Analysis: Immigration Act 2016

A hostile environment hitting wrongdoing from every angle has been in the making for a long time. The Immigration Act 2016 builds on the foundations laid by the “flagship” Immigration Act 2014. The public tends to view foreigners as stealing local jobs and accuses them of driving wages down and pushing house prices up. This convenient grievance makes it fashionable to use immigration as a trump card to stir up anxieties with disgruntled locals. For example, the present transport secretary, Chris Grayling, who remained highly unpopular during his stint as former justice secretary, stressed that migration “will change the face of our country forever”. The popularity of migrant bashing and the opportunities that come with it are irresistible for power hungry individuals in search of a career boost. Only recently slippery politicians used the panic surrounding immigration as a convenient weapon to arouse the public’s prejudices in order to swing the referendum vote in favour of Brexit. It seems to have been a worthless thing to vote for because the influx of foreigners into the UK will not diminish. Fortifying earlier measures, the new Act remains firmly rooted in the belief that sweeping legislative changes can cure the problems posed by immigration. 

The paradox is that trying to fix up the shambolic immigration system with constant changes to the statute book is virtually incapable of being part of the cure. The trend of keeping things in a state of flux causes uncertainty and the dizzying variations underpinning changes in the law are part of the disease. It is manifestly clear that standards cannot be met despite constant hikes in fees. Theresa May’s failure to reduce net migration to the tens of thousands and the ultimate abandonment of this goal altogether by Amber Rudd represents wholesale failure. So from that angle the deficit in public trust could not be greater. Whilst its predecessor legislation targeted the appeals regime and blitzed almost a dozen and a half appeal rights to a meagre four, the new workhorse Act contains a bevy of provisions in relation to access to services, facilities, licences and work by reference to immigration status, enforcement of certain legislation relating to the labour market, language requirements for public sector workers, fees for passports and civil registration and for connected purposes.

Highlights

The 2016 Act is lengthy – 236 pages divided into nine parts and 15 schedules – and its architecture is formidable. The raft of new measures further aggravates a hideously complex environment in which the only given constant is wholesale change – making it impossible for immigration subjects to abide by the law and for immigration staff to enforce it effectively without being self-obliterated by mistakes. Despite the extreme frustration of the judiciary over the value of rapid-fire immigration legislation and rules, the width and complexity of issues simply keeps expanding. Each set of changes to the law produces its own set of victims. For example, the first wave of bad quality template decisions pursuant to HC194 showed exactly how far off the mark decision makers can be even where the rules recognise certain rights.

A high rate of change makes the authorities’ capacity to keep up with the changes impossible. In addition to the compliance of immigration subjects, the ability of officials to comfortably manoeuvre through the requirements of the law – without abusing power – is one of the main issues at stake. Since immigration issues tend to be hard by any stretch of the imagination, the inevitable outcome is that home office officials prefer to put difficult questions aside and instead resort to abusing power. And indeed some, but by no means all, immigration judges look at things in a cursory way to ease their workload and enjoy a pampered life eating subsidised sandwiches in the plush cafeterias of the judicial ivory tower.

The punitive provisions of the 2016 Act make it an offence for an employer to hire illegal migrants. Building on the foundations laid by the 2014 Act, an array of provisions linked to banking is also part of the package and those without permission to remain can have their bank accounts frozen. Criminal liability is packaged for landlords knowingly renting premises to illegal migrants. Those found guilty can face up to five years jail terms. The 2016 Act expands the scope of the deport first, appeal later system which in its updated form encompasses all migrants rather than just convicted criminals and persons whose removal was sought on conducive grounds. Unless a migrant can show serious and irreversible harm being caused to them, they can be removed while the outcome of the decision against the appeal to remove them is pending. Yet some emollient features of the new legislation include limitations on detention (especially in relation to pregnant women) and safeguards for refugee children. (As seen below, thus far the latter pledge has amounted to nothing and refugee children are suffering in Calais like never before.)

Part 1: Labour Market 

Looking at the labour market and illegal working, Part 1 of the 2016 Act articulates a new strategy to combat serious exploitation of workers by establishing a new director of labour market enforcement who will oversee the relevant enforcement agencies. Illegal working has been made a criminal offence and wages from it can be seized as the proceeds of crime. Employers who deliberately ignore the law by “turn a blind eye” to employing illegal workers can no longer escape the long arms of the law as it will be easier to prosecute and impose sanctions on them. People without lawful status are able to acquire premises or personal licences under the Licensing Act 2003 because local authorities are not in a position to deny them a licence and are not required to check their legal status in the UK. Thus, it is arguable that the problems of illegal working in licensed premises have been addressed and placed on a legislative footing.

