Posted on May 23rd 2016
As the dust settles on the latest Immigration Bill, which has now received Royal Assent and become the Immigration Act 2016, we will review the changes it brings.
First, let’s look at the good news. Months of hard work by campaigners and NGOs, and by a number of parliamentarians who fought through the debates, have resulted in some important developments for migrants' rights and improvements to the Act, including:
- Judicial oversight of immigration detention: Detainees will now be entitled to an automatic bail hearing after four months of detention. However, those facing deportation after a criminal conviction will not benefit from this provision.
- There will be a 72 hour time limit on the detention of pregnant women, though this can be extended up to a week in some circumstances.
- A commitment to relocate a number of child refugees currently stranded in Europe. No fixed number has been agreed, and this is likely to be the focus of a great deal of discussion in the coming months.
However, these concessions do little to ameliorate the full force of the measures brought in by this Act which will make the UK a more hostile and unwelcoming place. Unfortunately, much of what was said in our blog in September 2015 on the then proposed Bill still applies. The Immigration Act 2016 introduces a vast number of draconian, unaccountable and poorly thought out powers and offences that will have a huge impact on the lives of both migrants and British citizens, particularly those in black and minority ethnic communities. It sets back the progress of integration, and many of the measures that the Government claims are to protect migrants from exploitation, actually increase the risk of this.
This doubling down on ‘hostile environment’ policies can be seen most clearly in the following changes brought in by the Immigration Act 2016:
Labour Market Exploitation
- The creation of an offence of ‘illegal working’ for those who do not have leave to remain in the UK. Prosecutors can apply to confiscate anything that might be considered the proceeds of that crime. This is going to greatly increase the vulnerability of migrant workers to exploitation, as any unscrupulous employer can now threaten to report someone without immigration status to the authorities for a crime. Given the low wages that these workers typically earn, it is hard to see how giving prosecutors a power to confiscate what little they possess makes any sense. This provision is utterly at odds with the lofty aims the Government had in protecting victims of trafficking and exploitation under the Modern Slavery Act and with their claim that these measures will reduce exploitation. As a result, it will drive victims of exploitation underground.
Landlord Immigration Checks
- Landlords will now face criminal charges for breaching the ‘right to rent’ scheme that forces them to conduct immigration checks on tenants. They could be sentenced to up to five years in prison, and a fine. JCWI has found that this scheme is unworkable; that it causes discrimination against those who aren’t British; and will have a disproportionate effect on ethnic minorities. There has been no time to assess the impact of the civil penalty regime which rolled out across England in February this year, and it is therefore premature to add criminal penalties into the mix. As we have repeatedly highlighted, landlords faced with a potential fine or prison-time are going to take the safe option, which in this instance means renting to those with a British passport wherever possible.
- The Home Secretary is granted the power to require a landlord to evict tenants who do not have a ‘right to rent’ from their property, by issuing a written notice. There will be no judicial oversight of the eviction process, and the notice of the Home Secretary will be ‘enforceable as if it were an order of the High Court’. Eviction without consideration of the courts is utterly unacceptable. The Home Office consistently make mistakes about people’s immigration status that need to be corrected, often through lengthy legal battles. To grant them the power to turn people out onto the streets without any checks and balances is a disaster waiting to happen.
- Out-of-country appeals, currently restricted to foreign national offenders, will now apply across the board. When these provisions were brought in for foreign national offenders we saw a drastic reduction in the number of successful appeals brought. It is far more difficult to appeal from abroad for a number of reasons, including the cost and the difficulty of gathering evidence and presenting a case when not physically present. JCWI has briefed extensively on how these new provisions will shut down access to justice.
Driving Licenses, Bank Accounts and powers of immigration officials
- The Bill creates an offence of driving when unlawfully in the UK. Associated with this new offence, it gives immigration officials unprecedented powers to enter and search premises and to seize materials and to hold on to them. This has been described as a return to the sus law and extensively criticised by civil liberties groups. The Bill introduces new stop and search powers where police have “reasonable grounds” for believing that someone is not lawfully resident in the UK and is in possession of a driving licence. Given the sad history of discrimination in the use of 'stop and search' in the UK it is very hard to see how this power will not result in black and minority ethnic drivers being targeted by immigration officials or the police.
- Those identified by the Secretary of State as being in the UK unlawfully will have their bank accounts frozen or closed. Again, given the long record of poor decision making by the Home Office, this is likely to impact on many people who have every right to be here. It also increases risk of exploitation of undocumented migrants as they will be driven to use cash, lodge money with others and use black market financial services. As with so many of these provisions, the effects will be contrary to the Government’s stated aims.
- More generally, the Bill gives immigration officials new powers to search property and seize documents, as well as to perform strip searches of individuals in order to search for documents.
- The Bill introduces an English language requirement for public sector workers. It is hard to imagine that local authorities and other public bodies are currently not recruiting the best applicants for the job. Imposing an unnecessary further English language requirement seems like superfluous red-tape that will do nothing other than encourage discrimination against certain minorities.
- Immigration officials are given powers to board ships, conduct searches and seizures and use reasonable force in doing so. They will have criminal and civil immunity in carrying out these activities.
The Immigration Act 2016 continues a pattern of legislation whereby immigration enforcement intrudes into our daily lives. It reduces accountability and removes many of the corrective checks and balances that exist to protect the public from the wrongful application of these powers. Appeals are made harder to pursue, evictions no longer need court approval, and immigration officials can act with increasing impunity.
The Queen’s speech shows that this is just the beginning. The NHS charging proposals outlined in the speech will require GP’s, hospital doctors and overworked NHS staff to become frontline immigration officials. Again, the brunt of these measures will fall on lawful migrants and those from ethnic minorities, who will face suspicion in every aspect of their lives, from driving to the shops to visiting the doctor.