Over the past few decades there has been a gradual increase in the number of offences that have been brought into force by various pieces of legislation to target the area of immigration. As a result, a criminalisation of immigration law has increased.
With the introduction of the Immigration Act 2014 and 2016, a new raft of offences have been introduced. The Immigration Act 2016, has sought not only to target those who maybe in breach of the Immigration rules, (known as disqualified persons) but also those who employ them, house them, and where they can be employed in limited circumstances. The 2016 act introduced provisions for the eviction of disqualified person, as well as requesting banks to carry out immigration checks, and where not satisfied as to the status of a person, close any account relating to that person. It is not clear what the position as to criminality and immigration will be once the Nationality and Borders Act comes into law, but what is likely to occur there will be further offences which will join the burgeoning list.
Prior to the introduction of the Immigration Act 2016, there were a number of offences that could be committed by those seeking to enter the country, those assisting them to enter illegally, or facilating their stay in the country in contravention of any immigration requirements. In some ways, it was much clearer as to what acts may lead to a criminal conviction.
The offences which are directly aimed at immigration or can be indirectly used are as follows:
S24 Immigration Act 1971, Entry without leave or entry when subject to a deportation order. This offence will arise where a person seeks to enter the country without leave, or where he has previously been made subject to a deportation order seeks to gain entry again. This offence carries a term six months’ imprisonment and/or an unlimited fine (s. 24(1)) on conviction. The burden of proof for the offence normally lies with the prosecution, unless the case is brought within six months of the date of entry. If this is the case then the burden is on the accused to show, on the balance of probabilities, that he entered the UK legally (Immigration Act 1971, s. 24(4)(b)).
S24A Immigration Act 1971 Obtaining Leave by Deception. This offence will arise where the person seeking leave use any form of deception to induce leave being granted and this act of deception can be committed in the controlled zone both in France and Belgium as well at the point of entering the UK via another country. A person will be guilty of this unless he can rely on the statutory defence under s31 Immigration and Asylum Act 1999, which gives force to Article 31 of the UNHCR Refugee Convention 1951. Article 31 of the Convention states that criminal sanctions should not be imposed on refugees who entered the UK illegally if they made themselves known to the relevant authorities without delay, showed good cause for his illegal entry or presence and made a claim for asylum as soon as was reasonably practicable after his arrival in the UK. This offence carries a sentence of 6months when tried summarily and/or an unlimited fine. On indictment, the maximum is two years’ imprisonment and/or a fine (s. 24A (3)IA 1971). The majority, if not all cases will be dealt with by the crown court by way of a committal for sentence.
S24(1)(b)(i) Immigration Act 1971, Remaining beyond time limited by Leave . This offence will arise if a person has been granted leave to enter the UK, remains in the UK without seeking to extend his leave to remain i.e., overstaying the leave. This is a summary only offence and the maximum sentence is a fine or up to 6 months' imprisonment.
S24(1)(b)(i) Immigration Act 1971, Failing to observe a condition of leave. This offence will arise where there are conditions attached to the leave which has been granted such as not to take paid employment, residence, or to apply for public funds and the person granted leave to enter or remain has breached a condition of leave. This offence is a summary only offence and the maximum sentence is a fine or up to 6 months' imprisonment.
S25 Immigration Act 1971 Assisting unlawful immigration to a Member State. This offence will arise where a person seeks to assist another who is not a citizen of the European Union to enter any of the countries of the European Economic Area.. S143 Nationality, Immigration and Asylum Act 2002 which came into force on 10 February 2003 brought in a substituted version of s25 in to force which widened and extended the old facilitation provisions and covers any act facilitating a breach of immigration law by a non-EU citizen (including a breach of another Member State's immigration law). The old s25 required knowledge that the person was not a citizen of the European Union, the revised version requires knowledge, or reasonable cause of believing that the person was not a citizen of the European Union (s25(1(c) IA 1971). This offence currently remains in intact but the part of the EU, so it is likely it will have to be repealed This offence as it stands carries a sentence of 6months when tried summarily and/or an unlimited fine. On indictment, the maximum is 14 years’ imprisonment and/or a fine (s. 24 (6)IA 1971). The majority, if not all cases will be dealt with by way of custody should they be prosecuted. This is also deemed a lifestyle offence under Schedule 2 of the Proceeds of Crime Act and on conviction POCA proceedings could be initiated against the person.
