Welcome to Britain: Fixing Our Broken Immigration System

by Colin Yeo;

  Source: Home Office illegal working civil penalties quarterly reports, compiled.

  One case that did reach the courts, though, was that of Mr Baker,2 a Jamaican who had lived in the UK since childhood. Everyone agreed that he had the right to live and work in the UK, but unfortunately, he had no current paperwork to prove his status. His employer, a bus company in London, wrongly believed that it was under a legal duty to dismiss him if he could not prove his status and was notably under pressure from the newly increased financial costs of employing illegal workers. The company invited its employee to a meeting on 24 February 2015, where he was asked for evidence of his right to work. Mr Baker explained that his Jamaican passport had expired back in 2000 and he had no current papers. Promptly, he was sent home with a list of documents and told that he would not be paid until he could produce one of them. A company manager arranged for Mr Baker to be lent £350 to apply for the required documents and he duly requested a new Jamaican passport. The passport alone was insufficient, however, as a new stamp was also required from the Home Office to replace the old one, which would come in at a cost of several hundreds of pounds. The whole process was deemed to be taking too long for the employer, who dismissed Mr Baker on 3 July 2015. Mr Baker was fortunate to find lawyers to represent him for free and, two years later, on 5 October 2017, he eventually won his legal challenge for unfair dismissal. As is often the case with a court victory, this will have been small consolation given the stress and misery Mr Baker had suffered in the process.

  Just how often similar situations have been played out up and down the country without a victim fortunate enough to find legal aid and take the case to court we will never know. A small number of cases were later reported when journalists belatedly started to show an interest following Guardian reporter Amelia Gentleman’s pioneering work on what would become known as the Windrush scandal. But still, there will inevitably be many examples that remain unknown. Mr Baker’s employer was unusually generous in offering a loan and waiting for so long; other employers either refuse to employ the person in the first place or simply dismiss them immediately. Mr Baker was also unusually lucky in finding lawyers willing to take on his case for free.

  Along with this practice of civil penalties laid out above, the other main plank of the early system of citizen-on-citizen immigration checks was the concept of sponsorship, introduced by the original British points-based system in 2008. The sponsorship system was introduced through changes to the Immigration Rules without the need for an Act of Parliament and it is still in force today. Despite frequent calls by certain politicians to introduce an ‘Australian-style points-based system’ following Brexit, we actually already have at least a nominal points-based system in place and have done since 2008. In fact, it is literally called ‘the points-based system’ in the Immigration Rules.3 Under this system, employers and education providers wanting to employ or educate foreign nationals are required to pay the Home Office for a ‘sponsor licence’. These licences come with onerous conditions and they can be (and are) withdrawn if those conditions are breached. In fact, in 2017 a total of 605 employer licences were revoked and in 2018, the last full year for which figures are available at the time of writing, the total fell to 265, perhaps reflecting something of a softening of approach following the breaking of the Windrush scandal early in 2018.4

  Under this system, which is still in operation today, it is impossible for a foreign national to obtain a UK visa to work for a company that does not have a licence or for them to study at an unlicensed institution. Lecturers have to report students who miss a certain number of lectures, and employers must dismiss and report any employee who has a certain number of unauthorised absences. There is a clause in these licences that imposes a rather vague duty of co-operation, ‘including in connection with the prevention or detection of crime, the administration of illegal working civil penalties and/or the apprehension or prosecution of immigration offenders’. This is a general duty, not just in connection with the migrants sponsored by the institution concerned. From time to time, for instance, I travel to events at universities where my travel is paid for; on other occasions I have delivered lectures and written research reports. The stringency of the passport checks I have undergone even where I am merely claiming travel expenses or working as an unsponsored contractor has been surprising to me, and I am an immigration lawyer. Failure to comply to the above-mentioned duty means loss of the sponsor licence – and the consequences can be existential.

  London Metropolitan University discovered the importance of this co-operation when their licence was revoked on 29 August 2012, just as the academic year was about to begin. The Home Office accused the university of ‘serious systemic failure’ in its management of foreign sponsored students. Around a quarter of the university’s 2,000 foreign students were found not to have permission from the Home Office to study there, a ‘significant proportion’ were said not to speak a good standard of English and in more than half of cases the university could produce no records to show that the students were turning up to lectures. The effects of the licence revocation were calamitous. The 2,000 foreign students already studying were given just sixty days to find a new course at a new institution or otherwise leave the country, and several hundred students, who had already paid the enormous fees to begin their courses in the new academic year, had their visas cancelled. London Met said the loss of the licence left a £30 million hole in its budget, equivalent to around 20 per cent of their total income for the year.

  Nine months later, though, the licence was eventually restored. No doubt eager to stay in the Home Office’s good books, London Met was tight-lipped about the cost to the university of the period of suspension. They were certainly pleased to get the licence back, telling The Guardian that it was ‘excellent news’ and thanking international students for their ‘patience and support over the last nine months’.5 It is hard to imagine that the university could have continued to exist at all had the licence not been reinstated.

