New Punishments: Immigration Bill 2015

The onslaught continues. The Immigration Act 2014 promised to root out the ills of the system but now fresh legislation has been proposed to cure things even further and the home office recently announced a welter of new (improved) anti-immigrant measures in the Immigration Bill 2015. For example, in addition to the right to rent checks introduced under part 3 of the 2014 Act, it is now apparent that rogue landlords will be made subject to the new criminal offence of renting to illegal immigrants. Pursuant to the new punishments, the home office will also be able to close any business down for 48 hours for reason of employing illegal workers (illegal migrants in the UK are estimated to be between 420,000 to 860,000 – the Migration Observatory reports). Those hiring illegal workers “will be hit from all angles” said James Brokenshire in August 2015 as he promised to heighten enforcement raids from this autumn. Intriguingly, the Migration Advisory Committee, or MAC, estimates that on average employers can expect one wage enforcement visit from HMRC in 250 years and expect to be prosecuted for failing to pay the minimum wage once in a million years.

Within the measures set out in the new bill – which represent a further crackdown on access to services, enforcement and appeals – businesses will risk losing their licences to sell food and alcohol if they are found using illegal migrants as labour. Such provisions are seen as being in the “best interests of the British people and those who play by the rules.” Not long ago, in 2010, Theresa May and her boss David Cameron plotted a course to reduce net migration to the hundreds of thousands. But then came the rude awakening: instead of receding, net migration soared to new record levels, and data released in August 2015 demonstrated that it stood at 330,000. New economic problems are also afoot. For example, Andy Haldane, the chief economist of the Bank of England (BoE), has been arguing the case for reducing interest rates even further (from 0.5 percent) with the global financial crisis having entered a dreaded third phase.

Haldane said that the UK was not ready for higher borrowing costs. He views events in Greece and China as part of a bigger picture and not as isolated events. However, Mark Carney, the bank’s governor, disagrees with Haldane and rates may rise from next year. Carney says that migrant workers cannot be blamed for stalling UK productivity, which has fallen short of expectations but somewhat controversially he also argues that record numbers of migrants have been pushing UK wages down.

Addressing City grandees at Mansion House 2015, Carney pledged that “the Age of Irresponsibility is over.” The BoE says that its senior management must meet the highest standards of professional conduct. It has introduced a new code of conduct and will “in principle” apply the core principles of the Senior Managers Regime (SMR) to its own senior staff, including the governor himself. The SMR will operate in addition to scrutiny from the courts, Parliament, the media and the general public. The BoE attributes its desire to bolster its efficiencies to the Grabiner Report, a controversial document costing £3.5 million about which the US Department of Justice has concerns (and the Treasury Select Committee has also criticised, see here).

However, Carney’s poster boy looks cannot change reality and he faces heavy criticism for the BoE’s stress tests being fatally flawed as they set easy to clear hurdles and create a false sense of security about the robustness of the financial system. “The UK banking system is in very poor shape,” argues Professor Kevin Dowd, a Senior Fellow of the Adam Smith Institute, in his succinct study entitled No Stress. He argues that the stress tests should be scrapped because they are “worse than useless” and “methodologically flawed” and a proper interpretation of the BoE’s own results is indicative of the fact “that the UK banking system is actually very weak.”

Although Carney, who used to be a Goldman Sachs banker, pledged that the SMR will in principle apply to him and the BoE the bank is uneasy about opening up to official auditors for fear that such proposals may reduce its autonomy. As of July, George Osborne has been, consulting in relation to a Bank of England Bill targeting accountability and transparency at the Old Lady of Threadneedle Street. The bank is “uneasy” and “surprised” by thoughts of being swept within the audit powers of the National Audit Office (NAO) outside whose scrutiny it has historically been. In relation to future prospects of independence, the bank is not satisfied with the limited comfort offered by the retention of its policy making functions and potentially keeping them outside the scope of the NAO’s oversight. Interestingly, the Bank of England Bill is expected to be debated in Parliament soon and the chairman of the bank’s Court of Directors, Anthony Habgood, has warned that unless its provisions are sufficiently relaxed the proposed legislation would threaten “the carefully constructed independence of the policy functions of the bank.” This is so irrespective of the consultation document providing for an exemption as regards policy decisions in the bank being free from external interference. Despite the rise of Labour socialists who want an end to the bank’s independence, Carney is adamant that “[t]he construct here with a central bank that has operational independence to achieve a mandate that is defined by Parliament is the right model.” A Canadian immigrant himself, Carney has also caused controversy by endorsing the view that controlling global warming could leave fossil fuel assets “stranded”.

