Immigration Act 2016

Policy background

Labour Market and Illegal Working

3. Migrant workers are particularly vulnerable to labour market exploitation and may find themselves living and working in dangerous and degrading conditions. Protections are already in place to ensure that those entitled to work in the UK are paid at least the national minimum wage, enforced by HMRC. All workers benefit from regulation of employment agencies and businesses by the Employment Agency Standards Inspectorate and the licensing of legitimate labour providers by the Gangmasters Licensing Authority. The Modern Slavery Act 2015 ("the 2015 Act") provides further protections.
4. The Government believes that labour market exploitation is an increasingly organised criminal activity and that government regulators that enforce workers’ rights need reform and better coordination. The Conservative Party Manifesto also committed to introduce tougher labour market regulation to tackle illegal working and exploitation. The Act establishes a new statutory Director of Labour Market Enforcement, responsible for providing a central hub of intelligence and facilitating the flexible allocation of resources across the different regulators.
5. Alongside the measures in the Act, on 13 October 2015 the Government published a consultation paper, 'Tackling Exploitation in the Labour Market' to seek views on the functions of the new Director of Labour Market Enforcement as well as proposals to reform the Gangmasters Licensing Authority and to create a new offence of aggravated breach of labour market legislation. On 12 January 2016 the Government published its response to the consultation, "Tackling Exploitation in the Labour Market: Government response". This consultation fulfils the statutory requirement under the 2015 Act for government to consult on the future of the Gangmasters Licensing Authority.
6. In the Government's view, illegal working represents one of the principal pull factors for illegal immigration and is often associated with the exploitation of workers, unfair competition and revenue evasion. Section 15 of the Immigration, Asylum and Nationality Act 2006 ("the 2006 Act") prohibits the employment of adults who are subject to immigration control and do not have leave to enter or remain in the UK, or who are subject to a condition preventing them from undertaking employment. The prohibition is supported through both a civil penalty regime and a criminal sanction for employers of illegal workers.
7. The 2006 Act regime replaced the former scheme under section 8 of the Asylum and Immigration Act 1996 which first made it a criminal offence to employ illegal workers. The civil penalty scheme in the 2006 Act, which was implemented in February 2008, is the principal means of dealing with cases of non-compliance by negligent businesses employing illegal workers. In 2013/2014 there were 2,150 civil penalties issued to employers. However, the Government's statistics show that the 2006 Act resulted in a significant decline in criminal prosecutions as civil penalties became a simpler, more cost effective, way to enforce the law in routine cases. In 2014/15 there were 1974 civil penalties issued to employers.
8. The Government believes that some employers are deliberately not checking whether their employees have the right to work. The Government believes that these employers are not knowingly employing illegal workers, because they are choosing not to know. This means that they can only be liable for a civil penalty and not be subject to a successful criminal prosecution. Civil penalties are served on businesses not individuals. However, the 2006 Act allows individuals to be prosecuted for knowingly employing an illegal worker when the individual has been indirectly involved in the offence. This enforces individual accountability and discourages employers from continuously using illegal workers by creating new businesses. This Act amends the criminal sanction in the 2006 Act to make it easier to bring prosecutions in these cases. The most serious cases involving the exploitation of illegal labour will continue to be dealt with under legislation prohibiting facilitation and trafficking.
9. A person with limited leave to enter or remain may be restricted from entering into employment under section 3(1)(c)(i) of the Immigration Act 1971 ("the 1971 Act"). A failure to observe this condition is an offence under section 24(1)(b)(ii) of the 1971 Act. While persons who require, but do not have, leave to enter or remain may be committing an offence under another limb of section 24, they do not commit a separate offence of working illegally if they engage in paid work, including employment or self-employment. The Act creates a new offence of illegal working with the aim of ensuring that the act of illegal working is always an offence unless the individual does not know or has reasonable cause to believe that their immigration status disqualifies them from working. The new offence will enable the earnings of illegal workers to be seized under the Proceeds of Crime Act 2002, as was announced by the Prime Minister in his immigration speech on 21 May 2015. The victims of modern slavery are not the target of this offence and can rely on the statutory defence in section 45 of the Modern Slavery Act 2015. When immigration officers conduct an enforcement visit to an employer’s premises, under existing powers any illegal workers identified may be arrested and detained and the employer may be liable for a civil penalty or prosecution for an offence. Despite this, the employer may continue to operate their business and there is a risk that they may be continuing to use illegal workers, possibly not detected by immigration officers as they were not present at the time of the visit. The Act provides the power for immigration officers to close the premises for up to 48 hours in certain cases where the employer has previously been given a civil penalty or has been prosecuted for employing illegal workers. Unless the closure notice is cancelled an application must be made to a court for an illegal working compliance order. The compliance order may extend the closure of the premises or otherwise direct the employer to perform certain steps to ensure that illegal workers are not employed. The scheme is designed to be similar to the power to give closure notices to premises associated with nuisance or disorder in Part 4 of the Anti-social Behaviour, Crime and Policing Act 2014.
10. The Government believes that a significant proportion of illegal working happens on licensed premises, where there is the sale of alcohol or late night refreshments (hot food or drink sold between 11pm and 5am). The Act aims to tackle illegal working in these sectors by amending licensing legislation such that a licence cannot be issued to an illegal worker and to make the employment of illegal workers a factor that may be taken into consideration when issuing or revoking licences. The Act provides immigration officers with a power to enter premises that are being used for a licensable activity of selling alcohol by retail or providing late night refreshment with a view to assessing whether an offence under any of the Immigration Acts is being committed in connection with the carrying on of the activity.
11. The majority of drivers of taxis and private hire vehicles are self employed meaning they are not subject to existing right to work checks undertaken by employers. This leaves scope for this sector to be exploited by those who intend to work illegally. Some licensing authorities conduct immigration checks but these are only advisory, not mandatory, at present. The Act makes immigration checks mandatory and embeds immigration safeguards into existing licensing regimes across the UK.

