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Immigration Act 2016

The Immigration Bill 2015-16 was given Royal Assent on 12 May 2016 and became on that date the Immigration Act 2016.

It largely builds on measures implemented in the Immigration Act 2014, which are designed to create a 'hostile environment' for those who require immigration permission to be in the UK but who do not have it. The provisions that could affect international students are summarised below.

The immigration skills charge provisions come into force in July 2016, though the details will be contained in regulations and the Government has announced it will not be introduced until April 2017. Other measures require enabling legislation.

The Home Office has published an impact assessment and factsheets about the contents of the Act,

For information about the Bill as it passed through Parliament, including explanatory notes and House of Commons research briefings, see the Parliament website.

Sections

The main proposals that could be of relevance to international students concern:

Working, including an immigration skills charge
Residential tenancies
Driving licences
Bank accounts
Power to cancel leave extended by virtue of section 3C of the Immigration Act 1971
Imposition of a study restriction on those with immigration bail, currently temporary admission or temporary release

Working

A new offence of illegal working will be created. This means working when a person either has no leave or when work or the specific type of work undertaken by an individual is prohibited. This is of relevance to the following students:

  • those with no leave, however that happened
  • those who are prohibited from working, which is the case for all Tier 4 (General) students at private colleges, and at publicly-funded colleges if they applied for leave on or after 3 August 2015 (with the exception of work placements that are an assessed part of the course). Short-term students are also prohibited from working.
  • those who have leave and are allowed to work but who undertake prohibited types of work, for example, Tier 4 (General) students must not be self-employed or work as a professional sportsperson or as an entertainer.

Those who commit this offence are liable to a period of imprisonment and/or a fine as well as in most cases immigration sanctions.

An employer who has reasonable cause to believe that an employee should not be undertaking the work in question can be punished by a maximum period of five years in prison.

These measures are brought into force on 12 July 2016.

Employers who are Tier 2 sponsors will be charged an immigration skills charge when they sponsor individuals under these immigration categories. Codes of Practice that have not yet been published will set out the level of charge and any exemptions.

The Home Office has announced that the charge will be set at £1,000 per year of each Tier 2 employee's leave, reduced to £364 per year if the employer is small or a charity. However, PhD-level jobs, Tier 4 students 'switching' into Tier 2 and intra-company graduate trainees will be exempt. It has also announced that the charge will be brought into effect in April 2017.

Residential tenancies

A tenant who is required to have leave to be in the UK but who does not have it can be evicted. This will apply to tenancies entered into before as well as after implementation of this part of the Act on 1 December 2016. A landlord who has reasonable cause to believe his or her tenants have no 'right to rent' but who takes no action against them can be imprisoned for up to five years and/or be fined.

For details of the measures in the Immigration Act 2014 that these proposals build on, see our information about  landlord immigration checks.

The House of Commons has also published a Briefing Paper that considers these measures  and the proposals in the Bill.

The Association of Residential Letting Agents (ARLA), as a member of the consultative landlords panel that evaluated the 2014 measures, was invited by the Home Office to give its views on the proposals in the 2015 Bill and has published its opinion.

The Higher Education Statistics Agency (HESA) has figures on how many students will be affected by 'right to rent' checks.

Nearly Legal's housing lawyers have written a blog dealing with the tenancy provisions.

Driving licences

The Bill creates a new offence of driving when unlawfully in the UK. The penalty will be imprisonment and/or a fine, as well as immigration sanctions. People and premises can be searched for a driving licence.

Bank accounts

Banks and building societies will be required to check the immigration status of current account holders at a frequency to be set out in regulations not yet published. They will be charged for doing this, and presumably that charge can be passed to customers. They will have to inform the Home Office if they believe that one of their current holders does not have permission to be in the UK. The Home Office, if it agrees and considers that the individual should not hold an account, will be able to order the bank or building society to close the account or it can apply to court for a freezing order.

Power to cancel s3C leave

If the Home Office considers that a person who has applied for leave has failed to comply with a condition or used or uses deception in seeking leave to remain, that person's leave extended by virtue of section 3C of the Immigration Act 1971 can be cancelled from 1 December 2016. This means that the individual will become an overstayer and will immediately be affected by all the measures summarised above, as well as usually being prohibited from study.

Those subject to section 3C leave include those awaiting a decision on an application made in the UK before the previous leave expired but who have not received a decision before that leave expired. It also includes those who have applied for administrative review of a decision to refuse leave, as long as the original application for leave was made before the previous leave expires and the application for administrative review was made before its deadline.

The only Tier 4 (General) students who are able to apply to extend their leave in the UK under Tier 4 (General) are those sponsored by a higher education institution (HEI), or by  an overseas HEI, or by a private college that meets the definition in paragraph 6 of the Immigration Rules of an 'embedded college' or by an independent school.

Study restriction

Those who are currently in the UK on the basis of temporary admission or temporary release are not subject to any conditions restricting study.

The Act will replace temporary admission and temporary release with 'immigration bail'. Those granted immigration bail could be made subject to a condition restricting study. Asylum seekers would be affected by this change, as well as those allowed to enter the UK in order to apply for administrative review of a decision made at the border to cancel leave.

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