The UK Government’s Announcement of 17 September 2015, “New measures will make it tougher than ever before to live illegally in the UK”, coincides with the publication of the new Immigration Bill which was published the same day. The bill is intended to become the Immigration Act 2016. The Bill is meant to build up on the Immigration Act 2014. To put it in basic terms, a view can be taken that the Bill sets out the UK Government’s intention of getting the UK rid of not only those without current leave to be here but also those who have leave but are refused and are intending to appeal in- country but will be denied that opportunity.
The UK Government is not hiding the fact that they want undocumented migrants in the UK to leave, if not voluntarily, then by force. The Immigration Act 2014 is also intended to make life harder for those without leave to remain and also those whose claims have been refused and are intending to appeal whilst in the UK. The Immigration Act 2014 has generated litigation and its provisions are expected to continue generating legal challenges in future in the higher courts- as such it is doubted that the publication of the new Bill or its coming into force will result in an orderly queue to the airport any time soon by those it is intended to target.
THE MAIN CLAUSES
The new Bill is to be read together with several published FactSheets relating to the various clauses.
- Labour Market Enforcement- Clauses 1 to 7:
With a stated view to cracking down on serious exploitation of workers, the Government will appoint a new Director who will oversee the relevant enforcement agencies to provide an enforcement strategy for non-compliance in the labour market. The Government believes that the main bodies responsible for ensuring minimum standards are met for workers are currently not designed to deal with the increase in organised criminal activity engaging in exploitation in the labour market. It is believed that this kind of worker exploitation often appears to involve migrant workers. There will be created a new Director of Labour Market Enforcement appointed by and reporting to both the Home Secretary and the Secretary of State for Business. The Director’ s remit will cover labour market breaches, not immigration offences. The Director and the enforcement bodies will work closely with immigration enforcement wherever labour market breaches are linked to illegal immigrants or people working in breach of their visa conditions.
- Illegal Working – Clauses 8-11:
The Government currently has powers to prosecute migrants with permission to be in the UK who are working illegally in the UK in breach of their conditions, however the Government considers that there is a gap in the current legislation as it does not cover people who have entered the UK illegally or overstayed their visas. A new offence will close this gap by covering any worker – self employed as well as employed.
With the intention of making it harder for people to live and work illegally in the UK, the Government will make it a criminal offence to work illegally, with a sanction of a fine and/or a custodial sentence of a maximum of 6months. By making illegal working a criminal offence in its own right, this will allow wages paid to all illegal workers to be recoverable under the Process of Crime Act 2002.
The Bill will make it an offence for an employer to employ someone whom they “know or have reasonable cause to believe” is an illegal worker. The maximum custodial sentence on indictment for an offence of employing an illegal worker will also be increased from two years to five years. These powers are intended to operate alongside and reinforce the existing system of heavy financial penalties for businesses that negligently employ illegal workers. The new measures are intended to build on legislation introduced in 2014 to strengthen punishments for employers which included doubling the maximum civil penalty to £20,000 per illegal worker.
As regards employers who continue to flout the law by employing illegal workers and evade sanctions, the Bill will introduce a power to close premises for up to 48hours. The closure may be cancelled if the employer demonstrates that they have conducted right to work checks where illegal workers have been identified. Where they cannot, the next step is to place the business under special compliance requirements, as directed by the courts. This can include continued closure for a period, followed by re-opening subject to the requirement to conduct right to work checks and inspections for compliance.
- Driving Licenses- Clauses 16 and 17:
The Government’s intention is to prevent illegal immigrants from retaining UK driving licenses. The immigration Act 2014 provided the power to revoke UK driving licenses held by illegal immigrants. Foreign issued licenses cannot be revoked by the UK Government. Immigration Officers do not currently have the power to seize revoked UK licenses that they encounter. It is the responsibility of the license holder to return the revoked license to the DVLA and failure to do so is a criminal offence. The Immigration Bill 2015 will provide two new measures which build on the driving license related powers in the 2014 Act. It will provide a power for police and immigration officers to search people and premises, in order to seize the UK driving licenses(whether revoked or not) of illegal migrants. The Bill creates a new criminal offence of driving whilst unlawfully present in the UK, which carries a custodial sentence of 6months and/or fine of up to the statutory maximum. The new offence of driving whilst unlawfully present is anticipated to be a power to be used primarily by the police, in the course of their work who may encounter drivers who are not lawfully present driving on the UK roads. The vehicle used may be detained and upon conviction, the court may order its forfeiture. If a police officer stops a motorist for a driving offence, they can check the immigration status of that individual. If the individual is here illegally, the police officer will be able to search for and seize their UK driving license, arrest them for the driving offence and detain the vehicle. If the migrant is convicted of the offence, the court may order forfeiture of that vehicle. This is intended to make it harder for illegal migrants to lead a settled life in the UK.
