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Immigration Bill (HL Bill 96)

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(a) committing a further trigger offence under the relevant enactment, or

(b) continuing to commit the trigger offence.

(6) An LME undertaking must set out how each measure included for the purpose
mentioned in subsection (2)(a) is expected to achieve that purpose.

(7) 5In this section, the “relevant enactment” means the enactment under which the
enforcing authority believes the trigger offence concerned has been or is being
committed.

14 Duration

(1) An LME undertaking has effect from when it is accepted by the enforcing
10authority or from the later time specified in it for this purpose.

(2) An LME undertaking has effect for the period specified in it but the maximum
period for which an undertaking may have effect is 2 years.

(3) The enforcing authority may release the subject from an LME undertaking.

(4) The enforcing authority must release the subject from an LME undertaking if
15at any time during the period for which it has effect the authority believes that
no measure in it is necessary for the purpose mentioned in section 13(5).

(5) If the enforcing authority releases the subject from an LME undertaking it must
take such steps as it considers appropriate to bring that fact to the attention
of—

(a) 20the subject;

(b) any other persons likely to be interested in the matter.

15 Further provision about giving notice under section 12

(1) A notice may be given under section 12 to a person by—

(a) delivering it to the person,

(b) 25leaving it at the person’s proper address,

(c) sending it by post to the person at that address, or

(d) subject to subsection (6), sending it to the person by electronic means.

(2) A notice to a body corporate may be given to any officer of that body.

(3) A notice to a partnership may be given to any partner.

(4) 30A notice to an unincorporated association (other than a partnership) may be
given to any member of the governing body of the association.

(5) For the purposes of this section and of section 7 of the Interpretation Act 1978
(service of documents by post) in its application to this section, the proper
address of a person is the person’s last known address (whether of the person’s
35residence or of a place where the person carries on business or is employed)
and also—

(a) in the case of a body corporate or an officer of the body, the address of
the body’s registered or principal office in the United Kingdom;

(b) in the case of a partnership or a partner, the address of the principal
40office of the partnership in the United Kingdom;

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(c) in the case of an unincorporated association (other than a partnership)
or a member of its governing body, the principal office of the
association in the United Kingdom.

(6) A notice may be sent to a person by electronic means only if—

(a) 5the person has indicated that notices under section 12 may be given to
the person by being sent to an electronic address and in an electronic
form specified for that purpose, and

(b) the notice is sent to that address in that form.

(7) A notice sent to a person by electronic means is, unless the contrary is proved,
10to be treated as having been given on the working day immediately following
the day on which it was sent.

(8) In this section—

  • “electronic address” means any number or address used for the purposes
    of sending or receiving documents or information by electronic means;

  • 15“officer”, in relation to a body corporate, means a director, manager,
    secretary or other similar officer of the body;

  • “working day” means a day other than a Saturday, a Sunday, Christmas
    Day, Good Friday or a bank holiday under the Banking and Financial
    Dealings Act 1971 in any part of the United Kingdom.

20Labour market enforcement orders

16 Power to make LME order on application

(1) The appropriate court may, on an application by an enforcing authority under
section 17, make a labour market enforcement order against a person if the
court—

(a) 25is satisfied, on the balance of probabilities, that the person has
committed, or is committing, a trigger offence, and

(b) considers that it is just and reasonable to make the order.

(2) A labour market enforcement order (an “LME order”) is an order which—

(a) prohibits or restricts the person against whom it is made (“the
30respondent”) from doing anything set out in the order;

(b) requires the respondent to do anything set out in the order.

See section 19.

(3) In this section “the appropriate court”—

(a) where the conduct constituting the trigger offence took or is taking
35place primarily in England and Wales, means a magistrates’ court;

(b) where that conduct took or is taking place primarily in Scotland, means
the sheriff;

(c) where that conduct took or is taking place primarily in Northern
Ireland, means a court of summary jurisdiction.

(4) 40An application for an LME order under this section is—

(a) in England and Wales, to be made by complaint;

(b) in Northern Ireland, to be made by complaint under Part 8 of the
Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I.
26)).

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17 Applications

(1) An enforcing authority may apply for an LME order to be made under section
16 against a person (the “proposed respondent”) if—

(a) the authority has served a notice on the proposed respondent under
5section 12, and

(b) the proposed respondent—

(i) refuses to give an LME undertaking, or

(ii) otherwise fails, before the end of the negotiation period, to give
an LME undertaking in the form attached to the notice or in
10such other form as may be agreed with the enforcing authority.

(2) An enforcing authority may also apply for an LME order if the proposed
respondent—

(a) has given an LME undertaking to the enforcing authority, and

(b) has failed to comply with the undertaking.

