Immigration Bill Committee

Written evidence submitted by the Law Society of Scotland (IB 22)

I ntroduction

The Law Society of Scotland (the Society) aims to lead and support a successful and respected Scottish legal profession. Not only do we act in the interest of solicitor members but we also have a clear responsibility to work in the public interest. That is why we actively engage and seek to assist in the legislative and public policy decision making processes.

To help us do this, we use our various Society committees which are made up of solicitors and non-solicitors and ensure we benefit from knowledge and expertise from both within and outwith the solicitor profession.

The Society’s Immigration and Asylum Sub-committee welcomes the opportunity to consider and respond to the UK Parliament Public Bill Committee’s call for evidence on the Immigration Bill. The Sub-committee has the following comments to put forward:

General Comments

We are concerned about a number of provisions in the Bill. In this response we concentrate on those provisions most closely within our area of expertise. Therefore, the following comments are not exhaustive.

While we recognise that its main thrust is directed at reserved matters, the Bill nevertheless contains several provisions which are for devolved purposes. For example, the purposes of the residential tenancies provisions extend beyond immigration control since they affect landlords, tenants and potential tenants who are British citizens. These issues are discussed in detail below. Our view is that when the range of devolved matters engaged by several of the proposals are taken together, the issue of legislative consent is such that consultation, with a view to seeking the legislative consent of the Scottish Parliament should be initiated, as discussed in more detail below.

Part 1 Labour market and illegal working.

Clause 8 Offence of illegal working

Illegal Working Offences

We share the concerns expressed by the Immigration Law Practitioners Association (ILPA) in their briefing for the House of Commons Second Reading of the Bill [1] about the breadth of the offences in Clause 8.

Clause 8(3) amends the 1971 Act by inserting section 24B. This states at 24B(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 a confiscation order)."

This provision, we suggest, may constitute an interference with the Lord Advocate’s discretion to prosecute crime in the public interest. Procurator Fiscal Deputes and Crown Counsel have an inherent professional obligation to consider whether to ask the Court to act under section 92. We welcome clarification on the purpose of imposing a unique consideration for offences under the 1971 Act, which appears to serve no practical purpose.

Clause 9 offence of employing illegal worker

Clause 9(3) appears to empower immigration officers to arrest persons, without a warrant, who are not subject to immigration control, and who may be British citizens, if they have 'reasonable grounds for suspecting' they are committing the offence of employing illegal workers. We are of the view that these powers need to be considered in the context of the proposal in Clause 9(1) to amend section 21 of the Immigration Asylum and Nationality Act 2006 (offence of knowingly employing illegal worker) so that the offence is committed not only when the illegal worker is "knowingly" employed, but also when the person is deemed to have "reasonable cause to believe" that they are employing an illegal worker. We share the concerns about Clause 9 expressed in the Written Evidence on this Bill submitted by ILPA which says:

"The difficulty is that the change proposed will catch not only such persons but other employers who are considered to have been negligent. The fear is that employers will be so afraid of being accused of negligence in this regard that they will be reluctant to employ anyone who does not hold a British passport or whom they regard as not looking, or sounding "British" or having a "British" name" [2] .

Clause 10 Licensing Act 2003: amendments relating to illegal working

We share the concerns of ILPA, [3] that the powers contained in Schedule 1 are exceptionally wide and allow Immigration Officers to search licensed premises without any need for a suspicion that an immigration offence is being committed.

We note that the Bill only applies clause 10 and Schedule 1 to England and Wales, however the Secretary of State is given the power to introduce regulations to extend these sections to Scotland. The Explanatory Note to the Bill states that no legislative consent motion would be required. These provisions would alter the licensing law, which is a devolved matter.

The Sewel Convention provides that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament [4] . It is our view that the effects of the proposals are not incidental to devolved matters and that consultation with a view to seeking the legislative consent of the Scottish Parliament should be initiated. We refer to Annex B in the Explanatory Notes, which state that no legislative consent motion is required. We take the view that as licencing is devolved, we would welcome clarification on this and whether clause 10 and Schedule 1 is a necessary provision.

Part 2 Access to Services

Residential Tenancies

The "residential tenancies provisions" in the Bill extend the right to rent scheme introduced under the Immigration Act 2014. Those provisions require landlords to check immigration status documents and not to rent to people disqualified from renting by their immigration status. The 2014 Act scheme has recently been piloted, prior to being rolled out across the UK in this Bill. As ILPA noted in their Briefing on the Second Reading of this Bill:

"Those who cannot prove that they have lawful leave to be in the UK (some of whom will be British citizens, without passports, or whose passports are regarded by landlords and landladies as possible fakes) will not be able to rent property at all" [5] .

