Introduction

Immigration has become one of the key public policy issues in the United Kingdom. According to the Office for National Statistics, net migration reached an all-time high of 330,000 in the year to March 2015. Given the long-term demographic impact and the effect on public services, the government has set ambitious targets to reduce the scale of immigration.

With the dust yet to settle on the Immigration Act 2014, the government introduced the draft Immigration Bill 2015 on September 17 2015 to radically reform the culture for migrants by way of further measures to create a 'hostile environment' for unwanted migration in the United Kingdom. Immigration Minister James Brokenshire commented:

"[T]he Bill will build on the Government's work since 2010 to crack down on abuse and build an immigration system that truly benefits Britain – by deterring illegal migrants from coming and making it harder for those already here to live and work in the UK."

The bill further develops the Immigration Act 2014 and includes a package of radical measures to deter people from working illegally in the United Kingdom and to enforce penalties against those who employ illegal workers. This update highlights the key aspects of the bill.

Illegal working

The bill introduces several measures designed to deter illegal migrants from living and working in the United Kingdom. Part 1 of the bill establishes a new director of labour market enforcement, who will produce a labour market enforcement strategy for the Home Office and business secretary. The director will oversee the relevant enforcement agencies in providing a coherent enforcement strategy for non-compliance in the labour market, including the serious exploitation of workers.

The exploitation of vulnerable workers is a disturbing aspect of the UK labour market and the government is attempting to do more to tackle this problem by appointing a director of labour market enforcement. Three agencies are responsible for ensuring that minimum standards are met for workers: a national minimum wage team within Her Majesty's Revenue and Customs, the Gangmasters Licensing Authority and the Employment Agencies Licensing Inspectorate. The main challenge for the new director will be to ensure that there is coordination, collective thinking and leadership among the enforcement agencies to drive effective enforcement strategy.

A much-heralded aspect of the bill is Clause 8, which establishes a criminal offence if migrants undertake work in the United Kingdom while subject to immigration control and do not have leave to enter or remain, or are subject to a condition preventing them from working. While there are existing enforcement powers to prosecute migrants with permission to be in the United Kingdom who are working in breach of their conditions, the bill intends to bridge the gap in the current legislation, which does not cover people who have entered the United Kingdom illegally or overstayed their visas. The maximum penalty in England and Wales under the new criminal offence is 51 weeks' imprisonment or a fine, or both.

The bill will make it a criminal offence for employers to employ an individual who they "know or have reasonable cause to believe" is an illegal worker. This amends the existing offence of 'knowingly' employing an illegal worker under Section 21 of the Immigration, Asylum and Nationality Act 2006 to make it easier to enforce these provisions against employers. The maximum custodial sentence on indictment for an offence of employing an illegal worker will also be increased from two to five years. The enforcement powers of immigration officers will also be significantly increased, as the bill provides them with additional powers of search and seizure, but no entry powers. These powers reinforce the existing system of strict penalties for businesses that negligently employ illegal workers.

Residential tenancies

One of the more controversial aspects of the bill is Clause 12, which establishes criminal offences relating to the letting of residential premises to those disqualified from renting as a result of their immigration status.

The bill will make it harder for those with no right to be in the United Kingdom to rent private accommodation. The maximum penalty will be 12 months' imprisonment, a fine or both on summary conviction, or up to five years' imprisonment or a fine if convicted on indictment. Under Clauses 13 and 14, landlords will be able to evict illegal migrant tenants more easily, and in some circumstances without a court order. Landlords should be wary of their obligations under the bill to carry out right-to-rent checks – otherwise they could face enforcement under the civil penalty regime.

What does this mean in practice for landlords? By law, landlords will be required to carry out document checks to determine whether a potential tenant has the right to reside in the United Kingdom. In most cases, this will simply mean that landlords will have to check an individual's passport or biometric residence permit before granting a tenancy. In addition, landlords will be required to keep appropriate records during the tenancy and for at least 12 months thereafter. There is also a retrospective element to this measure, whereby landlords will have to check tenants' right to rent even if they have entered into their tenancy before the law comes into force. Landlords who let properties to tenants without carrying out these checks will be liable for a civil penalty of up to £3,000.

This aspect of the bill imposes unfair and unreasonable burdens on landlords, who may lack the knowledge or skills to check whether their tenants are allowed to live in the United Kingdom. This shift in responsibility from the Home Office to landlords could have further unintended consequences. For example, immigration checks that landlords would be obliged to carry out could fall foul of anti-discrimination laws, as landlords may discriminate on the grounds of nationality or race when choosing tenants. A recent survey from the Joint Council for the Welfare of Immigrants found that 27% of landlords said that the scheme would make them unlikely to take on renters who had "foreign-sounding" names. Landlords will therefore have to tread a fine line between immigration compliance and avoiding race discrimination. This is not an easy task for landlords, especially given that many will lack experience of carrying out immigration checks.

