Apparently the Government's stated intention (in the information surrounding the introduction of the Immigration Act 2014) to make the United Kingdom a hostile environment for those without legal status is to be extended to immigrants who, in certain circumstances, have had their leave curtailed.
In a policy change announced on 26 June 2014 the Government declared its intention to detain or place on temporary admission certain migrants whose leave is statutorily extended by Section 3D of the 1971 Act.
Section 47 of the Immigration and Asylum Act 2006 permits the Government to make decisions to remove appellants who have had a decision to curtail their leave but because they have appealed that decision they are allowed to remain inside the United Kingdom until their appeal rights are exhausted.
So, while a decision had been made to remove a migrant the previous policy meant that the Secretary of State did not act upon that removal decision and did not take steps to detain appellants or make them subject to reporting conditions pending the outcome of an appeal.
This was important because it meant an appellant's presence in the United Kingdom not only continued to be legal but the rights that they had under their visa generally continued until the appeal rights were exhausted. In most cases the most important right, of course, was the right to continue in employment.
Under the new policy when someone's leave has been cancelled and at the same time a removal decision is made they can now be detained or be subject to reporting conditions.
As the Minister indicated in his statement:-
"The previous Government stated that migrants who received a removal decision under Section 47 of the 2006 Act could not be subject to reporting conditions or detention while they had continuing leave pending the outcome of an appeal (House of Commons Official Report, 29 March 2006, COL908). In fact, Schedule 2 of 1971 Act allows their detention in circumstances where leave has been abused this may be appropriate."
The new policy is now:-
"In regard of persons who have statutorily extended leave under Section 3D of the 1971 Act. Migrants whose leave has been revoked or curtailed with immediate effect will be liable to be detained or to report to the Home Office (depending on the individual circumstances of the case) pending the removal from the UK."
This new approach is based on situations where someone's leave is curtailed with immediate effect.
The problem with such an approach is that curtailment with immediate effect is based upon a decision of an Immigration Officer where they have formed a view that a migrant has failed to comply with a condition of their leave. As the ministerial statement states:-
"Curtailment with immediate effect is used where the migrant has failed to comply with the conditions of their leave, or their character, conduct or association make it undesirable to allow them to remain in the United Kingdom - for example, there is reliable evidence that they have facilitated or entered into a sham marriage or a civil partnership to gain an immigration advantage. Sham marriage is known to be a significant increasing effect to UK immigration control."
The problem here is that such a decision to curtail leave on the untested view of an Immigration Officer is one thing but the new policy marks a qualitative difference where such a decision can not only threaten someone's status in the United Kingdom but it could lead to them being detained, losing their job and losing their home.
The statement talks about such a decision being made only where there is, "reliable evidence".
However, on a daily basis in the Immigration Courts such reliable evidence is shown to be completely unreliable particularly in relation to Immigration Officers' assessments about whether or not marriages are bogus or sham.
The difficulty with the new policy is that it is a totally disproportionate response to any perceived problem. Even if the appellant eventually is able to vindicate the position and demonstrate that they have complied with conditions of their leave irreparable damage may have been done to their life in the United Kingdom which even a successful appeal may not be possible to entirely remedy.
As a result, this new policy apparently (at least until the matter gets to court) creates a situation where the Home Office has the power to make itself judge, jury and jailer of those whom they consider that they have "reliable evidence" of breaching the conditions of their leave.
There is one small grain of comfort in the new policy and that is that persons whose leave is curtailed for reasons outwith their control would not be affected by this policy change. The example given in the policy statement is a situation where a college at which a person has been studying was closed down as a result of losing its sponsorship licence.
This new policy is a worrying development but unfortunately it is just part of a raft of draconian measures that the Government have recently introduced.
Drummond Miller and its Immigration Team is more than happy to provide advice to persons affected by this policy change.