- Banks- Clause 18:
The Government intends to make it harder for illegal migrants to live and work in the UK by working with banks and building societies to restrict their access to bank accounts.
The Immigration At 2014 prohibited banks and building societies from opening current accounts or individuals who are in the UK unlawfully. Checks are performed with the anti- fraud organisation Cifas. The new Bill goes further and includes measures to prevent illegal migrants from continuing to operate existing bank accounts. This includes bank accounts opened before the 2014 Act prohibition came into force and also where accounts were opened during a period of lawful stay but where the migrant has remained in the UK after their leave expired.
Banks and building societies will be required to check regularly whether they are operating a current account for a person known to be in the UK illegally, according to information provided by the home office via a specified organisation. If a bank establishes that a customer is an illegal migrant, they will have a duty to report the match and details of any other accounts they provide to the Home Office. Measures in the bill will provide the home office with a graduated range of option which could be deployed where a current account holder is confirmed to be unlawfully present. These include requiring banks and building societies to close the illegal migrant’s accounts as soon as reasonably practicable. This measure will be used in routine cases to disrupt the illegal migrant’s ability to remain in the UK and to encourage them to leave voluntarily. The Home Office will be granted the power to apply to the courts to freeze the current account until the illegal migrant leaves the UK. Use of this power is intended to be targeted towards hard to remove cases with significant funds, to leverage co-operation with the removal process. The Bill provides for prosecuting individuals for the new criminal offence of working illegally and recovering wages as proceeds of crime. This measure will be used where there is clear evidence that the assets are the proceeds of illegal working and the person meets the criteria for prosecution. Where the account is frozen, the individual will be able to access their funds to meet basic essential living needs and the level of funds will be determined by the courts in such cases.
The measures are intended to make it harder to live a settled life unlawfully in the UK and to incentivise voluntary departure.
- Residential Tenancies- Clauses 12-15 :
The Government intends to make it more difficult for those with no right to be in the UK to rent private accommodation.
The Immigration Act 2014 introduced the Right to Rent scheme, which set out to prohibit illegal migrants from accessing private sector rented housing. The Right to Rent scheme was first implemented in part of the West Midlands and the Government has announced its intention to expand the scheme across the UK. Under the scheme, private landlords, letting agents and homeowners who let rooms need to check the right of prospective tenants to be in the country by conducting simple document checks, for example a passport or biometric residence permit. Landlords who fail to make the right checks are liable for a civil penalty of up to £3,000 per illegal migrant tenant.
Immigration status is not currently a ground for eviction, but landlords may be able to gain possession for other reasons. The Bill will enable landlords to evict illegal migrant tenants more easily, and in some circumstances without a court order. Landlords will obtain a notice issued by the Home Office which confirms that the tenant is disqualified from renting in the UK as a result of their immigration status. On receipt of this, the landlord will be expected to take action to ensure that the illegal migrant leaves the property. The Government is also introducing four new criminal offences to target unscrupulous 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. These landlords or agents may face a fine, up to five years imprisonment, both a fine and imprisonment and further sanctions under the Proceeds of Crime Act.
The Bill intends to encourage illegal migrants, who are evicted, to make arrangements to depart from the UK. If they do not the Government states that they will take steps to remove them.
- Enforcement Officer Powers- Clauses 19-28 and 30:
The Government intends to tackle illegal immigration and minimise its impact on public services, communities and businesses in the UK.
Immigration officers currently have powers to examine, arrest and detain illegal migrants for the purpose of removal. They also have search powers to find passports and travel documents to aid removal but if they find other evidence of use to law enforcement partners they cannot always act.