S25A Immigration Act 1971, Helping an Asylum Seeker enter the country. The offence was introduced by S143 Nationality, Immigration and Asylum Act 2002 and a person will commit this offence if he knowingly and for gain facilitates the arrival, attempted arrival, or the entry, or attempted entry into the UK of an individual, where the person knows or had reasonable cause to believe that the individual is an asylum seeker, unless the person is acting on behalf of an organisation which aims to assists asylum seekers and does not charge for its services (s25A(3) IA 1971). An asylum seeker is defined as person who intends to claim that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom’s obligations under the Refugee Convention, the Human Rights Convention (s25A(2) IA 1971. On conviction, the maximum sentence is 14 years’ imprisonment and/or a fine on indictment; six months’ imprisonment and/or an unlimited fine summarily (s25A (4) and 25(6) IA 1971). This is also deemed a lifestyle offence under Schedule 2 of the Proceeds of Crime Act and on conviction POCA proceedings could be initiated against the person.
S25B Immigration Act 1971, assisting Entry to the UK in Breach of a Deportation or Exclusion Order. A person commits an offence if he does an act which facilitates a breach or attempted breach of a deportation order in force against an individual who is not a citizen of the European Union and knows or has reasonable cause for believing that the act facilitates a breach or attempted breach of the deportation order. The maximum sentence is 14 years’ imprisonment and/or a fine on indictment; six months’ imprisonment and/or an unlimited fine summarily (s 25B (4) and s.25(6) IA 1971,). This is also deemed a lifestyle offence under Schedule 2 of the Proceeds of Crime Act and on conviction POCA proceedings could be initiated against the person.
S25C Immigration Act 1971 Forfeiture of a Vehicle, ship or aircraft. If a person is convicted on indictment of an offence under s25, s25A or s25B, then the court may order the forfeiture of a vehicle, ship or aircraft used or intended to be used in connection with the offence if the convicted person owned it, director, secretary or a manager of a company which owned it, was under the possession of it via a hire purchase agreement or was using it in the course of the commission of the offence as a individual or as a captain if a ship or aircraft (s25C(1)-(3) IA 1971).
Sham Marriages. These offences would arise under s25(1) IA 1971 Assisting unlawful Immigration, S24(1)(a) Immigration Act 1971 or s1(1) Criminal Attempts Act 1977.
S26 Immigration Act 1971 Offences in connection with the Administration of the Immigration Acts. This creates a number of offences where without reasonable excuse fails to submit to an examination under Schedule 2 of the 1971 Act (control on entry), fails to produce any documentation, makes a statement knowing it to be false, fails to complete land or embarkation card, without lawful authority alters entry clearance, work permit, obstructs an immigration officer or another acting lawfully in the execution of the 1971 Immigration Act etc.
S26A Immigration Act 1971 Possession of an Immigration Stamp. A person commits an offence if he makes a false registration card, alters it with intent to deceive, or allow another to deceive, uses/attempts to use an altered registration card or without reasonable excuse makes an article designed to be used for making or altering a registration card to deceive, or enable another to deceive (s26A(3) IA 1971). Depending on the offence committed the sentence will be summary conviction will be 6 months, or a fine, or both and on indictment it will be 2 or 10 years, fine, or both.
S26B Immigration Act 1971 Registration Card Offences. If without reasonable excuse a person has an immigration stamp, or a replica of one then they commit the offence. The sentence on summary conviction will be 6 months, or a fine, or both and on indictment it will be 2 years imprisonment, fine, or both.
