I am an immigration solicitor and read with interest the October press release with Christina Blacklaws highlighting procedural and cultural problems at the UK Home Office.
It was a timely piece given Amber Rudd's subsequent comments that she had felt "let down" by Home Office officials who had "definitely intended to embarrass" her. Abuse of process within the department it seems is hitting even those right at the top.
From my own caseload, I can certainly attest that all is not well at the Home Office, and it's not only impacting those individuals applying for visas or claiming asylum. UK employers are also bearing the brunt of a cultural deterioration and abuse of process within immigration enforcement. Systematic Home Office procedural errors are undermining the impact and credibility of immigration enforcement.
What is going wrong?
As the government department responsible for immigration, security, law and order, it is of course only right and proper that the Home Office, in the course of fulfilling its duties, is afforded powers of enforcement.
Looking specifically at the prevention of illegal working, immigration enforcement officials are charged with identifying, investigating and penalising employers who are found to be employing workers illegally and who are in breach of their immigration compliance duties.
In doing so, officials must, however, act in accordance with the legislative powers – and this is where we are seeing a worrying trend in abuse of power and failed procedure.
Before Home Office officials can attend an employer's premises to carry out an immigration inspection ('raid'), they must first secure the required legal permission, i.e. a valid warrant under the Immigration Act, for search and entry for the purposes of detaining illegal immigrants. They must also procure the documentation to evidence this permission.
However, we have seen several recent instances of Home Office officials using warrants secured under the Licensing Act and the Police and Criminal Evidence Act 1984 (PACE) for the purposes of immigration enforcement. This is unlawful. It is an abuse of legislative powers, critically undermining their credibility and performance, and subjecting employers to unlawful penalties.
In one of our latest cases, following an immigration raid at a business' premises, we established on subsequent investigation that section 179 of the Licensing Act had been used by officials to enter the premises and to conduct an immigration raid. The requirements to use this statutory power had not been satisfied and we lodged an objection on behalf of our client. The response from the Home Office was a 'No Action Notice' – as in so many other cases - with no grounds given detailing why the case (and the fine) had been dropped.
The effect on this particular client was significant; they were threatened with eviction, their premises' licence was suspended and their reputation took a hit – despite the fine ultimately having been cancelled.
In a different matter, we submitted that Home Office officials had acted in a racist and discriminatory manner during an immigration raid, unlawfully arresting one employee and privately interviewing another employee, who had made clear their English language proficiency was poor, without an interpreter. In response, the Home Office cancelled the fine in full and made a 60% contribution towards costs.
The lack of transparency and accountability in exercising powers is disconcerting. It shows a waste of time, effort and – as we are so often reminded – limited and overstretched Home Office resources.
Fundamentally, it is hypocritical to penalise employers for not having the right paperwork for migrant personnel record keeping (under the Right to Work record keeping duties), when they themselves do not have the correct paperwork in place.
Can order be resumed?
I'm not convinced this will get any better any time soon. The messages coming out of the Home Office don't inspire much optimism.
The Home Office has a lot on its plate with immigration policy: post-Brexit reform of the UK immigration rules; piloting and roll out of the EU settlement scheme; and the phased introduction of a new (albeit outsourced) visa processing system. But being too busy is not an excuse the Home Office would ever accept from a business that had breached its immigration compliance duties.
Where enforcement officials err in the exercise of their duties, they are critically undermining the impact of those efforts and the integrity of the department's purpose. But any scenario where those on the ground exercising powers are so far removed from the actual position in law cannot be allowed to persist.
Home Office operations should be rooted in certainty, with confidence that processes will be followed and that where there are internal failings, there is accountability. At present, this feels like a dim and distant prospect given the realities we are currently seeing in practice.
Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society.
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