  The duty of co-operation extended to employers as well as universities. In July 2016, managers at posh burger chain Byron arranged a fake meeting for the migrants they employed in central London. Different cover stories were told to different members of staff: some thought it was about a new recipe, while others were told it was about the dangers of the medium and medium-rare cooking of burgers.6 In reality, the meeting was for the sole purpose of enabling immigration officers to detain, arrest and remove staff members working without the proper paperwork. ‘Nobody move, we’re immigration, stay where you are,’ the officers were reported to have said as they burst in. Thirty-five nationals of Brazil, Nepal, Egypt and Albania were arrested, sent to various immigration detention centres around the country and then removed. Some of the employees were said to have used fake papers to secure employment, which would normally be expected to exempt an employer from a fine. Byron found themselves at the centre of a debate about how far employers were required to co-operate with the Home Office; whether it had been legally obliged to act as it had; whether it had been strong-armed into action by the Home Office with threats to cancel the company’s licence (a sort of ‘nice business you’ve got there, shame if we were to force you to sack half your workforce’ kind of idea); whether it had effectively plea-bargained for reduced fines from the Home Office (the maximum £20,000 fine per worker can be reduced if the employer co-operates); or whether it had been over-enthusiastic in aiding the government of its own accord. The incident provoked protests and a boycott, although this seems to have done no lasting damage to the business in the long term.

  It is not just high street chains and big employers who need to worry. Hundreds of take-aways, restaurants and corner shops have been targeted by immigration officials and publicly named and shamed in the process. Even individuals, sometimes rather prominent ones, have found themselves in trouble over these ‘papers, please’ checks.

  Take for instance Patricia Scotland, who was a very well-respected Qu
een’s Counsel barrister before being appointed to the House of Lords as a Labour peer in 1997. In 2007 she was promoted by Prime Minister Gordon Brown to the position of Attorney General, the government’s senior legal adviser, responsible for overseeing criminal prosecutions in England and Wales. However, in 2009, she was fined £5,000 for failing to conduct proper ‘papers, please’ checks on her cleaner, Lolo Tapui.7 Baroness Scotland claimed that she had checked the woman’s papers but admitted she had failed to keep copies as required by law. Shadow Home Secretary Chris Grayling called for her resignation and said that employers could not be ‘inadvertently innocent’. Baroness Scotland kept her job. Not so Lolo Tapui, who was later jailed for eight months for fraud, possession of a false identity stamp and overstaying her visa. She was later removed to her native Tonga. It emerged at her trial that Lolo Tapui had been paid £95,000 by the Mail on Sunday to tell her story and that publicist Max Clifford had pocketed a £19,000 commission.8

  Baroness Scotland was thought to be the first individual to be fined under the civil penalties scheme for employers. But she was not the last politician to fall foul of them. In 2014 Mark Harper was forced to resign, and once again because of a cleaner. What made this incident so notable was that he was then the minister for immigration, piloting new immigration legislation through Parliament and having been responsible for the notorious ‘Go home’ vans that were sent out to patrol diverse areas of London, as well as the dramatic increase in enforcement activity against employers. The migrant concerned in this case was a Colombian national named Isabella Acevedo, who earned £30 per week from Harper. She was actually self-employed, meaning that Harper had not technically broken the law and was not liable for a fine. ‘I should hold myself to a higher standard than expected of others,’ Harper’s resignation letter nevertheless piously intoned. Harper ended up getting his officials at the Home Office to verify Acevedo’s status, notably a course of action that was not open to most employers.

  The consequences were rather different for Acevedo. While Harper was to return to office just weeks later, Acevedo was arrested at her daughter’s wedding in a conspicuous enforcement raid shortly afterwards and was later removed from the United Kingdom.9 Trenton Oldfield, a family friend who was present, told The Guardian that immigration officers ‘swept into the room when we were just about to start the ceremony … We don’t know where they came from. They must have been waiting in the building.’ The timing and manner of Acevedo’s arrest – it seems unlikely that it had to be at the wedding venue, and it was hardly discreet – make you wonder whether revenge played some part in the arrangements.

  If an Attorney General and an immigration minister could be caught out by these checks, what chance do other individuals or small businesses stand? Over the past five years a total of around £200 million in penalty charges has been levied on employers.10 It is thought many small businesses have gone bankrupt as a consequence. If the purpose of this project was to protect the rights of home-grown workers, bankrupting small employers across the country is an unusual way to achieve that end.

  IMMIGRATION ACTS 2014 AND 2016

  The ‘papers, please’ checks imposed on employers were proving onerous, even to well-resourced companies, and the Scotland and Harper incidents only highlighted the difficulties of compliance for individuals. Nevertheless, the Immigration Acts 2014 and 2016 expanded the hostile environment system from employment into new territory: landlords, banks, building societies and the Driver and Vehicle Licensing Agency (DVLA).