Access to Services

12. Access to private rented accommodation is restricted by the residential tenancies provisions at Chapter 1 of Part 3 of the Immigration Act 2014 ("the 2014 Act"). These provisions are referred to as the ‘right to rent scheme’. The scheme provides that landlords in the private rented sector should take steps to confirm the lawful immigration status of an individual before entering into an agreement to rent private accommodation to them and makes provision for a civil penalty regime to penalise non-compliance. The scheme was first brought into force on 1 December 2014 in parts of the West Midlands and on 20 October 2015, the Government published the 'Evaluation of the Right to Rent scheme' considering the impact of the scheme over the first six months of operation. On 1 February 2016, the scheme was extended across the rest of England and the Government intends to extend the scheme across the rest of the United Kingdom in the future.
13. Despite the requirement to check immigration status before entering into a tenancy agreement a landlord may subsequently discover that their tenant no longer has lawful immigration status. This could be because the tenant’s leave to enter or remain has expired or been curtailed. The existing legislative scheme requires landlords to perform repeat checks on existing tenants and where they discover such a tenant they may obtain a statutory excuse from a civil penalty under section 24 of the 2014 Act by notifying the Secretary of State that the tenant's leave has expired. The landlord may be able to evict the tenant under existing housing legislation but the immigration status of a tenant is not a ground for gaining possession of a property. The Act will enable landlords to obtain possession of their property where their tenant or any occupier of the property no longer has a right to rent under the 2014 Act scheme.
14. The main sanction for landlords who fail to perform adequate checks on their tenants will remain a civil penalty under the right to rent scheme. The Act creates four new offences to target those rogue landlords and agents who deliberately and repeatedly fail to comply with the right to rent scheme or fail to evict individuals who they know or have reasonable cause to believe are disqualified from renting as a result of their immigration status.
15. The Government believes that historically, it has been easy for illegal migrants to secure UK driving licences and enjoy the privileges of being able to drive and the advantages this brings in securing a settled lifestyle. A policy change in relation to the granting of licences was announced through a Written Ministerial Statement of 25 March 2010 with the effect that all applicants are required to demonstrate that they are lawfully resident in the UK. The 2014 Act extended this policy to provide powers to revoke a UK driving licence held by an illegal migrant. Where a licence is revoked it is an offence to fail to surrender the licence without a reasonable excuse. Over 16,000 driving licenses have been revoked under the powers of the 2014 Act. Revoked driving licences nonetheless remain in circulation. Accordingly, the Government wishes to build on the 2014 Act provisions by ensuring a consequence for illegal migrants using revoked licences. Therefore, the Act provides the police and immigration officers with a new power to search for and seize UK driving licences which are in the possession of a person who is not lawfully resident in the UK.
16. The Act also introduces a new criminal offence of driving in the UK whilst an illegal migrant. This fits within the wider agenda of making it difficult for those seeking to establish themselves in the UK unlawfully, and operates in parallel with other new measures with the same aim, including the new offence of illegal working. The new driving offence will apply to those illegally present in the UK, whether they have a driving licence (including a foreign licence) or are driving unlicensed. Upon summary conviction, the court could order a custodial sentence of up to six months and a fine. The court will also have the power to order the forfeiture of the vehicle. In practice, we anticipate that this new offence will be mainly used by the police who, in the course of their work, may encounter illegal migrants driving on UK roads. Vehicles driven by illegal migrants may be detained, pending a decision by the court on forfeiture. The police already hold similar powers in respect of vehicles that are uninsured or driven by an unlicensed driver.    