But perhaps more controversially, in her A borderless EU harms everyone piece, a candid home secretary accepted that she had failed to keep her bargain on immigration by reducing it to the hundreds of thousands. But she refused to give up and said much more would be done to deal with the menace of immigration. Mulling over the influx of people from countries such as the Czech Republic and Romania she found the statistics to be “shocking”. May accuses “criminal gangs” of selling “false dreams” but the meaning of her point is lost because her party came to power on the false premise that they would cure the malaise of asymmetrical immigration. In other words, her administration is selling “false dreams” to the British electorate. Intoxicated with power, she also attacked EU migrants for crossing “borders to look for work to claim benefits.” For her, “four out of 10 EU migrants, 63,000 people, came here with no job whatsoever.”

But the business community does not agree with her stance even in relation to refugees, leave alone EU citizens, and the financial elite has urged governments to increase the intake of those fleeing persecution. In fact, Tidjane Thaim (Credit Suisse), Dame Alison Carnwath (Land Securities), Simon Walker (Institute of Executives), Guy Hands (Terra Firma), Samir Desai (Funding Circle) and Sir Win Bischoff (FRC) have all called for compassion and they clearly see arriving refugees as a cure to the skills shortage in Europe. As the acclaimed journalist Michael Lewis explains in The Big Short: Inside the Doomsday Machine, business leaders know “how to harvest a migrant”. But harvesting or not, those fleeing persecution will welcome the response of such personalities over the rip-off world of greasy politicians and human rights lawyers.

It is hard to be sure whether she intends it or not, Theresa May’s renewed attacks on foreigners surely share a natural link with everyday racism. Her agenda is well aligned with a punitive version of society. By depriving immigrants of basic services we take for granted, she wants to make it impossible for foreigners with legal problems to eek out an existence. Consequently, a culture of fear – or Angstkultur – exists. Equally, financially self-sufficient foreign communities with British citizenship are suffering because their children, spouses and elderly relatives are shunned from the UK. Even people who can show non-standard features for coverage outside the rules under article 8 are not granted leave. The mounting costs of the exercise to obtain leave to remain (or enter), and the inflexibility and bias of overtly racist immigration judges, has only made foreign communities more cautious about their position, and their value, in the great host British society.

Leaving the government’s drive to purify Britain to one side, the net effect of the judicial disciplining of wayward immigration lawyers is that first tier judges now have all the more reason to think that everything is the fault of appellants or their representatives. The tone of determinations is harsh and they can run into twenty pages without the judge citing even a single authority (which is pretty alarming given that so much complex jurisprudence is at play). All this is the spillage from the open season declared on faulty judicial reviews lacking merit; the deterrent effect of such disciplining – which may be well deserved in individual cases – will inevitably reverberate well beyond its intended audience. As I said there is Angstkultur, people are keen not to get caught up in the crossfire.