S27 Immigration Act 1971 Offences by Person connected to ships or aircraft or ports. A captain of a ship or aircraft who knowingly allows a person to disembark or fails to comply with a direction given to him without reasonable excuse under schedule 2 (Removal of a person liable to deportation or detention or control pending deportation) will be committing an offence and on summary conviction will face 6months imprisonment, fine or both.
S27(b)(i) Should an owner or agent of a ship or aircraft arrange to call at a port other than the port of entry will commit an offence. This offence will arise where the owner/agent arranges, or is knowingly concerned in any arrangements, for the ship or aircraft to call at a port other than a port of entry contrary to any provision of Schedule 2 to this Act. This offence can only be tried summarily, and the sentence will be 6months imprisonment, fine, or both.
S27(b)(ii) Should an owner or agent of a ship or aircraft without reasonable excuse fail to supply landing or embarkation cards to passengers will commit an offence. This offence will arise where the owner/agent fails, without reasonable excuse, to take any steps required by an order under Schedule 2 for the supply to passengers of landing or embarkation cards. This offence can only be tried summarily, and the sentence will be 6months imprisonment, fine, or both.
S27(b)(iii) Should an owner or agent of a ship or aircraft without reasonable excuse make arrangements for the removal of person when required to do so by schedule 2 or 3 or the Immigration and Asylum Act 1999. This offence will arise where the owner/agent fails without reasonable excuse, to make arrangements for or in connection with the removal of a person from the United Kingdom when required to do so by directions given under Schedule 2 or 3 to this Act; or under the Immigration and Asylum Act 1999. This offence can only be tried summarily, and the sentence will be 6months imprisonment, fine, or both.
S27(b)(iiia). Should an owner or agent of a ship or aircraft without reasonable excuse fail to comply with a direction under paragraph 5B (SOST may direct a designated person to exercise a specified function or act) of Schedule 2 supply landing or embarkation cards to passengers will commit an offence. This offence will arise where the owner/agent fails without reasonable excuse, to comply with a direction under paragraph 5B of Schedule 2. This offence can only be tried summarily, and the sentence will be 6months imprisonment, fine, or both.
S27(b)(iv) Should an owner or agent of a ship or aircraft without reasonable excuse fail to comply with any other requirement imposed by Schedule 2 will commit an offence. This offence will arise where the owner/agent fails without reasonable excuse, to comply with any other requirement imposed by or under Schedule 2. This offence can only be tried summarily, and the sentence will be 6months imprisonment, fine, or both.
S27(c). Should a person concerned with the management of a port without reasonable excuse fail to take any steps in schedule 2 will commit an offence. This offence would arise if the person concerned in the management of a port, he fails, without reasonable excuse, to take any steps required by Schedule 2 in relation to the embarkation or disembarkation of passengers where a control area is designated. This offence can only be tried summarily, and the sentence will be 6months imprisonment, fine, or both.
S27(ca). Should a person concerned with the management of a port without reasonable excuse fail to comply with a direction under paragraph 5B of schedule 2 will commit an offence. This offence would arise if the person concerned in the management of a port he fails, without reasonable excuse, to comply with a direction under paragraph 5B of Schedule 2. This offence can only be tried summarily, and the sentence will be 6months imprisonment, fine, or both.
S2 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, Entering the UK without a passport.This offence is committed if at a leave or asylum interview a person does not have with him an immigration document which is in force, and satisfactorily establishes his identity, nationality, or citizenship (s2(2) AI(TC)A 2004). No offence is committed if within 3 days of being interviewed the said document is produced, where the interview takes place after the person has entered the UK (2(3) AI(TC)A 2004). There are a number of defences under s4 of the act including one of reasonable excuse. The maximum penalty on conviction on indictment is two years’ imprisonment and/or a fine. On summary conviction, the maximum is six months and/or an unlimited fine, and on indictment it is 2years, fine, or both (s2(9) AI(TC)A 2004).
