Ten years later, it seemed she had placed such concerns behind her, at least in relation to immigration: in an interview with The Telegraph, she described the aim of her policy as ‘to create here in Britain a really hostile environment for illegal migration’ (25 May 2012). Many now think she has been true to her word with the Immigration Act 2014 (IA 2014), swiftly followed by the Immigration Act 2016 (IA 2016) which received royal assent in May.
I would argue that she has, in fact, far exceeded her aim by securing the enactment of legislation that is hostile not only to those who deliberately enter or stay in the UK illegally, but also to those whose status may be irregular for a whole range of different reasons and to people associated with them such as family members, employers and landlords. ‘Brexit’ may or may not enhance the UK’s control over its border. What this legislation does is to make the border permeate the whole of British society. It turns ordinary citizens (employers, landlords and bankers) into immigration officers who must discharge border control functions on pain of civil and criminal penalties. The following are some (but not all) of the most striking features of the contribution being made by the IA 2016 to the creation of this hostile environment.
Working in the UK
First, it is made a criminal offence, punishable with up to 51 weeks’ imprisonment, to work if the person requires leave to enter or remain but does not have it, or has leave subject to a prohibition on working. Previously, it was an offence to work in breach of a condition of leave to enter or remain, but a person without such leave (because the person entered without leave or overstayed the leave he or she had) committed no offence by working (IA 2016, s 34 inserting a new s 24B in the IA 1971). Moreover, if a person is convicted, the prosecutor is required to consider seeking a confiscation order under the Proceeds of Crime Act 2002 in respect of the person’s earnings. This provision came into force on 12 July 2016 (The Immigration Act 2016 (Commencement No 1) Regulations 2016, SI No 603). However, the commencement order neglects the implementation of the associated provisions about immigration bail and temporary admission (IA 2016, Sch 10 and in particular, para 13). The result is that persons on bail or temporary admission will be denied the relief from criminal liability that the statute provides for them. In response to representations from the Immigration Law Practitioners’ Association, the government has indicated that it will be amending the commencement provisions. However, this episode underlines many practitioners’ concerns that a significant source of injustice is the government’s failure – some consider incompetence – in administering the ‘impenetrable jungle of intertwined statutory provisions’ that make up immigration law (Lord Justice Jackson’s characterisation of at least one area of immigration law in Sapkota v Secretary of State for the Home Department  EWCA Civ 1320).
Second, it is made an offence to employ a person if the employer has ‘reasonable cause to believe’ that the employee is disqualified from employment by reason of his or her immigration status. Previously the mens rea had been knowledge that the person was disqualified from taking employment. The maximum penalty is increased from two years to five (IA 2016, s 35, amending the Immigration, Asylum and Nationality Act 2006, s 21).
Third, in the belief that a substantial amount of illegal working occurs on licenced premises where alcohol and late night refreshments are sold, the Licensing Act 2002 is amended to make immigration status permitting a person to work one of the qualifications for the issue of a premises licence and a personal licence (IA 2016, Sch 4).
Fourth, lawful residence is made a mandatory requirement for obtaining and retaining a licence to drive a private hire vehicle (IA 2016, s 37 and Sch 5).
Driving in the UK
Fifth, whereas the IA 2014 made lawful residence in the UK a mandatory requirement for being issued with a driving licence, IA 2016 makes it a criminal offence, punishable with up to 51 weeks’ imprisonment, to drive when not lawfully resident (IA 2016, s 44, introducing new s 24C in the IA 1971). It also provides immigration officers with a range of new powers to enter and search premises and to search persons for driving licences held by people who are not lawfully resident. The importance of driving licences in this context was explained by the immigration minister Mark Harper when promoting IA 2014: ‘It has previously been too easy for those here illegally to hold a UK driving licence and to use it not only for driving but as a piece of identification to help them access benefits, services and employment,’ the driving licence thereby ‘helping them to establish a settled lifestyle in the UK’ (Immigration Bill: Factsheet: Migrants’ Access to UK Driving Licences (cl 41-42), Home Office, October 2013).
Having a bank account
Sixth, the IA 2014 prohibits banks and building societies from opening accounts for persons who require leave to enter or remain, but do not have it unless a ‘status check’ shows the person is not considered to be someone for whom an account should not be opened. The IA 2016 places obligations on banks and building societies to check whether existing accounts are accounts that should not be operated because of the holders’ immigration status, in which case they are to notify the Secretary of State. The Secretary of State may then apply for an order freezing the account or may require the bank or building society to close the account (IA 2016, Sch 7).
Renting a property
Seventh, the IA 2014 prohibits landlords, on pain of a civil penalty, from renting residential property to persons who require but do not have leave to enter or remain. The IA 2016 makes it a criminal offence to rent residential property if the landlord knows or has reasonable cause to believe that it is being occupied by a person who requires but does not have leave to enter or remain. If convicted, the landlord is liable to imprisonment for up to five years. On the other hand, the landlord is given new powers to evict tenants. If the Secretary of State gives notice to the landlord that the premises are occupied by a person who requires but does not have leave to enter or remain, the landlord may serve notice to quit on the occupiers which is then enforceable as if it was a High Court order (IA 2016, Part 2, Chapter 2).
Unsurprisingly, these provisions attracted much criticism during the passage of the legislation. For example, the Residential Landlords Association (RLA) gave evidence that ‘it is inevitable that when faced with the threat of a fine or prison, many landlords will wish to avoid all risk and will refuse housing to those whose status is not easy to prove’, including those among the 12 million British citizens who do not have passports. It pointed out that people in that situation are likely to include ‘some of the most vulnerable in society’ and asked how landlords could be expected to understand and interpret the myriad different kinds of documents that might reveal a person’s immigration status (Public Bill Committee: Immigration Bill: Written Evidence: PBC (Bill 074) 2015-16, David Smith, RLA policy director).
These provisions (together with the provisions penalising the employment of persons without leave) are of real constitutional significance. They impose obligations on private individuals, on pain of civil and criminal penalty, to carry out immigration functions that are classically the prerogative of the state. Moreover, they are not immigration functions that arise because of the proximity of the individuals’ actions to the exercise of immigration control in the way that, for example, ‘carriers’ liability’ attaches to those using vehicles to cross the border or various obligations attach to those who sponsor students and workers to enter and remain in the UK. Renting accommodation and providing employment have no such integral relationship to the exercise of immigration control. Further, landlords and employers will be exposed to potential civil liability to those against whom they may discriminate in the exercise of those functions.
Finally, the Act undermines the right of appeal against refusal of a human rights claim (which, together with rights of appeal against refusal or revocation of international protection are the only rights of appeal left by the IA 2014). The IA 2014 introduced a provision preventing those liable to deportation from appealing against refusal of a human rights claim whilst still in the UK if the Secretary of State certified that removal from the UK would not breach a person’s human rights. The IA 2016 makes that power available to the Secretary of State in relation to all human rights claims, not just those made by deportees. That provision has to be placed in the context of the general exclusion of human rights cases (save those concerned with Art 3) from the scope of legal aid; the costs to an appellant of having to relocate from the UK at the same time as appealing; the cost of remote, video access to appeal proceedings and the government’s intention to increase fees for appealing to the tribunal from £140–£800 for an oral hearing; from £0–£805 for permission to appeal to the Upper Tribunal and £0–£510 to appeal to the Upper Tribunal (Tribunal Fees: Consultation on Proposals for the First Tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber), April 2016). ●
Contributor Ronan Toal, Garden Court Chambers