Even outside Britain’s migrant communities, and untalented immigration lawyers, the culture of fear runs quite deep. With the prospects of Brexit hanging over European leaders’ heads, the French have put treaty change on the table in order to stop Britain leaving the EU. For example, France’s economy minister, the former Rothschild banker Emmanuel Macron has said that the door must not be closed to Cameron if his demands from other member states are “acceptable”. Eager not to alienate the Brits, Macron thinks that a “win-win deal” is possible – France is eager not to lose Britain as a partner in areas such as foreign policy and defence. Fresh agreements “are not taboo but Britain must clarify its requirements,” said Macron. Yet warning against demagoguery he nevertheless maintained the caveat that “an ala carte Europe is not feasible” because “it would progressively kill the European idea.” Notably, Macron asked the British “What exactly do you want?” as he intimated that the revision of the terms of the UK’s membership could be considered in tandem with euro reform in a wider package. But Lord Lawson, the former chancellor under Margaret Thatcher who favours Brexit, has put the heat on Cameron by arguing that it is “increasingly clear” that he will not be able to deliver on his promise of reform via renegotiation and will at best achieve “wafer thin” results.

Even in pronouncing that Britain would imminently receive Syrian refugees from camps in Jordan, Lebanon and Turkey, May opportunistically pilloried those who had already fled en masse to Europe as “fit and wealthy” and “with enough money” and she yet again rebuffed calls to participate in the European Union’s scheme for the intake of 160,000 refugees already in Hungary, Italy and Greece. (The comprise in relation to whom apparently is that 66,000 will be added to the 40,000 approved in July with the remainder to be distributed thereafter – the problem is that more people keep arriving.) Mrs May is clearly unmoved by the racism of the Hungarians who resorted to treating human beings like cattle and did not hesitate in using rubber bullets, water cannon and tear gas against refugee families demanding to be let across the wire fence at the blocked Serbian-Hungarian border.

It is hard to forget that only recently her boss David Cameron denounced people in Calais claiming that they were escaping persecution as a “swarm” – in his avuncular speech, they could only be economic migrants or jihadis infiltrating Britain. Even official estimates suggest that 11 million people have been displaced by the Syrian war and that more than four million refugees have been created. Given that Britain will carefully select and screen 20,000 of them from camps over the next five years, British racism is on a par with any other racist place. Even the persecutory Pakistani state – which just executed Ansar Iqbal in violation of Pakistani and international law – can laugh at the derisory figure of 20,000. After all, despite all its ills Pakistan opened its borders to millions of refugees from neighbouring Afghanistan.

Even though many have opted to settle in Pakistan, millions have chosen to return home. However, Ansar Iqbal’s execution is yet another stain on Pakistan’s judiciary; the Supreme Court refused to entertain evidence demonstrating that Iqbal was a child at the time he was accused of having committed murder, charges which he denied. But the Pakistani judiciary are the children of Muhammed Munir CJ (1954-1960) and will do anything in the name of “necessity”; in collaboration with the army they even judicially murdered the former prime minister Zulfikar Ali Bhutto (an Oxford graduate and barrister) so the Ansar Iqbals are small beer indeed. Despite being a venal character, former president Asif Ali Zardari suspended executions but after the attack on the Army Public School and the resumption of the death penalty in 2014 Ansar Iqbal’s execution brings the death toll to 240. People say that the judiciary is under pressure from the military. But that has always been the case in Pakistan and perhaps the west should build up civilian institutions in developing countries rather than supporting despots. As shown by the decision in Adan Haji Jama and others (Appeal No. 95 of 1946) v The King (Somaliland) [1947] UKPC 89 (9 December 1947), recently made available on BAILII, British military officers were pronouncing the death penalty in the absence of a state prosecutor and a jury and it took the Privy Council to quash these convictions. “A judge who himself examines the prosecution witnesses, escapes an unconscious bias in favour of accepting their evidence,” held Sir John Beaumont and Lord Uthwatt and Lord Oaksey.

“Through our new immigration bill, illegal workers will face the prospect of a prison term [six months] and rogue employers could have their businesses closed, have their licences removed, or face prosecution if the continue to flout the law,” announced Brokenshire in advance of the Immigration Bill 2015: to appease the white supremacists in the electorate, May and her junior colleague want to prove that Britain is not a “land of milk and honey”. As seen in the last post, one way to achieve this is to forbid access to banking and other services to compel people to leave. These changes represent new technologies to punish, to discipline and make wrong things right by totally taking over people’s daily lives. Notably, the Immigration Bill 2015 is part of sweeping legislative changes envisaged by the home office that touch on other aspects of life rather than just immigration. For example, other coercive bits of legislation include the Counter-Extremism Bill (due to be published later this year) and the Snooper’s Charter/Surveillance Bill (which May wants published as a workable draft this month). Maybe we should all just fly south.

