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At Home and at Work: Consequences of the Immigration Bill 2015

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About The Author

Amy Ling (Former Private Law Manager)

Amy graduated with a first in Philosophy from The University of Manchester in 2012. Following three years working within the social housing sector, Amy is currently studying for her LPC and will begin a training contract at a city firm in September 2016. Amy is an accomplished mooter, and was on the winning team in the 2015 JustCite International Mooting competition. Outside of the law, Amy is a keen runner.

[T]here is no case, in the national interest, for immigration of the scale we have experienced over the last decade.

Theresa May, Conservative Party Conference October 2015

Though heavily criticised both for the rhetoric and factual accuracy of this speech, the Home Secretary’s continued focus on immigration is reflective of the topic’s dominance in public concern. According to Ipsos Mori’s Issues Index for November 2015, 49% of people rank immigration as the most important issue facing Britain today – the top issue overall. This is an increase of 7% since my article ‘Immigration and Freedom of Movement’ published a year ago.

To demonstrate a will to reduce net migration, the government have produced a series of legislative measures. Following hot on the heels of the Immigration Act 2014, the Immigration Bill 2015/2016 (the Bill) is currently hot-footing its way through the House of Lords, with the next committee stage due on 18 January 2016.

Perhaps confusingly, the Bill has no measures which reduce legitimate migration – the aspect that drives net migration and headlines. Instead, the Bill contains a whole host of measures aimed at tackling illegal immigration, such as rules on appeals and powers for immigration officials to enter and search premises for driving licences if they have reason to suspect a person is an illegal immigrant. This article will look in particular at the implications of the new offence of illegal working and powers to evict those without the correct immigration status.

Illegal Working

It is estimated that there are currently 300,000 people in the UK who have overstayed their visa, though it is not known how many of those that remain are in some form of work. One of the areas the Bill aims to tackle is that of migrants such as these, who work without the correct permissions.

Speaking ahead of the publication of the Bill in August 2015 the Immigration Minister James Brokenshire pledged that the:

new approach will be to use the full force of government machinery to hit them [illegal workers] from all angles and take away the unfair advantage enjoyed by those who employ illegal migrants.

This is based on the idea that an employer who employs illegal workers will not be paying minimum wage or other employment costs such as national insurance contributions, so will therefore have a much larger profit margin or simply be able to undercut their legitimate competitors. Recent examples include illegal workers being found at a fabric shop in Manchester, at a restaurant in Enfield, and a care agency in Sutton.

Section 8 of the Bill amends the Immigration Act 1971 to introduce a new section 24B containing the offence of illegal working. Illegal working occurs where a person without leave to enter or remain in the UK (or where their leave to remain prevents them from working) is found to be in employment. If found to be working illegally in England or Wales, a person can be subject to a prison term of 51 weeks, or a fine, or both. There is also the possibility that they may have any earnings confiscated under the Proceeds of Crime Act 2002 (though given the idea is that the employer is the one with the unfair advantage, these may not equate to significant sums).

The Bill also amends the provisions of employing an illegal worker under section 21 of the Immigration, Asylum and Nationality Act 2006 (IANA) by removing the requirement that the employer must know about the employee’s status in order to be culpable. Under Section 9 of the Bill, the employer can be caught if they know or just have reasonable cause to believe the employee is an illegal immigrant. Sanctions for this offence have also increased, with the maximum term of imprisonment increased from two to five years.

Further, additional provisions have been added so that an immigration officer can arrest a person who they have ‘reasonable grounds for suspecting’ are committing or attempting to commit an offence under section 21 IANA without a warrant.

The enforcement of these measures will be overseen by the Labour Market Enforcement Agency established by the Bill.

On the face of it, it seems perfectly right to have oversight of employment in this way. This is for the protection of employees as well as to ensure immigration is controlled, as often illegal workers end up working without the proper payment or in conditions where health and safety is not observed. However, there is a real risk that these provisions will not only fail to properly tackle illegal working in those industries where it is prevalent (such as agricultural work) but could actually have counter-intuitive consequences.

As outlined in Liberty’s response to the report stage of the Bill:

For the employers willing to take the risk for the financial benefits of an illegal workforce, criminalisation of the worker plays into a narrative of coercion and control. Their hand will be strengthened by the introduction of a new criminal offence targeting working in particular, which will add force to threats that individuals must accept dire conditions or face not only removal but also criminal sanction. [Emphasis added]

The provisions can therefore act clash with the aims of the Modern Slavery Act 2015, which aims to ‘put an end to the misery suffered by innocent people’. This is particularly so in the case of forced labour or trafficking, as those who might escape and seek help are now likely to be subject to a prison sentence or deportation. Caroline Robinson, of Focus on Labour Exploitation, writes in the Guardian that:

Most experts in forced labour agree that labour inspection is an important means to address weak labour market regulation and enforcement… however, the evidence shows beyond doubt that when immigration enforcement and labour inspection are combined, the all-important trust between labour inspectors and those who are being exploited is broken… At best, this conflation results in a failure to identify human trafficking, forced labour and slavery, but at worst it creates the perfect conditions for all three to take root.

