Client Newsletter/Blog - May 2017

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IMMIGRATION ACT 2016

 

Introduction

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

 

Residential Tenancies

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. 

Illegal work

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.

 

Conclusion

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 (jc@andrewsmonroe.co.uk) 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

Client Newsletter/Blog

March 2017

Introduction

In this newsletter we will look at:

  1. A recent flexible working dispute case
  2. The laptop travel ban
  3. The National Minimum Wage
  4. Employers problems regarding the u-turn on increasing self employed NI

Flexible worker – Discrimination after returning to work

 

Flexible worker

Fidessa PLC v Lancaster (2017)

Ms Lancaster had been dismissed from the employ of Fidessa PLC by reason of redundancy. Ms Lancaster brought the following claims against her former employers:

1.    Unfair dismissal

2.    Direct and indirect sex discrimination

3.    Harassment

4.    Less favourable treatment as a part-time worker.

The back ground to the case was that during her maternity leave, Ms Lancaster had asked her employers for flexible working so that she could pick up her child. This meant that Ms Lancaster had to leave at 5pm. The parties agreed the flexible working hours.

Ms Lancaster’s worked in the Con-op team. Part of her work involved deleting connections that were no longer in use by the firm’s clients in the financial services sector. The deletions were best done in the evening. The firm’s flexibility was to allow Ms Lancaster to start the deletions at work. Ms Lancaster finished off the deletions at home after she had collected her child. Her employer stopped being flexible and decided that the work needed to be done at work from 5pm onwards. Thus having a serious impact on Ms Lancaster’ ability to collect her child.

The firm had to make staff redundant and this included the Con-op team. Ms Lancaster was made redundant and although there was another vacancy that she was encouraged to take on, Ms Lancaster refused to apply for the engineer post because the second job did not allow for career advancement in her opinion. It also required her to work after 5pm. Ms Lancaster was subsequently made redundant.

 At the redundancy meeting Ms Lancaster was told when her line manager heard she was pregnant for a second time he said “oh f…k, she’s pregnant”. Dare I say not the type of language to use at work. In terms of potential damages such language can add to an organisations costs.  Ms Lancaster issued proceedings.

It was held at first instance by the employment tribunal that:-

1.    Ms Lancaster’s dismissal was unfair.

2.    Ms Lancaster had been indirectly discriminated against on the grounds of her sex. Insisting that the Con-op team had to stay late to do the deletions was indirect discrimination against women who had children.

3.    The employers had infringed Ms Lancaster’s rights as a part-time worker as they had reneged on the agreement that she could leave at 5pm in order to collect her child.

The employers appealed to the Employment Appeals Tribunal and lost. Her Honour Judge Eady allowed the appeal in relation to the claim that the employee had been directly discriminated against. However points 1 to 3 was upheld.

The significants of this recent case is that it highlights that although s18 of the Equality Act 2010 provides protection for pregnant mothers and those women on maternity leave during the protected period. The protected period starts when a woman notifies her employer of her pregnancy and ends when she returns to work. Once a woman returns to work, the sex discrimination legislation under the Equality Act, as well as the part-time workers legislation will provide protection and it is worth knowing.

 

Laptop ban

 

Laptop ban

If you are travelling to a country where you will not be allowed to walk on to the plane with your laptop or ipad or any other electronic device; except mobile phones as it is my understanding that these are still allowed on the planes. However always check with your carrier.

Please check your travel insurance to ensure that your electronic goods are insured in the holdall. Some insurance will not provide cover, so you will need to buy additional cover.

 

National Minimum Wage

The National Minimum Wage (and National Living Wage) rates will increase from 1 April.

The National Minimum Wage is defined as the minimum wage per hour a worker is entitled to under the law.

National Living Wage was introduced by the government on 1 April 2016 and is defined as the living wage for all working people over the age of 25.

The new rates from

  • £7.50 per hour - 25 years old and over
  • £7.05 per hour - 21-24 years old
  • £5.60 per hour - 18-20 years old
  • £4.05 per hour - 16-17 years old
  • £3.50 for apprentices under 19 or 19 or over who are in the first year of apprenticeship.

If an employer provides a worker with living accommodation, the maximum deduction from the National Minimum Wage or National Living Wage which can be made will be £6.40 per day.

