IMMIGRATION ACT 2016
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.
This article is intended for organisations that employ staff, business owners, HR Departments, landlords and letting agents.
The purpose of the new Immigration Act is to make life tougher for illegal workers (migrants) 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. Then 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 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.
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 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.
A migrant 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 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 migrants they employ are lawfully employed; otherwise they will be an easy target to be fined and prosecuted.
The employer (you) can be imprisoned for up to five years under the new legislation.
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.
What is even more important for you to realise is that the law specified above will take effect 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. 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.
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. 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.
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 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.
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.
A prudent employer who has read this note will immediately check their right to work procedures. Make amendments to the procedure to ensure compliance with the new law.
It would be sensible to check the immigration status of employees. You could explain to the employees in question that the law has changed and that everything is under reviewed.
For the landlord or agent, check your procedures for determining the status of tenants. If you have not done checks on the immigration status of your tenants for a while; now might be a good time for a review.
Annual checks all around may be prudent as well as checks when you are taking on a new employee or a new tenant.
Employers and landlords however must not forget that the discrimination legislation still exists and they must comply with it.
There is also the human rights legislation which is applicable in this area of law. I suspect lots of cases will be commence as a result of this new legislation.