Immigration has become one of the largest public policy issues in the UK. According to the Office for National Statistics, net migration reached an all time high of 330,000 in the year to March 2015. Given the long-term demographic impacts and the effect on public services, the UK government has set ambitious targets to reduce the scale of immigration into the UK.
With the dust yet to settle on the Immigration Act 2014, the UK government introduced the draft Immigration Bill 2015 on 17 September 2015 to radically reform the culture for migrants with further measures to create a ‘hostile environment’ for unwanted migration in the UK. The immigration minister, James Brokenshire, said:
‘…the Bill will build on the government’s work since 2010 to crack down on abuse and build an immigration system that truly benefits Britain – by deterring illegal migrants from coming and making it harder for those already here to live and work in the UK.’
The Bill further develops the provisions of the Immigration Act 2014 and includes a package of radical measures to deter people from working illegally in the UK and to enforce sanctions against those who employ illegal workers.
KEY ASPECTS OF THE BILL
The Bill creates several measures designed to deter illegal migrants from living and working in the UK. Part one of the Bill establishes a new director of labour market enforcement who will produce a labour market enforcement strategy to the Home Office and business secretary. The role of the director is to oversee the relevant enforcement agencies in providing a coherent enforcement strategy for non-compliance in the labour market, including the serious exploitation of workers.
The exploitation of vulnerable workers is a disturbing aspect of the UK labour market and it is a welcome intervention by the government to attempt to do more to tackle this problem by appointing a director of labour market enforcement. There are three agencies that are responsible for ensuring that minimum standards are met for workers: a National Minimum Wage team within HMRC, the Gangmasters Licensing Authority and the Employment Agencies Licensing Inspectorate. The main challenge for the new director will be to ensure that there is co-ordination, collective thinking and leadership of the enforcement agencies to drive effective enforcement strategy.
A much-heralded aspect of the Bill is Clause 8, which creates a criminal offence if migrants undertake work in the UK when they are subject to immigration control and do not have leave to enter or remain, or are subject to a condition preventing them from working. While there are existing enforcement powers to prosecute migrants with permission to be in the UK who are working illegally in breach of their conditions, the Bill intends to bridge the gap in the current legislation which does not cover people who have entered the UK illegally or overstayed their visas. The maximum penalty in England and Wales under the new criminal offence is 51 weeks’ imprisonment or a fine, or both.
The Bill will make it a criminal offence for an employer to employ an individual whom they ‘know or have reasonable cause to believe’ is an illegal worker. This amends the existing offence of ‘knowingly’ employing an illegal worker under s21 of the Immigration, Asylum and Nationality Act 2006 to make it easier to enforce these provisions against employers. The maximum custodial sentence on indictment for an offence of employing an illegal worker will also be increased from two to five years. The enforcement powers of immigration officers will also be significantly increased, as the Bill provides them with additional powers of search and seizure, but no entry powers. These powers reinforce the existing system of strict penalties for businesses that negligently employ illegal workers.
One of the more controversial aspects of the 2015 Bill is Clause 12, which creates criminal offences relating to the letting of residential premises by landlords to those disqualified from renting as a result of their immigration status.
The Bill will make it harder for those with no right to be in the UK to rent private accommodation. The maximum penalty will be 12 months or a fine or both on summary conviction, or up to five years’ imprisonment or a fine if convicted on indictment. Under Clauses 13 and 14, landlords will be able to evict illegal migrant tenants more easily, and in some circumstances without a court order. Landlords should be wary of their obligations under the Bill to carry out right to rent checks, otherwise they could face enforcement under the civil penalty regime.
So what does this mean in practice for landlords? By law, landlords will be required to carry out document checks to identify if a potential tenant has the right to reside in the UK. In most cases, this would simply mean that landlords would have to check an individual’s passport or biometric residence permit before granting a tenancy. In addition to this, landlords will also be required to keep appropriate records during the tenancy and for at least 12 months after the tenancy has ended. There is also a retrospective element to this measure, whereby landlords will have to check their tenant’s right to rent even if they have entered into their tenancy before the law comes into force. Landlords who let properties to tenants without carrying out these checks will be liable for a civil penalty of up to £3,000.
This aspect of the Bill places unfair and unreasonable burdens on landlords who may lack the knowledge or skills to check if their tenants are allowed to live in the UK. This shift in responsibility from the Home Office to landlords could have further unintended consequences. For example, immigration checks that landlords would be obliged to carry out could fall foul of anti-discrimination laws, as landlords may discriminate on the grounds of nationality or race when choosing tenants. A recent survey from the Joint Council for the Welfare of Immigrants (JCWI) found that 27% of landlords said the scheme would make them unlikely to take on renters who had ‘foreign-sounding’ names. Landlords will therefore have to tread a fine line between immigration compliance and avoiding race discrimination. This is not an easy task for landlords, especially given that many will lack experience of carrying out immigration checks.