“Right to Rent” Evictions

An illegal worker is likely to have a place of residence. One of the second key areas covered by the Bill is that of eviction for those such as these without “right to rent”. As defined in the Immigration Act 2014, a person without this right is ‘disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement’. From the 1st December 2014, landlords have been required to check the immigration status of all new tenants before permitting the letting.

The 2014 act outlines the sanctions if a landlord fails to carry out the correct immigration checks, whilst the provisions in the Bill cover what happens if a person without the right to rent is granted a tenancy. For the landlord, they will face up to five years in prison or a fine (or both) if their premises are occupied by someone without the right to rent and they either knew this or had reasonable cause to believe this.

For the tenant, the consequences of being found to be without the right to rent are also serious: as the government states, the intention is to ‘enable landlords to evict illegal immigrant tenants more easily’. The Bill introduces provisions so that where a notice is received from the Home Office that a person does not have right to rent, the landlord must take steps to terminate the tenancy. Not only this, but section 33D(7) provides that (if not relying on the new mandatory ground for possession 7B for assured tenancies) a notice as served by the landlord should be treated as ‘enforceable as if it were an order of the High Court’.

This is significant because it appears to mean that the landlord may take steps to evict the tenant upon receipt of the notice without being required to obtain a bailiff’s warrant, as gaining an order for possession is not enough to actually allow the landlord to physically remove the occupiers from the premises. Unlike nearly all other standard reasons for eviction (including the most serious cases of violence, anti-social behaviour, tenancy fraud and arrears), immigration status has been considered so severe as to be made exempt from the Protection from Eviction Act 1977.

How this would work in reality is unknown – would landlords be able to enter properties and physically remove a tenant, their household and possessions? Would they be required to hire a bailiff to do so? What happens if it later occurs that the notice served by the landlord was defective?

Moreover, the need for such draconian measures seems unclear. In addition to the ability to serve a notice, landlords can apply for eviction against those with an assured tenancy (which includes the majority of those in the private sector) under the new mandatory ground 7B added to Schedule 2. As a mandatory ground, where the conditions are made out the court would need to sign off the order (save for any effective human rights defences – generally only in the most extreme cases when it comes to possession proceedings). With this ground, most landlords would have the ability to effect any notice from the Home Office without needing to resort to Rachman style measures towards their tenants – so it is both concerning and mysterious why the government should seek to do so.

Note also that at 33D(8) ‘occupier’ is not only defined as a tenant or an authorised occupier named in the agreement, but ‘any other person who the landlord knows is occupying the premises’. This could mean, in effect, that a tenant may be evicted without any oversight from a court on the basis of the immigration status of someone who is not even a party to the agreement being terminated.

Whether or not it is right for someone who is discovered to be in the country illegally to face consequences of this, there seems something perverse about such consequences being faced by someone who may legitimately have a tenancy agreement on the basis of the status of someone who does not even have one. Comparatively, I know of no proposals or existing legislation which provides for forfeiture proceedings to commence for leaseholders who are found to have a person living with them without the correct immigration status.

The consequences of an error on the part of the Home Office could therefore be potentially disastrous: a tenant who is evicted under this means by an erroneous notice (such as due to a failure to keep records up to date) is likely to struggle to find another home in the private rented sector, and may also be classed as ‘intentionally homeless’ and therefore barred from gaining access to social housing. This is no facetious point: as an example of the quality of the department’s decision making, for the year ending March 2015 28% of appeals against asylum decisions by the Home Office were upheld.

Conclusion

One of the most toxic aspects of the debate on immigration is how the issues of legal and illegal immigration are conflated: a common example being that illegal immigrants can access services such as social housing and the NHS.

The above provisions examined represent just two of the concerning aspects of the Bill. At best, these will do little more than bolster the appearance of being 'tough on immigration’. At worst, they give additional power to those who are already prepared to run the risk of employing or renting to those who are here illegally to consolidate their exploitation (and generally, their profits) by dis-incentivising those who would otherwise seek help. Although this is always a risk of effective immigration legislation, such laws are likely to be most effective where tough sanctions are combined with a true helping hand for those who have been exploited.

At this late stage, and given the recent discussions around limiting the power of the Lords, it is unlikely that the Bill will change course. However, I would suggest that the passing of this Bill would be to enact a law which is a poor representation of the values which many people believe our country to embody.

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Tagged: Employment Law, Housing Law, Immigration

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