 

Phillip Hammond’s NI U-turn may be a huge problem for some employers

In the recent budget, the Chancellor announced that he was going to increase National Insurance (NI) contributions to be paid by the self-employed by 2%. This would impact 2.5 million people. His aim was to raise £2bn. This aspect of the budget created mayhem as you know, there were a few bad headlines and tory backbenchers screaming Mr Hammond was in breach, it is alleged, of a manifesto promise not to raise taxes.

In order to avoid a backbencher’s revolt; after all we have Brexit to think about, the Chancellor Phillip Hammond did a complete u-turn and scrapped the NI increase to the delight of the self-employed.

The Chancellor must however raise funds to compensate for the loss of revenue because of the U-turn.  The best way to deal with it surely is to go after those employers who use or exploit the false/ bogus self-employed. The staff are forced to be self-employed because this saves the employer money, holiday pay, sick pay etc. The industries that have a tendency to do this are the gig economy, construction industry, transport and private social care firms.

In 2015, the CAB suggested that there were approximately 460,000 bogus self-employed[i]

It would be interesting to see if what will happen next!

 

[i] https://www.citizensadvice.org.uk/about-us/how-citizens-advice-works/media/press-releases/bogus-self-employment-costing-millions-to-workers-and-government/

Newsletter

Client Newsletter 2017

Introduction

Happy New Year to everyone.

I hope that this is a positive year and you achieve all the goals you set for yourself.

In this addition of the newsletter we are going to discuss the High Heels debate, Gina Miller, Brexit EU law and its potential impacts EU citizens.

1.       High Heels Debate

High Heels House of Commons Comittee report

I remember when I was a student, I worked in the retail industry for what was a prestigious store at the time.  Make up, neat hair and high heels were the norm! I am grateful we were not asked to wear sexy blouses or short skirts. It did not bother me the dress code. However I have grown up and changed and rushed to sign the petition of Nicola Thorp

Recently the issue of young women wearing high heels is back in the news because 138,500 people, predominantly women signed the petition calling for the banning of high heels in the work place.

The report on High heels and work place dress code looked at the issue of high heels in the work place and in particular the industries where high heels are often required: hospitality, corporate, tourism and agency services. More often than not, it was young women who were expected to wear high heels.

Women were usually asked to wear makeup, dye their hair blond, tight revealing clothes and short skirts.

The interesting aspect of the report was that when John Bowers QC[i] was asked about the legitimacy of the practise; it was not clear cut that if a woman took the issue of being forced to wear high heels to court she would win the claim.

We are all aware that employers are not allowed to discriminate against the genders in the work place. Sex discrimination (like race, age, disability for example) is one of the protected[ii] characteristic under the Equality Act 2010.

Direct discrimination[iii] occurs when A treats B because of a protected characteristic, less favourably in the work place. High heels however is not caught by the direct discrimination legislation because work a place dress code policy document is usually applicable to both sexes. If high heels are to be found in the dress code policy and effects one group (women), it will be regarded as indirect discrimination[iv] under the law.

Indirect discrimination can in law be justified if it is reasonably necessary to achieve a legitimate aim and it is here that it is believed that the law falls down and does not help women. The tribunal costs just to issue a case is in the region of £1,200 and this too is clearly a deterrent for some women.

The committee found the current law did little to protect women from gender discrimination in the work place. The committee has asked for the government to review the law and to increase the penalties that tribunals can make and award against employers. The current penalties do not to stop employers breaking the law.

High heels worn for a long period of time is bad for women’s health as highlighted by the report at pages 8-13.

Wearing high heels at work also gives rise to health and safety considerations! A good employer should do a proper risk assessment.

The Management of Health and Safety at Work Regulations 1999 require an employer to (1) conduct a suitable and sufficient assessment of the risk to the health and safety of persons at work[v]; and (2) to set out a hierarchy of risks in the workplace. This risk assessment duty builds on the general duty on employers under section 2 of the Health and Safety at Work Act 1974 to provide a safe working environment.

In my business newsletter I have asked employers to consider reviewing and thereafter to re-writing the work dress code policy documents and to remove where possible any gender bias.

