The Immigration Act 2016

Immigration bills rarely escape the headlines and the Bill that became the Immigration Act 2016 was no exception.  During its passage, public attention was focused on the government’s attempts to create an environment so hostile to those without permission to be in the UK that they would leave, and on (successful) attempts to force the government to take refugee children from within the European Union and to place limits on the detention of pregnant women.

Look below the surface and the inexorable trends of all immigration legislation since the mid-1990s continue: fewer opportunities for challenge to, and review of, Home Office decisions, however poor; the creation of information superhighways on which data on persons under immigration control, lawfully present or not, can be shared, and new powers of entry, search, seizure and retention.  With such powers come increasing needs to prove that one is not an immigrant or that one is an immigrant in good standing: to employers, to landlords and landladies, to the Driving and Vehicle Licensing Authority, to banks, to the police officers who stop you for speeding or for a broken headlight.

These powers are buried in Schedules and in opaque amendments to the Immigration Act 1971.  Consult Schedule 8 for immigration officers’ new powers to ask for warrants that permit them to enter multiple premises, not all specified or even known at the time of obtaining the warrant, on multiple occasions.  Schedule 14 extends powers of immigration officers out on to the sea, but also allows them to use the emergency measures provided for use on board when they pursue persons and property from the ship to land. Section 55 of the Act amends the Immigration and Asylum Act 1971 to allow any public authority, or any specified person for specified purposes, to supply information to the Home Office.

Many aspects of the hostile environment extend into areas devolved to the regional parliaments.  Housing and social care may be devolved, but Act creates powers for Westminster to legislate to give landlords and landladies powers summarily to evict their tenants without leave to be in the UK, however young or elderly, however infirm. Social care and the promotion of the welfare of children may be devolved, but Westminster can pass laws to restrict or deny support to families with children throughout the UK. Ministers argued during the passage of the Act that because immigration is reserved, such legislation can come from Westminster.

This was a pre-referendum Act, drafted in the belief that the United Kingdom was a stable entity and that the millions of EEA nationals and their family members in the UK would, on proof of status, have only as much to do with its bureaucracy as do British citizens.  There must be doubts that it can survive a system of immigration permissions for much greater numbers of persons, and the need to make transitional provision for EEA nationals lawfully present.  But those who wish to be armed to scrutinise the proposed post-Brexit, post-EU law settlements, for citizens and foreigners, would do well to study its provisions.

Alison Harvey is one of the authors of A Guide to the Immigration Act 2016, published in March 2017.

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