We now have a unique opportunity to learn the lessons of the past and to improve engagement with employers in order to deliver far more effective and deliverable immigration policies that will minimise identity fraud and eliminate illegal migrant working. From Ken Hanslip, Technical Director of NSL Checking.

It may seem premature to ask the UK government to produce an Immigration Act for implementation when the United Kingdom leaves the European Union, but time is certainly running out if we’re to ensure the new legislation meets the needs of the UK as well as the expectations of people both at home and abroad. Clear and uncomplicated right to work legislation should be confirmed at the earliest opportunity. This will give UK businesses the scope to re-shape domestic and export business activities in the post-Brexit era without having to navigate the complex rules that currently exist. Looking at the 4P principle might be a good starting point. We all know from our management training that Proper Processes Prevent Problems, which is certainly true when it comes to the application of Right to Work rules. But, it’s also true that the success of any new immigration laws will be dependent on how they encapsulate the specifics of four key areas – People, Procedures, Penalties and Prevention. And there is no magic wand to address the complexities of each of these areas and to deliver the care and consideration that will be needed to ensure clarity and fairness from Day 1. Let’s consider some of the issues that need to be addressed.

People matter
Firstly, the principal focus of any immigration legislation is on people – especially when it comes to employment – so any new laws have to be humane, balanced and relevant while also helping to ensure that compliance is readily and easily achievable. Just falling short in one of these areas will always result in implementation issues and invariably lead to more problems than solutions. For most employers, legislation generally affects all workers equally. However, immigration legislation is much more specific. Here, the right to take up work is largely dependent on an individual’s specific situation where an employer is, in effect, expected to be an immigration expert.

Immigration rule changes affect the everyday lives of people and it’s important to appreciate the unintended consequences of any rule change. Take for instance the plight of non-UK or EU nationals who have an indefinite leave to remain vignette or stamp in an expired passport. Prior to 16th May 2014, an employer could readily take such an individual into employment and achieve a Statutory Excuse against the imposition of a Civil Penalty if the individual’s previous and current documents were obtained, checked and copied. However, a little publicised change contained in the Immigration Act 2014 meant that anyone with a visa in an expired passport could only take up work that started after 16th May 2014, if they applied for a biometric residence permit. This rule change was absolutely sound for three reasons. It helped to ensure that anyone changing jobs could be checked and registered. It replaced the evidencing of a paper vignette or the rubber stamping of a passport – which are very easily falsified and would help to identify anyone of working age who was using false documents. And the adoption of biometric permits presents a far more secure and versatile form of personal identification where employers and other agencies have a much easier task in providing work or access to services. Despite the sound intentions of such a logical rule change, the unintended consequences were considerable – causing misery and despair for many innocent, hard working and law abiding residents of the UK. The absence of any publicity in the media inflicted a great deal of unjustified pain and distress that could have been avoided with a bit of foresight and compassion.

Repeated calls to raise awareness of the rule change have been to no avail. We are still in a situation where the first that anyone with an indefinite leave to remain permission in an expired passport knows that they cannot take up new work is when an employer declines employment. The individual – who is likely to be unemployed – is then faced with a cost of around £250 and a delay of 3-6 months for transferring their original permission onto a biometric residence permit. This is not just grossly unfair on the individuals. It also means that employers have to bear the brunt of the inevitable anger and frustration and also manage difficult and highly emotional situations that are not of their making. It would have been far better to publicise the rule change widely and to offer a free biometric permit to those persons affected so that their status can be established and recorded. This would have helped the Home Office gain a much more accurate figure for those who have been granted indefinite leave to remain in the UK, expose those people who using false permits or stamps and eliminated completely unnecessary distress and frustration. I very much hope lessons are learned from such inexcusable errors so that employers are seen in a supportive rather than obstructive role in any new immigration rules, and that everyone is treated fairly and humanely.

Getting the procedures right
Ever since the UK joined the European Union, much of the legislative complexity and confusion is blamed on the fact UK laws have to consistent with complex EU legislation. Our departure from the EU brings a unique opportunity for the UK government to re-draft and re-shape immigration legislation to overcome such issues. We have a unique opportunity to not only introduce laws that are fit for purpose but also simplify compliance and are more easily understood. The primary focus of any new legislation must be to both protect UK workers from what is seen to be ‘cheap foreign labour’ and to allow highly skilled migrants to help the UK economy can flourish. Both processes require a high level of humanity and fairness so it’s vital anyone who is likely to be affected by any rule change is kept informed about how and when the new changes will be applied and enforced, including the termination date of existing arrangements. After all, simply implying there will be a future cut off will only result in something of a stampede for EU citizens entering the UK and it is inevitable a confirmed cut off date will prompt an immediate increase in the use of falsified EU documentation as ineligible people look to enter the country at a time of high people movement when there is less chance of false documents being be exposed or detected.

To counter all of the above, it would be sensible for any EU citizen who had residence within the UK and who is either in full-time employment, retired or is otherwise self-sufficient prior to the 22nd June 2016 (the day prior to the UK’s EU referendum) should continue to hold residency rights until they cease employment or lose their self-sufficiency status. This would not only be a fair and reasonable approach, it would also eliminate a potential rush of legal and illegal EU citizens into the UK. Any EU citizen who came to the UK after that date should be required to undergo further checks to ensure their suitability for remaining in the UK. Such a considered approach would then encourage EU countries to adopt similar measures for UK citizens resident in their countries – helping to remove all of the current apprehension and uncertainty. Of course, it shouldn’t be taken as a simple fact that the holding of EU citizenship will give an automatic right to residence within the UK. Due to historic colonial ties with Portugal, for example, thousands of Goan citizens have taken up Portuguese citizenship to become EU citizens in order to gain access to the UK. As EU citizenship features many other similar anomalies, deferring decisions on a clear cut off date will increase the influx of such quasi-EU citizens as they race to pre-empt the new arrangements. Another thorny issue concerns the rules covering dependants and family members of EU nationals presently resident within the UK, which are extremely complicated, difficult to apply and are so often used as a cover for abusing and exploiting immigration status.

