Refusals, appeals, and administrative reviews

Under the Act, the number of immigration decisions which can be appealed has fallen from 17 to four. Appeals will be possible in asylum cases and where human rights claims have been refused. In some cases, a migrant in the UK, whose application has been refused and who is deemed 'harmful', may be forced to leave the UK before he or she can appeal.

Refusals of applications can be for a variety of reasons, including the Home Office's misinterpretation of the Immigration Rules as well as administrative errors, including where a caseworker fails to notice a supporting document. The Penningtons Manches immigration team has, on more than one occasion, liaised with the Home Office to overturn a decision where there was such an error on the part of the Home Office.

Where the Act removes a right of appeal, an applicant, whose application has been refused, may be able to seek administrative review of the decision. However, the administrative review process is not simply the appeal process by another name. The Home Office's impact assessment and a Freedom of Information request show that only 18% of administrative reviews may be successful, which is far less than the 50% or so of immigration appeals which tend to be successful.

Therefore, whether a Tier 4 (General) Student wishes to switch into Tier 2 (General), a Tier 2 (General) Migrant wishes to extend his or her leave, or a Tier 1 (General) Migrant applies for indefinite leave to remain, and the application is refused in error, it may be that the only option is for the migrant to seek administrative review (which does not currently have a high margin of success). This could impact upon the migrant's ability to work and on the business which wishes to employ, or continue to employ, the migrant.

Full details of when these changes will commence are yet to be finalised. Employers should, however, ensure that they consider their recruitment and migrant visa extensions in a timely manner.

NHS health surcharges

The Act requires migrants, who do not have indefinite leave to remain in the UK and wish to stay in the UK for more than six months, to make a financial contribution to the NHS, regardless of whether or not they will, or already, make National Insurance contributions.

According to the previous consultation, this 'health surcharge', which would be collected as part of the visa and immigration application process, would be £150 per year for students and £200 for other non-EEA migrants, eg Tier 2 Migrants.

Full details of the surcharges, including from when the surcharges will apply, are yet to be finalised.

Landlord checks

Landlords (with very few, minor exceptions) will be required to check tenants’ rights to be in the UK – like right to work checks, this will apply to landlords and tenants regardless of nationality. A landlord, who lets a property to a person who does not have the right to be in the UK, may face a penalty of up to £3,000.

Landlord checks will initially be rolled out as a pilot later this year. It will be interesting to see what the results of the pilot scheme will be and what lessons will be learned.

It would be unsurprising if landlord checks made finding housing difficult for migrant workers. This is particularly as a landlord may not be willing to risk letting a property to someone who may or may not have leave in the future (for example, an individual looking for property whilst in the process of applying for a UK visa from overseas) when a landlord could immediately let the property to someone who already has the right to be in the UK (despite the Home Office's future code of practice on discrimination).

Employers, who arrange accommodation for their staff, including migrants with limited leave to remain, will need to ensure they are fully compliant with the new regime once it comes into force.