By Laura Devine of Laura Devine Solicitors
First announced in the Queen’s Speech in May 2015, the UK’s newest Immigration Bill tackles a broad spectrum of issues and builds on the Immigration Act 2014, which in part sought to create a “hostile environment” for undocumented migrants in the UK. For businesses and individuals alike, the proposed measures could have significant effects.
First, the Bill aims to disrupt undocumented migrants’ ability to secure a settled lifestyle or establish themselves in the UK by depriving them of resources, services and employment opportunities, such that they either choose to not come to the UK, or they remove themselves voluntarily.
Second, for those migrants who manage to illegally enter the UK, the Bill would introduce further powers to identify and remove them more efficiently.
Third, since the main draw for illegal immigration is work, and since low-skilled migrants are increasingly vulnerable to exploitation at the hand of criminal enterprises, the proposed law would strengthen enforcement measures and increase penalties for illegal workers, as well as those who would employ them.
Finally, the government believes it is too easy for businesses to hire workers from outside the EEA/Switzerland. Accordingly, it has introduced measures that would help fund domestic apprenticeships and skills education, while simultaneously making it less appealing and more costly for businesses to sponsor overseas employees.
Having had its first reading in the House of Commons in September 2015, the Bill arrived in the House of Lords in December. With only a Third Reading and Consideration of Amendments remaining before Royal Assent, the Bill will likely soon become law.
In its present state, the Bill consists of 90 clauses and 14 schedules. As such, this article limits its scope to some of the most significant measures.
New offence of illegal working
The Bill would create a new offence of illegal working. Those found guilty of the offence would be liable on summary conviction to:
If convicted, paid wages could in some circumstances be seized as the proceeds of a crime under the Proceeds of Crime Act 2002.
Modification of offence of employing an illegal worker
Under current legislation, it is a crime to knowingly employ a person who is not authorised to work in the UK. A civil penalty scheme already exists under the Immigration, Asylum and Nationality Act 2006, section 15. Additionally, the Immigration Act 2014 doubled fines for employing illegal workers from £10,000 to £20,000 per worker.
The new Bill amends the mens rea of the criminal offence to include employers who have reasonable cause to believe that they are employing an individual who lacks permission to work in the UK. Additionally, those convicted on indictment could receive a maximum custodial sentence of five years (increased from two years).
Finally, immigration officers would be able to arrest without warrant anyone they reasonably suspect of committing the offence.
New offences relating to the leasing of properties
The Bill would create four new criminal offences for landlords and letting agents who rent to migrants they know, or have reasonable cause to know, do not have valid immigration permission. These include:
On conviction on indictment, individuals found guilty of one of the above offences are liable to up to five years’ imprisonment and/or a fine. On summary conviction, they may be sentenced to a prison term of up to 12 months and/or a fine. Significantly, corporate officers and partners in partnerships could be held individually liable if it is found that they consented to or were complicit in the offences.
Additionally, new powers for immigration officers would enable them to arrest without warrant someone who is, or whom they suspect of, committing one of the above crimes.
It should also be noted that since the initial right-to-rent check pilot programme was introduced in five West Midlands council areas between December 2014 and May 2015, and subsequently rolled out nationally, there has been significant criticism. Chief complaints include that private citizens are being required to do the work of the government with severe consequences for failure; the checks are burdensome and costly; vulnerable groups are most likely to be suffer a negative and unfair impact; and there is a very real danger of discrimination.
Eviction powers for landlords
Under the Bill, landlords could seek possession of a dwelling occupied by an illegal migrant when the landlord has received written notice from the Secretary of State that the tenant does not have permission to reside in the UK.
Powers to search for and seize driving licences
The Bill would create new powers to carry out searches for, and seizures of, driving licences. Under the new measures, authorised officers (including immigration and police officers) would be permitted to enter premises and search for a driving licence when they have a reasonable belief that there is a licence, held by an individual without permission to be in the UK, on the premises.
Additionally, authorised officers could conduct searches of an individual’s person if they have reasonable grounds to believe that the individual is in possession of a driving licence and that individual does not have permission to be in the UK.
If found on the premises or on an individual’s person, officers could seize the licence, which would have to be turned over to the government (in most cases the Secretary of State).
New offence of driving while unlawfully in the UK
A new offence would criminalise driving while unlawfully in the UK. According to the government, this closes a loophole where illegal migrants with licences issued in the UK could have them revoked, while other illegal migrants could drive in the UK using foreign-issued licences for up to 12 months.
