Immigration Act 2016
2016 c. 19
An Act to make provision about the law on immigration and asylum; to make provision about access to services, facilities, licences and work by reference to immigration status; to make provision about the enforcement of certain legislation relating to the labour market; to make provision about language requirements for public sector workers; to make provision about fees for passports and civil registration; and for connected purposes.
[12th May 2016]
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
12 PACE powers in England and Wales for labour abuse prevention officers
(1) After section 114A of the Police and Criminal Evidence Act 1984 insert—
Application of Act to labour abuse prevention officers
114B (1) The Secretary of State may by regulations apply any provision of this Act which relates to investigations of offences conducted by police officers to investigations of labour market offences conducted by labour abuse prevention officers.
(2) The regulations may apply provisions of this Act with any modifications specified in the regulations.
(3) In this section “labour abuse prevention officer” means an officer of the Gangmasters and Labour Abuse Authority who—
(a) falls within subsection (4), and
(b) is authorised (whether generally or specifically) by the Secretary of State for the purposes of this section.
(4) An officer of the Gangmasters and Labour Abuse Authority falls within this subsection if he or she is—
(a) acting for the purposes of the Employment Agencies Act 1973 (see section 8A of that Act),
(b) acting for the purposes of the National Minimum Wage Act 1998 (see section 13 of that Act),
(c) acting for the purposes of the Gangmasters (Licensing) Act 2004 as an enforcement officer within the meaning of section 15 of that Act,
(d) acting for the purposes of Part 1 or 2 of the Modern Slavery Act 2015 (see sections 11A and 30A of that Act), or
(e) acting for any other purpose prescribed in regulations made by the Secretary of State.
(5) The investigations for the purposes of which provisions of this Act may be applied by regulations under this section include investigations of offences committed, or suspected of having been committed, before the coming into force of the regulations or of this section.
(6) Regulations under this section are to be made by statutory instrument.
(7) Regulations under this section may make—
(a) different provision for different purposes;
(b) provision which applies generally or for particular purposes;
(c) incidental, supplementary, consequential, transitional or transitory provision or savings.
(8) Regulations under subsection (4)(e) may, in particular, make such provision amending, repealing or revoking any enactment as the Secretary of State considers appropriate in consequence of any provision made by the regulations.
(9) A statutory instrument containing regulations under subsection (4)(e) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(10) Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(11) In this section—
“enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;
“labour market offence” has the meaning given in section 3 of the Immigration Act 2016.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) The Immigration Act 1971 is amended as follows.
(2) In section 3(1)(c)(i) (power to grant limited leave to enter or remain in the United Kingdom subject to condition restricting employment or occupation) for “employment” substitute “ work ”.
(3) After section 24A insert—
Illegal working
24B (1) A person (“P”) who is subject to immigration control commits an offence if—
(a) P works at a time when P is disqualified from working by reason of P's immigration status, and
(b) at that time P knows or has reasonable cause to believe that P is disqualified from working by reason of P's immigration status.
(2) For the purposes of subsection (1) a person is disqualified from working by reason of the person's immigration status if—
(a) the person has not been granted leave to enter or remain in the United Kingdom, or
(b) the person's leave to enter or remain in the United Kingdom—
(i) is invalid,
(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
(iii) is subject to a condition preventing the person from doing work of that kind.
(3) A person who is guilty of an offence under subsection (1) is liable on summary conviction—
(a) in England and Wales, to imprisonment for a term not exceeding 51 weeks or a fine, or both,
(b) in Scotland or Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale, or both.
(4) In relation to an offence committed before section 281(5) of the Criminal Justice Act 2003 comes into force, the reference in subsection (3)(a) to 51 weeks is to be read as a reference to 6 months.
(5) If a person is convicted of an offence under subsection (1) in England and Wales, the prosecutor must consider whether to ask the court to commit the person to the Crown Court under section 70 of the Proceeds of Crime Act 2002 (committal with view to confiscation order being considered).
