The Immigration Act 2020


Ken Hanslip, Technical Director for NSL Checking, discusses why it is so important for the Government to start working on the 2020 Immigration Act now.

It may seem premature to ask the UK government to produce an Immigration Act for implementation when the United Kingdom leaves the European Union. However, with the expectations of an anticipated two year ‘Brexit’ period, time is certainly running out.  Experience has shown on many occasions that rushed legislation results in bad legislation.   With so many complexities, regulations and procedures to consider, I believe it is vital that work on the 2020 UK immigration rules must start now to ensure new legislation meets the needs of the UK and the expectations of people both at home and abroad.

It is also essential that clear and uncomplicated right to work legislation is confirmed at the earliest opportunity if the government truly wants to give UK businesses the scope to re-shape domestic and export business activities in order to meet the needs and to capitalise on the opportunities in the post-Brexit era. Employers must be able to quickly and easily meet their obligations to drive out illegal migrant working without having to navigate the complex right to work legislation and rules that currently exist.

I believe it would be sensible for the government to adopt the principles of the ‘4P rule’ to ensure the right processes are in place at the earliest possible opportunity to prevent avoidable problems and avoid operational headaches further down the line.  In tandem with the management ethos that ‘Proper Processes Prevent Problems’, any proposed immigration legislation will then need to encapsulate the specifics of

  • People
  • Procedures,
  • Penalties and
  • Prevention.

People
Gone are the days when legislation could be purely punitive, with little attention given to the effect that it may have on individual – intended or otherwise.  Today, it’s not just a case of legislation achieving the intended objectives.  It also has to be humane, balanced, relevant and ensure that compliance is readily and easily achievable.  Just falling short in one of these areas will always result in implementation issues and invariably will lead to more problems than solutions.

By its very nature, immigration legislation is people specific – especially when it comes to employment.  For most employers, legislation generally affects all workers equally.  However immigration legislation is different.  It’s much more specific.  Here, the right to take up work is largely dependent on an individual’s specific situation where an employer is, in effect, expected to be an immigration expert with little or no support from the Home Office.

Immigration legislation and rule changes affect the everyday lives of people and it’s important to explore the unintended consequences of any rule change.  Take for instance the plight of non-UK or EU nationals who have an indefinite leave to remain vignette or stamp in an expired passport. For all intents and purposes, these people have an indefinite right to remain in the United Kingdom and are generally free from any form of immigration control.  In most cases, the right of indefinite leave to remain was granted some years ago and, to save on the cost of transferring a visa into a new passport, the immigration rules allowed people to retain the visa in an expired passport. Prior to 16th May 2014, an employer could readily take such an individual into employment and achieve a Statutory Excuse against the imposition of a Civil Penalty if the individual’s previous and current documents were obtained, checked and copied.

However, a little publicised change contained in the Immigration Act 2014 meant that anyone with a visa in an expired passport could only take up work that started after 16 May 2014, if they applied for a biometric residence permit.  This rule change was absolutely sound for three reasons. Firstly, there is a huge gap in the Home Office’s knowledge about who has been granted indefinite leave to remain in the UK. The rule change helped to ensure that anyone changing jobs could be checked and registered. Secondly, indefinite leave to remain was previously evidenced by the Home Office through the placing of a paper vignette into a passport or by rubber stamping the passport – methods that are very flawed and very easily falsified.  The rule change would help to identify anyone of working age who was using false documents. Thirdly, biometric permits are a far more secure form of personal identification – with the scope for using fingerprints and high resolution digital photographs of holders and partially checkable within the permit’s chips – where employers and other agencies have a much easier task in providing work or access to services.Immigration Act 2020 - Image 2