(3) 15In subsection (1) “the negotiation period” means—

(a) the period of 14 days beginning with the day after that on which the
notice mentioned in paragraph (a) of that subsection was given, or

(b) such longer period as may be agreed between the enforcing authority
and the proposed respondent.

18 20Power to make LME order on conviction

(1) This section applies where a court deals with a person in respect of a conviction
for a trigger offence.

(2) The court may make an LME order against the person if the court considers it
is just and reasonable to do so.

(3) 25An LME order must not be made under this section except—

(a) in addition to a sentence imposed in respect of the offence concerned, or

(b) in addition to an order discharging the person conditionally or, in
Scotland, discharging the person absolutely.

19 Measures in LME orders

(1) 30An LME order may include a prohibition, restriction or requirement (each a
“measure”) if, and only if, the measure falls within subsection (2) or (3) (or
both).

(2) A measure falls within this subsection if it is for the purpose of—

(a) preventing or reducing the risk of the respondent not complying with
35any requirement imposed by or under the relevant enactment, or

(b) bringing to the attention of persons likely to be interested in the
matter—

(i) the existence of the LME order,

(ii) the circumstances in which it was made, and

(iii) 40any action taken (or not taken) by the respondent in order to
comply with the order.

(3) A measure falls within this subsection if it is prescribed, or is of a description
prescribed, in regulations made by the Secretary of State.

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(4) Where an LME order includes a measure for the purpose mentioned in
subsection (2)(a), the order must set out how the measure is expected to
achieve that purpose.

(5) In this section the “relevant enactment” means the enactment under which the
5trigger offence concerned has been or is being committed.

20 Further provision about LME orders

(1) An LME order has effect for the period specified in it but the maximum period
for which an order may have effect is 2 years.

(2) An LME order may not be made against an individual who is under 18.

(3) 10If a court makes an LME order, the court may also—

(a) release the respondent from any LME undertaking given in relation to
the trigger offence concerned;

(b) discharge any other LME order which is in force against the
respondent.

21 15Variation and discharge

(1) The appropriate court may by order vary or discharge an LME order—

(a) on the application of the respondent;

(b) if the order was made under section 16, on the application of the
enforcing authority who applied for the order;

(c) 20if the order was made under section 18, on the application of the
enforcing authority whose officer conducted the investigation which
resulted in the prosecution of the respondent for the trigger offence.

(2) In this section “the appropriate court”—

(a) in relation to an LME order made on an application under section 16,
25means the court that made the order;

(b) in relation to an order under section 18 made in England and Wales,
means a magistrates’ court;

(c) in relation to such an order made in Scotland, means the sheriff;

(d) in relation to such an order made in Northern Ireland, means a court of
30summary jurisdiction.

(3) An application for an order under this section is—

(a) if made to a magistrates’ court in England and Wales, to be made by
complaint;

(b) if made to a court of summary jurisdiction in Northern Ireland, to be
35made by complaint under Part 8 of the Magistrates’ Courts (Northern
Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)).

22 Appeals

(1) A respondent may appeal against—

(a) the making of an LME order on an application under section 16;

(b) 40the making of, or refusal to make, an order under section 21.

(2) An appeal under subsection (1) is to be made—

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(a) where the order was made or refused by a magistrates’ court in
England and Wales, to the Crown Court;

(b) where the order was made or refused by the sheriff, to the Sheriff
Appeal Court;

(c) 5where the order was made or refused by a court of summary
jurisdiction in Northern Ireland, to a county court.

(3) On an appeal under subsection (1) the court hearing the appeal may make such
orders as may be necessary to give effect to its determination of the appeal, and
may also make such incidental or consequential orders as appear to it to be just
10and reasonable.

(4) An LME order that has been varied by virtue of subsection (3) remains an order
of the court that first made it for the purposes of section 21.

(5) A respondent may appeal against the making of an LME order under section
18 as if the order were a sentence passed on the respondent for the trigger
15offence.

LME undertakings and orders: supplementary

23 Code of practice

(1) The Secretary of State must issue a code of practice giving guidance to
enforcing authorities about the exercise of their functions under sections 12 to
2021.

(2) The Secretary of State may revise the code from time to time.

(3) The Secretary of State must lay before Parliament, and publish, the code and
any revised code.

(4) An enforcing authority must have regard to the current version of the code in
25exercising its functions under sections 12 to 21.

24 Investigative functions

(1) An officer acting for the purposes of the Employment Agencies Act 1973—

(a) may also act for the purposes of taking action where it appears that a
person has failed to comply with an LME undertaking or an LME order
30where the trigger offence to which the undertaking or order relates is
an offence under that Act, and

(b) in doing so, has the same powers and duties as he or she has when
acting for the purposes of that Act.