Apart from the Immigration Bill itself, other official documents on it have been published as:

Immigration Bill 2015-16: overarching documents

Factsheet: Immigration Bill overview

Delegated powers memorandum

Immigration Bill: European Convention on Human Rights memorandum

Overarching impact assessment

Immigration Bill: part 1 – labour market and illegal working

With almost 175,000 people in the refusal pool, fewer than one percent of overstayers receiving Capita notices elect to depart from the UK. Part 1 is a workhorse for providing a logical enforcement strategy to crack down on serious exploitation of workers by establishing a new director who will oversee the relevant enforcement agencies. The system will make it a criminal offence to work illegally, seizing illegal workers’ earnings as the proceeds of crime making it easier to prosecute employers who deliberately or “turn a blind eye” to employing illegal workers. Illegal workers will face jail terms and employers will not only face closure but may also be prosecuted for breaking immigration law. Equally, sanctions are being made tougher by creating powers to close businesses and apply special compliance measures to employers who continue to flout the law. This part also ensures that licenses for the sale of alcohol and late night refreshments are subject to compliance with immigration laws.

Immigration Bill: part 2 – access to services

Prior to publishing the bill, the government promised in the first week of August that landlords and agents who fail to comply with the scheme could face up to five years in jail, or fines up to £3,000, and could then also be “blacklisted” from letting properties under the Proceeds of Crime Act 2002. All this adds to the drive to ensure that people are excluded from having a roof over their heads. Akin to “smoke them out of their holes” mentality of the war on terror, such punitive measures are likely to increase exploitation in a one-sided housing market ruled by landlords and sellers.

As promised part 2 makes it easier for private landlords to evict illegal migrant tenants and it creates a new criminal offence for dishonest landlords and agents who exploit migrants and repeatedly fail to carry out right to rent checks. This part will aim to ensure that those unlawfully present in the UK are not able to drive and prevents illegal migrants from retaining UK driving licences. It allegedly delivers Cameron’s commitment to require banks and building societies to take action against existing account holders who are unlawfully residing in the UK placing a duty on banks and building societies to carry out periodic checks of the immigration status of existing current account holders. Banks will be able to freeze and close accounts for persons without leave to remain; this is bound to create some victims because immigration forms require payment and invite applicants (“visa customers” in the new lingo) to use debit and credit cards. Where no fee is paid the application is declared invalid.

It is true that landlords would simply not rent to those with foreign sounding names or who are an ethnic minority to “avoid the problem altogether”. But other possibilities also exist. But if one goes by the statistics cited above – that employers can expect one wage enforcement visit from HMRC in 250 years and one chance in a million years as regards being prosecuted for failing to pay the minimum wage – then dodgy landlords will have a field day and rip off migrants who may even pay through sexual or other slavery. Capitalism is always based on profit maximisation and rogue landlords will aim to extort higher rents because of the illegality involved. Adverse market conditions will create a casino environment in the housing market and those failing the checks will pay higher rents in return for landlords turning a blind eye to their problem.

