear that the question is simply whether the person holds another nationality at the date of the order depriving him of his British citizenship.

JUSTICES: Lord Neuberger (President), Lady Hale (Deputy President), Lord Mance, Lord Wilson and Lord Carnwath.

Background to the appeals
This appeal relates to immigration law and the British Nationality Act 1981 ("the Act"). Pursuant to section 40 (4) of the Act, the Secretary of State for the Home Department ("the Secretary of State") cannot deprive a person of his British citizenship on the ground that it is conducive to public good if she is satisfied that it would make that person stateless.

Mr Al-Jedda came to the UK from Iraq in 1992 and was granted British nationality on 15 June 2000. As a result, because of Iraqi law, he automatically lost his Iraqi nationality. In September 2004 Mr Al-Jedda travelled from the UK to Iraq. He was arrested in Iraq the following month by US forces who transferred him into the custody of British forces. Mr Al-Jedda was held, without charge, for more than three years. Soon after his release he travelled to Turkey where he currently lives.

In judicial review proceedings Mr Al-Jedda contended that his internment violated his rights under article 5(1) of the European Convention on Human Rights (right to liberty and security). This was rejected by the UK courts, including the House of Lords. However, the Grand Chamber of the European Court of Human Rights held that his internment had violated his rights under article 5(1). In separate proceedings, initiated in 2006, Mr Al-Jedda brought a claim for habeas corpus in which he asserted that his internment had become unconstitutional under Iraqi law. After his release, he re-pleaded the claim as one for damages. The claim was dismissed and the Court of Appeal upheld the dismissal.

By order dated 14 December 2007, shortly prior to his release from internment, the Secretary of State deprived Mr Al-Jedda of British citizenship pursuant to her powers under the Act. This order was preceded by a letter to Mr Al-Jedda, dated 12 December 2007, by which the Secretary of State informed him of why she was satisfied that depriving him of British Citizenship would be conducive to the public good. 

On 11 January 2008 Mr Al-Jedda appealed to the Special Immigration Appeals Commission ("the Commission"), one of his grounds of appeal being that the Secretary of State's order would render him stateless and was therefore void. The Commission concluded that Mr Al-Jedda had, through an Iraqi law in force between 2004 and 2006, regained Iraqi nationality and would therefore not be rendered stateless by the Secretary of State's order. Mr Al-Jedda appealed and on 12 March 2010 the Court of Appeal, allowing the appeal, directed the Commission to rehear the issue. On 26 November 2012, the Commission again concluded that Mr Al-Jedda had regained Iraqi nationality prior to the date of the Secretary of State's order and was therefore not stateless. In the decision under current appeal the Court of Appeal found this second decision to be erroneous in law. The effect of this was that the Court of Appeal had to consider the Secretary of State's alternative contention, namely that if, on 14 December 2007, Mr Al-Jedda had not been an Iraqi national, it had been open to him to regain it by application and that it had been his failure to make the application, rather than her order, which had made him stateless.   

The Court of Appeal, rejecting the Secretary of State's alternative contention, held that the effect of her order would be to make Mr Al-Jedda stateless. The Secretary of State appeals against this decision.           

Reasons for the judgment
On the evidence before the Court of Appeal, the validity of the premise upon which the Secretary of State bases her argument, namely that Mr Al-Jedda could have applied to the Iraqi authorities for restoration of his nationality, that he had a right to its restoration and that restoration would have been effective immediately, is not clearly established [25].   

Even adopting the suggested premise, the Section 40(4) restriction on the Secretary of State's power to deprive a person of his British citizenship does not permit her to conduct an analysis of the relative strength of contributing factors. The question is simply whether the person holds another nationality at the date of the order depriving him of his British citizenship [32].

The ability of the Secretary of State to assert that the person in question could quickly and easily re-acquire another nationality would create confusion in the application of what should be a straightforward exercise [32].

In section 12 of the Act, a person can renounce British citizenship as long as they have another nationality or, notably, will acquire another nationality. Parliament could have made an analogous provision in section 40(4), preventing a person from being made stateless, for example, 'in circumstances in which he has no right immediately to acquire the nationality of another state' but it did not do so [33].  

The Home Office has incorporated, verbatim, parts of 2012 United Nations guidelines on statelessness into its own guidance, dated 1 May 2013, entitled "Applications for leave to remain as a stateless person". This stipulates that "... An individual's nationality is to be assessed as at the time of determination of eligibility … It is neither a historic nor a predictive exercise. The question to be answered is whether, at the point of making [a]… determination, an individual is a national of the country or countries in question. Therefore, if an individual is partway through a process for acquiring nationality but those procedures have not been completed, he or she cannot be considered as a national…Similarly, where requirements or procedures for loss, deprivation or renunciation of nationality have not been completed, the individual is still a national for the purposes of the stateless person definition." The Secretary of State's own guidance helpfully addresses the very issue in question, but unhelpfully to her appeal [34].

An outstanding issue, which is not for this court to resolve [29], relates to the Secretary of State's assertion, following the Supreme Court hearing, that she now understands that Mr Al-Jedda has a genuine Iraqi passport and a valid grant of Iraqi nationality [27]. Mr Al-Jedda responds that the passport to which the Secretary of State refers is a fake one, used by him at the time to travel from Iraq to Turkey in 2008 [28 (a)]. It may be that the Secretary of State will make a further deprivation order on the basis that, given the Iraqi passport, Mr Al-Jedda would not be rendered stateless by it. Mr Al-Jedda would no doubt dispute this conclusion and may also contend that the Secretary of State is prevented from alleging the validity of the passport at this late stage. The Court does not comment on these possibilities [29].      

References in square brackets are to paragraphs in the judgment