(6) If a person is convicted of an offence under subsection (1) in Scotland, the prosecutor must consider whether to ask the court to act under section 92 of the Proceeds of Crime Act 2002 (making of confiscation order).
(7) If a person is convicted of an offence under subsection (1) in Northern Ireland, the prosecutor must consider whether to ask the court to commit the person to the Crown Court under section 218 of the Proceeds of Crime Act 2002 (committal with view to confiscation order being considered).
(8) The reference in subsection (1) to a person who is subject to immigration control is to a person who under this Act requires leave to enter or remain in the United Kingdom.
(9) Where a person is on immigration bail within the meaning of Part 1 of Schedule 10 to the Immigration Act 2016—
(a) the person is to be treated for the purposes of subsection (2) as if the person had been granted leave to enter the United Kingdom, but
(b) any condition as to the person's work in the United Kingdom to which the person's immigration bail is subject is to be treated for those purposes as a condition of leave.
(10) The reference in subsection (1) to a person working is to that person working—
(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.
(11) In subsection (10)—
“contract to sell goods” means a contract by which a person acting in the course of a trade, business, craft or profession transfers or agrees to transfer the property in goods to another person (and for this purpose “goods” means any tangible moveable items);
“Crown employment”—
in relation to England and Wales and Scotland, has the meaning given by section 191(3) of the Employment Rights Act 1996;
in relation to Northern Ireland, has the meaning given by Article 236(3) of the Employment Rights (Northern Ireland) Order 1996 (SI 1996/1919 (NI 16));
“relevant member of the House of Commons staff” has the meaning given by section 195(5) of the Employment Rights Act 1996;
“relevant member of the House of Lords staff” has the meaning given by section 194(6) of the Employment Rights Act 1996.
(12) Subsection (1) does not apply to—
(a) service as a member of the naval, military or air forces of the Crown, or
(b) employment by an association established for the purposes of Part 11 of the Reserve Forces Act 1996.
(13) In this section “contract” means a contract whether express or implied and, if express, whether oral or in writing.
(4) In section 28A(3)(a) (arrest without warrant) after “section” insert “ 24B, ”.
(5) In section 28B(5) (search and arrest by warrant: relevant offences) after “24A,” insert “ 24B, ”.
(6) In section 28CA(1) (business premises: entry to arrest) after paragraph (b) insert—
(ba) for an offence under section 24B,
.
(7) In section 28D(4) (entry and search of premises: relevant offences) after “24A,” insert “ 24B, ”.
(8) In section 28FA(1)(a) (search for personnel records: offences to which section applies) for “or 24A(1)” substitute “ , 24A(1) or 24B(1) ”.
(1) Section 21 of the Immigration, Asylum and Nationality Act 2006 (offence of knowingly employing illegal worker) is amended in accordance with subsections (2) to (4).
(2) In subsection (1) for the words from “an adult” to the end of the subsection substitute “ disqualified from employment by reason of the employee's immigration status. ”
(3) After subsection (1) insert—
(1A) A person commits an offence if the person—
(a) employs another person (“the employee”) who is disqualified from employment by reason of the employee's immigration status, and
(b) has reasonable cause to believe that the employee is disqualified from employment by reason of the employee's immigration status.
(1B) For the purposes of subsections (1) and (1A) a person is disqualified from employment by reason of the person's immigration status if the person is an adult subject to immigration control and—
(a) the person has not been granted leave to enter or remain in the United Kingdom, or
(b) the person's leave to enter or remain in the United Kingdom—
(i) is invalid,
(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
(iii) is subject to a condition preventing the person from accepting the employment.
(4) In subsection (2)(a)(i) (maximum term of imprisonment for conviction of offence on indictment) for “two” substitute “ five ”.
(5) Section 22 of the Immigration, Asylum and Nationality Act 2006 (offences by bodies corporate etc) is amended in accordance with subsections (6) and (7).
