An Immigration Special
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
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
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
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.