Author Archives: danbunting

Immigration Act 2016 – inspection and enforcement powers 

There is a lot of new law in the 2016 Immigration Act, some of which I have been looking at and digesting as they. One into force. 

Here’s a piece I did for Lexis looking at the key provisions relating to inspection and enforcement powers.

Immigration Act 2016 – Inspection and Enforcement Powers

 

*This article was first published on Lexis®PSL Immigration analysis on 17 June 2016. Click for a free trial of Lexis®PSL.*

Illegal Working – all change? : Immigration Act 2016 Briefing

Introduction

On 12th July 2016 we will see the biggest shakeup in the law relating to illegal working for the last 10 years. These are contained in Chapter 2 (ss34-38) Immigration Act 2016.

Set out below is an overview for both employers and employees as to what the law will be when this is implemented.

 

For employers 

The current offence is widened considerably. The main points to note are :

  • the maximum sentence increases from 2 years to 5 years
  • the definition of ‘who is an illegal worker’ is changed
  • the offence becomes objective, rather than subjective

 

Overview of offence

A person, A, commits the offence if they –

  • employ somebody (B) who is
  • disqualified from working due to their immigration status, and person A
  • has reasonable cause to believe that B is disqualified

 

Who is ‘disqualified from working’?

Someone will be ‘disqualified from working’, if :

  • they have not been granted leave to enter or remain in the United Kingdom, or
  • their 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 doing work of that kind.

The fact that an employer does not know that that their employee is disqualified is not a defence. If they have ‘reasonable grounds to believe’ that somebody is disqualified – i.e. if another person looking at the grounds would believe so (as a rough guide – it’s a bit more complicated than that) then they will still be guilty.

What is meant by ’employ’?

There is a definition of employment in s25 Nationality, Immigration and Asylum Act 2006 which states that employment means “employment under a contract of service or apprenticeship, whether express or implied and whether oral or written“.

Although it appears straightforward, this can be an incredibly complicated question of employment law, where a number of different factors come into play.

In addition it should be noted that, sightly confusingly, this is different to the test for somebody who is an employee for that offence, although in practice this will probably not make much of a difference.

 

Who in a company is liable?

This can get quite technical – if there is any issue then you would be advised to seek legal advice.

But as an overview, if someone in the company (or other body) who has responsibility for the employment is in a position where they know, or should know, that someone is being employed illegally, then the company will be liable.

In addition, any ‘officer’ of the body (Director, Manager, etc) will be liable provided that they also have the requisite state of mind.

 

Sentence and Procedure

The maximum sentence is increased from 2 years to 5 years.

The case is either way – meaning that somebody charged with it can have their trial in the Crown Court in front of a Judge and Jury if they want.

 

For employees

There has never been a simple offence of working illegally. Those that did so often faced other charges (fraud being an obvious example) as well as enforcement action by the immigration authorities.

The Immigration Act 2016 introduces a ‘catch all’ offence of illegal working. This is achieved by way of an addition to the Immigration Act 1971 (a new s24B).

 

An employee commits an offence if they :

  • work
  • whilst disqualified (on immigration grounds), and
  • they know that (or have ‘reasonable cause to believe’ that) they are disqualified

 

Who is ‘disqualified from working’?

Someone is disqualified from working if :

  • they have not been granted leave to enter or remain in the United Kingdom, or
  • their 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 doing work of that kind.

This is the same test as for an employee.

If somebody is disqualified from working, then they will fall foul if the law if they know that they are disqualified, or if they have ‘reasonable cause to believe’ that they are. That is an objective test, and so if someone buries their head in the sand and ignores the obvious, it does not mean that they can get away with it.

 

What is ‘work’?

For the purpose of the offence, employment is defined as someone who works :

  • under a contract of employment
  • under a contract of apprenticeship,
  • (under a contract personally to do work,
  • under or for the purposes of a contract for services,
  • for a purpose related to a contract to sell goods,
  • as a constable,
  • in the course of Crown employment,
  • as a relevant member of the House of Commons staff, or
  • as a relevant member of the House of Lords staff

You should note that this is different definition of employment to the one that applies to employers under s21 Immigration, Nationality and Asylum Act 2006.

 

Sentence and Procedure

The offence is summary only, and so the maximum penalty is 6 months imprisonment and/or an unlimited fine.

The kicker here is that the prosecution can apply for the case to go to the Crown Court for confiscation proceedings under the Proceeds of Crime Act 2002.

