BANKS TO BE REQUIRED TO CARRY OUT 70 MILLION IMMIGRATION CHECKS EVERY QUARTER ON CURRENT ACCOUNTS

From 1st January 2018 banks and building societies will be required to carry out can estimated 70 million checks every quarter on current accounts.

Under the Immigration Act 2014, banks and building societies are required to carry out checks when opening current accounts in order to identify disqualified persons. A “disqualified person” is defined as “a person who is in the United Kingdom, who requires leave to enter or remain in the United Kingdom but does not have it, and for whom the Secretary of State considers that a current account should not be provided by a bank or building society.”

As well as current accounts for individuals, this also includes where an individual is a signatory, or beneficiary, or adding an individual to an existing account as an account holder, signatory or beneficiary.

As part of the government’s plan to tackle illegal immigrants in the UK, the government will be implementing Schedule 7 of The Immigration Act, which is the “requirement to carry out immigration checks in relation to current accounts.”

To ascertain whether an individual is a “disqualified person,” banks and building societies will be required to check data they hold in relation to the individuals, i.e. name, date of birth, address, against a database supplied by the Home Office and held by an anti-fraud agency (CIFAS), which is in relation to foreign nationals who the Home Office believe are in the UK illegally, and who they deem to be liable for removal from the UK.

If the Secretary of State determines that the individual is a “disqualified person,” they may apply for a freezing order in respect of one or more of the accounts held with the bank or building society that are operated by or for the “disqualified person.” Whilst the bank or building society is awaiting confirmation by the Home Office the current account will remain open. It is also unlikely that the individual will be informed that they have been flagged as a potential “disqualified person.” The freezing order may be made without notice and the Home Office may make exceptions to the order by making provisions to allow the “disqualified person” access to funds to meet their reasonable living costs and legal fees.

There are concerns that the above could result in errors being made and individuals who are legally in the UK having their accounts frozen in error. It also has the potential for the Home Office to use the information to pursue enforcement measures against the individuals identified as being a “disqualified person.” In either case these could result in a lengthy process to get resolved.

Court of Appeal: private religious belief does not risk persecution

The difficulty of presenting asylum claims based on religion is well known. Such claims raise difficult evidential problems, which are addressed in this detailed post by Colin Yeo.

But AS (Iran) v Secretary of State for the Home Department [2017] EWCA Civ 1539 seems to pose a novel difficulty: should a claim by a person who would exercise their religion in utter privacy be accepted?

Factual background and First-tier Tribunal decision

The appellant is an Iranian national. She had made a previous asylum claim in the UK on the basis of her political activities, but was refused and removed to Iran in 2009. In 2012, she returned and shortly afterwards made a fresh claim for asylum based on:

Her political activities in the UK since her return
Her illegal exit from Iran
Her conversion to Christianity
The risk of domestic violence from her husband who the appellant claims is a member of the Iranian intelligence service.
The First-tier Tribunal – after being told to rehear the case by the Upper Tribunal – rejected her claim.

Grounds of appeal in the Court of Appeal

The grounds advanced before the Court of Appeal were that the tribunal failed to give adequate reasons for its conclusion that the appellant:

as a victim of domestic violence in Iran, was incapable of being a “member of a particular social group” under the Refugee Convention 1951.
did not demonstrate well-founded fear of persecution on grounds of religion (Christianity).
did not demonstrate well-founded fear of persecution on grounds of her illegal exit from Iran.
The dismissal of the first and third grounds turned largely on the facts and need not be explained here. The second ground may transpire to be more contentious, and so merits a closer look.

Well-grounded fear of persecution as a Christian convert

AS had converted to Christianity in 2003, and had therefore spent years in Iran as a Christian. The appellant’s faith was private:

She regarded her religion as a personal matter and indeed seems to have sought no public expression of her Christianity.

It was common ground that the mere fact of practising Christianity in Iran is not sufficient to make out a claim. This is because if Christians do not proselytise they are taken to be not subject to persecution. Those seeking to test this assumption may find useful this March 2015 report by two All-Party Parliamentary Groups.

However, the appellant was not born a Christian, but converted. Therefore she submitted that as her history as a convert is an intrinsic part of her religious identity, she must not be constrained to conceal it through fear.

The Court of Appeal recalled Article 18 of the UN International Covenant on Civil and Political Rights 1966 on this point:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

The court accepted the Secretary of State’s reply that the route to acquiring belief does not form part of that identity. Therefore, as the fact of conversion is not part of her religion belief, and the appellant is not precluded from practising the religion to which she has converted, she has no claim to refugee status.

The Secretary of State also emphasised that the appellant regarded her religion as a private matter, and would not seek to proselytise. Therefore the appellant fell without Lord Dyson’s example in HJ (Iran) [2011] 1 AC 596 of a person who must conceal their identity in order to remain safe.

Concealment vs privacy

On its face, the issue of ‘private religion’ sits uneasily with HJ (Iran).

This is because a religious life lived privately is different to a religious life concealed. AS is not ‘concealing’ anything. Rather, her identity as a Christian convert is exercised privately, which would seem to bring it within the scope of Article 18 of the 1966 Convention. Whereas Article 18 seems to cover quite accurately AS’s religious behaviour, the judgment applies a case on the quite different phenomenon of ‘concealment’.

On a related note, the assumption that a history of ‘silence’, whether by concealment or privacy, is a reliable indicator of future safety has been called into question by appellants in the context of LGBT asylum claims.