Immigration officers currently do not have powers to search for and seize evidence where the intention is to take administrative action, either to remove an illegal migrant from the UK or to serve a civil penalty notice on an employer or landlord. The Bill provides additional powers of search and seizure, but no extra entry powers.
The Immigration Bill will give immigration officers powers to seize and pass on evidence where there are reasonable grounds to believe it has been obtained through, or is evidence of, a crime and where it is necessary to prevent it being concealed, damaged, or destroyed.
The Bill creates new powers to allow officers to search for and seize evidence of illegal working (such as pay slips or time sheets) or of illegal renting (tenancy agreements and letting paperwork).
Detained migrants and prisoners facing deportation are subject to routine searches for items which may pose a threat to security, but not for nationality documents. This Bill creates new powers to search for and seize these documents which will help speed up removal.
The Bill ensures warrants for immigration officers to enter premises are aligned with police warrants.
The Bill provides a power to cancel leave extended by statute where conditions of leave have been breached or the applicant uses or has used deception in seeking leave to remain.
- Immigration Bail- Clause 29
The Government intends to create a new power to allow the Home Office to require the courts to tag foreign offenders released on immigration bail but are waiting to be deported so that the Government always knows exactly where they are. This is intended to prevent absconding and increase the number of criminals deported. Currently, when a foreign national offender is released on bail, a judge has the discretion to tag a foreign national offender. The Immigration Bill will change the law to allow the Home Office to mandate a tag as a bail condition when an individual is released on bail. Tagging foreign national offenders using GPS technology is intended to allow immigration officers to more quickly re-detain them when deportation is imminent. The Government considers that monitoring individuals using GPS tags will also improve public protection.Illegal migrants, including foreign national offenders, who are awaiting deportation or removal, can be placed on conditions, such as reporting, if detention is not appropriate. The Government considers that the current legal framework for this is complex and fragmented as there are six different legal statuses including immigration bail and temporary admission. It is believed that this complexity is confusing and leads to litigation. The reforms will create a single power of bail, where it is clear what conditions can be imposed, when and what the sanction is for breaching conditions. Tagging will not automatically apply to all non-detained foreign national offenders as the government will seek electronic monitoring as a condition of bail when an foreign national offender is released.
- Appeals- Clauses 31 to 33:
The Government intends to make it easier to remove those who have no right to be in the UK by enabling them to remove a person whose human rights claim has been refused and making them appeal outside the UK, provided this does not breach their human rights. The intention is to extend the current “ deport first , appeal later” policy to other immigration cases and not just foreign national offenders liable to deportation. The Immigration Act 2014 reduced the number of rights of appeal against immigration decisions from 17 to 4. It also created a new power to allow those subject to deportation, primarily foreign criminals, to be deported first so that they have to submit any appeal after their removal – i.e. from outside the UK – so long as this does not cause serious irreversible harm or, otherwise breaches human rights. The Government now plans to extend this power to enable it to be applied to all immigration cases. A person will therefore only be able to appeal before removal where an asylum claim has been refused (provided it is not clearly unfounded) or where a human rights claim has been refused (provided it is not clearly unfounded) and there is a real risk of serious irreversible harm or other breach of human rights if the person is removed before the appeal. Where there is a real risk of serious irreversible harm, or breach of human rights, the Government states that the person cannot be removed from the UK before their appeal has been determined.
- Support for Certain Categories of Migrants- Clause 34:
The government expects more illegal migrants to leave the UK rather than access support. They intend to restrict the support they give to people whose claims for asylum have been found unsubstantiated and their dependants, to those who are destitute and face a genuine obstacle to leaving the UK through changes to the Immigration and Asylum Act 1999.
The UK provides support for asylum seekers who would otherwise be destitute until their claim is finally determined, in line with their international obligations. However, the Immigration and Asylum Act 1999 provides support in broader circumstances. Section 94(5) allows failed asylum seekers with children to continue to receive the same support once their asylum claim has been finally rejected. Section 4 of the 1999 Act provides support for other failed asylum seekers and other categories of migrants.
The Immigration Bill aims to reduce the scope for such support to remove incentives for failed asylum seekers to remain in the UK illegally.