The above developments are all the more interesting in light of the scandal rocking Byron Burgers, which has electrified the debate on illegal working. The company is accused of being in cahoots with the home office because of betraying its staff and handing them over to the home office. Home office officials swooped in on 35 individuals from Albania, Brazil, Egypt and Nepal in raids on the morning of 4 July when staff members were lured into an enforcement trap by Byron Burgers’ management under the guise of a health and safety meeting. In retaliation, activists released cockroaches and locusts at two of Byron’s restaurants forcing their shutdown.

The belated nonsensical defences aired in favour of the company’s misconduct by the likes of Brony Gordon will do nothing to change the public outrage caused by the company’s bid to buy salvation from the masters of the universe in the home office. “Misconduct” is attributable to Byron because the home office could have arrested the illegals involved at their homes. It seems that in reality Byron did “turn a blind eye” to fake identification documentation presented in job applications and in its bid to save itself later decided to align its tactics with law enforcement officials. It is impossible to disagree with Owen Jones when he says Byron betrayed its workers. The system betrays us all.

Part 2: Access to Services

Building on the foundations of the 2014 Act, Part 2 of the 2016 Act includes measures restricting illegal immigrants’ access to services. In particular, it makes it easier for private landlords to evict tenants unlawfully present in the UK. It also creates a new criminal offence for rogue landlords, dishonest landlords and agents who exploit migrants and by repeatedly failing to carry out right to rent checks. Moreover, steps have been taken to ensure that those unlawfully present in the UK are not able to drive and are prevented from retaining UK driving licences. Furthermore, banks and building societies are also required to take action against existing account holders who are unlawfully residing in the UK. A duty is thus placed on banks and building societies to conduct periodic checks of the immigration status of existing current account holders.

Part 3: Enforcement

New powers have also been created, under Part 3, for enforcement officers as regards search and seizure. The 2016 Act also claims to deliver the Conservative Party’s manifesto commitment to tag all foreign criminals who are not detained but are awaiting deportation. Equally, the conditions applicable to illegal migrants who are not detained will also be simplified and a new policy (the “adults at risk” policy) will also be put into motion to change the way in which the home office makes decisions on the immigration detention, for the purposes of removal, of vulnerable people. As seen in an earlier post on detention, other more positive measures include limiting the detention of pregnant women to 72 hours or up to one week with ministerial authority. Similarly, the 2016 Act guarantees independent judicial oversight for immigration detainees (except deportation and national security cases) after at least four months in detention, and at future four monthly intervals from their last bail consideration.

Part 4: Appeals

The removal of those with no right to be in the UK means that illegal migrants must be removed before they appeal, so long as this does not cause serious irreversible harm. This is the proud motto of Part 4 of the 2016 Act. In that regard, in order to expand the deport first appeal later regime, the government is relying on the Court of Appeal’s rigid analysis that the home office is generally entitled to proceed on the basis that an out-of-country appeal would be a fair and effective remedy.

Worse still, on a practical note, it is very difficult to see how see how all this can be fair in the cases of little old illiterate Indian ladies, especially when the BBC and the Financial Times are available to bolster/front-run the anti-deportation campaign of the hugely dodgy rogue trader Kweku Abodoli (see here) who is appealing first and hopes not to be deported, or perhaps deported “later”; if at all. For people like him, being banned from working in the City is simply not enough punishment. He played God with savers’ money and his unauthorised and casino-style trading caused $2.5bn of losses. In line with the public interest he should be deported first so that bankers and corporate criminals can hear the message of the new regime loud and clear. Saying sorry and hiding behind “I failed, I made mistakes” cannot be grounds for salvation because everyone is equal in the eyes of the law (including all the EU murderers etc in Morton Hall IRC and elsewhere who are in need of legal assistance).

Part 5: Support for Certain Categories of Migrants

Under Part 5, certain categories of migrants are to be supported. Executive promises about the resettlement of children registered in Greece, Italy or France before 20 March 2016 are also put on a statutory footing. To that end, section 67(1) exhorts the home secretary to “as soon as possible after the passing of this Act, make arrangements to relocate to the United Kingdom and support a specified number of unaccompanied refugee children from other countries in Europe.” But as Amelia Gentleman reports from Calais, the promise is a farce because child refugees – who are hungry, scared, and no closer to safety – have been failed by the UK. “Three months after the UK government promised sanctuary to lone child refugees, little has happened,” is how Gentleman describes the embarrassing and shameful situation for the government.

The 2016 Act also resets the 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. Safeguards are also put in place through the new measures to prevent them from disproportionately impacting the vulnerable, or those who genuinely cannot leave the UK.