By July 2017 there may be new guidelines issued on this matter as the Governments Equality office, ACAS and the Health and Safety Executive have been asked to prepare new guidelines and the Minister for Women and Equality has been asked to ensure that it gets done!

2.       Gina Miller

Brexit

The recent Brexit decision was won by Ms Gina Miller and her team. However she has faced a lot of online abuse: racism, sexism, rape threats, death threats including being attacked because she was born in Guyana. All done because Mrs Miller exercised her rights as a British Citizen to challenge the government. The experience of Mrs Miller online is simply extraordinary to be honest. Naturally it is inappropriate behaviour and I am ashamed to write the next few lines: online bullying against women is really on the rise.

What’s even worse was is that there are two Gina Millers online. One is a US sports journalist and the other well the business woman; both have been abused and the US journalist wrote about her experience.

I am going to explain the simple steps you can take to try and protect yourself from such bullying and harassment online.

a.       Where possible block the person from your social media

b.      Change your privacy settings.

c.       Try your best not to give you data to third parties online: twitter, Facebook, Instagram, snapchat. Everyone wants your data. Your data has value. I have told friends off on my own Facebook page. Do not give Facebook all your information.

d.      Think twice about where you post pictures of your children and yourself as I have read people for example like to steal children’s pictures online and using it elsewhere in the world.

e.      Do not communicate with the offender who is bullying or harassing you. I recently had a few swear words sent my way on twitter. I did not respond. Thankfully it stopped.

f.        Collect as much evidence as possible of the activities of any offensive troll and print off hard copies to use to refer the matter to the police. The police may refer the matter to the CPS who will assess whether or not they have sufficient evidence to prosecute. In the Gina Miller case, it is my understanding that some people have been arrested for their offensive communication. The police have also issued a ceased and desist letter to another for harassing communication. The CPS will prosecute if provided with sufficient information regarding racially aggravated communication.

g.       Stay safe online and organisations such as the Open University have free courses to help you stay safe. Take a course, it is worth doing!

 

3.       Pregnancy and Maternity Discrimination

 I have always highlighted how this is wide spread and discussed it in previous newsletters. Most employers in England are just terrible when it comes to women who are pregnant and/ or on maternity leave.

The good news is that the government is considering improving the rights of women by extending the protection on offer to such women if they are to be made redundant by their employers. Whilst this may be more onerous and add to the costs of employers; it will be definitely be beneficial to the women who find themselves heavily discriminated against because they have had a child. So look at for the changes. 

[i]  a leading employment lawyer

[ii] S11 Equality Act 2010

[iii] S13 Equality Act 2010

[iv] S19 Equality Act 2010

[v] To include those not in his employment that may enter his premise

 

Client Newsletter Blog November 2016

Christmas 2016

Christmas 2016

Well Christmas is almost upon us. For most people it is a time of great joy and happiness as they get to spend quality time with family, friends and some old acquaintances. People give and receive presents if they can afford it. Parents try and make an effort to ensure that their children have a magical time. For some parents this means a few lies, others prefer to be honest.

Christmas behinds the scenes[i] involves a lot of washing, cleaning, shopping, painting the house, baking, decorating, presents and even more baking and cooking. The amount that gets done is usually phenomenal. Most people are exhausted Boxing day!

I found a note on a study of 2000[ii] parents which found that 1 in 10 [iii]men admit that they do nothing around Christmas time. Mums tend to take on an additional 24 chores.[iv]

A joyful Christmas usually means one spouse, usually the woman has worked hard. This does not mean for one minute that fathers/ men do absolutely nothing. It’s just a successful Christmas tends to falls on women with usually a small contribution being made by the husband. The fact that women tend to do the chores causes a lot of argument around Christmas time. Six out of ten couples argue with about Christmas chores.

January therefore is usually the busiest month for a divorce/ family lawyer’s calendar as many people make it their new year’s resolution to divorce or part company with their spouse. More often than not it is the wife who wants to separate. There is no quick fix to this problem. At Christmas time the only advice I can give is what people already know they should do:-

·        Share the responsibility of Christmas or even better, the offending spouse should give time off to the spouse that tends to do most of the work.

·        Sharing work alleviates the pressure of Christmas.

·        List what needs to be done and agree who should carry out what chores.