However, despite the sound intentions of such a logical rule change, the unintended consequences were considerable – causing misery and despair for many innocent, hard working and law abiding residents of the UK. The absence of any publicity in the media – especially media sources dedicated to immigrant communities – was telling and inflicted a great deal of unjustified pain and distress that could have been avoided with a bit of foresight and compassion.  Despite repeated calls to raise awareness of the rule change, we are still in a situation where the first that anyone with an indefinite leave to remain permission in an expired passport knows that they cannot take up new work is when an employer declines employment. The individual – who is likely to be unemployed – is then faced with a cost of around £250 and a delay of 3-6 months for transferring their original permission onto a biometric residence permit. In such circumstances, it is not the Home Office who have to manage this very difficult and emotional situation, as employers bear the brunt of the anger and distress. This is not only grossly unfair on the individuals concerned but also unfairly expects employers – rather than the Home Office – to manage difficult and highly emotional situations that are not of their making.

It would have been far better to publicise the rule change widely and to offer a free biometric permit to those persons affected so that their status can be established and recorded. This would have helped the Home Office gain a much more accurate figure for those who have been granted indefinite leave to remain in the UK, expose those people who using false permits or stamps and eliminated completely unnecessary distress and frustration. I very much hope lessons are learned from such inexcusable errors so that employers are seen in a supportive rather than obstructive role in any new immigration rules and that everyone is treated fairly and humanely.

Procedures

Ever since the UK joined the European Union, much of the legislative complexity and confusion is blamed on the fact UK laws have to consistent with EU legislation that is often complex and confusing as a result of the disparate needs and priorities of the various member countries. Conversely, our departure from the EU brings a unique opportunity for the UK government to re-draft and re-shape immigration legislation so that it is not only fit for purpose but also simplifies compliance and is more easily understood. 

The primary focus of any new legislation must be to both protect UK workers from what is seen to be ‘cheap foreign labour’ and to allow highly skilled migrants to help the UK economy can flourish.  Both processes require a high level of humanity and fairness to lie at the core of any process, so it’s vital anyone who is likely to be affected by any rule change is kept informed about how and when the new changes will be applied and enforced. Such procedural transparency should also apply to the termination of existing arrangements.  After all, simply implying there will be a future cut off date will only result in something of a stampede for EU citizens entering the UK.  Once confirmed, it is also inevitable that such a cut off will prompt an immediate increase in the use of falsified EU documentation, as people who are not entitled to EU citizenship look to enter the country at a time of high people movement when there is less chance of false documents being be exposed or detected.

To counter all of the above, it would be sensible for any EU citizen who had residence within the UK and who is either in full-time employment, retired or otherwise self-sufficient prior to the 22nd June 2016 (the day prior to the UK’s EU referendum) should continue to hold residency rights until they cease employment or lose their self-sufficiency status.  This would not only be a fair and reasonable approach, it would also eliminate a potential rush of legal and illegal EU citizens into the UK.  Any EU citizen who came to the UK after that date should be required to undergo further checks to ensure their suitability for remaining in the UK.  Such a considered approach would then encourage EU countries to adopt similar measures for UK citizens resident in their countries – helping to remove all of the current apprehension and uncertainty. 

Of course, it shouldn’t be taken as a simple fact that the holding of EU citizenship will give an automatic right to residence within the UK.  Due to historic colonial ties with Portugal, for example, thousands of Goan citizens have taken up Portuguese citizenship to become EU citizens in order to gain access to the UK. As EU citizenship features many other similar anomalies, deferring decisions on a clear cut off date will increase the influx of quasi-EU citizens as they race to pre-empt the new arrangements.Immigration Act 2020 Header

Another thorny issue concerns dependants and family members of EU nationals presently resident within the UK. Many of these people tend to be non-EU nationals who have received preferential treatment due to their status under the Treaty of Rome and, as part of EU law, have been automatically allowed to reside in the UK. Until now, all UK governments have been powerless to stop this. There is now the opportunity to take appropriate remedial action to eliminate such flaws that are so often used as a cover for abusing and exploiting immigration status.