S35 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, Failing to comply with the Secretary of State without reasonable excuse to enable a travel document to be obtained for the removal or deportation of the person. This offence arises where a person does not help the SOST to remove or deport him from the country in essence the offence arises where a person fails to co-operate in obtaining the necessary documents, this offence is oxymoronic as the failure to comply results in the person remaining in the UK, although at her majesties pleasure. The maximum penalty on conviction on indictment is two years’ imprisonment and/or a fine. On summary conviction, the maximum is six months, fine or both, and on indictment is 2years, fine, or both(s. 35(4) AI(TC)A 2004).
S15 Immigration, Asylum & Nationality Act 2006 Employment . This offence will arise where the employee did not have leave to enter or remain in the UK, or the leave to enter or remain is invalid, ceases to be valid, or the leave to enter or remain was conditional that the person should not work (s15(1)). The offence creates a civil penalty and also allows an employer to seek an exemption from paying the civil penalty if the employer could show that he complied with any prescribed requirements (s15(3)). This section is aimed at an employer who did not check the immigration status of an employee prior to employing them Any penalty that was imposed would be recoverable from the employer as it were payable under an order of the county court (s18(1-1D)).
S21 & s22 Immigration, Asylum & Nationality Act 2006, Employing a person disqualified by reason of Immigration status. Both these sections been amended by the IA 2016 with the insertion of the wording ‘disqualified from employment by reason of the employee’s immigration status’ (s21(1A) IANA 2006) and increasing the sentence from 2 years to 5 years (s22(2)(a)(i) IANA 2006), and introducing imputed knowledge with regards to corporate bodies (s22(1A) IANA 2006).Thus an employer would commit a criminal offence if he employed a person who is disqualified by virtue of his immigration status, and the employer has reasonable cause to believe that the employee is disqualified from employment due to his immigration status (s21(1-1B) IANA 2006), or in the case of a corporate body the person who had the responsibility for employing the person i.e. he or they knowingly employed a person subject to immigration control, but still employed him would commit an offence. A person is regarded as disqualified if they have not been granted leave to enter or remain, or that leave is invalid, or ceases to be valid or has an employment prohibition as part of the leave which was granted (s21(1B) IANA 2006). This offence carries a sentence of 6months when tried summarily and/or fine. On indictment, the maximum is 5 years imprisonment and/or a fine (s. 21(2)) IANA 2006).
Offences under the Identity Documents Act 2010. There are several offences under the Identity Documents Act 2010 and strictly speaking these offences could be committed by any person, it would not have to be a person who is trying to get into the country or being in the country. That being said many who enter illegal, or fail in their quest to stay in the country may have acquired false documentation in their possession which would then trigger the following offences. The statutory defence under s31 Immigration and Asylum Act 1999 which may apply to any of the document offences would need to be considered, as Article 31 of the UNHCR Refugee Convention 1951 could apply. Article 31 requires that criminal sanctions should not be imposed on refugees who entered the UK illegally if they made themselves known to the relevant authorities without delay, showed good cause for his illegal entry or presence and made a claim for asylum as soon as was reasonably practicable after his arrival in the UK.
Ancillary Criminal offences which could relate to Immigration Law
Section 8 Non-parochial Registers Act 1840 -False entries being recorded. This offence will arise where a person who wilfully insert or cause to be inserted in any of such registers or records any false entry of any birth or baptism, naming or dedication, death or burial, or marriage, or shall wilfully give any false certificate, or shall certify any writing to be an extract from any register or record knowing the same register or record to be false in any part thereof.
S36 & S37 Forgery Act 1861, Forging or making false entries in birth etc certificates . This offence will arise where registers of births, baptisms, marriages, deaths, or burials are forged, or if a false entry is recorded. The penalty on conviction was to be kept in penal servitude for life, until this was repealed by the Statute Law Revision CT 1892 . It is now an offence, punishable with a maximum penalty of life imprisonment
S36 Criminal Justice Act 1925 Forging a passport. An offence which carries a fine and 2 years on indictment.