Part 6: Border Security

Strong border controls are a politically explosive issue and Part 6 of the 2016 Act gives the Border Force new powers to target people smugglers in UK territorial waters. It also ensures that airlines and airports present arriving passengers to immigration control and that international travel bans are automatically applied.

Although a fleet of cutters to enforce revenue and customs laws is already in operation, Border Force officials on board cannot exercise immigration powers in UK territorial waters. Thus they cannot intervene when they identify vessels which they suspect to be involved in facilitating illegal migration. Under new powers conferred by the 2016 Act, officers will be able to:

• stop, board, divert and detain a vessel where there are reasonable grounds to suspect that it is being used to facilitate the breach of immigration law or is being used in connection with such facilitation.

• search a ship and anyone and anything on the ship to obtain information or evidence of the facilitation offence.

• arrest of any person reasonably suspected of being guilty of an offence of facilitation and seize relevant information or evidence.

• use reasonable force in the exercise of any of these powers or functions.

Part 7: Language Requirements

Language requirements for public sector workers are also a feature under Part 7 of the 2016 Act. The current lacuna in English speaking skills allows people to work in many vital customer-facing public sector roles – such as unqualified teachers, teaching assistants and unregulated NHS staff – without speaking fluent English. “This cannot be allowed to continue for roles where communication with the British public is vital to deliver an effective service,” is how the government perceives the problem.

A statutory Code of Practice – whose purpose is to steer public authorities in complying with their new duties – will be introduced six months after 12 May 2016. The code outlines (i) the minimum standard of spoken English to be met (ii) the action to be taken by a public authority where someone does not meet that standard (iii) the procedure to be operated to deal with any complaints and (iv) how the public authority can comply with its other duties including its obligations under the Equality Act 2010. By providing principles and examples for public authorities to consider when fulfilling their legal duties and obligations, the code intends to support public sector employers in complying with this new duty, whilst ensuring minimal burden.

Part 8: Fees and Charges

The drive to put local people’s work rights first means that the 2016 Act reduces demand for migrant labour in jobs that can be filled by domestic workers. Under Part 8, the new legislation also consolidates charging arrangements for home office services. In particular, it introduces an “immigration skills charge” for employers preferentially employing skilled migrants. Rather than relying on central government funding, it also enables civil registration to become financially self-supporting through fees. It also allows the Registrar General to receive funding, from the registrars and superintendent registrars, for the services they currently provide for free. The legislation intends to maximise 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

Part 9: Miscellaneous

On the deeply contentious issue of the duty regarding the welfare of children under section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding welfare of children), the 2016 Act honourably explains in section 90 “this Act does not limit any duty imposed”. But then again, the public can always count on the overpaid and idle judges who sit in the dismissive courts of this increasingly racist country to dilute the duty to children in favour of the executive.

Commencement

Commencement is dealt with under section 94 which says that the provisions of the 2016 Act will enter into force by virtue of regulations made by the home secretary. However, section 94 identifies that subsections (3) to (5) of section 61 (Immigration bail) came into force on 12 May 2016. The Immigration Act 2016 (Commencement No. 1) Regulations 2016 identified two dates for commencement, namely 31 May and 12 July 2016. The provisions in section 67 (unaccompanied refugee children), sections 69 to 72 (transfer of responsibility for relevant children), section 75 (maritime enforcement) and Schedule 14 (maritime enforcement) entered into force on 31 May 2016. The immigration skills charge is not expected to enter into force until the spring of 2017. The Immigration Act 2016 (Transitional Provision) Regulations 2016 made housekeeping changes without which persons on temporary admission with permission to work would have been rendered illegal workers as of 12 July 2016.

A raft of other provisions came into force on 12 July 2016, namely: sections 1 to 9 (Director of Labour Market Enforcement); sections 10 to 13 (Gangmasters and Labour Abuse Authority); section 25 (code of practice); sections 31 to 33 (supplementary provision); section 34 (offence of illegal working); section 35 (offence of employing illegal worker); sections 46 to 53 (powers of immigration officers etc); section 55 (supply of information to Secretary of State); section 56 (detention etc by immigration officers in Scotland); section 57 (powers to take fingerprints etc from dependants); section 58 (interpretation of Part 3); section 59 (guidance on detention of vulnerable persons); section 60 (limitation on detention of pregnant women); section 76 (persons excluded from the United Kingdom under international obligations); section 86 (power to make passport fees regulations); section 87 (passport fees regulations: supplemental); section 88 (power to charge for passport validation services); section 89 (civil registration fees); Schedule 1 (persons to whom Director etc. may disclose information); Schedule 2 (functions in relation to labour market); Schedule 3 (consequential and related amendments); Schedule 9 (duty to supply nationality documents to Secretary of State: persons to whom duty applies); and Schedule 15 (civil registration fees).