17. The 2014 Act created a provision to ensure that illegal migrants are prevented from opening a current account. This provision was brought into force on 12 December 2014. The Home Office provides data on individuals who are known to be in the UK unlawfully to Cifas, an organisation through which information is exchanged to prevent fraud. Banks and building societies then check their prospective account holders against this data. While the 2014 Act measures only apply to new accounts, in his immigration speech on 21 May 2015, the Prime Minister committed to requiring banks and building societies to take action in respect of existing accounts held by illegal migrants.
18. The Act places a duty on banks and building societies to perform periodic checks and to notify the Home Office where a person disqualified from holding a current account by reason of their immigration status is identified. The Act specifies that secondary legislation may require the bank or building society to inform the Home Office of all accounts held by the individual concerned, not just current accounts. The Home Office may then either apply to a court to freeze the individual’s accounts, with the possibility of exceptions to enable essential living needs to be met, or may notify the bank or building society that it is under a duty to close the accounts as soon as reasonably practicable. Depending on the circumstances of the case, the bank or building society may delay closure for a reasonable period, for example to allow it to seek repayment of an overdraft or to mitigate the effect of closure on other bodies or persons by or for whom the account is operated. They may alternatively remove a disqualified person from a jointly operated account without closing the account. The bank or building society must provide the Home Office with information about the steps it has taken to comply with this duty.

Enforcement

19. Immigration officers have various powers of entry, search and seizure for the purpose of removal or deportation. Immigration officers also seek to disrupt illegal immigration by enforcing the illegal working civil penalty scheme in the 2006 Act and the right to rent scheme in the 2014 Act. The Act provides immigration officers with additional search and seizure powers in connection with curtailment decisions and the imposition of civil penalties under these schemes. Typically this may involve searching for evidence of illegal working such as pay slips or time sheets, and evidence of illegal renting such as tenancy agreements and letting paperwork.
20. While using existing powers, immigration officers may find other evidence in relation to non-immigration offences. The Act will give officers powers to seize items where there are reasonable grounds to believe that they have been obtained in the commission of a criminal offence and where it is necessary to prevent them being concealed, damaged, or destroyed.
21. The Government believes that it is important that the public sector works together to achieve effective immigration control. The Act provides immigration detainee custody officers, prison officers and prisoner custody officers with powers to search for and seize nationality documents for persons in their custody, expands an existing information gateway to enable public authorities to supply information for immigration purposes and places a duty on specified persons to supply nationality documents when directed to do so.
22. The Conservative Party Manifesto commits the Government to satellite tracking for every foreign national offender subject to an outstanding deportation order or deportation proceedings. Section 36 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 created the ability to impose electronic monitoring arrangements for certain migrants. Over 80% of foreign national offenders living in the community have been released on bail by the First-tier Tribunal ("the Tribunal") and while the Tribunal has the power to apply an electronic monitoring condition, the Secretary of State cannot require it as a condition of bail. The Act places a duty on the Secretary of State or the Tribunal to impose an electronic monitoring condition when the Tribunal grants bail, unless the Secretary of State considers it would be impractical or in breach of the European Convention of Human Rights (ECHR) to do so.
23. Illegal migrants, including foreign national offenders, who are awaiting deportation or removal, exist within a complex legal framework where there are six different legal statuses including immigration bail and temporary admission. In implementing the above change to electronic monitoring, the Act takes the opportunity to simplify the legislative framework so that just one status is available to illegal migrants who are not detained.