  Firstly, a virtually identical system of civil penalties to the one already in place for employers was introduced for landlords, described in legislation as the ‘Right to Rent’ scheme. Until the Immigration Act 2014, it had never crossed anyone’s mind that they might need a ‘right’ to rent. It is one of a new batch of fake ‘rights’ that are used to separate ‘us’ from ‘them’ and which, in reality, represent restrictions on liberties that had previously been taken for granted.11 Every single landlord in the country, from large commercial companies to those with a single property or even just a lodger, would have to check the immigration papers of a potential or existing tenant against a list provided by the Home Office and refuse tenancy to or evict any tenant whose papers did not match those listed. In the event of confusion, a landlord could even call a Home Office helpline to check the immigration status of the person concerned. The scheme was reinforced with a new criminal offence that landlords and agents might commit by knowingly renting to a person without permission, and a new system of accelerated eviction where the Home Office served a notice on a landlord. The eviction provisions allowed landlords in some cases to evict without a court order, leaving individuals, including children, entirely at the whim of the Home Office and the accuracy of the information held in its databases.

  In her 2012 interview announcing the hostile environment, Theresa May said, ‘If you’re going to create a hostile environment for illegal migrants … access to financial services is part of that.’12 Although the ‘Right to Rent’ scheme has attracted the most attention, it was arguably the financial measures in the Immigration Acts 2014 and 2016 that were the flagship changes. The 2014 Act prevents people from opening bank accounts if they do not have permission to live in the UK. Since then, every bank or building society has been required to check the residence status of each new potential customer with a specified anti-fraud organisation or data-matching authority. The 2016 Act then developed these rules even further, requiring banks and building societies to make checks on existing account holders and to notify the Home Office if the individual may be a ‘disqualified person’ (or, in other words, an unauthorised migrant).

  Not being able to open a bank account is one thing; having your existing account closed is quite another. It may well render you destitute, homeless and jobless. And what if the Home Office made a mistake and closed the account of a person who was actually a lawful resident? As we will see, this was a real possibility, and yet the law was implemented anyway, albeit that it was quickly suspended.

  The Immigration Acts 2014 and 2016 also strengthened the duty for marriage registrars to report suspected sham marriages and increased the notice period for all marriages from fifteen to twenty-eight days, for the explicit purpose of enabling Home Office investigation; we will take a closer look at these changes in Chapter 5.13 In addition, the DVLA was granted a new power to revoke driving licences when they had been issued to a person who did not have leave to remain in the country. Where a licence was revoked and the person continued to drive anyway, perhaps unaware of revocation, this would amount to what lawyers call a ‘strict liability offence’, or the idea that lack of knowledge is no excuse. Finally, just as Uber and similar services were increasingly rendering traditional taxi regulations redundant, reams of regulations – literally hundreds of pages – were introduced to amend various of these archaic laws. Local authorities were then obliged to check the immigration status of both new and existing private and black cab taxi drivers, revoking licences where required.

  So far, we have considered just the changes where Acts of Parliament were needed. In other walks of life, the checks could be and were introduced by secondary legislation, bureaucracy and data-sharing agreements between departments.14

  PUBLIC SERVICES AND CIVIL SOCIETY

  One of the key battlegrounds of the hostile environment has been over access to the National Health Service. The debate over charging foreign nationals for use of the NHS dates back to its very birth. Labour politician Nye Bevan had been responsible for driving through the reforms that created the NHS, and he addressed these issues head on as early as 1952:

  How are we to distinguish a visitor from anyone else? Are British citizens to carry means of identification everywhere to prove they are not visitors? For if the sheep are to be separated from the goats both must be classified. What began as an attempt to keep the Health Service for ourselves would end by being a nuisance to everyone.15

  Bevan went on to point out t
hat the cost of looking after visitors who fall ill could not amount to more than a ‘negligible fraction’ of the total NHS budget, that reciprocal systems could be agreed with other countries and, anyway, foreign nationals were themselves often paying VAT, income and National Insurance taxes that contributed to the NHS budget. For many years, Bevan’s arguments held sway. Eventually, though, legislation was introduced in 1977 permitting the charging of non-residents for NHS services.16 The first regulations enabling this to occur were introduced in 1982 and further legislative changes were made in 2006 to little effect. In reality, very little, if any, money was recovered via this method. To do so would be inconvenient, costly and for very little purpose; it would be a classic example of a hammer being used to crack a nut. The total cost of what some describe as ‘health tourism’ (deliberate rather than accidental use of the NHS by foreign nationals who are not entitled to it) is estimated as 0.3 per cent of the total NHS budget.17

  But cracking nuts with hammers is a signature feature of the hostile environment. New regulations were introduced in 2015, and strengthened in 2017, to force hospitals to carry out immigration checks and impose upfront charges for treatment to those who were not eligible for free care. Data-sharing between the NHS and Home Office was then formalised in a memorandum of understanding that took effect on 1 January 2017. This allowed for the transfer of limited non-clinical patient information about immigration offenders between the NHS and the government.18 It was reported even before the formal agreement in the first eleven months of 2016, that 8,127 requests for patient information had been made by the Home Office.19 The arrangement was scrapped in the face of a legal challenge by Migrants Rights Network in 2018, although it was expected that a new, more limited arrangement would be introduced at a later date.20