The present rules that cover the dependents of EU citizen, extended family members and members of households are extremely complicated and very difficult to apply.  In the majority of cases, the EU citizen must be in the UK and in work, to allow for the entry of a dependant, extended family member or a member of their household and for them to have a right to be in and take up work in the UK.  However, this isn’t something that can be checked easily and the arrangement is open to abuse. It would be sensible therefore to withdraw any concession for EU family members and bring this category of immigrants into line with other classes and groups.  Again, any change of legislation or procedure should be backdated to avoid causing a surge of applications prior to any imposed cut off date – so, it would be logical for any family members of EU citizens who became resident in the UK after 22nd June 2016 to be treated in exactly the same way as any other non-UK citizen.

The drive to replace today’s complex EU legislation should be focussed on removing those who have no right to be resident in or to take up work in the UK, while encouraging those whose skills and experience will bring financial and social benefit to the UK economy.  Anything less will simply perpetuate the perceived problems and abuses that encouraged so many Brexit voters to make their voice heard last June.

The falsification of EU identity documents is widespread as the security features on much of the documentation are minimal or non-existent. One version of a widely used Italian ID card, for example, comprises a simple paper card typed with details on the bearer and with their portrait photo just stapled onto the card.  With such a poor design and a complete lack of any security features, such an identity document is a firm favourite for fraudsters.

Even EU passports are at the top of the list when it comes to falsification. In 2012, the European Parliament reported that between 500,000 and 1.5 million French biometric passports had been issued to people supplying false data and three years later the Metropolitan Police issued an alert due to the high number of false French passports circulating in the UK.  Given that there are believed to be only 6.5 million of these biometric passports in circulation this is a shocking and indeed worrying figure. The Netherlands has also seen issues with document security.  Again, a report by the European Parliament advised that an audit of Dutch passports showed that 21% had errors with fingerprint data.  The UK doesn’t escape these problems, coming top of a recent list of counterfeit European passports.

Counterfeit and forged documents pose a serious risk to security and, once the UK has left the EU, the country will be able to impose its own security standards on documents that are acceptable for entry into the UK. The easiest way to achieve this would be to ensure all passports meet current biometric standards.  This would eliminate the risk of the vast number of false documents currently circulating in Europe being used to secure permit entry to the UK.

Lastly, there needs to be much greater focus on the removal of those persons found to have entered the UK illegally or who haver overstayed their permissions. With no coherent or consistent process in this area, there are regular examples of suspected illegal migrants being taken off lorries by the police in the South East of England only to be released and handed directions for the Home Office in Croydon! Those who have been detained by Immigration Enforcement for having no right to be in the UK cannot be easily removed from the country due to the need to comply with existing EU and human rights legislation – simply compounding the problem of illegal immigration and illegal migrant working.  We now have the opportunity to address this problem.

Penalties.

I believe it would be helpful to clarify the role of Home Office in the area of right to work compliance. Does it provide mentoring, is it a regulator or is it just an enforcement agency?  In terms of preventing illegal migrant working, for example, employers are at the mercy of border control measures and enforcement.  As an island nation – apart from the very porous Republic of Ireland and Northern Ireland border – the UK doesn’t have to police border crossings as anyone entering the country needs to pass through border control at a seaport or an airport.  Consequently, the maintenance of robust and efficient border controls should be perfectly achievable. Sadly, this isn’t the case. Lack of control is a primary cause of illegal migrant working in the UK and severely restricts the efforts of hard working and conscientious staff within Immigration Enforcement to stem the tide of illegal migrant workers. 

Toughening border control procedures, realistic funding and more considered operational planning would clarify and simplify the work of Immigration Enforcement, help to secure the UK’s borders and have a major impact on reducing the number of illegal migrant workers. With strong and efficient border controls in place, I would hope that both the Home Office and Immigration Enforcement could clarify and define their roles and relationships – especially with employers – far more effectively.