(2) An officer acting for the purposes of the National Minimum Wage Act 1998—

(a) 35may also act for the purposes of taking action where it appears that a
person has failed to comply with an LME undertaking or an LME order
where the trigger offence to which the undertaking or order relates is
an offence under that Act, and

(b) in doing so, has the same powers and duties as he or she has when
40acting for the purposes of that Act.

(3) An officer acting as an enforcement officer for the purposes of the Gangmasters
(Licensing) Act 2004—

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(a) may also act for the purposes of taking action where it appears that a
person has failed to comply with an LME undertaking or an LME order
where the trigger offence to which the undertaking or order relates is
an offence under that Act, and

(b) 5in doing so, has the same powers and duties as he or she has when
acting as an enforcement officer for the purposes of that Act.

(4) In this section references to the Gangmasters (Licensing) Act 2004 are
references to that Act only so far as it applies in relation to England and Wales
and Scotland.

25 10Offence

(1) A person against whom an LME order is made commits an offence if the
person, without reasonable excuse, fails to comply with the order.

(2) A person guilty of an offence under this section is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding
152 years, to a fine or to both;

(b) on summary conviction in England and Wales, to imprisonment for a
term not exceeding 12 months, to a fine or to both;

(c) on summary conviction in Scotland, to imprisonment for a term not
exceeding 12 months, to a fine not exceeding the statutory maximum or
20to both;

(d) on summary conviction in Northern Ireland, to imprisonment for a
term not exceeding 6 months, to a fine not exceeding the statutory
maximum or to both.

(3) In relation to an offence committed before the commencement of section 154(1)
25of the Criminal Justice Act 2003, the reference in subsection (2)(b) to 12 months
is to be read as a reference to 6 months.

26 Offences by bodies corporate

(1) If an offence under section 25 committed by a body corporate is proved—

(a) to have been committed with the consent or connivance of an officer of
30the body, or

(b) to be attributable to any neglect on the part of such an officer,

the officer, as well as the body corporate, is guilty of the offence and liable to
be proceeded against and punished accordingly.

(2) In subsection (1) “officer”, in relation to a body corporate, means—

(a) 35a director, manager, secretary or other similar officer of the body;

(b) a person purporting to act in any such capacity.

(3) If the affairs of a body corporate are managed by its members, subsection (1)
applies in relation to the acts and defaults of a member in connection with the
member’s functions of management as if the member were a director of the
40body corporate.

27 Application to unincorporated associations

(1) In a case falling within subsection (2), an unincorporated association is to be
treated as a legal person for the purposes of sections 12 to 25.

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(2) A case falls within this subsection if it relates to a trigger offence for which it is
possible to bring proceedings against an unincorporated association in the
name of the association.

(3) Proceedings for an offence under section 25 alleged to have been committed by
5an unincorporated association may be brought against the association in the
name of the association.

(4) For the purposes of such proceedings—

(a) rules of court relating to the service of documents have effect as if the
association were a body corporate, and

(b) 10the following provisions apply as they apply in relation to a body
corporate—

(i) section 33 of the Criminal Justice Act 1925 and Schedule 3 to the
Magistrates’ Courts Act 1980;

(ii) sections 70 and 143 of the Criminal Procedure (Scotland) Act
151995;

(iii) section 18 of the Criminal Justice Act (Northern Ireland) 1945 (c.
15 (N.I.)) and Schedule 4 to the Magistrates’ Courts (Northern
Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)).

(5) A fine imposed on the association on its conviction of an offence is to be paid
20out of the funds of the association.

(6) If an offence under section 25 committed by an unincorporated association is
proved—

(a) to have been committed with the consent or connivance of an officer of
the association, or

(b) 25to be attributable to any neglect on the part of such an officer,

the officer, as well as the association, is guilty of the offence and liable to be
proceeded against and punished accordingly.

(7) In subsection (6) “officer”, in relation to any association, means—

(a) an officer of the association or a member of its governing body;

(b) 30a person purporting to act in such a capacity.

28 Application to partnerships

(1) If an offence under section 25 committed by a partner of a partnership which
is not regarded as a legal person is shown—

(a) to have been committed with the consent or connivance of another
35partner, or

(b) to be attributable to any neglect on the part of another partner,

that other partner, as well as the first-mentioned partner, is guilty of the offence
and liable to be proceeded against and punished accordingly.

(2) Proceedings for an offence under section 25 alleged to have been committed by
40a partnership which is regarded as a legal person may be brought against the
partnership in the firm name.

