Having been an immigration solicitor for around 20 years, I’m used to pretty chaotic weeks. The past week has been one of the most frustrating following the immigration minister’s surprisingly unpolished performance in front of the Home Affairs Committee which CJ covered in an earlier post.

To some extent, it’s expected that the press and even politicians may not grasp the nuances of immigration law. But at a time like this, especially on the back of Windrush which has affected so many people, it’s really important to get the basics right.

Legally wrong

The minster and the committee had a lengthy discussion, the transcript of which is important to read, about a matter of law they were all completely wrong about. There is no law in the UK that states that employers have to carry out immigration checks before offering employment to someone.

My friend’s 18-year-old daughter has just started a Saturday job with the very small local flower shop run and owned by one person. She is their only employee. When I asked her if the shop owner had asked her to bring her passport to work, she looked at me like I’d just landed from Mars. “Why on earth would they ask me to bring my passport to work – it’s a flower shop. I’m not being sent on a business trip to New York!”

I took a deep breath and decided against a lecture on immigration law. I asked out of pure interest. Would a small shop owner in a small village in England ask for evidence that someone had the right to work?

Not asking my friend’s daughter for a document, not making a check, does not mean that the shop owner has broken any laws. This is really important. My friend’s daughter is British but the shop owner still wouldn’t have broken any laws in not asking for a document if she was German, Iranian or American. In UK law, no one has the power to check if the shop owner asked for a document and no one has the power to impose fines or other sanctions on the shop owner simply for not asking for one.

What’s really worrying when you read the transcript is that the immigration minister doesn’t seem to know this.

Yvette Cooper MP, the Home Affairs Committee chair, doesn’t seem to know this.

Sajid Javid MP, the Home Secretary, didn’t seem to know this during media interviews in the days that followed.

Looking at the Home Office communication CJ refers to in his piece, they don’t seem to know this (or I suspect it’s probably convenient for employers to be left thinking they have to perform checks).

What’s even more concerning is why this particular currently inapplicable piece of legislation has become such a talking point in the context of EU nationals.

What does the law say about employer immigration checks?

The law on employer immigration checks is actually really brief.

Under the Immigration, Nationality and Asylum Act 2006 it is unlawful for an employer to employ a person who is:

• subject to UK immigration control; and
• needs permission to perform the work in question; and
• does not have such permission.

A person is subject to immigration control if under the Immigration Act 1971 he/she requires leave to enter or remain in the United Kingdom.

UK and, currently, EU nationals do not require leave to enter or remain in the UK. Right now this legislation simply does not relate to them.

Under section 15 of that Act, an employer who employs a person who does not have permission to work but who has carried out checks in accordance with Home Office guidance is able to benefit from a statutory excuse against a civil penalty. It’s like taking out non-mandatory insurance – you don’t need to have it but it can save a lot of pain.

The pain in this case is a civil penalty of up to £20,000 per offence.

It’s also a criminal offence if the employer knows, or has reasonable cause to believe, that a person who is subject to immigration control and who needs permission to work does not have it.

The final important point here is that the Home Office’s position is that employers who have obtained a sponsor licence do have to check that employees have the right to work. But these businesses make up a very small percentage of the UK employers.

Back to the flower shop owner. If my friend’s daughter was an American and she was studying a short course of up to six months in the UK, the type of leave to remain she would have for that course is not one that permits work. Say she’d decided to buy a fake EU ID card from a friend so she could get some work. In that case, the shop owner would be liable for a civil penalty fine if they hadn’t checked that document. If they had carried out a check, providing it wasn’t really obvious that the document was a fake, they would not be liable.

Why this is important for EU nationals

At the moment, EU nationals living in any EU country benefit from free movement rights. This includes the right to work. Free movement rights are automatic rights under EU law. Regardless of whether or not an employer checks their documents, EU nationals can lawfully take on any work they wish in the UK. Civil penalties simply cannot be applied in relation to their employment because, as I’ve explained, the current legislation does not relate to them.

When the UK leaves the EU, we still – still – do not know what rights EU nationals entering after Brexit will have in the event of a no-deal. We do not know if they will have the same or different rights to those EU nationals who came to the UK before then.

The information released about the EU Settlement Scheme says that those EU nationals who live in the UK by 29 March 2019 will be able to make an application for leave to remain or indefinite leave to remain (if they have been in the UK for at least five years). It says that EU nationals will be able to come to the UK until the end of 2020 and apply under the scheme. Family members will be able to join them for many years to come.

