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Hostility enacted – a view from practitioners

15 August 16

Following last month’s article on how the Immigration Act 2016 is likely to affect private and public law solicitors, three practitioners look at its impact on criminal, employment and business law

by Duncan McPhie, Stephen Winter, Jamie Kerr

Driven out

Duncan McPhie considers the consequences for criminal law practitioners of the creation of a range of new immigration offences

The 2016 Act restricts access by illegal immigrants and asylum seekers to services in three key areas: driving, property rental and banking, paying particular attention to two areas of modern commerce: private hire drivers and licensed premises. The Act targets the proof of identity, the homes and financial transactions of migrants. 

Immigration practitioners are already well aware that many immigrants survive by driving taxis or minicabs, or as chefs or waiters in licensed premises. The Act shows the UK Government cracking down on illegal working in these fields, as further discussed in the accompanying piece by Stephen Winter. The taxi crackdown applies to Scotland and this leads to a discussion of the changes to road traffic law.

Off the road

Road traffic law is targeted by the new Act. However, its terms seem more heavy-handed than might have been thought necessary: s 43 confers on immigration and police officers wide-ranging powers of search for a driving licence. This is a separation of the possession of a licence itself from the act of driving. Perhaps this is because of perceived abuses by migrants who use UK driving licences as a means to prove their identity in place of UK passports (which they do not possess) or UK identity cards (which do not exist). Note, however, that both police and immigration officers now have these search powers when investigating possession of driving licences.

It seems that we have a new police force in the UK, consisting of immigration officers, who have never trained at police college, and the days of the warrantless search are apparently upon us, where driving licences may have been used by illegal immigrants.

Section 44 creates a new road traffic offence, “driving when unlawfully in the United Kingdom”. This offence occurs when an immigrant drives when not lawfully resident in the United Kingdom. In line with the summary penalties for illegal working, in Scotland the penalty for such a contravention is imprisonment not exceeding six months or a fine not exceeding level 5 on the standard scale, or both. In line with other recent amendments to road traffic law, vehicle detention and forfeiture are also permitted under the Act, and s 44 also allows chief immigration officers and police constables to enter premises to detain motor vehicles, without a warrant in certain circumstances.

Tenancy block

As well as moving beyond traditional road traffic law rules with regard to driving licences and prohibiting those who are not lawfully in the UK from carrying out everyday tasks such as driving, the new Act further complicates everyday life for migrants by targeting their domestic living arrangements, extending obligations on landlords and their agents in the residential rental market to police the market by creating the offence of “leasing premises”. The Act pushes policing of tenants’ immigration status to landlords and agents: see ss 39-42. It imposes duties on landlords to evict illegal immigrants from their properties. Penalties for failure to comply are severe.

Cash only

With the moves towards a “cashless economy” and the rise in the need for a bank account to engage in daily life in the high street, the Act imposes further obligations on banks and building societies to police the immigration status of their customers. “Immigration checks” are required in relation to current accounts, and banks must inform the Home Office when disqualified persons hold accounts. Clearly, this move has been introduced to restrict the ability of illegal immigrants to access banking and financial services, but one cannot avoid thinking that the restrictions will marginalise immigrants and push them fully into the black economy, where they may fall prey to moneylenders, rogue employers paying below the minimum wage and slum landlords looking to rent property for cash.

The three target areas of the Act will change the daily lives of illegal immigrants forever: no driving licences, driving, property rental or bank accounts will push migrants to the very fringes of society. They may have to exist on the margins rather than within civil society in order not to break the criminal law. With the restrictions on access to everyday services, destitute migrants may become routine sights in the UK.

One cannot help but think that by criminalising so many areas of ordinary life in the 21st century, the new Act will ultimately create more problems than it solves. There may be more business for criminal practitioners as more areas of everyday life are criminalised, but at what price for the rest of society?

Duncan McPhie is an advocate with Mackinnon Advocates, Glasgow

Harder work

Stephen Winter outlines changes in the sanctions regime for illegal working, and highlights some key issues of onterest to all employers of migrant workers

The 2016 Act creates new provisions in relation to illegal working and amends existing provisions.
I will comment on some of these, only giving a broad overview.

Confiscation threat

Section 34 creates the new offence of illegal working, inserting s 24B into the Immigration Act 1971.
“Work” is defined broadly in s 24B and includes work, inter alia: under a contract of employment, under a contract of apprenticeship, under a contract personally to do work, or under or for the purposes of a contract for services (in the course of a trade, business, craft or profession). Clearly employers will have to be aware of this broad interpretation.

Under s 24B(3), in Scotland, the maximum penalty is six months’ imprisonment or a £5,000 fine or both. If a person is convicted of this offence, the prosecutor must consider whether to ask the court to make a confiscation order. This will result in wages paid to the person being confiscated under the Proceeds of Crime Act 2002. These provisions are now in force.

No blind eye

Section 35 amends the existing offence of employing an illegal worker, in s 21 of the Immigration, Asylum and Nationality Act 2006. At present, in order to commit the offence, the employer must know that the worker is an illegal worker. Section 35 extends the offence to those who have “reasonable cause to believe” that an employee is an illegal worker. The explanatory notes to the bill explained that the effect is to amend the mens rea or intention needed in order to make the test more objective and the offence easier to prove. Section 35 increases the maximum period of imprisonment on conviction from two to five years. This provision is also now in force.