The Bill will make these key changes to the existing support framework: those with children with them when their asylum claim and any appeal are rejected will no longer be treated as though they were still asylum seekers and will cease to be eligible for support under section 95; section 4 will be repealed and support will only be available to failed asylum seekers and any dependent children if there is a practical obstacle that prevents them from leaving the UK.
To avoid destitution, the Home Office will continue to support failed asylum seekers with children if they cannot leave the UK because of a practical obstacle beyond their control (for example because they are unable to travel for medical reasons or because they are waiting for their national embassy to issue them with travel documents).
As regards how the proposals affect asylum seekers and refugees, the Government states that they will not. They state that they will continue to meet their international obligations to both groups. Asylum seekers who are destitute will be provided with accommodation if they need it and a weekly allowance to cover their essential living needs. If they are granted refugee status, they will have access to the labour market and be eligible to apply for mainstream benefits.
There will be transitional arrangements for failed asylum seekers already in receipt of support under section 95 or section 4 of the 1999 Act when the new measures come into force. This will avoid the scenario in which large numbers of families lose support abruptly. There are existing powers to manage these cases off support if they refuse to take steps to leave the UK voluntarily and these will be used on a case-by-case basis.
- Border Security- Clauses 35 to 37:
The Government state that they intend to crack down on those who exploit illegal migrants by seeking to smuggle them into the UK. The Bill will give Border Force new powers to target vessels in UK territorial waters suspected of involvement in facilitating illegal entry into the UK.Border Force operates a fleet of cutters to enforce revenue and customs matters, in particular to lead the fight against the importation of controlled substances. Officers on board cannot exercise immigration powers in UK territorial waters so cannot intervene when they identify vessels which they suspect to be involved in facilitating illegal migration. The Immigration Bill will provide Border Force Officers with new powers to: stop, board, divert and detain a vessel where there are reasonable grounds to suspect that it is being used to facilitate the breach of immigration law or is being used in connection with such facilitation; search a ship and anyone and anything on the ship to obtain information or evidence of the facilitation offence; arrest of any person reasonably suspected of being guilty of an offence of facilitation and seize relevant information or evidence; use reasonable force in the exercise of any of these powers or functions.
When passengers arrive on international commercial flights they must present at immigration control. Carriers and port operators who fail to comply with their legal obligations in this regard may be liable for a criminal offence. The Immigration Bill will create a civil penalty scheme to incentivise carriers and port operators to invest in better passenger management processes. The detail of the scheme will be in secondary legislation and codes of practice, including the maximum penalty that can be imposed.
Travel bans restrict the movement of named individuals associated with regimes or groups, including terrorist groups, whose behaviour is considered unacceptable by the international community. The decision to impose a travel ban is made either by the United Nations’ Security Council or by the Council of the European Union. To implement travel bans in the UK, secondary legislation is laid before Parliament to amend the Immigration (Designation of Travel Bans) Order 2000. The Immigration Bill will remove the need to update this secondary legislation. Instead international travel bans against non EU nationals will take effect in the UK automatically.
- English Speaking in the Public Sector- Clauses 38 to 45:The Government wants to ensure that all public sector workers in customer- facing roles can speak fluent English.
The code of practice will outline the standard of spoken English to be met, the action to be taken by a public authority where someone does not meet that standard, the procedure to be operated to deal with any complaints and how the public authority can comply with its other duties including its obligations under the Equality Act 2010.
The Government will place a duty on public authorities to ensure that each person who works for a public authority in a customer-facing role, speaks fluent English. In determining how to comply with this duty, a public authority must have regard to a code of practice. The duty will ensure every citizen receiving help or advice is served by someone who can provide them with advice in clear English.
At the moment, the Government believes that there are many vital customer-facing public sector roles which do not require the job holder to be a fluent English speaker. This includes unqualified teachers, teaching assistants and unregulated NHS staff. It is considered that this cannot be allowed to continue for roles where communication with the British public is vital to deliver an effective service.
- Fees and Charges- Clauses 46 to 50:
The Government wants to encourage businesses to source the skilled workers that they need from the resident labour market. They intend to introduce an immigration skills charge , which is intended to help address current and projected skills needs in the UK economy and contribute to reducing net migration.