S13 Stamp Duties Management Act 1891. Anyone who forges a die, or stamp, prints or alters any material, or fraudently cuts, tears, mutilates, erases, or fixes a stamp, or knowingly sells such will be guilty of a felony and shall on conviction be liable to be kept in penal servitude for any term not exceeding fourteen years, or to be imprisoned with or without hard labour for any term not exceeding two years.
S6 Hallmarking Act 1973. Any person who with intent to defraud or deceive, makes a counterfeit of any die or mark; or without lawful authority or excuse, has in his custody or under his control anything which is, and which he knows or believes to be, a counterfeit of a die or an article (whether of precious metal or not) which bears a counterfeit of any mark. A person guilty of an offence under this Act for which no other penalty is specified shall be liable—on summary conviction, to a fine not exceeding £400; and on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or both (s1 Schedule 3)
S44 Vehicle Excise and Registration Act 1994 Altering a Registration Document. A person guilty of altering a vehicle registration document shall be liable on summary conviction, to a fine not exceeding the statutory maximum, and on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or (except in Scotland) to both.
S1 Modern Slavery Act 2015 Slavery, servitude and forced of compulsory labour. This offence would arise where a person holds a person and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude, or the person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour (s1 MSA 2015). The fact that person may have consented does not preclude the determination that the person is being held in slavery, or servitude or required to perform forced or compulsory labour (s1(5)MSA 2015). Note that there are exceptions to this offence, and exceptions can be found in Article 4(3) of the European Convention on Human Rights which states that the following are exempt:
Article 4(3) For the purpose of this Article the term “forced or compulsory labour” shall not include:
(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
(d) any work or service which forms part of normal civic obligations.
On conviction on indictment is liable to imprisonment for life. and on summary conviction it will carry a sentence of 6 months, or a fine, or both, unless s154(1) Criminal Justice Act 2003 has become effective, and which increases the powers of the Magistrates Court to 12 months per offence per offence (s1(1) MSA 2015)). This is also deemed a lifestyle offence under Schedule 2 of the Proceeds of Crime Act and on conviction POCA proceedings could be initiated against the person (s7(2) MSA 2015 which amends schedule 2).
S2 Modern Slavery Act 2015, Human Trafficking S2 defines how such an offence arises:
1)A person commits an offence if the person arranges or facilitates the travel of another person (“V”) with a view to V being exploited.
(2)It is irrelevant whether V consents to the travel (whether V is an adult or a child).
(3)A person may in particular arrange or facilitate V's travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V.
(4)A person arranges or facilitates V's travel with a view to V being exploited only if—
(a)the person intends to exploit V (in any part of the world) during or after the travel, or
(b)the person knows or ought to know that another person is likely to exploit V (in any part of the world) during or after the travel.
(5)“Travel” means— (a)arriving in, or entering, any country,(b)departing from any country, and (c)travelling within any country.
Exploitation is defined by s3 MSA 2015 as being one or more of the following;
Slavery, servitude and forced or compulsory labour (s3(2) MSA 2015) which involves the commission of the offence under s1 MSA 2015, or which would involve the commission of such an offence as if it were in England & Wales.
Sexual exploitation (s3(3) MSA 2015) which involves offences under Part 1 of the Sexual Offences Act 2003, s 1(1)(a) of the Protection of Children Act 1978 (indecent photographs of children), or which would involve the commission of such an offence as if it were in England & Wales.
