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Immigration Offences: Trends in Legislation and Criminal and Civil Enforcement


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Really interesting from Migration Observatory on trends in immigration criminal and civil penalty enforcement. It came out a few weeks ago but it has taken me until now to look at it properly (there’s a LOT going on at the moment!).

From the key points summary:

  • From 1999 to 2016, British immigration law has added 89 new types of immigration offences, compared with only 70 that were introduced between 1905 and 1998.
  • Since the mid-2000s prosecutions and convictions of immigration offenders have decreased in magistrates courts and increased in crown courts.
  • The majority of enforcement action against third parties and migrants has been undertaken through civil penalties and removals rather than criminal prosecution.
  • Civil and criminal penalties against employers have fluctuated but increased in the most recent (2013-2014 data).

The “hostile environment” has been brewing for some time and it seems these trends are likely to have accelerated in the last couple of years. The increase in the sheer number of immigration offences does not tell the whole story, though, as many offences have also been widened and the threshold for committing them lowered. Following an amendment wrought by the Immigration Act 2016, for example, an employer need only now have “reasonable cause to believe” as opposed to actual knowledge of employing an illegal worker. New civil penalties have now been introduced for landlords, banks and building societies and access to services has been curtailed.

My qualititative impression is that more recent changes are more likely to be “effective” in the sense that they are used more. One notorious criminal offence introduced in 2003 was to prohibit possession of an immigration stamp without reasonable excuse (section 26B of the Immigration Act 1971 as amended), for example. When I last checked it seemed there had been no prosecutions under that section. In contrast, the expanded civil penalties are far easier to implement by Government because the legal safeguards are far less than in criminal law and because it is generally far preferable to simply pay the penalty than to fight it, whereas that is not true of criminal charges.

We should recall that the actual underlying purpose of these offences and civil penalties is supposed to be to deter the prohibited behaviours. Punishing wrong-doers is the means to achieve that end, not the end in itself. We will never know the alternative history of how “bad” things would really be if these sanctions were not being pursued (there might be immigration stamps crunching underfoot like autumn leaves but for section 26B!) but as far as I can tell it does not seem that the sanctions have actually deterred employing illegal workers, reduced the rate of illegal entry or encouraged violuntary departure. Indeed, it emerged in a recent Chief Inspector report that the Home Office has not even attempted to devise a way of measuring impact:

… justification for extending the ‘hostile environment’ measures is based on the conviction that they are ‘right’ in principle, and enjoy broad public support, rather than on any evidence that the measures already introduced are working or needed to be strengthened, since no targets were set for the original measures and little had been done to evaluate them …

If the hostile environment were really about deterrence, would we not be able to see some research or evidence on the relative impact of criminal sanctions (harder to enforce but more punishing) and civil penalties (easier to enforce but easier to shrug off)?

One is left with the suspicion that these sanctions have some other purpose or purposes than deterrence. To raise money, perhaps, or to justify the existence of expanding Home Office bureaucracy or simple (but self defeating) Something Must Be Done politics. Or all of the above.

Do take a look at the full report. It isn’t long, it is in native web format, the charts are informative and interactive and it is very interesting!

Source: Immigration Offences: Trends in Legislation and Criminal and Civil Enforcement – Migration Observatory – The Migration Observatory

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.