In September 2015, the Government published the Immigration Bill, announced in May 2014 as part of the Immigration Act with the aim of creating a ‘hostile environment’ for undocumented migrants. But what do the contents of the Immigration Bill actually mean for businesses?

If immigration represented the sea along a quiet coastal town, the coast would now look much changed and weathered against the unrelenting pressure of the waves. Indeed, in recent times and following the Immigration Act 2014, immigration practitioners have experienced a constant stream of ‘reforms’ to the Points Based System (PBS). In particular:

  • The introduction of the ‘Genuineness Test’;
  • A new ‘Immigration Health Surcharge’;
  • Changes to Sponsor Licence applications and processes;
  • Increased fees for PBS applications and for Certificate of Sponsorships
  • Proposed transformation to appeals rights;
  • Changes to visa vignettes;
  • Revisions to policy guidance documents;
  • New PBS applications forms; and more

For individual migrants carrying out their day-to-day lives in the United Kingdom (UK), they have experienced a greater emphasis on the need to keep employers and the Home Office up to date of changes to their circumstances, as well as an increasing need to prove their identity and their immigration status when accessing accommodation in certain parts of England under the ‘Right to Rent’ pilot.

The Immigration Bill seeks to build on the Immigration Act 2014’s intentions of creating an environment which undocumented migrants find difficult to navigate. It would be easy for businesses to relax in the misguided belief that the Bill has little impact upon them; after all most conscientious businesses do not intend to hire undocumented overseas workers. However, businesses are increasingly being used as a silent arm of the Home Office, helping them to enforce immigration laws whilst possibly facing greater penalties where they fall foul of them.

So what measures do businesses, legal and HR functions need to be aware of?

Enforcement Action

The Immigration Bill will introduce new sanctions for undocumented overseas workers and ‘rogue’ employers; the latter referring to those businesses that continue to flout immigration laws.

Where the employment of undocumented workers is suspected or where HR is unable to provide evidence of meeting immigration compliance obligations, businesses can expect to see their premises close for 48 hours by immigration officials at great cost and reputational damage. As stated, this measure is intended for the serial business offender – those businesses that have been informed repeatedly to comply with immigration laws, or who flout the law to such extremes that immediate action is required by the Home Office to stop the behaviour.

This Bill also reinforces the fact that organisations should be more vigilant about overseas business visitors, and contractors (self-employed) who are placed into their locations by third parties for projects, fixed term contracts and secondments. It might not seem the receiving organisation’s responsibility to check their legal Right to Work status, but it is.

But, how difficult can it be for law-abiding organisations or individual employers to get it right? More so then expected as we draw attention to cases such as Baroness Scotland, the former Immigration Minister, Mark Harper and the Home Office itself. Baroness Scotland was fined £5,000 for employing an irregular migrant as housekeeper and failing to ever ask, or check after her employee’s immigration status in the UK. Former Immigration Minister Mark Harper resigned from his post in February 2014 after discovering that his self-employed cleaner did not have permission to work in the UK. Harper first checked his employee’s status in 2007, at which point he was presented with but failed to recognise a false document, and considered the issue again when he was appointed Immigration Minister in September 2012, at which point he had concluded no further checks were required. Undocumented foreign workers have also been employed at the Home Office Whitehall HQ, at the now defunct UK Border Agency’s south London HQ, and hundreds more at 34 local authorities and 54 NHS trust across the country, as well as secondary school teachers and social / care workers.

Attention should also be drawn to the claim by the immigration force that this Bill will see greater collaboration between different Government departments. One of our clients was paid a visit by a Tax Inspector, who upon examination of the invoices in the ledger for third party providers decided to check HMRC records for a number of organisations and was unable to find any record for one of them. This opened a plethora of issues on the immigration side and included various appeals. Whilst no action was taken against our client, this event is highlighted to serve as a reminder for businesses to review, evaluate and maintain Right to Work checks of own and third party staff to ensure that they are compliant.

Requesting fresh eyes from an immigration practitioner who can conduct an ‘audit’ can often also be a good tool to unpick any areas requiring redress by the business.

Immigration Skills Charge

The Bill will create a power for the Home Office to require businesses to pay an Immigration Skills Charge for each skilled overseas worker (those from outside of the UK and European Economic Area). By creating this charge, the government hopes this will incentive businesses to source skilled workers from the resident labour rather than from overseas.

The level of the charge will be determined by future regulations. Funds raised by the charge will go directly to funding apprenticeships in the UK, thereby reducing the direct burden on the UK tax payer for doing so.

On the surface the Immigration Skills Charge may appear to be a good move by the government. However, based on our knowledge of the oil and gas and IT sectors in particular, it does seem as if the government is penalising businesses for their own failure to sufficiently skill the resident labour market in those areas. Further, whilst apprenticeships are certainly encouraged, the effects of the charge will take time to have the desired effect and will have little effect on the immediate needs of businesses.

Access to Services

The Bill aims to make living in the UK unattractive for undocumented overseas nationals. It will do so by making it easier for private landlords to evict undocumented migrants from rental properties. This follows the recent ‘Right to Rent’ pilot in selected parts of England. So far, the Home Office’s Landlord Checking Service was used 11,000 times in the first 6 months of operation.

Further, a new offence of driving whilst not lawfully resident may be introduced. The Immigration Bill will give immigration officers and the police powers to search and seize driving licences of undocumented overseas national. Banks and building societies will also have the power to check the immigration status of account holders and freeze and close accounts where they are not satisfies that that a person has the right to be in the UK.

How will this impact upon businesses? For experienced HR and legal departments, they will be aware of their highly skilled overseas employees’ submitting original identity documents to the Home Office for inordinate periods of time, whilst life in the real world continues. Practitioners in HR and legal departments can expect to have employees contact them for guidance on how to establish their identity to a landlord or bank whilst their extension application,, original passports and Biometric Residence Permit (evidencing their status in the UK) awaits a Home Office official’s attention for several weeks. Letters may need to be drafted to landlords and banks, immigration practitioners chased for application outcomes and quicker (as well as more expensive) application submission methods considered.

In fact, recent reports suggest that resident workers (UK and EEA citizens), without passports, have also fallen victim to the Right to Rent pilot. Legal and HR departments may also find themselves assisting resident workers that unwittingly find themselves caught by the grips of immigration reforms that were not intended to catch them.

Conclusion

The immigration landscape has changed significantly in recent years with changes to the immigration rules, policies and practices. The Immigration Bill 2015 changes matters further still by seeking to make the UK as unattractive as possible for undocumented overseas nationals resulting in their eventual departure from the country. Those with a right to be in the UK will be able to access services much as before. Undocumented nationals from overseas however, will find it increasingly difficult to open or maintain bank accounts, drive vehicles or secure rental accommodation. Employing undocumented workers, in the government’s view, is counter to that aim of creating a hostile environment for those that cannot establish a right to reside here. By default this will have an effect on business, which by ensuring they comply with immigration laws and keep employees aware of their immigration obligations can keep enjoying the benefits of employing highly skilled workers from overseas.