We consider that the residential tenancy provisions have the potential to discriminate and to interfere disproportionately with individual rights.

We believe that this would require a legislative consent motion [6] . The Private Housing (Tenancies) (Scotland) Bill (SP Bill 79) was introduced in the Scottish Parliament on 7 October 2015. [7] Its purpose is to introduce a new type of tenancy for the private rented sector in Scotland. The residential tenancies provisions in this Bill have the potential to affect all those involved in the private rented sector in Scotland, regardless of immigration status, whether as landlords, as tenants or as potential tenants. We consider that the effects of the proposals, through the creation of new offences, and the proposed changes to tenancy agreements, evictions and orders for repossession, are not incidental to reserved matters. In relation to the proposal to empower the Secretary of State to amend or repeal provisions of Acts of the Scottish Parliament, [8] we are concerned that the potential for unlawful discrimination and for human rights breaches have not been fully considered. We consider that consultation with a view to seeking the legislative consent of the Scottish Parliament should be initiated.

Clause 29 and Schedule 5; Immigration Bail

Clause 29 and Schedule 5 make significant changes to the powers of the Home Secretary and the First Tier Tribunal (Immigration and Asylum Chamber) (FTT) in relation to immigration bail.

In its Briefing for the Second Reading of this Bill, Justice expressed its concern that the proposals in Schedule 5 will have a significant effect on the ability of the FTT to provide an effective safeguard again prolonged administrative detention [9] . This committee shares and endorses those concerns.

Part 4 Appeals

Clause 31 appeals within the UK: Certification of human rights claims

The Immigration Act 2014 contained a power to certify the appeals of "foreign criminals" so that other than in cases based on fear of persecution or ill-treatment abroad, the person could be removed before the appeal was determined if to do so would not breach human rights and rights under EU law and would not cause "serious irreversible harm". The proposals in this Bill would extend these measures to include anyone appealing against a human rights decision. Since rights of appeal in the UK are limited to protection and human rights claims, people whose claims are based on Article 8 ECHR will be most affected. Delays currently experienced at the Tribunal could lead families to being separated for many months while they await a hearing. In their briefing for the Second Reading of this Bill, ILPA set out their concerns regarding the proposals in part 4. As they put it:

"The power of one party to a case to send the other party from the jurisdiction so that they cannot appear before the court or tribunal and may struggle to present their case at all is inimical to the notion of equality of arms" [10] .

We share and endorse those concerns.

Part 5 Support for certain categories of migrant: Clause 34 and Schedule 6

Part 5 amends the asylum support regime so that support would only be available to those who claim asylum and to failed asylum seekers who make "further qualifying submissions" or who have an ongoing judicial review. In our response to the Home Office’s August 2015 consultation on asylum support (which gave rise to the provisions in Part 5), we observed that there are already arrangements in place under the Immigration and Asylum Act 1999 section 4 which limit access to support for failed asylum seekers, and we raised concerns about the human rights implications of any change [11] . Our concerns about human rights breaches remain.

Schedule 6 Paragraph 9 repeals the Immigration and Asylum Act 1999 section 4 and inserts a new section 95A empowering the Secretary of State to provide support for destitute failed asylum seekers where there is a genuine obstacle to leaving the UK. The Secretary of State will be able to certify the claims of families with children whose claims for asylum has failed, and who do not have a "genuine obstacle to leaving" (s 95A (3). The term "genuine obstacle" is to be defined in regulations. This support will only be available to those who make a claim for protection, not those whose claims are based on private and family life.

We note that there is no provision in the Bill to provide support for people who have never claimed asylum, even if they cannot be returned to their country of origin. Where their destitution imperils their human rights, which is likely to be the case as they cannot work, they will be the responsibility of local authorities if their support needs are not met under the new provisions in Clause 34 and Schedule 5. In our above mentioned consultation response, we pointed out that the extent to which these proposals were likely to lead to local authorities giving support to destitute families appeared to have been underestimated.

We are of the view that the proposals fail to take into account the extent to which local authorities may continue to provide support within the scope of their powers and responsibilities to promote the welfare of children and families in their area.