Consequently, it would be sensible to withdraw any concession for EU family members and bring this category of immigrants into line with other classes and groups. Again, any change of legislation or procedure should be backdated to avoid causing a surge of applications prior to any imposed cut off date – so, it would be logical for any family members of EU citizens who became resident in the UK after 22nd June 2016 to be treated in exactly the same way as any other non-UK citizen. The falsification of EU identity documents is widespread as the security features on much of the documentation are minimal or non-existent. One version of a widely used Italian ID card, for example, comprises a simple paper card typed with details on the bearer and with their portrait photo just stapled onto the card. With such a poor design and a complete lack of any security features, such an identity document is a firm favourite for fraudsters. Even EU passports are at the top of the list when it comes to falsification.  In recent years, the European Parliament has reported that up to 1.5 million French biometric passports had been issued to people supplying false data and that Dutch passports showed that 21 percent had errors with fingerprint data. The UK doesn’t escape these problems, coming top of a recent list of counterfeit European passports. However, with the UK now leaving the EU, we have the opportunity to ensure all passports meet current biometric standards, eliminating the risk posed by the vast number of false documents currently circulating in Europe and being used to secure permit entry to the UK. Lastly, there needs to be much greater focus on the removal of those persons found to have entered the UK illegally or who have overstayed their permissions. With no coherent or consistent process in this area, there are regular examples of suspected illegal migrants being taken off lorries by the police in the South East of England only to be released as a result of existing EU and human rights legislation and then handed directions for the Home Office in Croydon! We now have the opportunity to address this problem.

Pragmatism before penalties
As an island nation, with seaports and airports the principal points of entry – apart from the very porous Republic of Ireland and Northern Ireland border – robust and efficient border controls should be perfectly achievable. Sadly, this isn’t hasn’t been the case. Toughening border control procedures, more realistic funding and more considered operational planning would clarify and simplify the work of Immigration Enforcement, help to secure the UK’s borders and have a major impact on reducing the number of illegal migrant workers. With strong and efficient border controls in place, I would hope that both the Home Office and Immigration Enforcement could clarify and define their roles and relationships – especially with employers – far more effectively. Are they, for example, mentors, regulators or enforcers? When it comes to the prevention of illegal migrant working, employers are at the mercy of border control measures and enforcement. But the imposition of financial penalties seems to have taken centre stage at the expense of constructive advice and any attempt to seek a fair resolution and appropriate outcome. Given the shear complexity of right to work legislation and the varying circumstances of individuals, it is little wonder that even experienced and responsible employers will sometimes inadvertently breach immigration rules.

It is often very difficult for an employer to properly identify someone’s immigration status, so the safest option is to always carry out identity status and document checks prior to and during employment – and, of course, electronic screening of documents is the safest of all. I believe there should be a legal obligation placed on all employers to validate the right to work status prior to any employee taking up work, irrespective of whether or not the prospective employee is subject to immigration control. The present penalty regime appears to be inflexible and unable to take into account an employer’s circumstances or mitigating factors. It’s true that a financial penalty demonstrates that responsibility for undertaking repeat right to work checks for employees lies with their employer. However such a task is time critical and so easily overlooked in a busy work environment. A far more pragmatic approach would help to forge and foster a greater understanding between employers and Immigration Enforcement that is absolutely essential for addressing the incidence of illegal migrant working!

Employer engagement is the key to prevention
Unfortunately, the current preoccupation with enforcement and financial penalties cloudsthe real objective so that the threat of a Civil Penalty for any breach of a rule or procedure invariably takes precedent even when an employer is making a genuine request for guidance or support. With many employers now reluctant to approach Immigration Enforcement as a result of this heavy-handedness, it is clear the current balance is wrong – and is certainly a long way from the spirit of cooperation. Prevention is by far the easiest and most cost effective means to deal with an issue, but there are precious few opportunities for employers and the Home Office to meet and discuss issues and concerns and to reach a consensus on what changes need to be made to improve the effectiveness of present legislation and the best way for implementing future legislation. Providing constructive, timely and accurate advice is essential in all immigration matters and there should be far more recognition of the importance of preventative actions to solve issues and avoid unnecessary distress for innocent individuals.

But this can only become a reality if the process is free from any pre-emptive suggestion of enforcement or penalty and we eliminate the current ‘them and us’ culture. After all, it is in the interest of every mainstream employer in the UK to employ people in line with the law and to conduct their business and trading both legally and honestly. So we need a change of attitude where the emphasis is on prevention and real outcomes rather than the use of arrest and detention figures for self-justification. Resolving all of the issues and remedying all of the problems associated with present day immigration legislation won’t come easy and won’t come quickly. That is why measures to identify and shape the Immigration Act 2020 need to start now. Openly engaging with employers would provide the most effective starting point as it is their knowledge and support that will help the Home Office drive illegal migrant working out of the UK once and for all.