A Simple Guide to the Immigration Act 2016 banner


A Simple Guide to the Immigration Act 2016

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The Immigration Act 2016 (the Act) came into force on 12th May 2016. It significantly revises the UK Immigration system and will affect migrants, landlords and employers. The Act focuses on clamping down on illegal Immigration and punishing those who breach Government policy.

Below is a summary of the main changes the Act brings in. To find out more, please call our office on 0203 959 9123.

Employers hiring illegal migrants will face criminal prosecution

Under the Act, employers caught recruiting illegal migrants will be committing a criminal offence which carries a penalty of up to five years’ imprisonment. Under the Act, an offence will be committed if the employer had reasonable cause to believe that the employee was disqualified from Employment within the UK. Previously, an employer had to have actual knowledge that their employee had no legal right to work in the country for an offence to be committed.

The onus will now be on the employer to take steps at an earlier stage to suspend an employee pending an internal investigation into the employee’s Immigration status, if the employee is unable or unwilling to provide satisfactory evidence of their continued right to work in the UK. Employers may therefore need to update their HR policies and processes and ensure their HR staff are aware of the new changes.

A new criminal offence of illegal working has also been introduced by the Act. It applies where a foreign worker takes up work where he or she does not have the appropriate Immigration permissions. A worker convicted of this offence faces a custodial sentence and/or a fine and can have their earnings seized.

Under the Act, the role of Director of Labour Market Enforcement has been created. He or she will oversee the various enforcement authorities that ensure minimum standards for workers are met, and various enforcement provisions.

Hard line on illegal migrants

Migrants who are caught being in the UK illegally will now face much harder penalties and can be stripped of many liberties. For example, bank accounts can be frozen, their driver’s license seized and they will be prevented from renting accommodation.

These moves are designed to make life for illegal immigrants as hard as possible.

Banks and building societies that fail to make proper checks to ascertain whether or not a person is in the country illegally will face fines and criminal sanctions.

landlords and the Right to Rent checks

Since February 2016, landlords have been legally required to check that the people living in their property have the legal right to be in the UK. The Act has provided that landlords who fail to carry out checks and rent to illegal migrants can face up to five years’ incarceration.

Before renting out a property, landlords must check a prospective tenants’ documents; for example, a visa endorsed passport or a certificate of naturalisation, to ensure they have a legal right to be in the UK. landlords must also make reasonable efforts to ascertain that the documents are genuine.

Further checks need to be made either just before the tenants’ right to stay in the UK expires or 12 months after the previous check. If your tenant has no restrictions on his or her ability to remain in the UK, no further checks will be required.

‘Deport first, appeal later’

The so-called, ‘deport first, appeal later’ scheme has been extended. Unless removal would cause, ‘serious, irreversible harm’, all migrants can be made to return to their home country pending the outcome of their appeal against the decision to remove them.

Previously, this policy only applied to convicted criminals with no residency rights or to those people the Secretary of State considered it ‘conducive to the public good’ to remove.

The Home Office received the backing of the Court of Appeal on this controversial policy in October 2015, when it ruled that it would not be a breach of European Human Rights legislation for two men convicted of drug offences to be deported before their appeal rights are exhausted. In his ruling, Lord Justice Richards dismissed the argument that an appeal heard from overseas would not allow the men proper access to justice.

The ability to deport foreign-born nationals who have been convicted of offences in the UK has been desired for years by both Labour and Conservative governments, ever since former Home Secretary Charles Clarke was forced to resign from Tony Blair’s cabinet when it was revealed that over a thousand foreign prisoners had been released without being considered for deportation.

However, by extending the policy to cover all migrants, the Government risks leaving itself wide open to a slew of Human Rights abuse challenges. Forcing migrants to leave their families to return to their home country could be a breach of Article 8 of the European Convention on Human Rights, and the definition of ‘serious, irreversible harm’ to a person who is not a criminal or a threat to the public, requires clarification by the courts.

Unaccompanied children will be brought to the UK

Arrangements will be made to relocate unaccompanied refugee children from other countries in Europe to the UK

David Cameron announced plans in May to relocate around 3,000 Syrian children who were registered in Greece, Italy and France by 20th March 2016. This is a significant shift from Mr Cameron’s earlier policy of only accepting refugees directly from Syria.

Getting the right advice

Immigration law is constantly changing and the possibility of a Brexit makes the situation even more volatile. If you are an employer recruiting foreign workers or an EEA or non-EEA migrant, it is imperative that you receive up-to-date legal advice when you need it.

OTS Solicitors is a highly regarded law firm based in the heart of central London. We are experts in Employment and Immigration law, and have a reputation for delivering the best legal advice in the UK in these particular areas.

To make an appointment with one of our Immigration solicitors, please call out office on 0203 959 9123.

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