Schedule 1 lists the authorities to whom the Director of Labour Market Enforcement can disclose information, which includes local government bodies as well as health authorities (Immigration Act 2016 (Commencement No 1) Regulations (‘ the Commencement No 1 Regs’) 2016 SI No 603 reg 3(s)).
Schedules 2 and 3 amend a number of legislative provisions relevant to the functions exercisable in the context of labour market enforcement, and make a number of consequential and related amendments dealing with the renaming of the Gangmasters and Labour Abuse Authority and the sharing of information obtained by other statutory agencies set out in IA s26 (Commencement No 1 Regs reg 3(t) and 3(u)).
Schedule 4 deals with the amendments required in respect of the definition of entitlement to work within licensed premises to give effect to IA s36, including a prohibition on applying for a licence unless the individual is entitled to work in the UK and the lapsing of a licence in the event that an individual ceases to continue to be entitled to work, and includes a requirement of a licence holder to give notice to the secretary of state in the event of the requirement of an immigration penalty (for employing persons illegally). This can constitute a factor relevant in deciding on the renewal or revocation of a licence. These provisions, when introduced, will not apply retrospectively (Sch 4, Part 7 paras 33–36 ).
Schedule 5 ensures that any licence issued to a cab driver by Transport for London should be limited to the period of leave to enter or remain in the UK granted, with a maximum period of six months where it relates to a person whose leave has been extended under section 3C of the IA 1971 leave (Sch 5 para 4). Similar provisions are introduced in respect of licensing authorities in other regional areas, including Plymouth (the Plymouth City Council Act 1975 as amended), areas covered under the Local Government (Miscellaneous Provisions) Act 1976 as amended, and in Scotland (the Civic Government (Scotland) Act 1982 as amended) and in Northern Ireland (the Road Traffic Offenders (Northern Ireland) Order 1996 SI No 1320 (NI 10) as amended and the Taxis Act (Northern Ireland) 2008 as amended) and in London (the Private Hire Vehicles (London) Act 1998 as amended) (Sch 5 paras 5–16 ; paras 17–28 ; paras 29–32 ; para 33 and paras 45–53 ; and paras 34–44 respectively). As with the provisions relating to licensed premises, these amendments are also not to operate retrospectively (Sch 5 paras 54–56).
See also ‘Immigration law update: Immigration Act 2016 – Part 1’, which appeared in (2017) July CILExJ pp34–36
Schedule 6 introduces the concept of ‘illegal working closure’ notices. These notices can be issued by the secretary of state in respect of business premises to prevent any work (paid or unpaid) from being undertaken at premises where an employer has employed a person aged 16 or over, who either has no leave or is subject to a condition preventing the individual from accepting the employment, ie, an ‘illegal worker’ (Sch 6 para 1(2) and para 1(5) respectively).
The immigration closure notice can only be issued where an employer has been convicted of an offence under Immigration, Asylum and Nationality Act 2006 s21 (which has not been spent) or been required to pay a civil penalty within the previous three years or has an unpaid element of any such penalty (Sch 6 para 1(6)). Any such notice must identify the premises to which it relates and must be served, and enables reasonable force to be used to ensure that it is affixed to the premises (Sch 6 para 2 (1)( a) and para 4(4) respectively).
The serving of an illegal working closure notice requires an application to be made by an immigration oÿcer to a magistrates’ court for an illegal working compliance order (Sch 6 para 5(2)). Such an application must be heard not more than 48 hours after service of the notice (Sch 6 para 5(3)).
An illegal working compliance order may prohibit or restrict access to premises, require a named person to carry out checks, or make other relevant provision as the court sees fit (Sch 6 para 5(6)). Any such order can last for a maximum of 12 months, extendable for periods of six months for a maximum overall period of 24 months (Sch 6 para 5(8) and para 7(5) respectively). Another new offence is created by a person entering the premises or otherwise contravening an illegal working closure notice (Sch 6 para 11).
The coming into force of Schedules 5 and 6 coincided with the implementation of the enabling sections of the IA 2016, ie, sections 37 and 38 (Immigration Act 2016 (Commencement No 2 and Transitional Provisions) Regulations 2016 SI No 1037 (‘ the Commencement No 2 and Transitional Provisions Regs’ ) reg 5(i) and 5(j)).
Schedule 7 contains changes to IA 2014 s40 in restrictions on the opening of bank accounts in respect of disqualified persons. There is a requirement on banks to carry out immigration checks on each current account that is not an excluded account, with the degree of regularity to be specified in regulations. Excluded accounts for these purposes are also subject to delineation in regulations.
Where accounts are identified, as a result of the checks, as being for the benefit of disqualified persons, there is a duty on the bank to pass information of suspected accounts to the secretary of state so as to enable an application to be made by the secretary of state for a freezing order to a magistrates’ court, aimed at preventing the operation of the account (with exceptions that can include withdrawal of funds for living expenses and legal expenses).
The bank or building society is also required to close accounts that are not subject to a freezing order, as soon as practicable, where the secretary of state determines that the account relates to a disqualified person.
Schedule 8 introduces amendments to the IA 1971, and to the UK Borders Act (UKBA) 2007, to implement the extended search powers as part of the extension of enforcement powers provided for within IA 1971 Part 3. This Schedule and the enabling section within the legislation (ie, IA 2016 s54) came into effect under Commencement No 2 and Transitional Provisions Regs reg 5(f ) and 5(k).
