Acting to stop harm: the FCA and Appointed Representatives
Earlier this month, the Government published the Immigration Bill 2015, which introduces further measures to create a ‘hostile environment’ for unwanted migration in the UK. This blog explores the background and key aspects of the new Bill and sets out the potential economic and human impact this may have if the Bill is passed and becomes law. It also includes a worked example to illustrate how some of the proposed rules could inadvertently impact all migrants and their families, including British employees, landlords and families.
Background to the latest Immigration Bill
The Government published a new Immigration Bill in 2013 to radically reform the culture for migrants in the UK. Its stated intention was to create a ‘hostile environment’ for illegal immigrants, encouraging them to depart and making the removal of foreign criminals a speedier and less challenging prospect. The resulting legislation represented a fundamental dismantling of the means by which all migrants could challenge Home Office decisions despite around 50% of appeals ultimately being successful.
It also saw the introduction of new restrictions on access to privately rented accommodation, driving licences, bank accounts and the introduction of an NHS surcharge. There was, understandably, real concern and outrage when the Bill was first published and many stakeholders in the UK immigration system channelled these fears into substantial and well-reasoned responses to the Bill. However, much to our dismay, the Bill failed to attract real debate and very limited opposition in parliament and sailed through with minimal amendment, becoming the Immigration Act 2014.
As the Act starts to bite, we are already witnessing the impact it is starting to have on our clients, particularly the significant restrictions on the right of appeal. Just as we try to adapt to these changes and minimise their harmful consequences, the Government published the ‘Immigration Bill 2015’. On publication of the latest Bill, Immigration Minister James Brokenshire stated:
“This 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”
This may sound like a plausible aim, but it is misleading. The sheer scope of the Bill and its impact on all migrants, and indeed British Citizens by breaking up families, is not acknowledged. It is, however, important that the public is informed of the actual contents of this Bill and its potential consequences, should it become law.
What’s all the fuss about?
It is likely you have not heard much about the latest Immigration Bill. Among the extensive media coverage on the refugee crisis in Europe, EU membership and net migration, the British press has largely failed to report on the new Bill since its release on 17th September 2015. It is important the details are explained and the selective and biased narrative weaved by the Government is exposed. Here are some of the key changes the new Bill proposes:
1. Illegal working
The new Bill makes it a criminal offence to work without leave. This offence would carry a maximum prison sentence of 51 weeks and/or a fine. There are also new powers to confiscate earnings from ‘illegal work’ as proceeds of crime.
The Bill extends the offence of employing someone without leave. Previously, this has criminalised employers who knowingly employ a person without leave to remain. The Bill will catch those who only have reasonable cause to believe that the worker had no right to work. There are also new powers to close an employer’s premises if an immigration officer is ‘satisfied on reasonable grounds’ the employer is employing an illegal worker and that the employer has received a civil penalty for employing an illegal worker in the last three years.
2. Immigration skills charge
The Bill also introduces a power for the Secretary of State to require employers to pay a skills charge in respect of each skilled worker they sponsor under Tier 2. The level of the charge would be set in subsequent regulations.
3. Residential tenancies
The Immigration Act 2014 introduced the right to rent scheme, whereby private landlords had to check immigration status documents and could not rent to people who did not have an immigration status which permitted them to rent. The scheme has been piloted in the Midlands and will now be rolled out nationwide. Before the roll out has even occurred, the Bill is extending this scheme further. There are new provisions to enable landlords to evict tenants who don’t have a suitable immigration status.
The scheme introduced in 2014 was backed up with a financial penalty scheme with landlords at risk of a £3,000 civil penalty. In yet another example of criminalising behaviour linked to illegal immigration, landlords who have reasonable grounds to believe they are renting to a person without the right to rent will commit a criminal offence, and as a result, they can be sentenced to up to five years in prison.
There is already emerging evidence that the scheme encourages discrimination in the housing market, this is set to worsen if the proposals in the 2015 Bill become law – see for instance the report by the Joint Council for the Welfare of Immigrants on “No Passport Equals No Home”: An independent evaluation of the ‘Right to Rent’ scheme.
Yet another criminal offence is proposed, the offence of driving without leave in the UK. This would apply to migrants who have valid UK driving licences and who, perhaps, have simply become unlawful while challenging a refusal of leave to remain. We explore how unfairly punitive this could be in the example below.