·        Do not tell your spouse how to do the chore, leave them to get on with it.

·        Appreciate the work carried out.

·        Tips for alleviating the Christmas stress: buy less Christmas presents, reduce the ‘to do’ list, buy cakes, do not bake[v], call do not send cards, scale back on the Christmas decorations, stay at home and cuddle your partner instead of rushing around to try and see everyone. Do what is necessary to reduce the dish washing, so plates that go in the dishwasher will be better than using the fine china. I could suggest paper plates, but I would not do so. You could also do finger food instead of the usual huge feast[vi].

I hope this helps and you find some tips to alleviate the Christmas stress in your household. If you think your friends are going down the argument route because of Christmas, please refer them to this article.

If all else fails and come January you or a friend must part company with a spouse. I would suggest that you talk to a counsellor first to see if the marriage/ relationship can be saved

Employers fairly dismiss man who had indefinite leave to remain in the UK

Jamaica's coat of arms

Introduction

A Jamaican man is dismissed from the employ of Abellio London Ltd because he could not provide his employers with evidence that he was entitled to live and work in the UK.

 

The case

In the case of Baker v Abellio London Ltd (2016), Mr Baker, the Claimant, had travelled from Jamaica to the United Kingdom as a child; at the time he was using a Jamaican passport. Mr Baker had lived in the United Kingdom for a long time and had indefinite leave to remain. However he had not left the United Kingdom for a holiday accordingly his Jamaican passport had expired and he had not acquired a UK passport.

Mr Baker was employed by a transport company, Abellio Ltd. The employers were checking the staffs’ immigration status. Mr Baker was asked to provide evidence of his immigration status.  Mr Baker had to prove to his employers that he had a right to live and work in the UK without restriction. Mr Baker did not have a valid Jamaican passport as it had lapsed. Nor did he have a UK passport. Mr Baker could not prove he had indefinite leave to remain, although it had been acquired.

Mr Baker was loaned £350 by his employer to enable him to get the correct legal documents to avoid dismissal. He failed to do so.

Mr Baker acquired the passport as requested by his employers; however he failed to obtain the endorsement as proof of his indefinite leave to remain in the UK.

Mr Baker was not a UK citizen. He was a Jamaican national, even though he had indefinite leave to remain. A passport alone therefore was not sufficient evidence of his rights to live and work in the UK. The endorsement was required.

Mr Baker’s employers had arranged a meeting with him to discuss the matter and warned him that he may be dismissed. Mr Baker failed to attend the meeting.

Mr Baker was ultimately dismissed. He appealed, but the appeal failed. The employers Abellio had followed a fair dismissal procedure; accordingly the dismissal was fair and Mr Baker’s claim for unfair dismissal was rejected.

I understand that 13% of the UK population do not own a passport; however if you are subject to the immigration rules of the UK, you have to comply in order to work.

Tips

·        Employer: provided you follow a fair dismissal procedure and the employee has not provided you with valid documents to prove their right to work in the UK, your dismissal would be viewed as fair by the employment tribunal.

·        Employee: it is a prerequisite that you ensure you have valid evidence of your right to live and work in the UK. Do not let your passport or relevant legal document lapse without obtaining a replacement. Failure to do so may result in you losing your job for no good reason. You will not get any legal redress.

 

                                                                                               

 

 

[i] I can only write from a Caribbean perspective here. I assume it is the same for most households; but assume other cultures are the same.

[ii] http://thecoupleconnection.net/blog/christmas-chores-who-does-what

[iii] hmm, I think it is much higher

[iv] Again, I feel that it is more than 24

[v] I admit some of my close friends put in their cake orders from last year!

[vi] http://christmas.organizedhome.com/reality-check/ten-ideas-stress-free-holiday-seaso

IMMIGRATION ACT 2016

in

An Immigration Special

Introduction

On 16 May 2016, the Immigration Act received Royal Assent. Significant changes were made to the law which will come into effect through regulations over the next few months.

I wrote an article about the new Act from the perspective of landlords and employers. I then sent the salient points of the newsletter to a few friends on my Whats App handle. The result a few people were ‘shocked’ and requested for more information.

In other words Caribbean people (or any other immigrant group to be honest) who have lived here for many years and who for one reason or another have not bothered to sort out their nationality have just discovered that they are really at risk of being deported.

