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Earlier this year we looked at some of the major changes to UK immigration law that were expected in 2014. We now take a closer look at 3 of the major developments that have taken place over the last 6 months and examine their implications for the rest of this year and beyond.
On 14 May the Immigration Bill received Royal Assent and was brought into law as the Immigration Act 2014. To say that the Act is controversial would be something of an understatement. In headline terms, the Act makes the following significant changes:
A number of common themes appear to underlie these changes. The government has openly stated that one of the aims of the Act is to make everyday life in the UK more difficult for those who are here unlawfully and this intention can clearly be seen in the provisions relating to access to services.
As a political piece of legislation, the Act is clearly designed to address public perceptions of health tourism, abuse of the system and undue leniency towards illegal immigrants in the past.
The difficulty is that immigration status can often be a grey area, and proving it even more so. Documents can be lost, stolen, or sent to the Home Office with an application and not seen again for several months. How then is someone who is in the UK legally but cannot prove it to convince a prospective landlord to provide them with a home?
There are numerous legal and practical difficulties inherent in requiring individuals to prove their immigration status, as employers subject to the current civil penalty regime well know (please see below for recent developments affecting employers).
The Secretary of State's intention to remove from the UK those whose presence is deemed undesirable is also clear in the changes to the removal process, the restrictions on bail for detainees, the instructions to courts and tribunals regarding what is in the public interest and, at the extreme end of the scale, the enhanced powers to strip individuals of their citizenship.
Another theme of the Act is, in effect, the delegation of border policing to third parties. For example, private landlords are required to check the immigration status of prospective tenants, registrars must report suspicions of sham marriages and banks must ensure that immigration status checks form part of their customer due diligence.
In addition, the Secretary of State can now require port staff and carriers to conduct more extensive embarkation checks on passengers, with all the powers of examination that an immigration officer at the border has. There will need to be robust guidance and safeguards in place to ensure that those exercising powers or complying with new obligations do so properly and without unlawful discrimination.
It must be noted that not all the changes the Act makes should give cause for concern. For example, the facilitation of citizenship for those born outside of marriage who would otherwise be British by birth seems long overdue. Generally it also does not seem unreasonable to ask those who may benefit from the NHS to contribute to its upkeep, particularly where such vital and finite resources are already stretched.
However, there is something undeniably draconian about this Act, not least in its attempts to fetter access to independent courts and tribunals and the encroachment into what and how those courts may decide.
The provisions of the Act are coming into force incrementally. Some came into effect this month, while others will be delayed until the requisite guidelines or secondary legislation has been drafted. Therefore we are unlikely to feel the full force of the Act until later this year or beyond.
A new Code of Practice on Preventing Illegal Working and statutory instrument 2014/1262 came into effect on 16 May 2014 which made the following changes to the civil penalty regime for employers:
The changes apply to breaches occurring on or after 16 May 2014 and to right to work checks on new or existing employees required on or after that date.
Many of these provisions are intended to simplify the regime and make it easier for employers to comply. However, the process of carrying out an initial right to work check can still be quite complex and employers need to follow the Home Office's Right to Work Checklist to the letter to ensure they will benefit from the statutory excuse against any subsequent civil penalties.
For example, employers cannot accept expired passports of non-EEA nationals containing an indefinite leave to remain stamp. Instead, the stamp must either be in a current passport or the migrant must have a current Biometric Residence Permit with that endorsement.
The reduction in the mitigating factors that the Home Office will consider when fixing the amount of any civil penalty may also cause employers some difficulty. One of the few remaining mitigating factors is that the employer has reported the suspected illegal worker to the Home Office.
This raises numerous employment and data protection law issues. If the employer is wrong and the employee does have the right to work, they may face claims of discrimination or constructive dismissal in the employment tribunal.
They are also likely to have breached data protection law by giving the employee's sensitive personal data to the Home Office without consent. Note that reporting the employee is not a legal obligation on the employer so they cannot rely on that as a defence against any claims.
The changes to civil penalty regime anticipate greater use of the Home Office's Employer Checking Service, especially in circumstances where an existing employee cannot produce documents for a follow-up check because they have an application pending.
This can be helpful for employers but it is worth remembering that the service does make mistakes and it often takes time for new applications to be logged on their system. So if the service cannot confirm an employee has the right to work this is not necessarily conclusive.
The best course of action for employers who suspect that an employee may not have the right to work is to gather as much information as possible and then seek legal advice!
On 25 February 2014 the Migration Advisory Committee published its report on the economic benefits of the Tier 1 (Investor) visa category. The report recommended several changes to this visa category which are designed to increase the economic benefit to the UK:
As the minimum investment required has been set at £1 million since 1994, it is almost inevitable that it will rise at some point, if for no other reason than to keep up with inflation. However, any rise would mean that this route is no longer an option for some.
Widening the permitted types of investment would be a welcome move. Currently, investors are restricted to investing the majority of funds in UK government bonds (gilts) and/or share or loan capital in UK companies. The MAC report suggests including other types of investment such as infrastructure bonds, venture capital schemes and angel investments in start-up companies.
Together with the removal of the top-up requirement, this could encourage portfolio diversification and a more entrepreneurial approach, as well as potentially providing greater returns for the investors themselves.
One of the most controversial recommendations was the concept of "visas for auction". The suggestion is that £2 million of the visa price would be invested as usual, with any excess essentially a gift to the UK government, to be put into a specific 'good causes' fund for charity projects, arts funding, infrastructure projects, etc. Investors who successfully bid for one of these "premium" visas would benefit from accelerated settlement and a reduced residency requirement.
Those benefits are likely to be attractive to individuals with global interests who wish to base themselves and their families in the UK, but there are a lot of unanswered questions about how the "visas for auction" concept would work in practice. The inherent uncertainty of an auction may also be a strong deterrent for many.
So far the government has not announced any intentions regarding whether or not it will implement any of the MAC's recommendations. Given the political nature of immigration policy and the continuing focus on the economic climate it would be surprising if no changes were made at all.
It may be that the government has not yet had time to fully map out the changes it wants to make. Alternatively, it may be saving any changes to form part of a wider parcel of immigration policies for next year's election manifesto.
Immigration policy is notoriously difficult area, not just for the UK but for almost all countries. Overall, the developments seen so far this year are all indicative of the UK government trying to tread a fine line between addressing public concern about the impact immigration has on key issues such as employment and healthcare and maintaining the UK's position as an attractive destination in an increasingly global market.
Although some of the provisions of the Immigration Act 2014 are welcome, there is much to concern immigration lawyers and their clients alike. It is also worth noting that some of the provisions will impact British citizens as well, such the requirements to prove immigration status before opening a bank account, signing a tenancy agreement or getting married.
Some of the changes to the civil penalty regime are likely to be helpful for employers, including the removal of annual checks and the extension of time limits in a TUPE context. However, the changes also highlight the tensions between immigration, employment and data protection laws and the difficulties employers may have in complying with all their obligations simultaneously.
As the government has not yet announced its intentions for the future of the investor visa, we can only speculate at this stage on the impact of any changes. Certainly a greater degree of freedom and choice in the permitted investments would be welcome, as would the removal of the top-up requirement. It is very unlikely that the government would close the route altogether but an increase in the minimum level of investment seems inevitable.
The impact of this year's overhaul of immigration law and policy will continue to unfold over time. No doubt further changes are in the pipeline as immigration becomes even more of a political tool in the run up to next year's General Election.
For more information please contact Katherine Dennis, Associate
T: +44 (0)20 7427 6738