Important provisions of the Immigration Act 2016 were brought into force on 1 December 2016…
Important provisions of the Immigration Act 2016 were brought into force on 1 December 2016, in particular the extension of the ‘deport first, appeal later’ power in section 94 (B) of the Nationality, Immigration and Asylum Act 2002, enabling the Secretary of State to certify human rights claims by deportees, overstayers and illegal entrants and preventing them to appeal against such decisions from within the UK.
But this power to compel human rights appeals to be instigated from abroad, with the appellant unable to appear in person before the tribunal, has received a severe setback from the Supreme Court in Kiarie & Byndloss (2017) UKSC 42, which found that at present there are almost insurmountable obstacles to the effective presentation of such an appeal from abroad. Although the court was dealings specifically with deportees whose human rights claims had been certified, Lord Wilson made it clear that the same consideration applies to over stayers and others who are facing removal.
The argument against having to appeal from abroad is rather less attractive and potent however if the claim has been certified as ‘Clearly unfounded ‘under section 94, rather than because removal would not be contrary to the human rights convention under section 94(B). An important point in the Supreme Court’s reasoning is that a claim which has not been certified as clearly unfounded must be an arguable claim, and that somebody with an arguable claim should be given a proper opportunity to vindicate that claim on appeal in the UJK rather than from abroad with all the problems that this process may bring about in terms of proper advice given to the prospective appellant abroad and how to synchronise the hearing time and date for such a person to give live evidence from abroad, not to forget the preparation of the hearing bundles and on ward forwarding to the UK hearing centre and the presenting officers unit.
As usual citizens of the European Union are treated more favourably than people from the rest of the world. Unlike other foreign criminals, EEA nationals are entitled to attend the hearing of their appeals in person even if they have been removed from the UK. Regulation 41 of the Immigration (European Economic Area Regulations 2016), (formerly Regulation 29 AA of the 2006 Regulations) firmly stipulates that they must be granted temporary admission to submit their case in person before the tribunal, unless their appearance may cause serious trouble to public policy or public security. Usually citizens of the European Union are treated more favourably than people from the rest of the world. Unlike other foreign criminals, EEA nationals are entitled to attend the hearing of their appeals in person even if they have been removed from the UK. The case of Gabor (Regulation 29AA: interpretation), (2017) UKUT (287) (IAC) clarified the meaning of ‘appearance may cause serious trouble to the public policy or public security,’ in that appearance meant the appellant’s physical presence in the UK.
In the wake of the European Union (withdraw) Bill, formerly known by the title of the Great Repeal Bill, another Immigration bill is to be introduced. Perhaps if the government is still mindful of certifying claims and have an arguable case for appeals to be heard from abroad, it may consider counteracting upon the Supreme Court ruling by trying some other means than certification for ensuring that most human rights appeals have to be lodged from overseas. Certification can always of course be challenged by way of a judicial review. But it is hard to think of a substitute for the Government that would be immune to challenge by the courts. Having said that the tendency now appears to be as a result of the Supreme Court decision in Kiaroe & Byndloss, for most migrants whose claims have been refused, whether or not they have been certified, to have their human rights appeals heard in country.
In the meantime, the hostile environment for people residing here without leave is getting more hostile. Under section 40 Immigration Act 2014, banks and building societies must not open a current account for a customer without first running a status check on the potential customer, to ensure that he/she is not a disqualified person, i.e. somebody who requires leave to enter or remain, but does not have leave. Under sections 40 A to H, inserted by the Immigration Act 2016, banks and building societies are further required to run immigration checks on all their existing current accounts, and if they believe any of their customers to be disqualified persons they must notify Secretary of State who may then apply to a court of summary jurisdiction for a freezing order. Even if the account is not frozen, the bank or building society must nevertheless close the account of the customer if the Secretary of State confirms that the account holder is indeed a disqualified person.
These provisions will come into effect in January 2018 and will affect all those migrants whose names appear on the list of disqualified persons supplied to banks by the Home Office via a specific specified antifraud organisation or a specified date matching authority. It is likely that some of those on the list should not be on it, because they do have leave to remain. For example, it is conceivable that an applicant who has limited leave to remain has made an application to the Home Office to renew his / her immigration status, and has sent all his/her documents including passports to the Home Office. That applicant will most probably have leave to remain in the UK on the same basis as his/her previous leave under section 3(c) of the Immigration Act 1971. The bank may not initially be satisfied that he/ she is entitled to remain in this country lawfully, without proof of evidence, and this could cause delay in the customer operating his/her account. Others who do not have leave, will be pursuing appeals or judicial reviews, but will find it harder to remain in the UK in order to do so.
After previously outsourcing the task to Capita Plc , ( which misinformed many people that they had to leave the UK because they had no valid Visa, making idle threats by text message to them that they should report to the Home Office and indicating their removal was imminent, a process that caused grief and anxiety to many, particularly those who were already suffering from mental health issues and depression), the Home Office has now got its own team working in Sheffield as part of immigration enforcement to trace and contact migrants who are here without leave. Where the Home Office has a phone number for them those migrants will be telephoned by caseworkers at the National Removals Command to confirm their correspondence address. An IS 96 notices will then be posted to that address, informing the recipient that he/she is liable to be detained, but granting him temporary admission, subject to reporting restrictions. (Schedule 10 Immigration Act 2016 replacing temporary admission with immigration bail, will not be in force until 18thJanuary 2018).
The covering letter tells the recipient that his/ her first reporting event will be an opportunity to inform the Home Office why he/ she cannot return to his / her country, and will also enable the Home Office to ask questions regarding the migrant’s personal and domestic situation. Migrants often attend their first reporting event with considerable apprehension, fearing that they will be detained, but this does not usually happen. Nor, indeed, are they usually asked anything at all about their personal and domestic situation or why they cannot go home.
But of course, migrants do get detained when they go to sign on. This may happen after they have been signing on for weeks without any bother and have been lulled, as it were, into a false sense of security. They will be even more surprised to be told that removal directions have been set for the next day or shortly thereafter.
They will have had some warning about this, however as they should also have been served with Red: 0001 form which tells them they will not be removed for the first seven calendar days after they receive this notice (this is known as the notice period), which gives them an opportunity to challenge their removal). Following the end of this seven-day period and for up to 3 months from the date of this notice they may be removed without further notice (this is known as the removal window). If removal has not been affected during those three months the process has to start again.
Can anything be done to prevent removal? The obvious thing is to make an urgent application to the Upper Tribunal for an injunction, but that may not work. What will work is an indication that the detainee wishes to claim asylum. And as a detainee at this late stage will probably not be considered to have a genuine fear of suffering serious harm on return, the claim will most likely be refused and certified as clearly unfounded. Following being appeals rights exhausted, any future application to come back to the United Kingdom is then likely to be refused under paragraph 320 (11) of the Immigration Rules which indicates the making of frivolous applications is an aggravating circumstance that causes an application for entry clearance or leave to enter to be refused – normally, at any rate.
Furthermore, if the migrant tries to avoid all by not signing at lunar house or wherever they are required to do so, that will not do him /her any good in the long run either, as not meeting reporting restrictions is another aggravating circumstance that may well stop the migrants from getting back to the UK in the future.
One cannot but fail to ask oneself whether it is all worth it for migrants to come to this country illegally for a better life!
Dr Bernard Andonian
Professional Development Consultant