Back to basics with testamentary capacity
The Immigration Bill is entering the later stages of its passage through Parliament. The Bill is currently at the “ping-pong” stage and is likely to receive the Royal Assent later in the year. The Bill creates a number of new criminal offences which both individuals and businesses will need to be aware of and plan ahead for in order to ensure that they do not fall foul of the new offences. A summary of some of the key proposed offences is outlined below.
There will be a new offence for an employee who works illegally. This offence will bite where a person works at a time when he or she has not been granted leave to enter or remain in the UK, or the person’s leave to enter or remain in the UK is invalid, has ceased to have effect or the person is subject to a condition preventing him or her from doing work of the kind they are undertaking. The proposed offence will be punishable by imprisonment for up to a maximum of 51 weeks (currently 6 months), or by a fine, or both. A person convicted of the offence may also have their earnings seized. “Working” is given a broad statutory definition which purports to cover an array of working arrangements.
Crucially for businesses, there is an offence of employing an illegal worker. This offence covers a situation where a person employs an employee who is disqualified from employment by reason of the employee’s immigration status and has reasonable cause to believe that the employee is disqualified from employment by reason of the employee’s immigration status.
This offence has a broader application than its predecessor contained in Section 21 of the Immigration, Asylum and Nationality Act 2006 (which is currently in force). It is proposed that this offence could be tried on indictment and would attract a maximum penalty of 5 years imprisonment. This offence is in addition to the civil penalties contained in Section 15 of the Immigration, Asylum and Nationality Act 2006, under which a company can be fined for employing an illegal worker.
This new offence will mean that businesses in particular will be required to be much more diligent about ensuring the correct checks are made when taking on new employees in order to escape criminal liability under this offence.
The Bill creates an offence for landlords, where a landlord knows or has reasonable grounds to believe that an adult is disqualified from renting as a result of his or her immigration status, yet allows the adult to occupy residential premises. There is also a separate offence where a tenant’s leave to remain in the UK expires during the term of the tenancy, the tenant continues to occupy the property and the landlord is aware of this, or has reasonable cause to believe this has happened and fails to notify the Secretary of State as soon as reasonably practicable.
Similar offences apply to letting agents when they carry out “right to rent checks” on behalf of a landlord and know, or have reasonable cause to believe, that a landlord will be entering into a tenancy agreement with a person disqualified as a result of their immigration status and fails to inform the landlord despite having sufficient opportunity to do so.
There are further powers relating to the provision of driving licences. These include a power to search premises for a driving licence belonging to somebody unlawfully in the UK which has been revoked. There is also a criminal offence for failing to surrender a driving licence that has been revoked on the grounds of immigration status without reasonable excuse. Finally, there is a proposed new offence of unlawfully driving whilst in the UK. This proposed offence criminalises somebody who is caught driving whilst unlawfully in the UK as a result of their immigration status.
This package of criminal offences (which are designed to work alongside additional civil powers) will make it very difficult for people unlawfully in the UK to live a normal life without committing a criminal offence every day of their life. In addition, the new offences now place onerous burdens on (often small) businesses to undertake checks on employees and tenants. The best way for businesses and landlords to ensure they do not fall foul of the criminal law will be to ensure that the correct checks are undertaken – and that records of the checks are retained. Given that this legislation will be passed shortly, it is time for individuals and businesses to start planning ahead.
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