(6) After subsection (1) insert—
(1A) For the purposes of section 21(1A) a body (whether corporate or not) shall be treated as having reasonable cause to believe a fact about an employee if a person who has responsibility within the body for an aspect of the employment has reasonable cause to believe that fact.
(7) In each of subsections (2) and (4) after “21(1)” insert “ or (1A) ”.
(8) In section 24(a) of the Immigration, Asylum and Nationality Act 2006 (immigration bail) for “21(1)” substitute “ 21(1B) ”.
(9) In section 28A of the Immigration Act 1971 (arrest without warrant)—
(a) after subsection (9A) insert—
(9B) An immigration officer may arrest without warrant a person who, or whom the immigration officer has reasonable grounds for suspecting—
(a) has committed or attempted to commit an offence under section 21(1) or (1A) of the Immigration, Asylum and Nationality Act 2006 (employment of illegal worker etc), or
(b) is committing or attempting to commit that offence.
,
(b) in subsection (10) for “and (5)” substitute “ , (5) and (9B) ”, and
(c) in subsection (11) for “and (5)” substitute “ , (5) and (9B) ”.
(10) In section 28AA(1) of that Act (arrest with warrant) for paragraphs (a) and (b) substitute “ section 24(1)(d) ”.
36 Licensing Act 2003: amendments relating to illegal working
(1) Schedule 4 (Licensing Act 2003: amendments relating to illegal working) has effect.
(2) The Secretary of State may by regulations make provision which—
(a) has a similar effect to the amendments made by Schedule 4, and
(b) applies in relation to Scotland or Northern Ireland.
(3) Regulations under subsection (2) may—
(a) amend, repeal or revoke any enactment;
(b) confer functions on any person.
(4) Regulations under subsection (2) may not confer functions on—
(a) the Scottish Ministers,
(b) the First Minister and deputy First Minister in Northern Ireland,
(c) a Northern Ireland Minister, or
(d) a Northern Ireland department.
(5) In this section “enactment” includes—
(a) an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;
(b) an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament;
(c) an enactment contained in, or in an instrument made under, Northern Ireland legislation.
(1) The Immigration Act 2014 is amended in accordance with subsections (2) to (5).
(2) After section 33 insert—
Offences
Offences: landlords
33A (1) The landlord under a residential tenancy agreement which relates to premises in England commits an offence if the first and second conditions are met.
(2) The first condition is that the premises are occupied by an adult who is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement.
(3) The second condition is that the landlord knows or has reasonable cause to believe that the premises are occupied by an adult who is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement.
(4) But unless subsection (5) applies the landlord does not commit an offence under subsection (1) if—
(a) the premises are located in an area in relation to which section 22 is in force,
(b) the adult mentioned in subsections (2) and (3) is a limited right occupier, and
(c) the eligibility period in relation to that occupier has not expired.
(5) This subsection applies if the Secretary of State has given a notice in writing to the landlord which—
(a) identifies the adult mentioned in subsections (2) and (3), and
(b) states that the adult is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement.
(6) It is a defence for a person charged with an offence under subsection (1) to prove that—
(a) the person has taken reasonable steps to terminate the residential tenancy agreement, and
(b) the person has taken such steps within a reasonable period beginning with the time when the person first knew or had reasonable cause to believe that the premises were occupied by the adult mentioned in subsections (2) and (3).
(7) In determining whether subsection (6)(a) or (b) applies to a person, the court must have regard to any guidance which, at the time in question, had been issued by the Secretary of State for the purposes of that subsection and was in force at that time.
(8) Guidance issued for the purposes of subsection (6)—
(a) must be laid before Parliament in draft before being issued, and
(b) comes into force in accordance with regulations made by the Secretary of State.
(9) Section 22(9) applies for the purposes of subsection (1) as it applies for the purposes of that section.
(10) A person commits an offence if—
(a) there has been a post-grant contravention in relation to a residential tenancy agreement which relates to premises in England,
(b) the person is the responsible landlord in relation to the post-grant contravention,
(c) the person knows or has reasonable cause to believe that there has been a post-grant contravention in relation to the agreement, and
(d) none of paragraphs (a), (b) and (c) of section 24(6) applies in relation to the post-grant contravention.