But what became clear from the immigration minister’s evidence on Tuesday was that, in the event of a no-deal, the government has clearly considered not continuing free movement rules (or at least the domestic equivalent of them) for EU citizens entering after Brexit. It has clearly considered the chaotic possibility of a 29 March 2019 cut-off date in the event of a no-deal. For EU nationals coming to the UK after then, the minister suggested that they would be able to visit the UK for an initial period of three months but would have to make an application to remain for longer. The details of what that application process might look like are going to be published in a White Paper, which is long overdue.

In an effort to try and calm the situation, the Home Secretary has since indicated that there will be a transition period for employers to make checks on employees. In addition, the EU Settlement Scheme employer toolkit, which is guidance for employers, was updated on 2 November 2018 with further information along the same lines, presumably to try and further reduce concern from employers.

At this stage though, what isn’t at all clear is the legal justification for any checks. There is currently no law to transition from.

Was the minister really confused?

In my view, the reason for the minister’s “confusion” on Tuesday was that it dawned on her during that session that if she was to provide clear and accurate answers, she would actually have to explain in detail the government’s current thinking on no-deal plans for EU citizens, something they’ve actively avoided doing for 18 months now. She would be the one caught in the headlights.

Otherwise, why would right to work checks legislation, which cannot currently impose sanctions in relation to EU workers, be on her mind?

Yvette Cooper was frustrated by the uncharacteristically clumsy performance from the minister but she didn’t seem to grasp exactly what it was that the minister was trying to avoid. The fact that the session got side-tracked into a discussion about right to work checks (which as I’ve explained, are not mandatory) was probably a relief to the minister. The Home Office and Home Secretary have since been able to make statements about those (non-mandatory) right to work checks and the fundamental questions have been avoided.

It wasn’t that they performed a U-turn, they actually managed to completely divert attention away from the most important citizens’ rights issue the UK has ever had to tackle.

What are the real issues?

It’s not about the right to work checks. What’s important is the legal basis upon which any checks would be made and the time-frame for introducing that legislation. Is the government planning to introduce legislation in the event of a no-deal scenario that could a) impose work restrictions on EU nationals and b) impose sanctions on employers in relation to them?

The government needs to publish really clear information on the following points concerning a no-deal scenario urgently:

• If there is any risk at all that employers may not be able to employ EU nationals who are not already in the UK after 29 March 2019, this needs to be made clear right now. Companies, universities, hospitals and others make recruitment plans far in advance. People in the EU will be making life-changing plans for them and their children.
• If there is any risk at all that EU nationals who are living in the UK by 29 March 2019 may be subject to immigration control in a way that could restrict work, and any other rights, in any way this needs to be made clear.
• If some kind of different immigration status would be applied during a transitional period, who will that be applied to and what exactly will that status be?
• In relation to right to work checks, will employers need to treat all EU nationals who do not have indefinite leave to remain after 29 March 2019 as being subject to UK immigration control such that an employer could then receive a civil penalty if the EU national does not have permission to work? What would those rules look like? When would relevant legislation be amended to enact such provisions? When would details of the checks that would provide protection against civil penalties be available for employers that wish to make such checks?

This close to Brexit, surely it’s time for the government to put UK employers, citizens and residents first and do the right thing by providing a very clear set of immoveable rules, at least until 2021, in the event of a no-deal. Updating easily changed toolkits, giving brief ‘corrective’ information in television interviews etc. is not enough at this late stage. What they need to explain is exactly what laws will be applied, exactly how and exactly when.

And finally…

Employment tribunals hear case after case after case where someone who has the right to work has lost their job, and livelihood, not because they lost that right to work but because they didn’t produce a document and the panicked employer wrongly thought this meant they had to let them go. I advise on these issues day in day out and I hope my advice helps to achieve fairness and reduce risk for both employers and employees.

It is really important that everyone is clear about those immigration checks that are mandatory under law and those that are not. This isn’t just about right to work checks and it isn’t just about Brexit, deal or no-deal. It’s about the whole spectrum of checks that make up the hideously hostile environment that has crept in to day-to-day life and caused so many difficulties for so many people.

Immigration law is complex but people’s livelihoods and, in some cases, lives depend on those in authority knowing the rules and on the rest of society making sure they are applied in a fair, measured and lawful way.

This did not happen to the Windrush generation. It is imperative that history does not repeat itself.