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Immigration Bill 2013

Immigration Bill 2013

Joanne Hennessy

I recently reported on the Statement of Changes in Immigration Rules laid before Parliament last month. As part of its commitment to cutting net immigration to the UK to the tens of thousands, the Government has now released the anticipated Immigration Bill. There have been several immigration bills over the years, each seeking to address concerns about immigration in a different way. The latest Bill seeks to do so by making it harder for people to stay in the UK when they have no legal right to be here.

Immigration Minister Mark Harper has said “The Immigration Bill will stop migrants using public services to which they are not entitled, reduce the pull factors which encourage people to come to the UK and make it easier to remove people who should not be here. We will continue to welcome the brightest and best migrants who want to contribute to our economy and society and play by the rules. But the law must be on the side of people who respect it, not those who break it.”

The key focus of the Bill is on those living in the UK illegally, reforming the removals and appeals system and preventing illegal migrants accessing or abusing public services and the labour market. Whilst the Bill is not yet law, it is worth taking stock of the key proposals that will affect employers, banks and private landlords.

Private Landlords

In March 2013, the Prime Minister committed to creating a general duty on private landlords to check a tenant’s immigration status. This is one of the most heavily debated elements of the Bill, designed at creating “a hostile environment for illegal migrants”. In line with existing best practice within the rental sector, under the Bill private landlords will be required to check the immigration status of all tenants to prevent those with no right to live in the UK from accessing private rented housing. A breach of this requirement will attract a maximum penalty of £3,000 per adult illegal occupant. Landlords will have a defence to this if they complied with prescribed checking and verification procedures, which will largely mirror the existing right to work checks which must be carried out by employers. Landlords who acquire properties with sitting tenants will take on responsibility to ensure appropriate checks are undertaken. There will be exemptions to the requirements, including, for example, social housing, care homes, tied accommodation and halls of residence.

Some have voiced concerns that this proposal will result in landlords simply refusing to house migrants for fear of falling foul of the rules, increasing homelessness and, potentially, driving migrants into the hands of unscrupulous landlords. Due to the controversy surrounding this particular proposal, and pressure from the Liberal Democrats, the Home Secretary Theresa May has agreed to restrict this proposal, initially, to a single area, gradually rolling it out on a national basis.

Immigration Charge

Most temporary migrants (other than visitors) with time-limited immigration status can currently access the NHS for free whilst in the UK. The Bill introduces a new requirement for certain categories of temporary migrants to pay a non-refundable immigration charge as a contribution to the NHS. The charge will be payable when they apply for entry clearance, limited leave to remain in the UK or to vary their leave in the UK. Such individuals will thereafter be able to access free NHS care to the same extent as a permanent resident. Short term visitors will, as now, be liable for NHS treatment charges. The charge proposed is said to be lower than the cost of basic private medical insurance. This will be another cost for employers to bear in mind when recruiting migrant workers.

Banks & Building Societies

The Bill includes a requirement for banks and building societies to check individuals against a database of known immigration offenders before opening bank accounts. This proposal is aimed at preventing illegal migrants opening bank accounts and accessing products such as credit cards, mortgages or mobile phones. Whilst many illegal migrants are already stopped from opening bank accounts by existing identification and fraud requirements, there is no specific rule to stop them from opening an account in the UK.

Immigration Fees

The Bill envisages an increase in income from immigration and visa application fees and provides for such increases to be implemented more easily and, if required, regularly.

Perhaps of most interest to employers, alongside the Bill, the Government has set out its intention to amend secondary legislation to increase employer civil penalties and amend the employer right to work checks. The changes proposed are summarised below.

Employer Civil Penalties

The current civil penalty regime allows for penalties of up to £10,000 per illegal worker to be imposed on an employer who has failed to undertake the necessary right to work checks (and thereby failed to establish a statutory excuse for employing an illegal migrant).  The Government intends to increase that maximum penalty to £20,000 (the first increase since the penalty was introduced in 2008).

Employer Right To Work Checks

The Government intends to simplify the right to work checks employers must carry out, reducing the burden of those checks on compliant employers, including:

  • reducing the number of acceptable documents for checking purposes over time;
  • removing the annual right to work document checks on migrants with time-limited status in the UK but who may have several years’ leave remaining;
  • simplifying guidance and providing more support for employers; and
  • extending the grace period for new employers to carry out right to work checks following a TUPE transfer from 28 days to 60 days.

The Bill has had its first reading in the House of Commons and has yet to be debated by MPs. We are some way away from the Bill becoming law and, given that immigration is a political hot potato, it is undoubtedly facing fierce debate and, possibly, revision during that process.

Some have expressed concerns that the sentiment of the Bill risks creating a hostile environment for foreign nationals, not just for illegal migrants. The Director General of the Institute of Directors commented on Radio 4’s World at One that the Bill risks “damaging Britain’s export industries….by creating the image of an unfriendly and unwelcoming country”. It is perhaps in light of such concerns that the Chancellor of the Exchequer has announced measures to simplify the visa application process for Chinese visitors coming to the UK. Under the new measures Chinese nationals wanting to visit the UK will not need to submit a separate UK visa application when they book with selected Chinese travel agents. Also, a new 24-hour “super priority” service is to be rolled out next summer. An existing VIP mobile service operating in Beijing and Shanghai, which cuts the process to 5 minutes or less, will be expanded. The measures reflect the reality that China is one of the UK’s priority markets for tourism and business, with more than 600 Chinese businesses now having a presence in the UK.

Joanne Hennessy
Senior Associate

LChalmers