The Secretary of State made a second commencement order on 31 October 2016 confirming the implementation dates for further provisions of the Immigration Act 2016 (the ‘Act’).
As highlighted in our previous article, parts of the 2016 Act, including sections concerning the criminal offence of employing an illegal worker and civil penalties for employers who unknowingly employ illegal workers, are already in force. Much of the Act ties in with the government’s focus on creating a “hostile environment”, which aims to make life in the UK more difficult for illegal immigrants.
In this article, we look at some of the provisions coming into force over the next couple of months which are likely to affect employers, public authorities, landlords and property agents.
English fluency requirements for public sector workers - 21 November 2016
The requirement that all customer-facing roles speak fluent English in England and/or English or Welsh in Wales will come into force on 21 November 2016.
For information on the new English language requirement please access our previous article here.
Labour Market Enforcement provisions - 25 November 2016
Provisions to tackle breaches of labour market legislation will come into force on 25 November 2016.
The Government has introduced these changes as it was felt that the current system was not dealing with breaches of labour market legislation and repeat offenders adequately. The new measures include an Anti-Social Behaviour Order (‘ASBO’) type system for those who breach labour market legislation. There are two levels of enforcement, Labour Market Enforcement (‘LME’) undertakings and LME orders.
The Secretary of State or public officer in question can ask someone to make an LME undertaking if a ‘triggering offence’ is committed. Triggering offences include an employment agency charging a fee to a work-seeker or stopping a worker from working elsewhere, withholding payments or wages, making unlawful deductions or any other offences under the Employment Agencies Act 1973; not paying the minimum wage in contravention of the National Minimum Wage Act 1998; or acting as a gangmaster without a licence under the Gangmasters (Licencing) Act 2004. The Act gives the Secretary of State the power to add additional offences to this list in subsequent regulations.
The signatory would then undertake to comply with any prohibitions, restrictions and requirements set out in the undertaking.
Alternatively, a LME order can be made by a court, against someone who is committing or has committed one or more of the ‘triggering offences’ above. Breaching the requirements of such an order is a criminal offence, resulting in a maximum of two years imprisonment, a fine, or both imposed upon the person against whom the LME order was made.
UK Visa and Immigration (‘UKVI’) has published a draft code of practice on LME undertakings and orders which can be accessed here.
Residential tenancy provisions – 1 December 2016
The new residential tenancy provisions will come into force on 1 December 2016.
These provisions make it a new criminal offence where a landlord knows or has reasonable cause to believe an adult tenant does not have the right to rent premises in the UK (i.e. is in the UK illegally). This offence is intended to catch those who have repeatedly failed to carry out checks on tenants. There is a defence if the landlord took reasonable steps to terminate the agreement within a reasonable time. It should be noted that an agent commits a criminal offence if he/she knows or has reasonable cause to believe a tenant is not in the UK legally, but fails to inform the landlord. The offence is punishable by imprisonment for a maximum of five years, a fine or both.
This criminal offence is in addition to the civil penalty for authorising a disqualified person to occupy premises, which was implemented by the Immigration Act 2014 and applies to tenancies created since the Immigration Act 2014 came into force. The civil penalty has an upper limit of £3000.
The new provisions also make it easier for landlords to evict such adult tenants by adding an implied term into tenancies and sub-tenancies (excluding protected or statutory tenancies under the Rent Act 1977 or assured tenancies under the Housing Act 1988) that the landlord may terminate the agreement if the premises are occupied by an adult who is disqualified from renting residential premises due to their immigration status. In addition, the Act states that if a landlord has received a notice from the Secretary of State stating that the tenants are in the UK illegally, the landlord can terminate the tenancy with 28 days’ notice and require the tenant to leave.
UKVI has published draft guidance on how to end a residential tenancy agreement which can be assessed here.
Further illegal working provisions – 1 December 2016
Additional provisions concerning illegal working closure notices, illegal working compliance orders and private hire vehicles will come into force on 1 December 2016.
An illegal working closure notice (a ‘notice’) can be issued on the relevant premises by a chief immigration officer, if the employer operating at the premises has been employing an illegal worker and the employer (or someone connected to them) has at some stage either been convicted of an illegal working offence or failed to pay a penalty in relation to illegal workers (the ‘test’).
This notice can prohibit access to the premises (other than by a person who habitually lives on the premises) and/or prohibit voluntary or paid work being carried out on the premises. It can be issued by an immigration officer for a maximum of 48 hours, after which they must apply to the court for an illegal working compliance order. The 48 hour period can be extended by up to 24 hours by someone with at least the rank of immigration inspector.
An illegal working compliance order (an ‘order’) can be issued by a court if they are satisfied that the test is fulfilled and, in addition, that an order is necessary to prevent the employer from employing an illegal worker. The order may prohibit or restrict access to the premises, require a person to carry out right-to-work checks, specify when an immigration officer may enter the premises and/or make other provisions the court considers appropriate. It can be granted for up to 12 months in the first instance and subsequent extensions can be granted for a maximum of 6 months, up to a total of 2 years.
Provisions that allow for multiple entry search warrants also come into force on 1 December 2016 (except in Scotland where these are not permitted). Multiple entry search warrants will be permitted where, on an application to the court, the justice of the peace is satisfied that multiple entries are necessary in order to achieve the purpose of the warrant. The number of entries may be unlimited or limited to a maximum.
Illegal working provisions which concern private hire vehicles will also come into force on 1 December 2016. For example, TFL must ensure that licences given to drivers with limited leave to remain in the UK expire when his/her leave to remain expires.
If you would like to discuss any of the issues raised in this article, please contact Chetal Patel, a Senior Associate (for immigration enquiries) or Lesley Robinson, a Partner (for real estate enquiries).
Posted on 11/11/2016 in Legal UpdatesBack to Knowledge