Driving licences

Another proposed criminal offence is the offence of driving without leave in the United Kingdom. This will apply to migrants who hold a valid UK driving licence and are unlawfully in the United Kingdom. It is also unclear how this offence will be enforced in practice without simply becoming an extension of discriminatory stop and search powers aimed at drivers who appear to be foreign.

Bank accounts

Banks and building societies also have a part to play under the bill. Additional reporting obligations are provided under Clause 18 of the bill, read in conjunction with Schedule 3. Banks have a duty to conduct periodic immigration checks in relation to current account holders and to notify the secretary of state of current accounts for disqualified persons under Section 40B of Schedule 3. Following a Section 40B notification, the secretary of state has a range of escalating options. These include requiring banks and building societies to close a disqualified person's account as soon as practicable and applying to court to obtain a freezing order in respect of any account specified in the application. These measures are intended to make it harder to live a settled life unlawfully in the United Kingdom and to incentivise voluntary departure.

Similar to the provisions on residential tenancies, there is a sense that Clause 18 of the bill imposes a disproportionate burden on small banks and building societies that may lack the resources to effectively meet their obligations under this part of the bill. The likely impact of these measures should become clear once the government publishes a full impact assessment on this measure.

Appeal rights

Arguably one of the more controversial sections of the Immigration Act 2014 is the restriction of the right of migrants to appeal decisions relating to grant of asylum or the removal of refugee status by engaging human rights. Building on the 2014 act, under the new bill the secretary of state will have the power to certify human rights claims, which will effectively require appellants to leave the United Kingdom before they can exercise a right of appeal on human rights grounds.

The so-called 'deport first, appeal later' provisions make it easier to remove persons where the appeal process has not started or is not yet exhausted if the person liable to be removed would not – before the appeal process has concluded – face a real risk of serious irreversible harm if sent back to the country of return. As a consequence, it will increase the barriers for those wishing to bring important challenges to decisions of the secretary of state, as the rules will require human rights appeals to be pursued from abroad.

There is a real risk that the United Kingdom would thus fail to satisfy its obligations under Article 6 of the European Convention on Human Rights, which states:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

The impact assessment accompanying the bill describes these new provisions as a means to prevent people from exploiting the appeals process to extend their stay in the United Kingdom. This represents a flagrant denial of justice and it is clear that the true impact will be on those legitimately seeking to challenge poor decision making by the Home Office.

Tier 2 reform

Another central theme of the bill is the provision to reduce the need for skilled migrant workers by reforming the UK labour market rules. As part of its push to cut net migration, the government recently turned its attention to new restrictions on UK businesses hiring and transferring highly skilled non-EU nationals under the Tier 2 sponsorship regime.

Part 8 of the bill proposes to levy an 'immigration skills charge' on employers wishing to sponsor skilled workers from outside the European Economic Area under Tier 2. Considering that in the year ending June 2015 a total of 92,590 Tier 2 entry clearance visas were granted to highly skilled migrants (53,630 main applicants and 38,960 dependants), it is clear that further increasing the cost of employing skilled migrants is likely to affect UK businesses significantly.

This approach is intended to encourage businesses to source the skilled workers that they need from the resident labour market. However, under the existing Tier 2 regime, employers already have a duty to conduct a resident labour market test, with sponsorship of overseas nationals permitted only where no suitable settled worker can be identified. The wider issue appears to be the lack of suitably skilled and qualified individuals within the resident labour force, which forces businesses to source their staff from the global market.

The bill contains provisions to introduce regulations setting the scope of the immigration skills charge and the rate charged. It remains unclear which employers will be liable to the charge or the amount payable. However, the government has stated that the proceeds from the charge will be used to address skills gaps in the United Kingdom by contributing to funding training and apprenticeships. For many businesses with a vital need for highly skilled individuals, international mobility is crucial for continued growth. Restricting Tier 2 migration will hinder firms' ability to carry out client work and expand in the United Kingdom.

Comment

The Immigration Bill 2015 is yet another addition to the plethora of UK immigration legislation. Its announcement, so soon after the major changes introduced by the Immigration Act 2014, indicates the government's ongoing challenge in framing legislation in response to socio-economic and political pressure.

At its heart, the stated purpose of the bill is to tackle illegal immigration by creating a harsher environment for illegal migrants in the United Kingdom. The problem of illegal immigration is clearly an important issue; given the political pressure placed on the government, it is natural that it is attempting to eradicate the problem. However, in doing so, the concern is that some of the measures introduced will also adversely affect legal migrants, businesses and landlords, while contributing to increasingly widespread discrimination.

The challenge to cut net migration is by no means simple, but the government should be careful not to perpetuate divisiveness among communities. In its current form, the bill appears to do just that.

For further information on this topic please contact Ben Sheldrick at Magrath LLP by telephone (+44 20 7495 3003) or email (ben.sheldrick@magrath.co.uk). The Magrath LLP website can be accessed at www.magrath.co.uk.

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