A 'Hostile Environment' - Are the Tides Turning For the Windrush Generation?
Recent headlines have highlighted the impact government policies are having on many lawfully present, long-term UK residents.
These policies, collectively known as the 'hostile environment', are aimed at denying services to irregular migrants, but a side effect of these policies is that anyone unable to produce prescribed documents as evidence of their nationality or immigration status may be affected by them.
Background
Prior to the Commonwealth Immigrants Acts of 1962 and 1968, citizens of countries throughout the Commonwealth were permitted to come to the UK with very little restriction. Commonwealth citizens from the West Indies emigrating to the UK during the post-war years have been dubbed the 'Windrush generation', after HMT Empire Windrush, the ship which brought the first group of post-war West Indian immigrants to the UK in 1948. The Immigration Act 1971 preserved the position of most Commonwealth citizens who had already arrived in the UK and settled here before that legislation came into force on 1 January 1973.
The Issue
The Home Office did not routinely issue any paperwork confirming the status of those Commonwealth citizens automatically granted status in 1973, meaning that in cases where the individual has not had any cause to apply for formal evidence of that status since it has become difficult to prove more than 40 years later that they are in the UK legally. Many other groups of long-term residents are also likely to be affected, such as some children of the Windrush generation who travelled on a parent's passport or other non-British citizens who entered at a young age and have never travelled outside the UK since.
Under the government's policy of creating a 'hostile environment' for unlawful migrants, immigration checks must be conducted on anyone wishing to work, rent property, open and maintain a bank account, access secondary healthcare through the NHS or marry in the UK. In the main, these checks are not conducted by the Home Office, but by the service provider themselves. Employers will be all-too-familiar with the system of 'outsourced' immigration checks, having been required to conduct 'right to work' checks on employees and prospective employees since 1997. The severity of the penalties which can be imposed where services are provided to someone who does not have the correct immigration permission means that many service providers will err on the side of caution if the person in question cannot produce standard documents.
Best Practice
The Home Office's guidance for employers on conducting right to work checks now refers employers and their employees and prospective employees to a Home Office team which has been hastily assembled to try to assist people in this situation. However, the list of documents which employers must see when conducting these checks remains unchanged. Additionally, immigration lawyers have expressed concerns about the Home Office's suggestion that undocumented persons contact the Home Office instead of seeking independent legal advice.
Employers will be aware of the potential for fines of up to £20,000 for each employee taken on who does not have the required permission to work in the UK and where the correct right to work checks have not been undertaken. It is therefore unsurprising that many employers will exercise caution when reviewing evidence of right to work documents produced by employees and prospective employees.
As we previously reported following the Employment Appeal Tribunal's decision in Baker v Abellio London, employers should ensure that they always carry out the correct right to work checks before employment commences. Where immigration issues are uncovered after employment has commenced in relation to an employee for whom the employer does not already have appropriate evidence of the employee's right to work, the employer should always follow a fair procedure, meet with the employee, understand the immigration issues, discuss the immigration concerns and look at what alternative evidence might be available before deciding to dismiss.
In addition to advising employers on how to conduct right to work checks, VWV's Immigration team has extensive experience of the full range of UK immigration and nationality matters, so can advise on the status of people who are having difficulty producing appropriate documentation.