(11) Subsection (10) applies whether or not the landlord is given a notice under section 23 in respect of the contravention.
Offences: agents
33B (1) Subsection (2) applies to an agent who is responsible for a landlord's contravention of section 22 in relation to premises in England.
(2) The agent commits an offence if the agent—
(a) knew or had reasonable cause to believe that the landlord would contravene section 22 by entering into the residential tenancy agreement in question,
(b) had sufficient opportunity to notify the landlord of that fact before the landlord entered into the agreement, but
(c) did not do so.
(3) Subsection (4) applies where—
(a) a landlord contravenes section 22 in relation to a residential tenancy agreement relating to premises in England,
(b) the contravention is a post-grant contravention, and
(c) a person acting as the landlord's agent (“the agent”) is responsible for the post-grant contravention.
(4) The agent commits an offence if—
(a) the agent knows or has reasonable cause to believe that there has been a post-grant contravention in relation to the agreement, and
(b) neither of paragraphs (a) and (b) of section 26(6) applies in relation to the post-grant contravention.
(5) Subsection (4) applies whether or not the agent is given a notice under section 25 in respect of the contravention.
Offences: penalties etc
33C (1) A person who is guilty of an offence under section 33A or 33B is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years, to a fine or to both;
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine or to both.
(2) In the application of this section in relation to an offence committed before the coming into force of section 154(1) of the Criminal Justice Act 2003 the reference in subsection (1)(b) to 12 months is to be read as a reference to 6 months.
(3) If an offence under section 33A or 33B is committed by a body corporate with the consent or connivance of an officer of the body, the officer, as well as the body, is to be treated as having committed the offence.
(4) In subsection (3) a reference to an officer of a body includes a reference to—
(a) a director, manager or secretary,
(b) a person purporting to act as a director, manager or secretary, and
(c) if the affairs of the body are managed by its members, a member.
(5) Where an offence under section 33A or 33B is committed by a partnership (whether or not a limited partnership) subsection (3) has effect, but as if a reference to an officer of the body were a reference to—
(a) a partner, and
(b) a person purporting to act as a partner.
(6) An offence under section 33A or 33B is to be treated as—
(a) a relevant offence for the purposes of sections 28B and 28D of the Immigration Act 1971 (search, entry and arrest), and
(b) an offence under Part 3 of that Act (criminal proceedings) for the purposes of sections 28E, 28G and 28H of that Act (search after arrest).
(3) In section 35 (transitional provision) after subsection (3) insert—
(4) References in this section to this Chapter do not include sections 33A to 33E (offences and eviction).
(5) Sections 33A to 33C apply in relation to a residential tenancy agreement entered into before or after the coming into force of section 39 of the Immigration Act 2016 (which inserted those sections into this Act).
(6) But sections 33A(10) and (11) and 33B apply only in relation to a contravention of section 22 which occurs after the coming into force of section 39 of the Immigration Act 2016.
(4) In section 36 (Crown application) at the end insert “ or the landlord for the purposes of section 33A. ”
(5) In section 37(4)(a) (provisions in which references to the landlord are to any of them)—
(a) omit the “and” at the end of sub-paragraph (ii), and
(b) at the end of sub-paragraph (iii) insert—
(iv) section 33A,
.
(6) In section 28A of the Immigration Act 1971 (arrest without warrant)—
(a) after subsection (9B) insert—
(9C) An immigration officer may arrest without warrant a person who, or whom the immigration officer has reasonable grounds for suspecting—
(a) has committed or attempted to commit an offence under section 33A or 33B of the Immigration Act 2014 (offences relating to residential tenancies), or
(b) is committing or attempting to commit that offence.
,
(b) in subsection (10) for “and (9B)” substitute “ , (9B) and (9C) ”, and
(c) in subsection (11) for “and (9B)” substitute “ , (9B) and (9C) ”.