Appeals

24. Section 82 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), as amended by the 2014 Act, sets out when there is a right of appeal to the Tribunal against a decision to refuse a human rights or protection claim (including an asylum claim), or the revocation of protection status. Section 92 of the 2002 Act sets out the circumstances in which the appeal must be brought while a person is in the UK and the circumstances in which the appeal cannot be brought until a person who is in the UK has left the country. A person may not bring an appeal while in the UK when the Secretary of State has certified a protection or human rights claim as clearly unfounded under section 94 of the 2002 Act, or when a human rights claim has been certified under section 94B of the 2002 Act. The latter power was inserted by the 2014 Act. It states that a human rights claim made by a person liable to deportation can be certified where it is considered that the temporary removal of such a person pending the outcome of an appeal would not breach the UK’s human rights obligations, including where removal would not create a real risk of serious irreversible harm.
25. For completeness, a power also exists in section 97A of the 2002 Act to prevent a person bringing an appeal while in the UK when the Secretary of State certifies that removal would be in the interest of national security. This latter power also allows the Secretary of State to certify in national security cases that the temporary removal of the appellant pending the outcome of an appeal would not breach the UK’s human rights obligations (this provision was added by section 54 of the Crime and Courts Act 2013).
26. The certification power in section 94B of the 2002 Act has become known in common parlance as the "deport first, appeal later" rule. The Conservative Party Manifesto commits the Government to extending this power beyond cases where persons are liable to deportation, who are principally foreign national offenders, to all human rights appeals. The Act implements this commitment by amending section 94B to remove the limitation that the power can only be applied in deportation cases.

Support for certain categories of migrant

27. Support is provided to asylum seekers under section 95 of the 1999 Act. Support is usually provided in the form of accommodation and a weekly cash allowance to cover the asylum seeker’s essential living needs. Section 94(5) allows section 95 support to continue after the asylum claim has been finally determined if the failed asylum seeker has with them a dependent child. Section 4(2) of the 1999 Act provides the basis for supporting other categories of failed asylum seeker.
28. The Government believes that support should be provided to asylum seekers, as required by our international obligations, but it should not be provided to failed asylum seekers who have had their claim refused, who have exhausted any right of appeal they may have and who could and should leave the UK. On 4 August 2015 a consultation, 'Reforming support for failed asylum seekers and other illegal migrants', sought the views of interested parties. On 3 November, the Government published their response to the consultation. The Act amends the asylum support system, taking into consideration the responses submitted.
29. The Act simplifies the basis on which local authorities assess and provide accommodation and subsistence support for destitute families without immigration status, while continuing to enable any other social care needs of a child of such a family to be met by the local authority. The Act also prevents local authorities from providing care leaver support to adult migrants without immigration status, including failed asylum seekers who have exhausted their appeal rights. It makes alternative arrangements for their support prior to their departure from the UK.
30. When unaccompanied children are identified by immigration officers they are referred to local authority care. This means that certain local authorities have significant responsibility for the care of migrant children because of the presence of large ports of arrival in their locality. For example, Kent County Council is responsible for unaccompanied children referred from the Port of Dover and the London Borough of Hillingdon is responsible for unaccompanied children referred from Heathrow Airport. The Act contains measures to enable the transfer of these children between authorities to achieve a more even distribution.