In England and Wales, if convicted on summary conviction, individuals would face up to 51 weeks’ imprisonment and/or a fine. In Scotland and Northern Ireland, prison sentences of up to six months and/or a fine could be issued. In some instances, vehicles could be detained and even forfeited.
Immigration officers would have the power to arrest without warrant individuals who are, or whom they reasonably suspect of, committing the offence.
These measures clearly risk creating the potential for discriminatory practices on the part of law enforcement. While the government has stated that separate legislation would prevent discriminatory stops, it begs the question of what a reasonable belief that someone was driving while in the UK without immigration permission would constitute.
Banks and building societies required to undertake immigration checks
A new measure would require that banks and building societies undertake periodic checks on each current account to determine whether the account holder has permission to reside in the UK.
Financial institutions would be required to check the account holders against specified anti-fraud organisations or a specified data-matching authority. In the event that a disqualified account holder was discovered, the banks and building societies would need to notify the Secretary of State, who could apply for a freezing of the account, or request that the account be closed.
According to the government, this would serve to disrupt illegal migrants’ ability to integrate themselves into UK society by restricting their opportunities and making the UK a less attractive destination.
Search and seizure powers while lawfully on premises
Under the new Bill, immigration officers who are already lawfully on a premises would have the power to search for and seize any evidence that could assist in either the removal of the person being detained, or the issuance of a civil penalty (eg, they are renting to or employing an illegal migrant), if the officer reasonably believe such evidence is there.
The new Bill would consolidate the provisions under which an individual who might otherwise be held in immigration detention could be released or not detained in the first instance. Under this consolidated framework, the Secretary of State would be required to attach at least one of the proscribed conditions to the terms of bail, which include but are not limited to: electronic tagging (favoured by the government); work, occupation or study restrictions; and residence requirements.
Further restrictions on appeals
Immigration Act 2014 reduced the number of immigration decisions that give rise to appeals from 17 to four.
The new Bill would empower the Secretary of State to certify that the temporary removal of an individual, subject to immigration control, who has raised a human rights claim would not breach the UK’s human rights obligations or cause that individual irreversible harm. This would extend the UK’s “deport first, appeal later” policy beyond cases where individuals are liable to deportation, to all immigration cases where human rights-based claims are raised.
Should this measure come into force, it would leave only asylum cases and human rights cases where removal would pose a risk of serious irreversible harm or a breach of the UK’s human rights obligations as appealable.
According to the government, the change would remove the opportunity for individuals to extend their stay by exploiting the in-country appeals process.
English language requirements for public sector workers
Under this measure, individuals working for public authorities in customer-facing roles would be required to speak fluent English. For the purposes of the Bill, “fluent English” would mean, “The person has a command of spoken English which is sufficient to enable the effective performance of the person’s role.”
Immigration skills charge
The new Bill would give the Secretary of State the power to impose a per-employee immigration skills charge on businesses that sponsor non-EEA/non-Swiss migrants.
According to the government, it is presently too easy for employers to employ non-EEA/non-Swiss workers, rather than to train and hire the resident labour force.
In January 2016, the Migration Advisory Committee (MAC) published a much-anticipated report on Tier 2, in which it advised, among other recommendations, that an immigration skills charge of £1,000 per sponsored employee per year be levied on sponsor businesses.
Perhaps unsurprisingly, there has been significant criticism of the new Bill.
As noted, some opponents cite concerns that certain measures could result in prejudice and racial profiling. Landlords fearing criminal prosecution may avoid renting to some groups who either look different or struggle to provide the necessary documentation, and there is a risk that police could abuse the new powers of search, seizure and warrantless arrest.
Businesses, too, have criticised the Bill, which would make hiring individuals with the skill sets they need in a practical time frame much more difficult and costly.
While the government has been clear that it wishes to make the UK a hostile environment that is “less attractive” to illegal migrants, in the process of doing so it risks making it unappealing and inhospitable, if not antagonistic, to regular migrants, businesses, and many of its own citizens.
As a worrying trend of nationalism, nativism and protectionism grows in the West, and in a time when xenophobic chants of “build the wall” can be heard at some rallies, we must be mindful to not build our own blockades, legislative or literal, that may themselves over time become unintentional barriers to a healthy, open, and inclusive society.