The story thus far

The purpose of the new Immigration Act is to make life tougher for “illegal workers” to live and work in the UK. To punish those employers who employ illegal workers and landlords who do not play by the rules and turn a blind eye and continue to rent to them.

In this article we will discuss some of the key changes:

1.       Residential Tenancies

2.       The new offence of illegal working

3.       The offence of employing an illegal worker

4.       Skilled workers charge

5.       Significant rule changes for migrants – bank accounts & driving a car

6.       Charging employers recruiting from outside the EEA

7.       Language requirements for the public sector

Residential Tenancies

Immigration Act Residential Tenancies

 

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. A landlord who fails 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 they must use the law to evict that individual rather than risk a fine.

The government changed the law so it is now a criminal offence to lease premises to an illegal worker. 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.

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 that a tenant is not residing in rented property legally the tenant’s landlord must start 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. 

 The new rules regarding illegal working

Immigration Act Illegal workers

 

 

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 anyperson 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 immigrant is likely to be at risk in my opinion if they are self-employed under this new legislation. Technically it is illegal to employ a self-employed hairdresser who does not have her papers. Nor for that matter can you use a chef or waitress who is not in the country legally. If you for example run a mini-cab company, can must not use illegal migrants as ‘self-employed’ cab drivers!!!

The individuals concerned may be fined and/ or imprisoned for a term not exceeding 51 months.

It is also important for people to understand that their wages are illegal, the proceeds of crime and can be seized by the police under the Proceeds of Crime Act.

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 individual 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 to have ‘actual knowledge’ to be guilty of this offence.

An employer can be imprisoned for up to five years under the new legislation.

Employers who are repeat offenders: the new law allows the authorities to close down businesses for 48 hours for non-compliance.

What is even more important for you to realise is that the law specified above will take effect on 12 July 2016.

See s 34 & 35 of the Act.

 English language requirement for public sector workers

Immigration Act 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. This has to be drawn up!

The public authorities must have a complaint procedure in place, so that members of the public can complain.

Public sector workers will include NHS staff; so again I think this new legislation is at risk of being challenged.

I am ashamed to say that Caribbean (or other countries) accents; may be caught by this provision.

See s77 of the Act.

The skills workers charge

The government has decided that to incentivise 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. It is proposed that this will take effect in 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.

Nurses are classified as tier 2 skilled workers; however they are on the skills shortage list and are protected. I must say for now! Sorry as I know from personal experience that this group works very hard.

The minimum salary also for employing a skilled worker has been increased 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 migrants

·         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. 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. The Home Office will probably do their own checks. If they are agree with the bank, then the bank will be ordered to close the account down. Alternatively the Home Office will apply for a freezing order.

See s45 of the Act.

·         Driving Licence

A migrant who is not a lawful resident in the UK, 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.

DVLA as part of its checks will have to make sure that it checks that the person applying for a driving licence in the UK has a legitimate right to be here before issuing a licence.

Police and immigration officers will have a right to search and seize any driving licence that belongs to an illegal migrant.

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.

See s44 of the Act.

Report first and appeal later

This policy of the UK government which was established by the Immigration Act 2014. Then it was concerned really with migrants who had no rights to stay in the UK or those who were convicted criminals with no residency rights to remain. These people were thrown out of the UK and if they wanted to appeal their deportation. They could appeal from their home country. However the new rule did not prohibit people who had human rights claims. They were legally entitled to appeal whilst remaining in the UK. When I refer to human right claims; what I mean is that if you were say 70 years old and your children and grandchildren were legitimately here. You would have a right to family life (as a potential human rights claim); accordingly it would be for this reason why you would be allowed to stay in the UK and appeal.

Under the new legislation:  ‘the deport first and appeal later scheme’ has been extended to include all immigrants cases (appeals and judicial reviews). So it does not matter that the case in question raises a human rights issue; if your right to stay in the UK has been refused. You must leave the country or you will be deported and you can appeal from your home country. Unless you can show that the action would cause serious harm.

It is important to obtain sound legal advice. I am happy to refer individuals to immigration lawyers known to me; because I am not an immigration lawyer.  I am happy to advice on immigration law as it impact employers and landlords.