Border Security

31. Paragraph 26(2) and (3) of Schedule 2 to the 1971 Act enables the Secretary of State, by written notice to the owners or agents of a ship or aircraft, or persons concerned with the management of a port, to designate a control area "for the embarkation or disembarkation of passengers in any port in the United Kingdom". Where a control area is so designated, the owner or agent shall take all reasonable steps to ensure that passengers "do not embark or disembark . . . at the port outside the control area." Where an owner or agent fails to comply with this an offence is committed.
32. Despite this legislation, and ongoing engagement with the aviation sector since 2013 to try and resolve this problem through non-regulatory means, airlines and port operators have continued to allow instances of passengers disembarking without being presented to the immigration control. The Act aims to reduce these occurrences of misdirected passengers by providing a civil penalty regime that can be applied to airlines and port operators who disembark passengers outside the control area.
33. At present, immigration officers have no maritime enforcement powers – their powers do not have extra-territorial effect. This prevents Border Force from tackling illegal immigration until a vessel has reached the UK and those on board have disembarked. The Act extends some immigration officer powers into UK territorial waters so that facilitation of illegal migration can be disrupted while it is occurring. The Act also gives these powers to constables and the Armed Services.
34. Travel bans restrict the movement of named individuals associated with regimes or groups, including terrorist groups, whose behaviour is considered unacceptable by the international community. The decision to impose a travel ban is made either by the United Nations’ Security Council or by the Council of the European Union. To implement travel bans in the UK, secondary legislation is put before Parliament to amend the Immigration (Designation of Travel Bans) Order 2000. The Act will remove the need to update secondary legislation. Instead international travel bans will take effect in the UK automatically.

Language Requirement for public sector workers

35. The Conservative Party Manifesto commits the Government to legislate to ensure that every public sector worker operating in a customer-facing role must speak fluent English. The Rt Hon Matthew Hancock, Minister for the Cabinet Office, announced on 2 August 2015 that the Immigration Act would implement this commitment. The Act will require public sector bodies to comply with a statutory duty and guidance will be provided in a code of practice. A consultation on the content of the code of practice was published on 13 October 2015. The Government response was published in February 2016.

Fees

36. The Prime Minister announced in his 21 May 2015 immigration speech that the Government will reform immigration and labour market rules to reduce the demand for skilled workers from overseas. The Act contains provision to collect an immigration skills charge from employers who sponsor non EEA migrants and to make regulations setting the scope and rate charged.
37. The Government has considered advice from the Migration Advisory Committee and additional views from employers. Following careful consideration, the Government has announced that an Immigration Skills Charge of £1,000 per migrant per year will be paid by employers who sponsor Tier 2 migrants. The Charge will be collected by the Home Office. A reduced rate of £364 per annum will apply to small businesses and charities as defined within Immigration and Asylum (Fees) Regulations and an exemption will be applied to migrants undertaking occupations skilled to PhD level and graduates switching from Tier 4 to Tier 2.
38. The Act amends the legislative framework for passport fees. The Home Office has been lowering the price of passports for a number of years. For example, in April 2014 fees for UK passports for British citizens applying from overseas were reduced by 35%. The Home Office intends to continue to reduce the cost of postal applications for standard passports by delivering further operational improvements. The Home Office's intention is also to improve premium services, which are currently charged at less than the operational cost. The Act will allow a fee to be introduced which will exceed the operational costs of premium services, to subsidise the basic service.
39. Finally, the Act amends the legislative framework for civil registration fees. Existing legislation governing the registration of births, deaths and marriages is, in the Government's view, restrictive in terms of the products and services for which fees may be charged. The Registration Service Act 1953 establishes the office of the Registrar General and the General Register Office (GRO). The GRO charges fees on a cost recovery basis for many, but not all, of its services. Free services include corrections of birth or death entries, the re-registration of births and registrations outside the statutory time limit.
40. The Act introduces modernised and flexible fee-raising powers in respect of services provided by the Registrar General, superintendent registrars and registrars, enabling fees to be set for a wider range of products and services than is currently possible. The introduction of a modernised funding framework seeks to reduce the burden on the taxpayer for providing registration services by allowing registration services to become increasingly self-sufficient, supporting the superintendent registrars and registrars in their ability to deliver critical services.