But the problem remains that AS was found to have exercised her private religion without persecution. Her status as a converted Christian was not one about which other people would be made aware.

In fact, despite the apparent distinction between privacy and concealment described above, it may also be arguable that each should be treated alike in the context of the Refugee Convention.

If the point of the Refugee Convention is to offer protection from persecution, then it should not be used where there is no persecution. While it is offensive in principle to expect a person to conceal a part of their identity in order to remain safe, concealing an aspect of one’s identity for reasons other than persecution is permissible because there is no persecution to protect against. The same is arguably true of those who exercise and have always exercised their religion in complete privacy.

However, this case appears to raise novel issues about the private exercise of religion. These are not readily answered by HJ (Iran), which dealt with concealment of identity. In light of this distinction, a revisiting by the Supreme Court of the issue may be constructive.

Employers should check that “workers” – not just “employees” – have a right to work in the UK

As further control on illegal working in the UK, last month the Home Office has published latest guidance on right to work checks

For the first time, the Home Office recommends employers should check workers – not just employees – have a right to work in the UK. Its new guidance also provides welcome clarification of other immigration rules and guidance for employers. We have summarised the main changes below, together with our recommendations on what businesses should do now.

The Home Office recommends that employers should check that “workers” – not just “employees” – have a right to work (RTW) in the UK

Previous Home Office FAQs, published in May 2015, said employers were not under a duty to check individuals hired as contractors or subcontractors, although it was open to businesses to do so. The new guidance states that there are “compelling reasons“ why businesses should now check that contractors conduct the correct RTW checks on the people that they employ: risk of reputational damage, disruption to operations, and the impact on health and safety and safeguarding obligations.

It even recommends that employers may also wish to use the guidance to perform RTW checks on those who are genuinely self-employed. Although not stated in the guidance, we anticipate that the Home Office may expect businesses with Tier 2 sponsor licences to abide by this new guidance and assess wider RTW compliance in routine sponsor audits.

This is a subtle shift in emphasis since the previous guidance, and paves the way for a future expansion of the RTW regime to compel businesses, including gig economy and platforms reliant on non-employed labour, to perform checks on workers as well as employees.

Recommendations – check the terms of commercial agreements with third party contractors, (especially those sending workers to your site) to verify that the contractor has carried out RTW checks correctly, and that you have a right to terminate the contract if this has not been done. If your business is hiring self-employed contractors directly, we recommend carrying out RTW checks in the same way that you would when hiring new employees.

Confirmation of additional documentation employers may accept from non-EEA nationals evidencing their status as a family member of EEA national

Non-EEA nationals who are the family members of an EEA national exercising a treaty right in the UK have a right to work in the UK under the EU’s Free Movement Directive, implemented into UK law by the Immigration (European Economic Area) Regulations 2016. Recognising that EEA nationals are not required to obtain formal evidence of their right to work in the UK (such as a visa), the Home Office has listed documents which employers may request from non-EEA nationals relying on their relationship with an EEA national as evidence of their ability to work in the UK. However, relying on this additional documentation will not provide employers with a statutory excuse against a civil penalty for illegal employment if it is later found that the non-EEA national does not have the right to work in the UK.

Recommendation – businesses should remain cautious when conducting RTW checks for these employees and continue to only accept documents as listed on the Home Office RTW checklist, which is available here.

Clarification regarding permission to work if there is a delay in a non-EEA national collecting their Biometric Residence Permit (BRP) card

Most non-EEA work visa applicants, including those using Tier 2 and the Tier 5 Youth Mobility routes, are now issued with a temporary 30 day vignette in their passport to enable them to travel to the UK and collect their BRP card (which confirms their visa conditions, including a visa expiry date). An employer is permitted to rely on the 30 day vignette when conducting the employee’s first RTW check and must repeat the check once the employee has collected their BRP card (the repeat check must be undertaken before the expiry date of the 30 day vignette).

The Home Office has confirmed that if the migrant does not collect their BRP card before the expiry date of the 30 day vignette, the employer may allow the migrant to continue working in the UK if the employer “believes the employee continues to have the right to work in the UK”. If it transpires that the employee does not have permission to work in the UK, the employer could be liable for a civil penalty for illegal employment.

Recommendation – Employers who sponsor non-EEA nationals under Tier 2 and so have a greater involvement in the visa process may feel more comfortable allowing a migrant to continue to work after the expiry date of the 30 day vignette if there is a delay with the BRP card being issued. We would not recommend that employers adopt this practice for migrants holding non-sponsored visas (e.g. Tier 5 Youth Mobility).

Additional penalties introduced by the Immigration Act 2016

Further information is provided regarding the Home Office Compliance Teams’ ability to issue closure notices and compliance orders for employers who repeatedly breach illegal working provisions.

Prevention of illegal working in “high-risk” industries

The Immigration Act 2016 amended existing licensing regimes in ‘high risk’ areas of the UK economy (such as taxis and private hire vehicles and the alcohol and late night refreshment sector). Further guidance is given on the implications for a licensed business that receives a civil penalty for illegal working. For example, the Home Office now has powers to suspend or revoke a business licence.

The Home Office has also taken the opportunity in publishing this new RTW guidance to remind employers about the greater co-ordination across government agencies, including the Home Office and HMRC, to detect and address illegal working. The Home Office will use the full range of sanctions against those found to be employing illegal workers, or individuals working without permission in the UK.