Removal of organs etc (s3(4) MSA 2015) where a person is encouraged, required, or expected to anything which involves the commission of an offence by him, or another under section 32 or 33 of the Human Tissue Act 2004 (prohibition of commercial dealings in organs and restrictions on use of live donors), or which would involve the commission of such an offence as if it were in England & Wales. Securing services etc by force, threats or deception (s3(5) MSA 2015) Subjecting the person to force, threats or deception designed to induce him or her—(a)to provide services of any kind, (b)to provide another person with benefits of any kind, or (c)to enable another person to acquire benefits of any kind. Securing services etc from children and vulnerable persons (s3(6) MSA 2015) where a person uses or attempts to use a person for the purposes of s3(5) MSA 2015, and having chosen that person on the grounds that the child, is mentally or physically ill or disabled, or has a family relationship with a particular person, and an adult, or a person without the illness, disability, or family relationship, would be likely to refuse to be used for that purpose. A person would be guilty if either arranges or facilitates the transport of the person who is going to be exploited, and that does not mean that the person has to be brought from another country, it can occur in-country. On conviction on indictment for an offence under s2 MSA 2015 then the person is liable to imprisonment for life. and on summary conviction it will carry a sentence of 6 months, or a fine, or both, unless s154(1) Criminal Justice Act 2003 has become effective, and which increases the powers of the Magistrates Court to 12 months per offence per offence (s1(1) MSA 2015)). This is also deemed a lifestyle offence under Schedule 2 of the Proceeds of Crime Act and on conviction POCA proceedings could be initiated against the person (s7(3) MSA 2015 which amends schedule 2).
S4 Modern Slavery Act 2015 Committing an offence with intent to commit an offence under s2 MSA 2015 of Human Trafficking. Under this section those who aid, abet, counsel, or procure an offence of human trafficking under s2 MSA 2015 will be guilty of the offence. On conviction for an offence under s4 MSA 2015 then on indictment the person is liable to imprisonment for 10 years. Should the offence be aggravated by kidnaping or false imprisonment then the sentence on indictment is life imprisonment. On summary conviction, it will carry a sentence of 6 months, or a fine, or both, unless s154(1) Criminal Justice Act 2003 has become effective, and which increases the powers of the Magistrates Court to 12 months per offence per offence (s1(1) MSA 2015)). This is also deemed a lifestyle offence under Schedule 2 of the Proceeds of Crime Act and on conviction POCA proceedings could be initiated against the person (s7(2) MSA 2015 which amends schedule 2).
The IA 2016 introduced the following criminal offence
S34 Immigration Act 2016 (s24B Immigration Act 1971) Illegal Working. A new offence of illegal working is created by s34 of the IA 2016, which inserts a new section 24B into the Immigration Act 1971. This offence will arise if a person who is subject to immigration controls works when he is disqualified from working due to his immigration status, and at the time of him working he either knew or had reasonable cause to believe that he was subject to immigration control (s24(B)(1)(a) &(b) IA 1971). Working is defined by s24B (10) IA 1971 as being:
(a) under a contract of employment,
(b) under a contract of apprenticeship,
(c) under a contract personally to do work,
(d) under or for the purposes of a contract for services,
(e) for a purpose related to a contract to sell goods,
(f) as a constable,
(g) in the course of Crown employment,
(h) as a relevant member of the House of Commons staff, or
(i) as a relevant member of the House of Lords staff.
The above definition of working will not apply where the work relates to service as a member of the naval, military or air forces of the Crown, or employment by an association established for the purposes of Part 11 of the Reserve Forces Act 1996 (s24B(12)). A contract is defined as being express or implied, oral or in writing (s24B(13) IA 1971)
A person is deemed to be disqualified if the person has not been granted leave to enter or remain in the United Kingdom, or the person's leave to enter or remain in the United Kingdom is invalid, has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or is subject to a condition preventing the person from doing work of that kind (s24B(2)(a) &(b). S34(2) IA 2016 also amends s 3(1)(c)(i) of the Immigration Act 1971 and the wording is altered from ‘employment’ to ‘work’, so the section now reads as:
(c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely—
(i) a condition restricting his work or occupation in the United Kingdom
This changing in the wording allows a new condition of not to work to be attached to a grant of leave to the country, or as part of an Immigration bail conditions.
