Posted on September 22nd 2015
Last Thursday saw the publication of the Conservative Government’s Immigration Bill. The Second Reading of the Bill is on 13 October 2015. The Bill builds on the 2014 Act, representing the latest extension of their aim to create a ‘hostile environment’ for irregular migrants in the UK.
The overarching aim of the provisions is to “prevent illegal immigration and remove incentives for illegal migrants to enter or remain in the UK and encourage them to depart”. The Bill contains a raft of measures aimed at combatting illegal working and restricting access to services for irregular migrants, as well as changes to the appeals system, immigration bail and asylum support.
There is a stark focus on criminalisation within the Bill, with the creation of eight new criminal offences for individuals who transgress the provisions, including irregular migrants themselves, as well as employers, landlords, and agents. Recognising that the police services would not have the capacity to enforce the new measures, the Bill also seeks to extend powers to immigration officers to arrest without a warrant those suspected of committing offences, as well as searching premises and seizing items in relation to suspected offences.
While purporting to protect the most vulnerable in society through combatting rogue landlords and employers who exploit migrant workers, the Bill simultaneously targets the victims of such crimes. Not only do these latest measures demonstrate a lack of understanding regarding the irregular migrant population in the UK, limiting their ability to achieve their stated aims, they will also have a disproportionately negative impact on British citizens, black and minority ethnic (BME) individuals and those living legally in the UK.
New criminal offence of ‘illegal working’
The Bill seeks to create a new offence of ‘illegal working’. Under these provisions an offence is committed if someone who does not have the ‘right to work’ or the right to engage in a certain type of employment as a result of their immigration status (or lack of status) is found to have done so. The Bill widens the interpretation of a ‘person working’ to include anyone under a contract of employment (whether oral or in writing), including self-employed people. The offence carries a penalty of up to 6 months imprisonment and/or a fine. If a person is found guilty, the prosecutor must also consider whether to apply for a confiscation order to seize any proceeds related to the offence.
New criminal offence of employing an ‘illegal worker’
The Bill also seeks to widen the scope of existing legislation to make it easier to prosecute individuals who employ a person who does not have the right to work as a result of their immigration status (or lack of it). This extends the interpretation of existing legislation to include individuals who have ‘reasonable cause to believe’ that a person they have employed does not have the right to work . This enables the prosecution of individuals who fail to conduct an immigration status check on an employee. The Bill also seeks to increase the maximum term of imprisonment for employing someone who does not have the right to work from 2 to 5 years.
The Government has stated that the purpose of these changes is to combat the labour market exploitation of vulnerable individuals . JCWI agrees that the exploitation of some of the most vulnerable people in society is a heinous offence, and those who commit such an offence must be dealt with harshly. However, by simultaneously making the victims of such criminal activity criminals themselves, the provisions will increase, rather than decrease, their vulnerability and susceptibility to exploitation.
Individuals who work without immigration status are very often victims of trafficking and modern-day slavery. They must be encouraged to come forward in order for rogue employers to be exposed, rather than criminalised. If the Government truly wishes to target rogue employers and the criminal gangs who exploit vulnerable people, they must ensure that they do not make it more difficult for their victims to come forward and seek protection out of fear of being prosecuted themselves.
Right to Rent
The Bill seeks to build on provisions contained in the Immigration Act 2014 to restrict access to services to irregular migrants, introduced as part of the ‘hostile environment’.
Under last year’s Act, landlords are required to check the immigration status of people they rent to, in order to ensure that they have the ‘right to rent’. Those without status are disqualified from renting a property. If a landlord rents to someone without the correct immigration status they can be fined up to £3,000 per individual. These provisions are currently only applicable in five West Midlands local authorities. However, it remains the Government’s intention to roll out the scheme nationwide.
The new Bill aims to introduce a new criminal offence for landlords and agents who know or have ‘reasonable cause to believe’ that a property under their control is occupied by someone who does not have the ‘right to rent’. Landlords and agents are liable for a criminal sanction where they do not inform the Secretary of State (or the landlord in the case of agents) within a reasonable amount of time. This includes cases where a tenant’s ‘right to rent’ runs out during a tenancy (i.e. they no longer have leave to remain in the UK), or where a tenancy agreement was entered into without an immigration status check having been undertaken where the tenant does not have valid immigration status. Criminal penalties range from 12 months to 5 years imprisonment and/or a fine. The provisions will only apply to England but the Bill contains provisions to extend to Scotland, Northern Ireland and Wales subject to a vote in Parliament.
The Bill also includes extensive new powers for landlords to evict adult tenants in England who are found by the Secretary of State not to have the ‘right to rent’. Where the tenant in question shares the property with other legal tenants (who do have the ‘right to rent’) there are provisions to transfer the tenancy. This encompasses changes to multiple Housing Acts.
The new provisions are set to increase the detrimental impact already identified as a result of the ‘right to rent’ scheme. This will affect legal tenants and British citizens who cannot easily prove their immigration status. The threat of a criminal sanction will mean that landlords and agents will be less willing to rent to anyone who ‘appears’ to be foreign, as has already occurred in the case of civil penalties introduced under the Immigration Act 2014.
JCWI conducted an independent evaluation of the ‘right to rent’ provisions contained in the 2014 Act. Our research found that the scheme has caused widespread discrimination by landlords and agents against legal migrants, those who have a foreign accent or name, and individuals who do not possess a British passport (which includes many British citizens) as they do not want to risk a fine if they misinterpret complicated immigration status. The provisions have also resulted in widespread confusion among landlords and agents, despite the issuance of two Codes of Practice. We have repeatedly requested that the Government publish its own evaluation of the scheme, which it has failed to do so.