Crimialising drugs has not helped, it has not ended their use. If anything, it increases uncertainty by pushing drug users in the wrong direction by making them resort to crime and enriches evil and corrupt drug dealers. Similarly the deterrent effect of the new property and employment measures is likely to be marginal. If one follows the historic example of the Volstead legislation, prohibiting alcohol in the US but attracting marginal compliance, criminalising letting property to illegal immigrants will only increase the profitability of rogue landlords who will break the law to charge even more rent – it will create a black market for property which will allow dodgy landlords to engage in extortion rather than avoid the problem. Like the bad banks, often landlords are not good and honest citizens. They do not abide by the law and are notorious for being crooked and breaking every rule in the book; especially the ones renting cheaper properties at the lower end of the spectrum, which is what most immigrants can afford. Such is the nature of capitalism and profit maximisation and it was not by accident that Marx wrote Das Kapital in London. The chances of landlords being the “good guys” in all this are next to zero; it is almost like suggesting that president Putin and Bashar al-Assad, or perhaps former American president George W Bush, are nice people. Immigration sanctions or not, the reality is that landlords and agents are only interested in business and money. For all we know, these provisions may even become like the “deposit protection” treble damages provisions in the Housing Act 2004 – hardly an irritant for landlords.

Immigration Bill: part 3 – enforcement

Part 3 creates new powers for immigration officers, including search and seizure. It is said that there will be delivery on the Tory manifesto commitment to tag all foreign criminals who are not detained but awaiting deportation. Moreover, the legal framework to simplify the conditions that apply to illegal migrants who are not detained will also be reformed. Quite rightly, these provisions were instantaneously denounced for violating gender standards in the notoriously opaque world of immigration enforcement. As noted here before, because of greater public scrutiny and more transparent standards the police are less gung-ho – and often much better educated – than petty immigration officers whose abuses of unlimited detention powers (that are unique to the UK) is not only condemnable but also very expensive. I am not praising the police in any way but merely observing that they are “better” than immigration officers whose point of departure in any encounter is always rudeness and abuse of power.

Immigration Bill: part 4 – appeals

The 2014 Act reduced the number of rights of appeal against immigration decisions from 17 to four but that was not enough for the home secretary. In enhancing the deport first appeal later model, the government wishes to remove even more illegal immigrants by extending this rule to all immigration appeals, apart from where there is a risk of serious irreversible harm. According to the government, this part will bring forward the point at which we can remove those with no right to be here by enabling illegal migrants to be removed before they appeal, so long as this does not cause serious irreversible harm.

Immigration Bill: part 5 – support for certain categories of migrant

The government is unhappy that in 2014-15, an estimated £73 million was spent supporting failed asylum seekers and their dependants. Therefore, part 5 redresses the government’s perceived imbalance between failed asylum seekers, who can and should leave the UK, and other categories of illegal migrant by removing the support that is currently available to failed asylum seekers but not to others who similarly have no right to be in the UK.

But it is claimed that safeguards are also put in place through these measures to prevent them impacting disproportionately on the vulnerable, or those who genuinely cannot leave the UK.

Immigration Bill: part 6 – border security

The government’s literature argues that part 6 strengthens the UK’s borders by (i) giving Border Force new powers to target people smugglers in UK territorial waters (ii) ensuring that airlines and airports present arriving passengers to the immigration control and (iii) ensuring that international travel bans are automatically applied.

Immigration Bill: part 7 – language requirements for public sector workers

Part 7 of the Bill will ensure there is no language barrier to British Citizens accessing public services by delivering the Tory manifesto commitment to make sure those public sector workers who have customer facing roles can speak fluent English.

Immigration Bill: part 8 – fees and charges

It is said that part 8 will reduce demand for migrant labour in jobs that can be filled by domestic workers and consolidates charging arrangements for home office services by (i) introducing an immigration skills charge for employers who preferentially employed skilled migrants (ii) enabling civil registration to become financially self-supporting through fees, rather than relying on central government funding (iii) allowing the registrar general to receive funding, from the registrars and superintendent registrars, for the services they currently provide for free and (iv) maximising the flexibility of the passport fees framework to allow for cross-subsidy and over-cost recovery powers, while keeping down the cost of a standard passport application.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Access to Justice, Appeals, Article 8, Bank Accounts, ECHR, Economy, Employment, Enforcement, European Union, Human Rights Act, Immigration Act 2014, Immigration Bill 2015, Judicial Review, Politics, Tribunals and tagged , , , , , , . Bookmark the permalink.

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