A ‘comfortable environment’ for immigration officers
The Immigration Bill gives the home secretary increased powers and reduces safeguards for migrants who are subject to them. Its controversial right to rent provisions will see forcible evictions, says Alison Harvey.
The ‘hostile environment’ that the Immigration Bill would create for those without leave to be in the UK, and indeed in many instances for those with leave and for British citizens, is complemented by an extremely comfortable environment for the home secretary and for immigration officers, as their powers are extended and their decisions further protected from challenge.
Under the Immigration Act 2014, the law was changed so that those whose presence in the UK the home secretary deems ‘not conducive to the public good’ should first be deported and then pursue their appeal against that deportation. The question is not the ultimate outcome of the appeal, but whether removal and banishment, until the appeal is won and the person returned at the expense of the state, breaches human rights. The quality of justice in such cases is strained, according to the Court of Appeal in R (Kiarie) v SSHD; R (Byndloss) v SSHD [2015] EWCA Civ 1020, 13 October 2015:
… an out of country appeal will be less advantageous to the appellant than an in country appeal. But article 8 does not require the appellant to have access to the best possible appellate procedure or even to the most advantageous procedure … It requires access to a procedure that meets the essential requirements of effectiveness and fairness (para 64).
Under the bill, there is no need for a person’s presence not to be conducive to the public good; it is proposed to extend the provisions to all non-asylum appeals.
The powers of immigration officers are extended out onto the territorial waters surrounding these islands, and their powers of search (without warrant), seizure and retention are strengthened. Powers appear predicated upon those exercising them never, ever making a mistake, with checks and safeguards conspicuous by their absence or limitation. The bill builds on the dubious authority of Singh v Hammond [1987] 1 All ER 829, which the Home Office already relies on for its stopand-search operations, for the proposition that examinations under Sch 2 para 2 to the Immigration Act 1971 of those ‘who have arrived in the United Kingdom’ can be carried out not only at port, but in-country.
To propose powers to strip search detainees for anything that might indicate their nationality, route of travel to the UK or intended destination, for a government department that has repeatedly been found to have breached art 3 of the European Convention on Human Rights (the prohibition on torture, inhuman or degrading treatment), is dangerous. The government whip on the bill’s committee, Craig Whittaker MP, however, said of these breaches during the oral evidence session on 22 October 2015 (Public Bill Committee col 106, Q229): ‘I do not want to undermine or belittle the six cases by any stretch of the imagination, but from the thousands who have been through the system in the past four years … it is an incredibly small part.’ A week later came the report of the Prisons and Probations Ombudsman on an 84-year-old Canadian man with dementia who died in handcuffs. The ombudsman held that the elderly man’s treatment is likely to have reached the threshold of inhuman and degrading treatment.
Powers appear predicated upon those exercising them never, ever, making a mistake, with checks and safeguards conspicuous by their absence.
A notice to quit served on tenants with no right to rent will be enforceable as if it were an order of the High Court allowing men, women and children to be evicted summarily.
The bill proposes to strengthen the notorious ‘right to rent’ scheme, which is to be implemented throughout the UK in February 2016, whereby landlords must check tenants’ immigration status. The Scottish National Party has protested that these provisions encroach on devolved housing matters. Landlords will face imprisonment if they let property to those without the right to rent. Meanwhile, in a move that housing and immigration lawyers’ groups assumed must be an error, so grave are its consequences, a notice to quit served on tenants with no right to rent will be enforceable as though it were an order of the High Court, allowing men, women and children to be evicted summarily.
The Immigration Law Practitioners’ Association is co-ordinating a broad coalition of organisations drafting amendments and briefings to inform debates on the Immigration Bill. Attempts are being made to use the bill to change the law for the better, with efforts focused on securing a time limit on, and judicial oversight of, immigration detention, which is currently by administrative fiat, without limit of time and without a person detained ever being brought before a court unless they instigate this. Never give up. Immigration: update, page 21. Support for migrants: update, page 34.

About the author(s)

Alison Harvey is a barrister and was legal director of the Immigration Law Practitioners' Association from 2013 to 2017.