Impact on local authorities and devolved administrations

The above mentioned asylum support consultation stated that the UK Government do not intend for the cost of supporting refused asylum seekers and families to fall on local authorities [12] . We note that the reforms, in practice, would have the effect of increasing pressure on local authorities and public services such as mental health services and A and E. It is noted that previous attempts to encourage families to leave the UK, by terminating their asylum support, were not successful and that terminating support will make it more difficult for the Home Office to remain in contact with people liable for removal from the UK. This would also have the effect of undermining efforts to promote voluntary departures; such concerns were raised in the response to the asylum support consultation by the House of Commons Library briefing, as summarised [13] .

We share and endorse the concerns summarised in those responses.

As noted in our above mentioned response to the asylum support consultation, the scope for local authorities in Scotland to provide support to families could include provision under the Children (Scotland) Act 1995, the Social Work (Scotland) Act 1968 and a range of other provisions [14] . The Home Office acknowledged in their asylum support consultation document that the proposals engage issues which are devolved (Geographical scope page 2) [15] . Part 5 and Schedule 6 of this Bill contain provisions which alter housing law, which is devolved: Schedule 6 repeals Immigration and Asylum Act 1999 s 4 (provision of accommodation for failed asylum seekers) and removes reference to s 4 in (inter alia) the Rent (Scotland) Act 1984 s 23A (5A) and paragraph 11B of Schedule 4 to the Housing (Scotland) Act 1998. In isolation, these amendments may be regarded as consequential to immigration, which is a reserved matter. But when these alterations to housing law are taken together with the abovementioned provisions affecting the exercise of local authority functions, health functions, child protection and welfare functions, and social work functions, our view is that these provisions on devolved matters are not incidental to a reserved matter, and consultation with a view to seeking the legislative consent of the Scottish Parliament should be initiated [16] .

Part 8

Clause 46 Immigration skills charge

The Bill proposes an Immigration Skills Charge which will apply to employers sponsoring skilled workers from outside the European Economic Area. It noted that the proceeds of these funds are likely to be used to fund apprenticeships; however, the businesses subject to the charge are still to be defined.

Scottish Government figures show that as of March 2014, 332,720 Small and Medium Sized Enterprises (SMEs) were operating in Scotland, this is 99.3% of all private businesses in Scotland [17] . Given the large number of SMEs in Scotland we are concerned that any skills levy would place a further burden on businesses. Businesses are already required to pay in order to obtain a sponsor licence and then pay an additional fee to sponsor an individual. Due to the difficulties in persuading skilled staff to move to Scotland rather than England many companies are also meeting the cost of visa applications and the Immigration Health Surcharge. A skills levy would be a further burden on SMEs.

October 2015


[1] ILPA briefing for House of Commons Second Reading of the Immigration Bill 2015, 13 October 2015.

[1]

[2] Written Evidence Submitted by ILPA IB08 http://www.publications.parliament.uk/pa/cm201516/cmpublic/immigration/memo/ib08.htm

[3] ILPA briefing for House of Commons Second Reading of the Immigration Bill 2015, 13 October 2015.

[4] Devolution Guidance note 10 and Scotland Bill Clause 2.

[5] ILPA briefing for House of Commons Second Reading of the Immigration Bill 2015, 13 October 2015.

[6] Devolution Guidance Note DGN 10 November 2005.

[7] http://www.scottish.parliament.uk/S4_Bills/Private%20Housing%20(Tenancies)%20(Scotland)%20Bill/SPBill79ENS042015.pdf

[8] The provisions of Acts of the Scottish Parliament are "not law" if they are incompatible with Convention Rights Scotland Act 1998 s29(2).

[9] Justice, Immigration Bill 2015-16, Briefing for House of Commons Second Reading, October 2015.

[10] ILPA briefing for House of Commons Second Reading of the Immigration Bill 2015, 13 October 2015.

[11] The Law Society of Scotland Consultation Response: Home Office Consultation: reforming support for failed asylum seekers and other illegal migrants" September 2015.

[12] Home Office Reforming support for failed asylum seekers and other illegal migrants August 2015. See also House Of Commons Library Briefing Paper Immigration Bill (Number 07304, 6 October 2015)

[13] House Of Commons Library Briefing Paper Immigration Bill (Number 07304, 6 October 2015)

[14] The Law Society of Scotland Consultation Response: Home Office Consultation: reforming support for failed asylum seekers and other illegal migrants" September 2015.

[15] Home Office Reforming support for failed asylum seekers and other illegal migrants August 2015

[16] Devolution Guidance Note DGN 10

[17] http://www.gov.scot/Topics/Statistics/Browse/Business/Corporate/KeyFacts.

Prepared 29th October 2015