The intention of this article is to provide an overview of the IA 2016, with a focus on provisions that have been introduced and are operative currently. The legislation is aimed at continuing the objective of creating a ‘hostile environment’ for persons unlawfully present in the UK, by making it harder to live and work without the necessary permission.
Part 1 Chapter 1 creates the post of Director of Labour Market Enforcement (section 1), aimed at reducing labour market offences and failures to comply with minimum wage legislation or breaching conditions of licences relating to Gangmasters licences (section 3). Information disclosed to the Director or to staff, which is authorised, would not breach obligations of confidence, but may still be subject to obligations under the Data Protection Act 1998 or Regulation of Investigatory Powers Act 2000 (section 6).
The Gangmasters Licensing Authority is renamed the Gangmasters and Labour Abuse Authority (section 9). The mechanism for enforcement is through the requests for labour market enforcement (LME) undertakings, where it is believed that a person (including a corporate body (section 28)) has committed a relevant trigger offence (section 14), and through court action for an LME order where an undertaking (which can last for up to two years (section 16) is not given or the person served fails to comply with that undertaking (section 19). An appeal against the making of an LME order can be made (section 24). Failure to comply with the making of an LME order is an offence punishable on indictment to up to two years’ imprisonment and/or a fine (section 27).
Most of the provisions of IA Part 1 Chapter 1 are in force under Immigration Act 2016 (Commencement No 1) Regulations (‘the Commencement No 1 Regs’) 2016 SI No 603 reg 3 (a)–(d). The provisions regarding the LME undertakings and orders are in force (Immigration Act 2016 (Commencement No 2) Regulations (‘the Commencement No 2 Regs’) 2016 SI No 1037 reg 4.
To coincide with the date of the coming into force of the post of Director of Labour Market Enforcement and the newly named Gangmasters and Labour Abuse Authority, a number of minor consequential amendments (that may not have been foreseen in the original drafting) were implemented (Immigration Act 2016 (Consequential Amendments) Regulations 2016 SI No 655).
The intention of this article is to provide an overview of the IA 2016, with a focus on provisions that have been introduced and are operative currently
Part 1 Chapter 2 creates an offence for a person subject to immigration control undertaking work when the person knows, or has reasonable cause to believe, that they are disqualified from working because of their immigration status (section 34). If a person is convicted of the offence of illegal working, the prosecuting authority is required to consider committing the individual to the Crown Court for the purposes of a confiscation order being considered.
Section 21 of the Immigration, Asylum and Nationality Act 2006 is amended to create a mirror offence for an employer employing a person disqualified from working because of their immigration status with the knowledge of the employer, or where the employer has reasonable cause to believe that the employee is disqualified. The penalty is increased from two to five years’ imprisonment, and a power of arrest is given, without warrant, where an immigration officer has reasonable grounds for believing that an offence has been or has been attempted to be committed (section 35). Specific amendments are introduced in respect of illegal working in licensed premises (section 36) and in respect of private hire vehicles (section 37).
The provisions relating to illegal working under Part 1 Chapter 2 are in force (under Commencement No 1 Regs reg 3(e) and (f )) albeit with transitional protection for persons on temporary admission without a restriction about employment as at that date (Immigration Act 2016 (Transitional Provisions) Regulations 2016 SI No 712) and those relating to private hire vehicles and illegal working closure notices and compliance orders took effect under Commencement No 2 Regs reg 5(a) and (b), but with transitional protection in respect of individuals on temporary admission without a restriction on employment as at that date (Commencement No 2 Regs reg 6 and 7).
Under IA 2016 Part 2, the regulation of the leasing of premises created under the IA 2014 is amended to increase the penalties for those convicted, and to provide arrest powers for an immigration officer who has reasonable grounds for suspecting the commission of an offence (section 39).
The power to terminate a tenancy is given where the secretary of state serves notice that the occupiers of premises are disqualified as a result of their immigration status (section 40).
Powers are given to immigration officers, police or persons authorised for this purpose to conduct searches of premises where it is believed that a person is in possession of a driving licence and does not have lawful residence in the UK (section 43) as well as a search of persons.
It is an offence to drive if not lawfully resident in the UK, and a vehicle used by such a person can be detained until a decision on charging is taken or, where convicted, until the court decides not to pursue an order for forfeiture. The power to enter premises to search for a vehicle to detain is also included (section 44).
The provisions enabling regulations and guidance in respect of leasing premises, evictions and accounts have come into force, with the remaining provisions of sections 39 and 40, as well as section 41, in effect under Commencement No 2 Regs reg 2 and reg 5(c)–(e) respectively.
Under IA 2016 Part 3, powers are given to immigration officers to search premises for documents, including documents stored in electronic format, where an immigration officer is lawfully on premises and where an individual liable to detention is on those premises (sector 46).
