IMMIGRATION ACT 2016
On 16 May 2016, the Immigration Act received Royal Assent.
This law has caused people who live here ‘legally’ as well as immigrants a great deal of distress because the Act has increased the discrimination people face. Examples:
1. A Jamaican man loses his job because he cannot prove to his employer that he is here legally, case Baker v Abellio (2016)[i]. The man lost his employment tribunal dispute; notwithstanding the fact that he was here quite legitimately.
2. A woman here from Antigua legally, told by her employer that she cannot be employed by them anymore because her biometric card had the wrong details. The error was with the Home Office. The good employer’s gave the young lady a month to try and sort it out.
3. People who are now old and came here in the 1960’s under a ‘British Overseas Passport’. They came here to work quite legally and failed for one reason or another to naturalise as a citizen of the UK under the British Nationality Act 1981. It is this group I actually feel sorry for because some of them have worked hard only to find themselves in breach of the current legislation.
All of the issues highlighted above are real. This note has been updated slightly and issued again at the request of a dear friend, is who also a lawyer.
A ray of hope is the recent European Court of Justice case that said non-EU citizens should have the right to residence in the European Union if their children were born in the bloc. It will be interesting to see how this is interpreted in the UK. For example if two African people have a child in the UK. The child is African according to the law; even though the child has been born in the UK which notwithstanding Brexit is still part of the EU bloc. If a child has one Caribbean parent and an English parent of Caribbean descent. The child is an English citizen, born in the EU bloc. Technically the Caribbean parent, as a result of this recent case, has a right to stay in the UK so as not to deprive the child of their UK/EU rights. I am pretty sure the current government will fight my interpretation of this case. However it does give some hope!
This article will look some changes made by the Immigration Act 2016.
The purpose of the new Immigration Act is to make life tough for illegal workers (immigrants) and to punish those employers and landlords who do not play by the rules and turn a blind eye.
In this article we will discuss some of the key changes:
1. Residential Tenancies
2. The new offence of illegal working
3. Skilled workers charge
4. Significant rule changes for migrants
5. Charging employers recruiting from outside the EEA
6. Language requirements for the public sector
Landlords who comply with the law are aware that under the ‘Right to Rent Scheme’ they are obliged to check the legal status of tenants to ensure that the prospective tenants are in the country legally. This involved checking passports or biometric residence permits and keeping copies. Landlord who fail to make the checks risked a maximum civil penalty of up to £3,000 per illegal migrant tenant.
If a landlord discovers that the tenant is illegally residing in their property. The landlord must use the law to evict that individual rather than risk a fine.
The government changed the law under the Immigration Act 2016, so it is now a criminal offence to rent premises to an illegal migrant. The offence is committed if the tenant is disqualified from renting because they do not have the immigration status that allows them to reside and work in the UK legally.
Under the new legislation the landlord must give the disqualified applicant 28 days’ notice to leave the premises. The tenant has been stripped of any legal protection provided to a tenant; accordingly the notice once served will be enforceable as if it were a High Court Order. There is no need for the landlord to obtain a possession notice.
The landlord who knows or has reasonable cause to believe that the person is disqualified because of their immigration status runs the risk of committing an offence under the new Act. The landlord may be fined (there is no upper limit). There is also imprisonment of up to five years.
The legislation also states agents of a landlord may also commit an offence.
It is a defence to show that the landlord had taken reasonable steps to evict the tenant. So on discovering the tenant is not residing in your property legally; you must start the eviction proceedings.
This is just a brief summary of the new law and you are respectfully referred to the relevant provisions of the Act.
See s39 of the Immigration Act 2016.
A. The offence of Illegal working
The legislation introduces the new offence of illegal working.
An immigrant commits the offence of illegal working if that person is subject to immigration control and:-
1. The person works at a time when they know that they are disqualified to work because of their immigration status; and
2. The person knows or has reasonable cause to believe that they are disqualified from working because of their immigration status.
A person working refers to any person who works; whether it is under a contract of employment, an apprenticeship, a contract to personally work, a contract to provide a service, or a contract to supply goods, a member of the crown, a constable, staff in the House of Lords or the House of Commons.