The offences under s24B IA 1971 are summary only and on conviction they will carry a sentence of 6 months, or a fine, or both, unless s281(5) Criminal Justice Act 2003 has become effective, and which increases the powers of the Magistrates Court to 51 weeks per offence (s27(3) IA 2016)
Proceeds of Crime. Proceeds of Crime applications can be made where a conviction arises under s24(B)(1) IA 1971 and should this occur, then the provisions of s24B (5 -7) IA 1971 will apply and an application for committal to the crown court can be sought with a view to considering a confiscation order being imposed against the person who was employed (s70 -72 Proceeds of Crime Act 2002). The purpose of proceeds of crime applications is to place the person in the situation prior to any criminal gain they made. On a confiscation order being made by the crown court, be that agreed, or not, a timetable of 3 months will be set for the payment of any identified criminal benefit, this will be based upon the realisable assets of the convicted person. Failure to comply with the order will result in a custodial sentence being imposed for defaulting on the payment. S10 of The Serious Crime Act 2015 sets out the default sentences for non-payment as being £10,000 or less – 6Months; £10,001 to £500,000 – 5 years; £500,001 to £1 million – 7 years and above £1million – 14 years.
S35 Immigration Act 2016 – Employing an Illegal Worker. S35 IA 2016 amends s21 Immigration, Asylum, & Nationality Act 2006 not only to increase the potential sentences, but also changes the test for the employer. Under the original s21 IANA 2006 a person committed the offence ‘knowing’ that the employee is an adult subject to immigration control. The new s1A (which is introduced by s35(3) IA 2016) will give rise to an offence if an employer employs a disqualified person who is an adult, as opposed to a child by reason of their immigration status and has reasonable cause to believe that the employee is disqualified from employment by reason of the employee's immigration status. S1B (which is introduced by s35(3) IA 2016) defines a disqualified person as an employee whose leave is invalid, has ceased to have effect, or is subject to a condition. Thus, there has been a change from having actual knowledge to having reasonable cause, therefore the new changes amend and equally at the same time lower the men’s rea of the offence. It seems very conceivable that those employers in the past who claimed they had no actual knowledge would now find it harder under this new test.
S35(9) IA 2016 amends s28A of the Immigration Act 1971 to allow an immigration officer to arrest any person committing or attempting to commit the offence of employing an illegal worker under either s21(1) or (1a), provided he has reasonable grounds for suspecting this. The sentence on indictment has also been increased to 5 years, a fine or both (s35(4) IA 2016). On summary conviction in England & Wales the penalty is 6months (unless s154(1) Criminal Justice Act 2003 has become effective, and which increases the powers of the Magistrates Court to 12months per offence (s21(4) IANA 2006). However, there is no proceeds of crime application provisions relating to an employer, whereas the employee under s34 IA 2016 is subject such action.
S39 Immigration Act Leasing Residential Premises to a Disqualified Person. S39 IA 2016 amends s33 of the IA 2014 by inserting a new S33A, B & C which creates an offence of renting premises to a disqualified person, this offence can be committed by a landlord and an agent, and it only applies to residential premises. The new s33A actually creates 2 offences, the first offence is that a person is disqualified by reason of their immigration status from taking a residential tenancy agreement (s33A(1) IA 2016), and the second offence arises where a tenancy agreement is already in place and when the tenancy agreement was taken out the person was not disqualified, but the landlord has made further checks to extend a tenancy agreement, or has become aware or has reasonable cause to believe that the person is disqualified post the agreement (s33A(10) IA 2016). S20(6) IA 2014 states that any agreement which is specified in Schedule 3 of the act will be deemed an excluded agreement, and not regarded as a “residential Tenancy Agreement’ under s20(2) IA 2014. Following are excluded agreements; Social Housing agreements, Care Home agreements, Hospital & Hospice agreements, Other Accommodation relating to healthcare provision agreements, Hostel & Refuge agreements, Accommodation from or involving local authority’s agreements, Accommodation provided by virtue of immigration provisions agreement, Mobile Home agreements, Tied Accommodation agreements, Student Accommodation agreements or a long lease agreement (s1 -13 Schedule 3 Immigration Act 2014).
A landlord is not just defined as a person, it can be a corporate body, partnership. The offence of leasing to a disqualified person can also be committed by an agent under s33B(1) IA 2016 if the agent is responsible for the landlord’s property.
The above do not include the proposed changes by the Nationality & Borders Act which is passing through parliament.
Yasin M Din
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