Similar powers are given to immigration officers considering liability of a penalty for illegal working or leasing premises to disqualified persons (section 47), and where items are seized and retained (section 48) the immigration officer is under a duty to pass the items on where another offence may have been committed (section 49).
Powers may be exercised by detention staff (on the direction of the secretary of state) to search for and seize any documents relevant to the nationality or identity of the detainee (or to the place from which the individual has travelled or is proposing to travel), to include using reasonable force in order to exercise such power (section 51). Powers are also given to immigration officers to take fingerprints from dependants of an individual even if they are not family members (section 57).
Guidance must be issued by the secretary of state in respect of the detention of persons vulnerable to harm if detained, or if they were to remain in detention (section 59). Limits are placed on the detention of women who are pregnant to be restricted either to persons shortly to be removed from the UK or where there are exceptional circumstances justifying the detention. Where such a person is to be detained, there are limitations on the length of that detention to 72 hours or a maximum of seven days, but only with personal authorisation by a minister of the Crown (section 60).
A person can be released on bail with conditions attached, even if they cannot be detained any longer, if they are liable to detention. This provision is to be treated as always having had effect (section 61). This is one of the few provisions that came into force on the date the IA 2016 was passed (section 94(3)).
Power is given to cancel section 3C IA 1971 leave where the individual fails to comply with a condition attached, or where the applicant has used deception in seeing leave to remain (section 62). There would be no right of appeal or administrative review available to challenge such curtailment.
The powers given to immigration officers (including powers to take fingerprints from dependants) are in force as is the duty on public authorities to supply information to the secretary of state (Commencement No 1 Regs reg 3(g) and (j), and reg 3(h) respectively). In addition, the limitation on the detention of pregnant women is in force, as is the requirement for guidance on the detention of vulnerable persons (Commencement No 1 Regs reg 3(l) and (m)). The power to cancel leave under Section 3C of the IA 1971 is in force under Commencement No 2 Regs reg 5(g).
Under IA 2017 Part 4, the power to certify appeals is extended to encompass all appeals involving human rights that are not based on protection grounds (contrary to articles 2 and 3 of the European Convention on Human Rights (‘the human rights convention’)) and not just involving those liable to deportation (section 63).
Section 3D of the IA 1971 is repealed, except to those whose leave was extended under section 3D immediately before 6 April 2015 and had an appeal pending under Nationality, Immigration and Asylum Act 2002 s104 (section 64). These certification of appeal provisions have been rolled out to all human rights appeals under Commencement No 2 Regs reg 5(h).
Under IA 2017 Part 5, a duty is imposed on the secretary of state to make arrangements for the relocation to the UK of a specified number of unaccompanied refugee children from other countries in Europe, with the number to be determined in consultation with local authorities (section 67).
Local authorities that have responsibility for an unaccompanied protection claimant can make arrangements to transfer responsibility to another authority (section 69). The duty owed in respect of unaccompanied children living outside the UK is in effect, as is the provision enabling a transfer of responsibilities as between local authorities (Commencement No 1 Regs reg 2(a) and (b)).
IA 2017 Part 6 deals with border security, and includes a provision enabling persons who are excluded under international obligations as not being capable of being exempt under IA 1971 s8 unless to do so would be contrary to the Convention and protocol relating to the status of refugees or the human rights convention (section 76). This provision is in operation under Commencement No 1 Regs reg 3(n).
Under IA 2017 Part 7, public authorities are required to ensure that persons working for them in a customer-facing role (in the UK) speak fluent English and to operate a complaints scheme about any breaches of this provision, and for these purposes agency staff are included (section 77(1), 77(3) and 77(5) respectively).
The provision is also to apply to persons already in employment rather than just from the date the provision is enacted (section 77(9)). There is a duty to issue a code of practice which will include provisions as to the standard of English to be met (section 80). These provisions are in force under Commencement No 2 Regs reg 3.
Under IA 2017 Part 8, payment for immigration skills charges are introduced on persons who make immigration skills arrangements (which came into force under IA 2016 s94(4)), as well as charges for the issue of a passport or other travel document and passport validation services (section 85 and 86 respectively). The remaining provisions of this Part were also brought into force by Commencement No 1 Regs reg 3(o)–(r). Although the provisions introducing the Immigration Skills charge had already been introduced, in March 2016 the government confirmed that this additional payment for employers would apply, from April 2017, at a rate of £1,000 per certificate of sponsorship per year and a reduced rate for small and charitable employers of £364 per year, with an exemption for certain categories, including Tier 4 students switching in country.
Part 9 contains a statement that Borders, Citizenship and Immigration Act 1999 s55 will not be limited by the IA 2017 (section 90). Other provisions of Part 9 include the commencement provisions under section 94, and set out which terms are limited to England and Wales (transfer of responsibilities between local authorities for unaccompanied protection applicants) (section 95(2)).
* Part 2 of this article will be published in (2017) August CILExJ and will focus on the Schedules of the IA 2016 that are in force.