The present position of both Immigration Enforcement and the Home Office is that penalties should be the primary focus of their respective day to day activities and policies.  In effect, the financial penalty seems to have taken centre stage at the expense of constructive advice from a regulator and any attempt to seek a fair resolution and appropriate outcome. Given the shear complexity of right to work legislation and the varying circumstances of individuals, it is little wonder that even experienced and responsible employers will sometimes breach immigration rules.

With so much onus placed on the need to penalise non-compliant employers, it is easy to forget that there has never been a law that requires an employer to check the immigration status or documents of an employee.  The only time that an employer faces a penalty is if an employee is found to have been or to be an illegal migrant worker during their term of employment.  So, if an employer never checks any employee data and never has an occasion when an employee is – or becomes – an illegal migrant worker, then there are no consequences for that employer. 

Of course, it’s not that simple. As it is often very difficult for an employer to properly identify someone’s immigration status, the safest option is to always carry out identity status and document checks prior to and during employment – and, of course, electronic screening of documents is the safest of all. I believe there should be a legal obligation placed on all employers to validate the right to work status prior to any employee taking up work, irrespective of whether or not the prospective employee is subject to immigration control.

The present penalty regime appears to be inflexible and unable to take into account an employer’s circumstances or mitigating factors. Take as an instance, an employer that has had an unblemished record of managing the right to work compliance of their employees which was recently notified by The Home Office that it would receive a Civil Penalty amounting to £7,000 because an employee’s right to work had expired. The employer appealed against the penalty because of its track record of compliance and that it had no knowledge of the expiration of the employee’s right to work permission. It’s plea, however, fell on deaf ears and the appeal was dismissed. 

The imposition of a penalty demonstrates that responsibility for undertaking repeat right to work checks for employees lies with the employer – a task that is time critical, but so easily overlooked in a busy work environment. Strangely, one reason for the dismissal of the appeal was because the employer hadn’t alerted the Home Office to the fact that the employee had lost his right to work.  Quite how the employer was expected to do that when they were not aware of the fact is not only baffling.  It also undermines the positive relationship that needs to exist between employers and the Home Office. Common sense – not penalties and dismissive enforcement – should prevail for such minor infringement.  Such a pragmatic approach would help to forge and foster the spirit of cooperation and understanding between employers and Immigration Enforcement that is absolutely vital if the issues and incidence of illegal migrant working are to be addressed effectively!

Prevention

Prevention is not a word we hear as often as we might when discussing the reduction of illegal migrant working.  On occasions, Immigration Enforcement will work with larger employers to undertake a review of the employer’s personnel files to ascertain if any employees do not have the right to take up work in the UK. But this isn’t prevention.  It is more of a cleansing exercise to weed out any illegal migrant workers with little consideration given to prevention.  Normally initiated by intelligence units within Immigration Enforcement, these ‘educational’ or ‘training’ exercises often amount to little more than fishing exercises – something Immigration Enforcement promised Parliament that they wouldn’t do. 

It is also the case that any employer agreeing to open their personnel files to Immigration Enforcement – or any other regulator within the terms of Section 29(3) of the Data Protection Act – could result in even greater data breach liabilities and penalties. To be effective it’s important that all parties involved in addressing illegal migrant working know the priority – is to prevent illegal migrant working or to arrest illegal migrant workers? Unfortunately, a preoccupation with enforcement and financial penalties clouds the real objective so that the threat of a Civil Penalty for any breach of a rule or procedure invariably takes precedent even when an employer is making a genuine request for guidance or support. With many employers now reluctant to approach Immigration Enforcement as a result of this heavy-handedness, it is clear the current balance is wrong – and is certainly a long way from the spirit of cooperation.

Prevention is by far the easiest and most cost effective means to deal with an issue.  These days, most health and disease prevention programmes recognise that proper prevention heads off a need to invest greater resources further down the line.  The police service also now acknowledges that prevention programmes and formal consultation routes with the business community are essential if business and retail crime levels are to be reduced.  Tackling illegal migrant working is no different. Strong and consistent prevention programmes are vital.