The Bill will also allow the Home Office to formalise the framework of costs underpinning the passport fees to apparently better reflect the costs incurred in providing passport services, for example the costs of processing more complex applications requiring costly Home Office interventions, and to allow some passport fees to be set at above cost. This is intended to alleviate the corresponding burden on the vast majority of passport applicants and potentially facilitate further fee reductions.
Existing legislation governing the registration of births, deaths, marriages and civil partnerships is considered restrictive in terms of the products and services for which fees may be charged. The Bill will introduce what is stated to be modernised and flexible fee-raising powers in respect of services provided, enabling fees to be set for a wider range of products and services than is currently possible. This is stated to be intended to reduce the burden for providing registration services on the taxpayer by allowing such services to become increasingly self-sufficient.
The Bill will introduce a new immigration skills charge which will be applied to employers sponsoring non-EEA nationals who come to the UK under Tier 2 of the Points-Based System. The specific employers and amount will be set following consultation. The money raised will then be used to address skills gaps in the UK by contributing to funding training, particularly more apprenticeships.
CONSIDERATIONS
On the basis of the new Bill as per the Government’s intentions, those without leave to remain may seriously wish to consider seeking to regularise their immigration status in the UK. It is not every person who is undocumented who cannot establish a legal basis of stay upon application. It is possible for such a person to rely upon the Immigration Rules themselves as a basis of stay.
A person may be able to show by way of documentary evidence that they have been living in the UK continuously for at least 20years and be granted leave to remain.
A person without leave may be able to show that he has a child aged under 18years in the UK who has spent at least 7years continuously here and argue that it would be unreasonableness to expect the child to be removed with the parent to the country of origin.
Further a young person aged between 18 and 25years may also be able to show that they have lived continuously in the UK for half their lives.
It may also be possible to show that they are applicable exceptional circumstances in an individual or family case such that they should be granted leave to remain in the UK outside the immigration rules by reliance upon Article 8 of the ECHR.
A single mother with no leave to remain may have a child who is British by virtue for example of that child having been born of a British or settled father. A “Zambrano” application or family life Article 8 human rights application may be submitted to the Home Office. As regards the “Zambrano” application, a primary carer of a British citizen will qualify for a derivative right of residence where they can show that they are a primary carer of a British citizen who is residing in the UK, and would be unable to reside in the UK or in another EEA state if they as the primary carer are required to leave the UK.
An undocumented father may have a British child but be separated from the British or settled mother yet be able to obtain an order from the family courts ordering contact and therefore be able to apply for leave to remain as a parent seeking to have access to the child.
The Government intends to extend the “ deport first, appeal later ” powers to all immigration cases. This certification procedure is challengeable (where there are merits to the case) by way of judicial review and where a claim is made in some cases removal is normally suspended pending a decision on grant of permission to proceed with the claim. The Home Office has published guidance on how to apply the “serious irreversible harm test” and the relevant guidance gives the following example of where serious irreversible harm could result: the person has a genuine and subsisting relationship with a child or partner who is seriously ill, requires full-time care, and there is no one else who can provide that care. Not many people will be able to meet the high threshold applicable to resist removal. In the Government’s Fact Sheet, in response to how many appeals have been allowed under the existing “ deport first appeal later” provisions, the Government’s response as published on 17 September 2017 is ,”Over 230 foreign national offenders have been removed under these powers and 67 have lodged an appeal, of which three have been determined and were dismissed. In addition, over 1,200 EEA foreign national offenders have been removed under equivalent powers and 288 have lodged an appeal”. Basically the answer is none and as such providing for an out of country appeal in practise is simply an illusion, with only a mere hope of obtaining a successful outcome, however in deserving cases with prospects of success, it is suggested that the certification procedure be challenged by way judicial review prior to removal action being taken.
CONCLUSION
It is therefore likely that before the Bill becomes law, the Home Office may well see an unexpected flurry of activity as regards submission of applications for leave to remain with the result that those that had been the target of the new provisions may well obtain leave to remain, if not granted directly upon application by the Home Office themselves or failing that following a successful in country appeal as it is not every case that can be certified or not have such certification successfully lifted.