Licensing sanction

Section 36 gives effect to sched 4, which makes detailed illegal working-related changes to the framework in the Licensing Act 2003. Under sched 4, a licence will not be issued to an illegal worker. It also makes the employment of illegal workers a factor that may be taken into consideration when issuing or revoking licences. Immigration officers will be provided with powers to enter premises to check compliance with these new conditions.

The 2003 Act only extends to England & Wales. Section 36(2) of the Act empowers the Secretary of State to implement by regulations similar changes in Scotland and Northern Ireland. This provision is not yet in force and it remains to be seen whether such regulations will be made and what these might contain.

Closure and control

Section 38 gives effect to sched 6, which enables an immigration officer, of at least the rank of chief immigration officer, to issue an “illegal working closure notice” to close premises for up to 48 hours, or more at the discretion of, in Scotland, the sheriff court, if the officer is satisfied on “reasonable grounds” that an employer is employing an illegal worker and has previously been required to pay a civil penalty or has failed to do so, or has been convicted under s 21 of the 2006 Act. The notice cannot be issued, or if it is issued may be cancelled, if the employer can show that it carried out the necessary document checks on workers.

Under sched 6, para 5, whenever an illegal working closure notice is issued, an application must be made to the court for an illegal working compliance order. The application has to be heard within 48 hours of the issue of the notice. The maximum period for the order to have effect is 12 months. Such period can be extended by a court. A compliance order could: prohibit or restrict access to the premises; require a specified person to carry out checks relating to the right to work; require a specified person to produce to an immigration officer documents relating to the right to work; or specify the times at which and the circumstances in which an immigration officer may enter the premises to carry out investigations or inspections to be specified.

An appeal can be made to the Sheriff Appeal Court against a decision to make, extend or vary an illegal working compliance order, or a decision not to discharge such an order, or a decision to extend an illegal working closure notice. This provision is not yet in force.

Stephen Winter is an advocate with Terra Firma Chambers, Edinburgh, and is ranked in band 1 in Chambers for immigration

Paying for skills

Jamie Kerr explains the context and framework of the immigration skills charge, evaluating its likely impact on recruitment of skilled workers for businesses

Another key aspect of the 2016 Act is the introduction of an immigration skills charge. Scheduled for April 2017, this will be levied on employers large and small who sponsor skilled migrants to work for them. Not unlike the vast majority of the other measures in the Act, it is specifically designed to reduce migration to the UK by discouraging businesses from recruiting skilled workers from outside the European Union.

In the immediate aftermath of the UK’s Brexit vote, there was widespread speculation that the introduction of this charge would be shelved or at least delayed. Unfortunately, however, the Home Office has already indicated privately that there are currently no plans to delay implementation of this flagship measure.

The rate has been set at £1,000 per employee per year, payable upfront at the outset of sponsorship. A standard tier 2 (general) visa would typically last three or five years, meaning that an employer would need to pay a skills charge of £3,000 or £5,000 before being able to sponsor an employee. This is on top of the fee payable for issuing a certificate of sponsorship (£199), the visa application fee (£575) and the immigration health surcharge (£600 or £1,000). Where dependants are also coming to the UK (for example a partner or children), the visa application fee and health surcharge are also payable for each dependant, though the skills charge will not be duplicated.

The cost of hiring or relocating skilled workers from abroad will therefore increase significantly. Government figures indicate that an additional £250 million per year will be raised by the charge. Recruiting from outside the EU is therefore potentially going to cost employers £6,700 more than recruiting a UK national. The key concession for employers is a reduced charge of £364 per employee per year for small or charitable organisations, and there are also exemptions when recruiting for PhD level jobs, recruiting international students who are already inside the UK, and when using the Intra-Company Transfer Graduate Trainee category.

Employer incentive?

While the key objective of the charge is as a tax to dissuade businesses from using migrant labour, it also aims to address current skill shortages in the UK labour market by incentivising employers to invest in training British staff. The theory is that there may be a lack of incentive to pay for long-term training if employers are able to recruit a readily trained migrant worker rather than investing in long-term upskilling, particularly in areas of immediate skill shortage. By raising the cost of recruiting internationally, it is hoped that businesses will be encouraged to invest in the UK skills base.

How the funds raised will be used to achieve this is one of the unanswered questions around the charge. Another is how the devolved nations will ensure they see a fair share of the charge that will be collected by the UK Home Office.

However, the key unanswered question is how this charge will interact with the new apprenticeship levy and other specific levies such as the Film Skills Investment Fund, the Construction Industry Training Board and the Engineering Construction Training Board levies.

Some sectors with chronic skill shortages, such as engineering and construction, feel they are doubly disadvantaged by the introduction of the apprenticeship levy, which, given the sectoral levies already in place, means that they are levied twice to tackle skills shortages in their respective sectors. There is little comfort with the immigration skills charge, as all indications are that it will be levied in addition to any existing levies.

The introduction of this new charge, when taken together with other recent and forthcoming changes to tier 2 more broadly (including raising salary thresholds), points to recruitment of international staff becoming increasingly difficult.

Some commentators take the view that certain sectors are “addicted” to migrant labour, skilled and unskilled, though with free movement from the EU under threat and tightening controls on recruitment of skilled labour from outside the EU, businesses need to look more holistically at how labour shortages are filled.

Sectors likely to see a more sympathetic approach from future governments in terms of recruiting internationally to fill skills shortages are those that are able to demonstrate that they have worked constructively and effectively to avoid labour shortages in the first place.

Jamie Kerr is a partner with Thorntons Law LLP, a member of the Law Society of Scotland’s Immigration Law Committee, and co-convener of the Immigration Law Practitioners’ Association’s Scottish Regional Working Group

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