The threat of criminalisation will only serve to heighten discrimination against those from an ethnic minority background as well as British nationals without passports. We are extremely concerned at the implications of this when it comes to the basic need for shelter and the impact these provisions will have on social cohesion. Read JCWI's Full Report Here
Furthermore, the Government has stated that the criminal sanctions are intended only to apply to landlords and agents who ‘exploit migrants and who repeatedly fail to carry out ‘right to rent’ checks, fail to take steps to remove illegal migrants from their property’ and ‘consistently flout the law’. However, in its current form, any landlord found to have transgressed the provisions could be charged with a criminal offence. If it is truly the Government’s intention to bring criminal charges only against ‘rogue’ landlords, this should be made explicit in the body of the Bill.
The Government must halt any plans to increase the penalties and scope of the ‘right to rent’ policy until the initial scheme has been fully, transparently and publicly evaluated and the issues of discrimination against certain groups of tenants, as well as other adverse impacts on landlords and tenants, have been properly addressed.
Banks and Building Societies
The Immigration Act 2014 disqualified irregular migrants from opening a UK bank account. The new Bill builds on these measures, through a requirement for banks and building societies to undertake periodic immigration status checks of all account holders. If an account holder is found to be disqualified from having a bank account, the bank or building society is required to notify the Home Office within a reasonable amount of time. Where the Secretary of State confirms the information they may require the bank to facilitate the closure of the account or, without notice, may apply to the court for a freezing order.
The measures outlined in the Bill do not contain sufficient form of redress for individuals wrongly identified, such as when they have an outstanding appeal or continuing legal case. Furthermore, in instances where bank accounts are frozen in error, there is also no mention of compensation to individuals affected. Given that there have been numerous cases where individuals have been identified by the Home Office as irregular migrants in error, this is a real possibility and must be addressed.
New offence of driving while not lawfully resident in the UK
The Immigration Act 2014 disqualified those who require leave to remain in the UK but do not have it from obtaining a driving licence. The new Bill extends these provisions by seeking to bar individuals from possessing a UK driving licence when not lawfully resident, as well as introducing a criminal offence of driving if not lawfully resident in UK. Those convicted of the offence may receive a custodial sentence of up to 6 months and/or a fine. The vehicle involved in the offence may also be seized, whether or not it belongs to the guilty party. The Bill also contains new powers for immigration officers to search persons or property if there are reasonable grounds to believe that they are illegally in possession of a driving licence, this is explored in more detail below.
The Bill also contains a number of new powers conferred on immigration officers where there are ‘reasonable grounds’ to believe that an immigration offence contained in the Bill may have been committed. These include powers to search persons or property, as well as make arrests without a warrant. This includes, for example, where there are reasonable grounds to believe that a landlord has rented a property to someone who does not have the ‘right to rent’. Immigration officers are also given new powers to seize property believed to be connected to an offence contained in the Bill or another criminal offence.
This is a broad extension of power to individuals who are not public officials and is likely to encroach on the rights not only of irregular migrants but also many British citizens. The provisions must be interrogated fully in order to understand the scope and remit of the new powers conferred. There are provisions for the Secretary of State to publish guidance to immigration officers if she sees fit. This must, at the very least, be made a requirement in the body of the Bill.
Information held by the Home Office and its subsidiaries regarding the whereabouts of irregular migrants often contains widespread inaccuracies. This has resulted in numerous cases of people being contacted and told to make arrangements to leave the UK when they are legally here, have not exercised all their legal rights to appeal, or who have already left the UK. The Government must clarify on what grounds these new powers may be exercised by immigration officials and how the information pertaining to the offences committed must be verified before any action is taken.
The Bill does not contain any detail on how drivers who do not have immigration status are to be identified or in what instances. The Government must make it clear whether they intend traffic police to conduct immigration status checks, or whether it will be necessary for drivers to carry identity documentation with them at all times. As with the ‘right to rent’ provisions, this would affect legal migrants and British citizens who cannot easily prove their immigration status and could also lead to an increase in racial profiling of drivers. Furthermore, the extent to which immigration officers are given powers to search properties and persons if they are suspected of possessing a driving license are very worrying. This is explored in more detail below.
The Bill contains a number of disturbing legal provisions which make significant and far-reaching changes to immigration and human rights law in relation to bail and appeal rights. These include changes to the Secretary of State’s power to grant and impose immigration bail and vary bail conditions, changes to temporary admission and continuation of leave and significant changes to appeal rights including an extension of the Government’s policy of ‘deport first, appeal later’. These provisions are far-reaching and will be dealt with in a detailed blog later this week.
Legislation based on rhetoric rather than fact is doomed to failure
These measures are unlikely to achieve their stated aims of reducing to irregular migration and encouraging irregular migrants to leave the UK. Instead, they will impact on those legally residing in the UK, including temporary migrants, BME groups and many British citizens, who will find it more difficult to live in the UK in a climate of hostility.
A ‘tough’ approach to irregular migration without evidence or any understanding of facts will only succeed in increasing the fear and hostility felt by those who appear ‘different’. Furthermore, the measures contain a worrying extension of powers which will reduce the rights of all citizens, including powers to arrest and detain extended to immigration officials.
The irregular migrant population of the UK is little understood. There is very little information pertaining to the labour force participation or living arrangements of those living without status in the UK. It is therefore extremely concerning to see legislation aimed at deterring irregular migration which lacks any basis in fact. Furthermore, the Government has not provided any evidence to suggest that the measures in the Immigration Act 2014, introduced with the same aim of deterring irregular migration have been successful.
If you think any of these measures will affect you, or have affected you, please get in touch with us by emailing: email@example.com