It is fair to say that the definition of ‘work’ is very wide and catches almost anything really. The migrant is likely to be at risk in my opinion if they are self-employed under this new legislation.
The individual may be fined and/ or imprisoned for a term not exceeding 51 months.
See s34 of the Act for further details.
B. The offence of employing an illegal worker
In terms of the employment market. An employer commits the offence of employing an illegal worker if they employ an employee who is disqualified from employment because of their immigration status; and
The person has reasonable cause to believe the employee is disqualified from employment because of their immigration status.
A person is disqualified from employment by reason of their immigration status if as an adult they:
1. Have not been granted leave to remain or to enter the UK; or
2. The person’s leave to enter or remain in the UK is
a. Invalid; or
b. Has ceased to have effect (because of curtailment, revocation, cancellation, passage of time or otherwise); or
c. Is subject to a condition that prevents employment.
‘Reasonable cause to believe’, means that the employer does not need actual knowledge to be guilty of the crime. Although the government states in their fact sheet that the intention is only to prosecute rogue employers. I am not taking on board what they are saying and would advise employers to take make sure that the people they employ are lawfully employed; otherwise they will be an easy target to be fined and prosecuted.
Employers can be imprisoned for up to five years under the new legislation. In fact I have had an employer come to me complaining about the fine. The advice was ‘pay up’!
Likewise if you’re a rouge landlord and a repeat offender; the new law allows the authorities to close down your business for 48 hours.
This became law on 12 July 2016.
See s35 of the Act.
English language requirement for public sector workers
Public sector employers will have to ensure that staff who interact with the public must speak English. There will be a Code of Practice outlining compliance. I have not seen the Code. I did try to look for it.
The public authorities must have a complaint procedure in place so that members of the public can complain about poor English
Public sector workers will include NHS staff; so again I think this new legislation is at risk of being challenged.
See s77 of the Act.
The skills workers charge
The government has decided that to incentives employers in the UK to use British workers over foreign workers.
In order to actively encourage a change in behaviour the government is going to introduce a charge for employing skill workers from outside the European Economic Area. This came into effect April 2017.
Employers will be charged £1,000 for tier 2 skilled employees from certain skill sets. However there will be a reduction in the charge to £364 in relation to small organisations or charities.
The minimum salary also for employing such a person will increase from £25,000 to £30,000.
There is an exemption to the charge. It will not apply to PHD student jobs; or students who switch from student visas to work visas.
Specific rule changes for Immigrants
· Bank Accounts
Banks and building societies will have to check the status of the account holders in order to ensure that they are entitled to reside in the UK. This was the case under the Immigration Act 2014. There will be a charge and this will no doubt be passed on to customers.
Where the bank or building society ascertains that a migrant is not lawfully entitled to reside in the UK. The organisation in question must report potential illegal migrants to the Home Office. This is the changed introduced by the Immigration Act 2016. The Home Office will probably do their own checks. If they agree with the bank, then the bank will be ordered to close the immigrant’s bank account. Alternatively the Home Office will apply for a freezing order.
See s45 of the Act.
· Driving Licence
The Immigration Act 2014 allowed leave to remain candidates who enter the UK to have the right to hold a driving licence. The DVLA had powers to revoke the licence if leave is subsequently removed.
Under the Immigration Act 2016, if a person is not legally in the country, then they cannot drive under the Act. If the person drives they commits the offence of driving when unlawfully in the UK. The person may receive a penalty and or imprisonment not exceeding 51 weeks. The motor vehicle of such a person may be seized.
I assume that the road insurance of such an individual may be invalid. Hopefully it would still be honoured in relation to any passengers or innocent third party as a result of a road accident.
Further the home office officer or a police officer may enter the property of the migrant and seize his driving licence. Under these circumstances a warrant is not required.
See s44 of the Act. This provision became law on 12 July 2016.
I have suggested that individuals make their stay in the UK legal, if this is not at all possible then seriously consider voluntarily going home.
Should you have immigration issues and need help, contact me via email (firstname.lastname@example.org) and I will try and see what can be done. If I am unable to help you. I will provide you with details of a third party who can help.
[i] The case is on the blog section of my website, scroll down and you will find a note of the facts. www.andrewsmonroe.co.uk