Schedule 9 sets out the list of persons required to supply information to the secretary of state, which includes law enforcement agencies, local government bodies, health authorities as well as registry staff and educational bodies. This Schedule and the enabling provision within IA 2017 s55 came into force under Commencement No 1 Regs reg 3(h) and 3(v).
Schedule 10 introduces several new provisions relating to the grant of immigration bail and specifying the necessity of conditions being attached to such grant, and where bail is granted to persons liable to deportation under the IA 1971 or the UKBA that a condition of electronic monitoring will be required unless impractical or contrary to the person’s rights under the European Convention on Human Rights (‘ the convention’ ), though an electronic monitoring condition cannot be imposed on a person aged under 18 (Sch 10 para 2; para 2(3); and para 4(5) respectively).
The changes will mean that the language of temporary admission is removed and replaced by the notion of immigration bail, which is why the same term is used where release is granted by the secretary of state or the tribunal (Sch 10 paras 1–3 ). In considering any variation of bail, the First-tier Tribunal (FTT) cannot amend the electronic monitoring condition, though the secretary of state is required to remove the condition, but only if it is impractical for the condition to be continued or where it would be a breach of the individual’s convention rights (Sch 10 para 6(5) and para 7(2) respectively).
In considering whether to grant or refuse bail (and what if any conditions to impose) the Schedule lists specific matters to which the secretary of state or the FTT must have regard (Sch 10 para 3(1)). There is a requirement that a person’s
continued detention must be referred to the FTT where the individual is subject to detention under IA 1971 Sch 2 powers, or under Nationality, Immigration and Asylum Act 2002 s62 if detained for in excess of four months (or four months since the date their case was last considered for bail before the FTT) unless the individual is being detained on national security grounds or has specifically consented, in writing, for their case not to be referred to the FTT (Sch 10 para 11(1) and para 11(6) respectively).
Schedule 11 deals with significant changes to the support levels for various categories of persons, including the removal altogether of Immigration and Asylum Act (IAA) 1999 s4 support (Sch 11 para 1). There is, however, support available for a limited class of persons that are failed asylum-seekers, who are unable to leave the UK where the person faces a genuine obstacle (to be determined by regulations as to what constitutes a genuine obstacle) to leaving the UK, including temporary support (Sch 11 para 9 and para 13 respectively).
Individuals who are treated as having made ‘further qualifying submissions’, defined as being a protection claim falling within paragraph 353 of the Immigration Rules, are treated as being asylum-seekers for the purposes of the support provisions under IAA s95 (Sch 11 para 3(3) and para 3(2) respectively).
Support for failed asylum-seekers may be subject to conditions, which could include participation in ‘community activities’ where the individual is being provided with accommodation (Sch 11 para 9). Transitional provisions protect those receiving support immediately before the date the provisions come into force (Sch 11 para 46(1)).
Schedule 12 introduces a new category of ineligible person for the purposes of local authority support, but differentiates the application of provision as between England and the remainder of the UK, and removes the entitlement to support under the Children Act 1989 for funds to allow a person to meet their tuition fees where the individual is 18 or over in England, and either has limited leave to remain or has an unresolved application for leave to remain whether as an asylum-seeker or otherwise, subject to certain conditions being met (essentially giving power to the secretary of state to determine, by regulation, which sorts of leave applications would be permitted to be treated as falling within the eligibility criteria for the purposes of receiving this form of financial support for persons with outstanding applications or, in time, in country appeals) (Sch 12 para 2(2) and 2(3), and para 3 and para 5 respectively).
The Schedule also creates additional categories of persons ineligible to receive local authority support for persons seeking leave who are not claiming asylum, and their dependants, as well as primary carers of British citizens (the ‘Zambrano carer' category (Sch 12 para 9).
Regulations can be made for the provision of support by way of accommodation and subsistence (which could be by way of subsistence in kind or vouchers) for persons who are not failed asylum-seekers and who have pending applications or appeals, or where continued support is necessary to safeguard the welfare of a dependent child (Sch 12 para 10).
Schedule 13 introduces penalties by way of penalty notices, with enforcement powers to aircraft carriers for failing to take all reasonable steps in respect of individuals embarking or disembarking outside control areas of an airport in the UK.
Schedule 14 extends the offence of assisting unlawful entry to include attempted entry and attempted breaches. Powers are given to immigration officers or police officers in respect of ships in UK waters, including ships that were immediately previously in UK waters, for the purposes of preventing or investigating unlawful immigration. The powers are to stop, board and detain a ship; to search the ship, persons on the ship or cargo; the power of arrest and seizure of items; to search for nationality documents; and protective searches where it is believed that a person to be searched might cause physical injury, damage property or endanger the safety of the ship (Sch 14 paras 1–6 ; para 7; and para 8 respectively). It is an offence to obstruct or refuse to co-operate, and the officer undertaking the stop, search or seizure is entitled to use reasonable force. These powers, together with the enabling provision within IA 2016 s75, came into force under Commencement No 1 Regs reg 2(c) and 2(d).
Schedule 15 enables fees to be paid in respect of giving notice of marriage, or to reduce the waiting period to be given in connection with a notice of marriage or other applications specified (Sch 15 para 1). Fees in respect of searches or copies or certificates of the register of births, deaths and marriages can also be introduced by regulations, including in respect of copies of records of marriages and civil partnerships (Sch 15 para 2 and paras 3–5 respectively). This Schedule came into force under Commencement No 1 Regs reg 3(w).