Comment

Leaving the dilemmas of effective enforcement aside, we need to ask ourselves whether the home office, which is struggling to understand existing laws, will even be able to understand all these new measures? Template decision letters used in cases show that people who “write” the said decisions do not understand their work and always tend look at things the wrong way round.

Giving a bird’s eye view of some mistakes to avoid in future times, Professor Thom Brooks recently proposed that so as to avoid meeting an undignified end like her former boss David Cameron, the catty new prime minister Mrs May should adopt a six-point plan to confront the “crucial challenge” of immigration. The strategy must start with the “right target” and Brooks explains that the problem with reducing “net migration” is that the concept includes a high percentage of foreign students and 80,000 British citizens whose presence should not raise eyebrows.

Brooks proposes the reinstatement of the Migration Impacts Fund. He argues for the need to ensure that more is done so that migrants speak English and also advises Mrs May to review and update the byzantine/kaleidoscopic points-based system in order to make it more robust and fit for purpose. He also advocates the availability of greater funding for immigration officials so that they can tackle human trafficking, illegal working and sham marriages. Against that analysis, the 2016 Act may fill in some gaps in relation to illegal working and the labour market. Part 4 of the 2014 Act addressed the problems posed by sham marriages and the 2016 Act does nothing to add to the earlier provisions. Under the 2014 Act, “legitimate marriages have become home office honey traps” and it is reported that “the administration of marriage has been taken out of the hands of the church – and used as a crude tool for the state to carry out deportation.”

As the “phoney war” begins to take shape between London and Brussels, people such as Labour grandee Alan Milburn are supporting May’s new vision of greater social mobility and emphasise Brexit must lead us to build a fairer Britain. Of course, Theresa May has been trumpeting her own achievements under the Modern Slavery Act 2015 as being “the first legislation of its kind in Europe”. She seems to have undergone a radical metamorphosis and is now a devout convert defending human rights rather than mocking them by making misleading statements about a pet cat being the root cause of a foreign migrant’s success in his article 8 claim.

Just a day after Charles Moore wondered whether the prime minister would do anything to recognise that Islamism is an attack on our civilisation – “we do not yet know what the cautious … vicar’s daughter, will have to say” about the string of attacks in France he wrote in his customary avuncular fashion – she remained tight-lipped about linking Islam per se directly to extremist violence and instead admirably wrote We will lead the way in defeating modern slavery. Charles Moore, who will probably never be happy, is also generally suspicious of Mrs May as she backed the losers of remain. But despite being in the “unenviable position” of hammering out a good deal for her country, the clever cat prime minister is reaching out to everyone and is always making new friends.

London’s first Muslim mayor Sadiq Khan – one of the many sons of an immigrant bus driver from Pakistan – solidly supported her in his interview in The Sunday Telegraph day before yesterday. “I welcome Theresa May not serving the article 50 notice yet because it means there is still work to be done,” he said voicing his concerns that the right level of expertise needs to be “in the [Brexit] cockpit”. The pro-business socialist thinks his party has failed and understands the “unease the City had with Labour in the 2015 general election.” Maybe he should join her party because soon there may be no other choice.

Despite the achievements attributed to the 2016 Act, which ramps up the rhetoric of the flagship 2014 Act, the event that has really changed this country is Brexit – in whatever form, “hard” or “soft”. Mrs May’s idealistic pledge to “make a success” of leaving the EU is the real challenge confronting her administration and freedom of movement will be inevitably be a thorn in her side in negotiating a solid Brexit deal for the UK. The notion of an “emergency brake” on free movement is attractive to some but is unlikely to impress EU officials who will impose trade counter measures as punishment for any proposed restrictions.

For example, because its participation in the European Economic Area (EEA), Norway has total access to the EU’s single market but to reciprocate it observes and respects the Citizens’ Directive (2004/38/EC). Though it may restrict immigration on the grounds of severe social, economic and environmental needs, the Scandinavian country has never actually done so – presumably out of fear of tit for tat response from Brussels. On the other hand, Switzerland is not in the EEA but traditionally tolerated free movement. In 2014, the Swiss voted in a referendum to limit EU migration from 2017. However, any such restriction is likely to trigger an EU counter measure impeding Switzerland’s access to the single market and suspend other trading agreements.

The next post examines the recent reference on the Citizens’ Directive by the UK Supreme Court in the case of Secretary of State for the Home Department v Franco Vomero (Italy) [2016] UKSC 49.