(3) For the purposes of such proceedings—

(a) rules of court relating to the service of documents have effect as if the
partnership were a body corporate, and

(b) 45the following provisions apply as they apply in relation to a body
corporate—

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(i) section 33 of the Criminal Justice Act 1925 and Schedule 3 to the
Magistrates’ Courts Act 1980;

(ii) sections 70 and 143 of the Criminal Procedure (Scotland) Act
1995;

(iii) 5section 18 of the Criminal Justice Act (Northern Ireland) 1945 (c.
15 (N.I.)) and Schedule 4 to the Magistrates’ Courts (Northern
Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)).

(4) A fine imposed on a partnership on its conviction of an offence is to be paid out
of the funds of the partnership.

(5) 10If an offence under section 25 committed by a partnership is proved—

(a) to have been committed with the consent or connivance of a partner, or

(b) to be attributable to any neglect on the part of a partner,

the partner, as well as the partnership, is guilty of the offence and liable to be
proceeded against and punished accordingly.

(6) 15In subsections (1) and (5) “partner” includes a person purporting to act as a
partner.

(7) For the purposes of this section a partnership is, or is not, “regarded as a legal
person” if it is, or is not, so regarded under the law of the country or territory
under which it was formed.

20Supplementary provision

29 Consequential and related amendments

Schedule 2 (consequential and related amendments) has effect.

30 Regulations under Chapter 1

(1) The Secretary of State must obtain the consent of the Scottish Ministers before
25making—

(a) regulations under section 3 or 12 which prescribe a requirement,
function or offence in a case where provision imposing the
requirement, conferring the function or creating the offence would be
within the legislative competence of the Scottish Parliament if
30contained in an Act of that Parliament, and

(b) regulations under section 9 which confer a function in a case where
provision conferring the function would be within the legislative
competence of that Parliament if contained in an Act of that Parliament.

(2) The Secretary of State must obtain the consent of the Welsh Ministers before
35making—

(a) regulations under section 3 or 12 which prescribe a requirement,
function or offence in a case where provision imposing the
requirement, conferring the function or creating the offence would be
within the legislative competence of the National Assembly for Wales
40if contained in an Act of that Assembly, and

(b) regulations under section 9 which confer a function in a case where
provision conferring the function would be within the legislative
competence of that Assembly if contained in an Act of that Assembly.

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(3) The Secretary of State must obtain the consent of the Office of the First Minister
and deputy First Minister before making—

(a) regulations under section 3 or 12 which prescribe a requirement,
function or offence in a case where provision imposing the
5requirement, conferring the function or creating the offence would be
within the legislative competence of the Northern Ireland Assembly if
contained in an Act of that Assembly made without the consent of the
Secretary of State, and

(b) regulations under section 9 which confer a function in a case where
10provision conferring the function would be within the legislative
competence of that Assembly if contained in an Act of that Assembly
made without the consent of the Secretary of State.

(4) Regulations under section 3, 9 or 12 may make such provision amending,
repealing or revoking any provision of any enactment, including this Chapter,
15as the Secretary of State considers appropriate in consequence of the
regulations.

31 Interpretation of Chapter 1

In this Chapter—

  • “enactment” includes—

    (a)

    20an 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, a
    25Measure or Act of the National Assembly for Wales;

    (d)

    an enactment contained in, or in an instrument made under,
    Northern Ireland legislation;

  • “enforcing authority” has the meaning given by section 12;

  • “financial year” means a period of 12 months ending with 31 March;

  • 30“labour market enforcement functions” has the meaning given by section
    3;

  • “LME order” has the meaning given by section 16;

  • “LME undertaking” has the meaning given by section 12;

  • “non-compliance in the labour market” has the meaning given by section
    353;

  • “respondent” has the meaning given by section 16;

  • “subject” has the meaning given by section 12;

  • “trigger offence” has the meaning given by section 12.

CHAPTER 2 40Illegal working

Offences

32 Offence of illegal working

(1) The Immigration Act 1971 is amended as follows.

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(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—

24B 5Illegal working

(1) A person who is subject to immigration control commits an offence if
the person works at a time when—

(a) the person has not been granted leave to enter or remain in the
United Kingdom, or

(b) 10the 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) 15is subject to a condition preventing the person from
doing work of that kind.

(2) 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
20exceeding 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.

(3) In relation to an offence committed before section 281(5) of the Criminal
25Justice Act 2003 comes into force, the reference in subsection (2)(a) to 51
weeks is to be read as a reference to 6 months.

(4) 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
30of Crime Act 2002 (committal with view to confiscation order being
considered).

(5) 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
35order).

(6) 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
40being considered).

(7) 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.

(8) Where a person is on immigration bail within the meaning of Part 1 of
45Schedule 9 to the Immigration Act 2016—