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How Labour opened hostilities against the Windrush generation

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“Gloria Fletcher wouldn’t have lost her job as a consequence of anything a Labour government did.” How wrong Labour MP Jack Dromey was when he made this confident statement on Radio 4’s Westminster Hour (at 38 mins) about one of the victims of the Windrush scandal. He was seeking to distinguish his party from the UK Conservative government that put in place the “hostile environment” against immigrants — with appalling effects on the Windrush generation in particular.

But it looks as if Dromey was wrong when he claimed that Gloria Fletcher, sacked after 36 years’ working in the same job in Britain, would never have fallen foul of Labour immigration policy. In fact she seems to have been the victim to Labour’s own legislation, passed as far back as 2006, to institute a “hostile environment” in order to drive out illegal immigrants from employment.

Labour’s 2006 Immigration, Asylum and Nationality Act at Section 15 says:

(1) It is contrary to this section to employ an adult subject to immigration  control if [broadly, s/he is an immigrant without leave to remain].

(3) An employer is excused from paying a penalty [for employing such a person] if he shows that he complied with any prescribed requirements in relation to the employment.

It turns out that, to avoid a penalty of up to £10,000 for, even unknowingly, employing a person without a legal right to be in Britain, the employer must have checked his/her documentation — a passport, for example, or any other relevant immigration document. This is what Mrs Fletcher had to show her new employer (after her firm was taken over). And since she had been in the country perfectly legally for 50 years without needing a passport or other document to stay, she could not produce the required proof.

Here is the Statutory Instrument that accompanied Labour’s 2006 legislation (passed, no doubt, like most Statutory Instruments, with the minimum of oversight by MPs in Parliament): SI 2007 No. 3290 Immigration. It notes at Article 3 (1) that:

… an employer is excused from paying a penalty under section 15 of the 2006 Act if —
(a) the employee or prospective employee produces to the employer any of the documents or combinations of documents described in list A in the Schedule to this Order; and
(b) the employer complies with the requirements set out in article 6 of this order.

Article 6 (in full below) indicates the sort of documentation that is required and what an employer must do in terms of inspecting and copying it. The employer must check the documents, use his/her skill and judgment to assess their validity and authenticity, and photocopy them, keeping them safe for the duration of employment and two years thereafter.

In other words, employers under a Labour government were border guards in very much the same way that people renting out accommodation have taken on such a role under the Conservatives (under the 2014 Immigration Act’s “right to rent”).

Whether an employer knows or does not know that the potential employee lacks the required status, there is a penalty of up to £10,000 for failing to view and keep the relevant documentation if it is discovered that such a person has been employed. (There is a separate criminal offence at Section 21 for knowingly employing someone without the relevant immigration status).

There is a lot in the 2016 Conservative legislation about penalties for those without the correct immigration status who do try to work. But that wasn’t Mrs Fletcher’s case since she was not an illegal immigrant. So what probably happened is that, given Mrs Fletcher’s lack of documents, her employer had no choice but to sack her under Labour’s 2006 legislation in case she did not have the correct status — otherwise it could have faced the £10,000 penalty. This is nothing to do with a more rigorous “hostile” atmosphere under Theresa May: it is a private body obeying the law laid down by Labour.

The 2006 penalties are something of a revamp of rather hazy provisions in the Tories’ 1996 Act. But they were polished and toughened up by Labour in 2006, with the new civil penalty system added. From that time the real crackdown started, with employers calling in passports from even long-standing employees. Government guidance made clear all employees had to be checked, not just those who might raise suspicions.

Charles Clarke, then Home Secretary, explained the 2006 Act thus in a Commons statement:

“The reformed system will explain publicly and clearly who we will admit to the UK and why, and who we will allow to stay in the UK and why. It will also show that we enforce the rules rigorously in every respect.”

Clarke then went on to describe the new penalty system for employers:

“Clauses 11 to 20 create a new civil penalty for employers of illegal workers and set out how the scheme will work. In particular, clauses 11 and 12 set out the circumstances in which a penalty may be issued to an employer found to be using illegal workers, the requirements that employers must fulfil to be able to prove that they have taken reasonable steps to assure themselves that
employees or prospective employees are entitled to work in the UK, and the grounds on which an employer can object to the issue of a civil penalty”. Hansard 5 Jul 2005 : Column 197

Dromey, it must be said, is no fan of Clarke, and he was not an MP in 2006. Nor has the current Labour leader, Jeremy Corbyn, knowingly ever voted for oppressive conservative New Labour policies of the Blair era.  Labour MP Emma Reynolds on Radio 4’s World Tonight (Monday April 30) took a similar line to Dromey – that it wouldn’t happen under Labour. But in fact the former Labour government joined in the ratcheting up of oppressive immigration controls over two decades. Labour must, in particular, own the iniquitous employment system that denied Mrs Fletcher her job.

