Minorities will fall foul of this Act
The Immigration Act received its Royal Assent in May. As with the previous Immigration Act, adopted by the Tory-Liberal coalition government in 2014, it is overwhelmingly likely to create a hostile environment for undocumented migrants and asylum seekers without the legal right to remain in the UK.
The Act also places tighter conditions on legal migration routes for those who are not citizens of the European Economic Area (the 28 countries of the EU plus Norway, Iceland and Lichtenstein) as the government makes further futile gestures towards meeting its illusory net migration target.
According to the Migrants’ Rights Network (MRN), the legislation contains “an unprecedented expansion of the powers of immigration officials to detain individuals, to seize property, and to otherwise interfere with everyday activities, often on the mere suspicion that someone involved is in the UK without authorisation”. It says that the Act will “encourage discrimination against minorities, whether British citizens or migrants”, and encourage exploitation of migrant workers.
The Joint Council for the Welfare of Immigrants (JCWI) has referred to a “stark focus on criminalisation” within the legislation, with the creation of eight new criminal offences for individuals who transgress the provisions. It denounced the introduction of “a vast number of draconian, unaccountable and poorly thought out powers”.
A particularly controversial aspect of the Act is its criminalisation of undocumented or “illegal” work itself through the new offence of illegal working. Workers who are not legally entitled to be in the UK, or have breached work permits with restricted conditions, could face a custodial sentence of up to six months.
MRN director Don Flynn told Labour Research that this change would make it very difficult to assist undocumented migrants who are already in a very vulnerable situation.
“For a high proportion of them there’s a good chance that they will be the victims of exploitation and trafficking as well,” Flynn said. “Obscuring the distinction between the migrants as the perpetrators of crime and victims of crime is not a helpful measure at all.”
The TUC warned that the measure will increase the vulnerability of undocumented migrants, as bad bosses can threaten to report undocumented workers to the authorities if the workers complain about bad treatment or try to join a union and claim their rights.
Writing on the Stronger Unions blog, TUC policy officer Rosa Crawford said that it could also mean that undocumented migrants “will not report the abuse they frequently face at work because they are afraid of being deported which means bad bosses that use undocumented workers to undercut other workers will not be rooted out and conditions get worse for everyone”.
The TUC briefing on the Bill also warned of the potential impact of migrants living in the UK legally but with restrictions in the hours they can work. For example, students in most cases are only permitted to work 20 hours a week, and could face criminalisation for working beyond this.
Prosecutors will also be able to apply to confiscate whatever might be considered the “proceeds” of that crime. The JCWI said that given the low wages that these workers typically earn, “it is hard to see how giving prosecutors a power to confiscate what little they possess makes any sense”. It said that the provision was “utterly at odds” with government commitments to protect victims of trafficking and exploitation, and was likely to drive victims of exploitation underground.
The legislation also increases the burden on employers to make checks to ensure that their workers have the legal right to work in the UK. It lowers the burden of proof for prosecution of employers, allowing this to take place where employers are considered to have “reasonable cause to believe” that a person is an illegal worker (rather than actual knowledge of illegality as was the case before). Employers also face higher penalties if they are prosecuted for employing illegal workers, with the potential sentence for this increasing from up to two years to up to five years.
And organisations which repeatedly flout the law face potential closure of the business for up to 48 hours. Immigration officers will have new powers to enter and search small businesses suspected of employing undocumented migrants. The TUC warned that this will increase the risk of ethnic profiling.
The measures on illegal working, which come into force in July, come alongside provisions to create a new Director of Labour Market Enforcement, widen the remit of the Gangmasters Licensing Authority to address wider labour market exploitation and create a new criminal offence (targeted at rogue employers) of aggravated breach of labour market legislation.
But under these provisions, labour market enforcement agencies will share information about illegal working with Immigration Enforcement — the division of the Home Office responsible for enforcing immigration law — leading to warnings from the TUC, unions and campaign groups that this could result in a breakdown of trust between labour inspectors and those who are being exploited (see Labour Research, March 2016, pages 16-18).
In the committee stage of the Bill, Labour MP Keir Starmer submitted an amendment that would make clear that the Director of Labour Market Enforcement’s role was to “cover labour market breaches, not immigration offences”. However, this was rejected.
The Act also creates an offence of driving when unlawfully in the UK, as well as new stop and search powers where police have “reasonable grounds” for believing that someone is not lawfully resident in the UK and is in possession of a driving licence.
In opposing the new offence of illegal driving, the JCWI said that there was no evidence that the ability to drive encouraged irregular migration.
It warned that the new law could instead discourage undocumented migrants from reporting road accidents. And given previous experience, it was likely that new stop and search powers would result in black and minority ethnic drivers being targeted.
The Act also makes it more difficult for illegal migrants to hold a bank account. Anyone identified by the home secretary as being in the UK unlawfully will have their bank accounts frozen or closed.
The TUC warned that forcing banks to check the immigration status of current account holders “will encourage everyday discrimination against anyone who doesn’t ‘look’ British”. JCWI said that the measure would also increase the risk of exploitation of undocumented migrants “as they will be driven to use cash, lodge money with others and use black market financial services”.
Stiffer penalties for landlords renting to migrants who do not have the legal right to be in the UK are also likely to have discriminatory impacts. The new legislation builds on the provisions of the 2014 Immigration Act which made it compulsory for private landlords and agents to check the immigration status of all new tenants in order to assess whether they have the “right to rent” in the UK.