At the moment, there are precious few opportunities for employers and the Home Office to meet and discuss issues and concerns and to reach a consensus on what changes need to be made to improve the effectiveness of present legislation and the best way for implementing future legislation.

There are services within the Home Office where employers can seek assistance – the main one being the Employer Checking Service.  Sadly though, not all of the information given out by that service is accurate and incorrect advice on right to work compliance is commonplace.  Providing constructive, timely and accurate advice is essential in all immigration matters and there should be far more recognition of the importance of preventative actions to solve issues and to minimise any pain and distress on innocent individuals.  But this can only become a reality if the process is free from any pre-emptive suggestion of enforcement or penalty. 

The majority of UK employers are keen to avoid employing illegal migrant workers.  They also have the greatest knowledge and understanding of their industry and their own commercial and operational challenges. So, unless employers are actively involved in prevention programmes and actively involved in shaping legislation, then illegal migrant working will never be reduced, let alone defeated. We must replace the current ‘them and us’ culture and acknowledge that it is in the interest of every mainstream employer in the UK to employ people in line with the law and to conduct their business and trading legally and honestly. Both the public and the consumers of their goods would expect nothing less.

Prevention isn’t as sexy or attention grabbing as enforcement and it is often easier to justify existence and expense by alluding to arrest and detention figures rather than highlighting prevention programmes.  But it’s important and we need a change of attitude and greater awareness of the realities and what will really make a difference to help us deliver the required outcomes.

Summary

I believe now is the time for the UK government to start drafting and planning the Immigration Act 2020.  Doing so will ensure the UK has a set of immigration rules and right to work rules for adoption when the country leaves the European Union that are fit for purpose, support the role of employers in eradicating illegal migrant working and that are fair and transparent for those who seek to live and work in the United Kingdom.  I also believe that the following steps have to be taken if this is to be achieved:

  • Entry to the United Kingdom should be solely through the use of biometric and chipped documentation.
  • EU citizens who were resident in the UK and who were either in employment, retired or otherwise self-sufficient prior to the 22 June 2016,
    should continue to hold residency rights in the UK until such time as they cease employment or lose their self-sufficiency status.
  • The non-EU family members and dependants of EU citizens who became resident in the UK after 22 June 2016 should be treated in the same way
    as other non-EU citizens and should have no special or protected rights of residence or employment.
  • Right to work legislation should be shaped by employers who have a better understanding on both employment law and the processes required
    to prevent illegal migrant working.
  • There should be a legal obligation placed on all employers to validate the right to work status prior to an employee taking up work
    irrespective of whether or not the prospective employee is subject to immigration control.
  • The Home Office needs to bring prevention to the fore in their efforts to prevent illegal migrant working and to establish proper channels
    and programmes to achieve this.
  • Procedures to remove illegal migrants from the United Kingdom need to be overhauled and made fit for purpose to ensure that illegal
    immigration and illegal migrant working can be eradicated.

Resolving all of the issues and remedying all of the problems associated with present day immigration legislation won’t come easy and won’t come quickly.  That is why measures to identify and shape the Immigration Act 2020 need to start now.  Time is running out and the UK economy will suffer unnecessarily if there isn’t a consistent and cohesive set of immigration rules and procedures available as soon as the UK leaves the European Union.

The biggest asset available to the Home Office and Immigration Enforcement is the expertise and knowledge of employers who will willingly help to shape and transform the UK’s immigration legislation. But they have to be asked and they have to be allowed to play a role. It really is the case employers have to be considered as both a knowledge and support base upon which the Home Office can gather the means and processes to assist in driving illegal migrant working out of the UK once and for all. The time to implement prevention policies such as a historic cut off for access to the UK is now. Any delay is going to cost both employers and this country dear. With a former Home Secretary resident in 10 Downing Street at such an important crossroads for our national security and international standing, the Home Office has never been in a stronger position to take decisive, positive and effective action.