Yet another criminal offence being tabled is the offence of driving without leave in the UK. This would apply to migrants who have a valid UK driving licence who are unlawfully in the UK. It is also unclear how this offence will be enforced in practice without simply becoming an extension of discriminatory stop and search powers aimed at drivers who appear to be foreign.
Banks and building societies also have a part to play under the Bill. There are additional reporting obligations under Clause 18 of the Bill, read in conjunction with Schedule 3. Banks have a duty to conduct periodic immigration checks in relation to current account holders and to notify the secretary of state of current accounts for disqualified persons under 40B of Schedule 3. Following a 40B notification, the secretary of state is granted a range of escalating options. These include requiring banks and building societies to close a disqualified person’s account as soon as practicable and applying to court to obtain a freezing order in respect of any account specified in the application. These measures are intended to make it harder to live a settled life unlawfully in the UK and to incentivise voluntary departure.
Similar to the provisions on residential tenancies, there is a sense that Clause 18 of the Bill imposes a disproportionate burden on small banks and building societies that may lack the resources to effectively meet their obligations under this part of the Bill. The likely impact of these measures should become clear once the government publishes a full impact assessment on this measure.
Arguably one of the more controversial sections of the Immigration Act 2014 is the restriction of the right to appeal for migrants appealing decisions engaging human rights, relating to grants of asylum or the removal of refugee status. Building on the 2014 Act, under the new Bill, the secretary of state will have the power to certify human rights claims, which would effectively require appellants to leave the UK before they can exercise a right of appeal on human rights grounds.
The so-called ‘deport first, appeal later’ provisions make it easier to remove persons where the appeal process has not started or is not yet exhausted if the person liable to be removed would not, before the appeal process has concluded, face a real risk of serious irreversible harm if sent back to the country of return. As a consequence, it will increase the barriers of those wishing to bring important challenges to the decisions of the secretary of state as the Rules would require human rights appeals to be pursued from abroad.
There is a real risk that the UK may fail to satisfy its obligations under Article 6 of the European Convention on Human Rights which states that:
‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…’
The impact assessment accompanying the Bill describes these new provisions as a means to prevent people from exploiting the appeals process to extend their stay in the UK. This represents a flagrant denial of justice and it is clear that the true impact will be on those legitimately seeking to challenge poor decision-making by the Home Office.
Tier 2 Reform
Another central theme of the Bill is the provision to reduce the need for skilled migrant workers by reforming the UK labour market rules. As part of its push to cut net migration, the government has recently turned its attentions to considering new restrictions on UK businesses hiring and transferring highly skilled non-EU nationals under the Tier 2 sponsorship regime.
Part 8 of the Bill proposed to introduce an ‘immigration skills charge’ on employers wishing to sponsor skilled workers from outside the EEA under Tier 2. If we consider that in the year ending June 2015 a total of 92,590 Tier 2 entry clearance visas were granted to highly skilled migrants (53,630 main applicants and 38,960 dependants), it is clear that increasing further the cost of employing skilled migrants is likely to impact UK businesses significantly.
This approach is intended to encourage businesses to source the skilled workers they need from the resident labour market. However, under the current Tier 2 regime, employers already have a duty to conduct a resident labour market test, with sponsorship of overseas nationals being permitted only where no suitable settled worker can be identified. The wider issue appears to be the lack of suitably skilled and qualified individuals within the resident labour force, which forces businesses to source their staff from the global market.
The Bill contains provisions to introduce regulations setting the scope of the immigration skills charge, and the rate charged. It remains unclear which employers will be liable to the charge or the amount payable. However, the government has stated that the proceeds from the charge will be used to address skills gaps in the UK by contributing to funding training and apprenticeships. For many businesses, international mobility is crucial for continued growth with a vital need for highly skilled individuals. Restricting Tier 2 migration will hinder firms’ ability to carry out client work and expand in the UK.
The Immigration Bill 2015 is yet another addition to the bulk of UK immigration legislation. The announcement, so soon after the major changes brought in by the Immigration Act 2014, indicates the government’s ongoing challenge in framing legislation in response to socio-economic and political pressure.
At its heart, the stated purpose of the Bill is to tackle illegal immigration by creating a harsher environment for illegal migrants in the UK. The problem of illegal immigration is clearly an important issue and, given the political pressure placed on the government, it is natural that it attempts to eradicate the problem. However, in doing so, the concern is that some of the measures introduced would also adversely affect legal migrants, businesses and landlords, and at the same time risk contributing to increasingly widespread discrimination.
The challenge facing the government to cut net migration is by no means simple but it should be careful not to perpetuate divisiveness among communities. In its current form, the Bill appears to do just that. Fortunately, the Bill is still at the early stages of its development and will be examined with closer scrutiny in a Public Bill Committee scheduled to conclude by Tuesday 17 November 2015, where it is hoped that the more controversial measures will be challenged.
By Chinney Onuchukwu, trainee solicitor, Magrath LLP.