It is also unclear how this new offence will be enforced, without it turning into a potentially discriminatory ‘stop and search’ power aimed at drivers who appear ‘foreign’.
5. Bank accounts
Banks and Building Societies will now need to carry out periodic checks on their account holders’ immigration status. Subsequently, they will then have to notify the Home Office if an account holder does not have the correct status. This further demonstrates the Government’s efforts to control immigration by outsourcing crucial enforcement functions to private third parties who are not subject to the same level of public scrutiny and challenge.
Banks will also have the right to freeze bank accounts and will be required to help close accounts for those without appropriate leave.
6. Deport first, appeal later
Arguably, the most damaging section of the Immigration Act 2014 removed the right of appeal from most migrants. It restricted the right of appeal to those appealing human rights decisions and decisions related to grants of asylum and removal of refugee status. Others were doomed to use an internal review system known as ‘Administrative Review’ whereby the Home Office had to review their own decisions rather than scrutiny by an independent adjudicator.
Under the new Bill the Secretary of State will have the power to certify ‘human rights’ claims.This will effectively require appellants to leave the UK before they can exercise a right of appeal on human rights grounds. Only where an individual can meet a very high threshold of ‘serious and irreversible harm’ would they be able to remain in the UK during the appeal process. This will see family members of British Citizens, children, seriously ill persons and those who may not have left the UK for many years, and who may have lost all ties with their country of origin, having to uproot their lives in order to challenge a Home Office decision, which statistically has a 50/50 chance of being successful. The appeal process takes months and often years to conclude so this will have a very serious impact on those whose applications are wrongly refused. Perhaps the Government intended this consequence and its positive impact on the controversial net migration figures and targets.
However, this represents a flagrant denial of justice. Should it be implemented, it will not only result in people being unable to make important challenges to the decisions of the Secretary of State, but it will also see the UK lose many people who are making valuable contributions to the UK. The impact assessment accompanying the Bill elevates these new provisions as a way to prevent people ‘exploiting’ the appeals process to extend their stay in the UK. However, it is clear that the real impact will be on people seeking a legitimate challenge to poor Home Office decision making.
If the Bill becomes law – a worked example
Natalia is a Russian national who is in the UK (with her husband and children) via the Tier 1 Entrepreneur route, having studied for a degree and an MBA here (seven years in total). She set up and is the director of a successful consulting business and receives a salary paid from the significant profits of her business. The company employs six other people. Her husband works in the UK and their children were born in the UK and are at school here. They rent a house.
Natalia has applied to extend her leave to remain here before her three year visa is due to expire. The application is refused because her Directors Loan agreement (one of the mandatory documents) contains wording the Home Office caseworker is unfamiliar with. The document is perfectly compliant with the Immigration Rules. However the caseworker has not come across this wording and so refuses her application. Natalia, who following the Immigration Act 2014 no longer has a full right of appeal against this decision, asks the Home Office to conduct an Administrative Review. She remains lawfully in the UK while her review is under consideration. She drives home from work to find that her lawyer has emailed her to say that the review has been refused and she is now in the UK unlawfully. Her lawyer tells her that the only remedy against the decision is a Judicial Review and that they should meet as soon as possible to discuss. She drives to London to see her lawyers to take advice.
What offences will Natalia potentially commit if the new Bill is passed into law?
As well as the clear infringement on Natalia and her family's rights, she will also likely end up leaving the UK, withdrawing funding and making six (probably British) workers unemployed.
The Bill is due for a second reading on 13th October 2015. Although there is limited scope for formal responses to be provided by interested parties, you can always write to your Member of Parliament and make your concerns known. It would seem that a large proportion of the UK press reinforce the idea that the UK population is anti-immigration and welcomes these types of draconian measures, however we believe that when people understand the true impact of these changes, they will be as concerned as we are.
The Government is using divisive tactics to persuade the public that by creating a ‘hostile environment’ for migrants, they will be creating the sort of society we want. Its plans involve punishing the vulnerable, separating families, denying access to justice, encouraging discrimination and criminalising otherwise innocent behaviour. In pushing this agenda, there is a real risk that we will all be caught in their hostile environment and all of society will be poorer as a result.
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