This system — which included civil penalties for landlords renting to migrants without the right to rent — was only fully rolled out in England in February of this year, having previously been piloted in the West Midlands.
However, under the new Act, landlords will now face criminal charges for breaching the right to rent scheme. They could be fined or sentenced to up to five years in prison. JCWI and partner organisations conducted an independent evaluation of the pilot scheme last year which found that in the first six months, the right to rent checks had resulted in discrimination against people with foreign accents, foreign names and those without British passports.
People with complicated immigration status, unclear documents and those who required time to provide relevant documents were less likely to be considered and accepted for a property as a result of the scheme, despite having the right to rent. The JCWI says that the threat of criminal sanctions would only deepen the likelihood of discrimination.
Under the new Act the home secretary can also serve notice on a landlord stating that an occupier does not have the right to rent, granting the landlord the power to evict the tenant by serving a written notice “as if it were an order of the High Court”.
There would be no judicial oversight of the eviction process. The JCWI says that eviction without consideration of the courts “is utterly unacceptable”, and granting landlords this power “is a disaster waiting to happen”.
It points to the poor record of the Home Office, which consistently makes mistakes about people’s immigration status that need to be corrected, often through lengthy legal battles.
This poor decision-making could now lead to migrants who are legally entitled to be in the UK having their bank accounts frozen and being evicted from their homes. Even worse, it could lead to migrants being deported without the right to first appeal the decision. Under the Immigration Act 2014, any person with a non-human rights related appeal could be deported before the appeal was heard. Under the new Act, the “deport first, appeal later” provisions have been extended to human rights cases as well, unless such removal would cause the individuals concerned “serious, irreversible harm”.
Referring to the very high rate of successful appeals against incorrect decisions in the past, the MRN says that rather than trying to get things right, the legislation is designed to ensure that those who are wrongly removed from the country have no redress. The JCWI points to the difficulty of appealing from abroad for a number of reasons, “including the cost and the difficulty of gathering evidence and presenting a case when not physically present”.
The Act also strips away state support for asylum seekers whose claims have been rejected. Only those with a “genuine obstacle to removal” will be entitled to support.
Under the new law, asylum seekers with dependent families will have 90 days after their claim is refused by the Home Office to leave the country. After that, the financial support they receive, as well as any accommodation, will be removed.
Other impacts of the immigration act
The Act gives the government the power to introduce an “immigration skills charge” on certain employers who sponsor skilled workers from outside the European Economic Area.
The government announced in March that the skills charge will be £1,000 for each applicable skilled worker, with a lower charge of £364 for small or charitable organisations.
The Act also requires public authorities to ensure their workers in customer-facing roles speak English (or, in Welsh authorities, English or Welsh) to a sufficient degree of fluency to “do their jobs effectively”.
Further details of how “fluency” is to be assessed will be set out in a Code of Practice to which the public authorities will be subject. Authorities will also need to put in place a complaints procedure, to which those interacting with staff can raise any concerns over language fluency.
TUC policy officer Rosa Crawford told Labour Research that the government had provided “no evidence” that there was a problem with the language skills of these workers, and that this was “scaremongering” about migrants being a problem in public services.
Evidence from unions shows that adequate English language skills are already a requirement to be employed in these roles.
The TUC also warned that the measures were likely to increase discrimination, with unions having considerable experience of dealing with disciplinary and grievance situations in relation to discrimination against workers whose language ability is questioned because of their accents.
Public services union UNISON said the new duty was part of a broad agenda of politically-driven immigration control, which was “unnecessary and dangerous” and had the potential to increase discrimination against workers perceived as not being British.
It said the new measure could also lead to breach of the equality duty of public service bodies.
An amendment to the Bill in the House of Lords, supported by the TUC and the Refugee Council, which would have given asylum seekers the right to work after six months in the UK (if a decision on their claim had not yet been made), was rejected by the government and overturned when the Bill returned to the House of Commons.
Domestic workers’ visa
A House of Lords amendment to the Immigration Bill which would have given overseas domestic workers the right to change employers where they are facing abuse from them, and then have leave to remain for at least 2.5 years, was rejected by the government and overturned in the House of Commons.
The amendment, supported by a number of campaign groups, would have implemented a recommendation of the independent review of the overseas domestic worker visa carried out by James Ewins QC in December.
These workers are currently tied to their employers and face deportation if they leave their employment.
In response to the review, the government had previously indicated that it would grant the right for overseas domestic workers to change employers during the six months for which visas are issued, but with no further right to remain unless the national referral mechanism for identifying victims of human trafficking or modern slavery decides that they have been trafficked.
Supporters of the Lords’ amendment say this mechanism is slow, complex and results in poor decisions with no formal procedure to challenge.
And the TUC points out that this does not cover abuse that does not come under the category of trafficking.
Alina Müller, MRN policy officer said that “the tireless work of civil society organisations and campaigners” did manage to bring some positive changes to the legislation as it completed its passage through parliament.
This included the introduction of judicial oversight for immigration detention and a 72-hour time limit on the detention of pregnant women (extendable to a maximum of one week with ministerial approval), and a government commitment to provide sanctuary in the UK for unaccompanied child refugees stranded in Europe.
An amendment to the Bill was proposed by Lord Alf Dubs, calling on the government to take in 3,000 unaccompanied child refugees. This was rejected by the government although the government did agree to take in an unspecified number.
Joint Council for the Welfare of Immigrants
Migrants' rights network