Despite what Dromey said, she could have and would have lost her job under Labour — and indeed she did lose her job because of what a Labour government did.

Twitter: alrich0660

There are a number of Al’s Law immigration law items here; including:
Home Office plays the long game to deport 70-year-old widow

Notes
A tweet on this case from Jack Dromey is here
• A handy guide to the 2014 Immigration Act is here including on the Ss 20-37 Right to Rent provisions requiring proof of immigration status to rent a home.
• The 2014 Act amends provisions of the 2006 Act regarding employers’ appeals against penalty notices: here
The 2016 amendments
The 2016 Immigration Act further amends  Labour’s 2006 legislation as shown here, including increasing the maximum criminal penalty for knowingly employing someone without proper immigration status from 2 years imprisonment to 5 years. It comes up with this convoluted wording to establish whether an employer is in this situation:

(6) After [2006 Act Section 21] subsection (1) insert—

(1A) For the purposes of section 21(1A) a body (whether corporate or not) shall be treated as having reasonable cause to believe a fact about an employee if a person who has responsibility within the body for an aspect of the employment has reasonable cause to believe that fact.

But the essence of the legislation remains the same, and on the face of it, Mrs Fletcher fell foul of Labour legislation, not Conservative legislation. The amendments relate to knowingly employing an immigrant without status (a criminal offence at Section 21 of the 2006 Act) rather than the penalty of up to £10,000 for failing to view and keep the relevant documentation. Given Mrs Fletcher’s lack of documents, her employer had no choice but to sack her under Labour’s legislation in case she did not have the correct status. Even if they had not knowingly employed her as disbarred “from employment by reason of the employee’s immigration status”.So the original Section 21 says:

Offence
(1) A person commits an offence if he employs another (“the employee”) knowing that the employee is an adult subject to immigration control and that—
(a)he has not been granted leave to enter or remain in the United Kingdom, or
(b)his 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) is subject to a condition preventing him from accepting the employment. ETC

This has the following amendment added by Section 35 of the 2016 Act:

3) After subsection (1) insert—
(1A) A person commits an offence if the person—
(a) employs another person (“the employee”) who is disqualified from employment by reason of the employee’s immigration status, and
b) has reasonable cause to believe that the employee is disqualified from employment by reason of the employee’s immigration status.

(1B) For the purposes of subsections (1) and (1A) a person is disqualified from employment by reason of the person’s immigration status if the person is an adult subject to immigration control and—
(a) the person has not been granted leave to enter or remain in the United Kingdom, or
(b) the 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) is subject to a condition preventing the person from accepting the employment.

Offence of working illegally in Section 34 of the 2016 Immigration Act
Section 24 B (ie an amendment to the 1971 Immigration Act)
Illegal working
(1) A person (“P”) who is subject to immigration control commits an offence if—
(a) P works at a time when P is disqualified from working by reason of P’s immigration status, and
(b) at that time P knows or has reasonable cause to believe that P is disqualified from working by reason of P’s immigration status.

As noted above, this Conservative amendment is not applicable to Mrs Fletcher. She did not work “knowing” or with “reasonable cause to believe” that she was working illegally – because she wasn’t working illegally. She simply couldn’t prove her status to work, so fell foul of the Labour 2006 legislation – which is actually directed against employers who might employ someone illegally.

Article 6 of the 2007 Statutory Instrument
6. The requirements in relation to any documents or combinations of documents produced by an employee pursuant to articles 3 or 4 of this order are that—
(a) the employer takes all reasonable steps to check the validity of the document;
(b) the copy or copies are retained securely by the employer for a period of not less than two years after the employment has come to an end;
(c) if a document contains a photograph, the employer has satisfied himself that the photograph is of the prospective employee or employee;
(d) if a document contains a date of birth, the employer has satisfied himself that the date of birth is consistent with the appearance of the prospective employee or employee; (e) the employer takes all other reasonable steps to check that the prospective employee or employee is the rightful owner of the document;
(f) if the document is not a passport or other travel document the employer retains a copy of whole of the document in a format which cannot be subsequently altered; and (g) if the document is a passport or other travel document, the following pages of that document are copied in a format which cannot be subsequently altered—
(i) the front cover; (ii) any page containing the holder’s personal details including nationality; (iii) any page containing the holder’s photograph; (iv) any page containing the holder’s signature; (v) any page containing the date of expiry; and (vi) any page containing information indicating the holder has an entitlement to enter or remain in the UK and undertake the work in question.

 

 

 

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About alrich

Journalist and blogger on legal and financial/economics issues

One response »

  1. Pingback: Weekly Notes: legal news from ICLR – 30 April 2018 – ICLR

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