 

Will this apply to people who started employment prior to 12th July 2016?

A very good question. The law normally has ‘transitional provisions’ – guidance as to what happens to people when the law comes into force, but there aren’t any in this case.

So we are left to guess. As always, if there is any doubt then seek legal advice. My view, for what its worth, is that Courts will interpret ’employs’ to be a continuing act – i.e., if you start your employment on 1st July 2016 then come 12th July 2016 the offence will be committed, provided the relevant person has the relevant knowledge. That should not be taken as a legal opinion however.

 

Conclusion 

This law will potentially have a big impact on those who are, or who employ, foreign nationals. If you are in that category then you should take stock of your position to ensure that you stay on the right side of the law.

*As always, this is an overview of the law and is not intended to be legal advice, and is not a substitute for legal advice. If you want to ask me any further questions, then please contact me*.

 

Flag_of_Europe.svg

What do I do post Brexit if I’m an EEA national?

Introduction

Well, against all expectations from the pollsters and the bookies (and the bookies are always right, aren’t they?) the UK has voted to leave the EU.

If you’re an EEA national in the UK (or an EEA family member) what should you do?

 

What happens now?

Ultimately, we don’t know. That may sound unhelpful, but it is a sad consequence of the paucity of the debate over the vote that there was no real discussion as to what was going to happen if the UK voted to leave.

The legal position is (relatively) clear – google Art 50 (there’s a post here, but there’s many others) – but there is already confusion as to what is going to happen and when. When he resigned, Mr Cameron said that it would be for the next Prime Minister to do this (so not before October), but the EU leaders are keen for the UK to get on with it.

 

Don’t panic …

The laws today are the same as they were on Wednesday 22nd June 2016 – we haven’t withdrawn from the EU, EU law is still part of UK law, and you have the full panoply of Freedom of Movement rights.

It will take a long while to unpick the relationship with the EU, and this will take time. In theory the UK could clamp down tomorrow on free movement rights, but that would put the UK in breach of its international obligations and is unlikely.

In addition, working out what to with the 3 million EU citizens is not an easy task.

So, right now, although there is understandably anxiety, there is no need to panic.

 

… but do plan

Like it or lump it, the UK has voted to leave. Although of course things could change, it is overwhelming likely that that is it, and the UK will be out – it’s best to discount second referendums, etc, and plan for the future.

It’s difficult, because so much is up in the air. It may be that the UK decides it has to have access to the EU internal market which may mean not only that the UK has to grant the same freedom of movement rights as now, but they may have to go further and sign up to Schengen (which would be ironic).

Whatever happens, we can be reasonably confident of two things – (1) there will be provision for many EU citizens to remain under the Immigration Rules, and (2) some people who are in the UK exercising treaty rights will be excluded.

For example, someone from Germany working at a bank in the City will probably have no problems, even if she has to go through more hoops and paperwork. It would be surprising if there was not some sort of blanket position for some people – a provision that grants categories of people leave to remain, or something similar, automatically.

On the other hand, someone who is an American citizen with a history of overstaying and/or who has committed offences but is in the UK based on a marriage to a German may be in a pretty precarious position.

It is worth seeing if you can apply for British citizenship (a complicated area of law), as if you have that, then you’re probably safe.

Even if not, then it is worth checking your position and seeing if you could or should apply for a Residence permit, or to see what your position would be under the Immigration Rules.

 

Should I dust off my tartan?

Politically, Scotland has become more and more a different country. Even before the SNP laid waste to every other party in the 2015 election, it was a different beast. And in the Referendum, Scotland voted overwhelming to stay in the EU.

This may trigger another referendum in Scotland, or throw a spanner in the UK leaving. Again, who knows?

But, it’s not beyond the realms of possibility that Scotland becomes an independent country that is in the EU (with all the benefits that brings), but in some sort of free trade/Common Travel Area with the rump of the UK, and possibly the Channel Island and the Isle of Man, which may make Scotland (a lovely country in any event) an even more attractive place.

 

What about the ECHR?

This is separate from the EU and the UK pulling out of the EU doesn’t, of itself, mean that we will leave the ECHR, although there may be renewed political pressure.

This means that Art 8 arguments may still be used to challenge removal. Again, this is a complicated area, and the protection offered by Art 8 is less than that of the EU. But it is better than nothing.

 

Any other thoughts?

Just one – if anyone says that they know what will happen, or what the legal position is, then ignore them. This is unchartered territory. David Cameron and Boris Johnson don’t know what is happening, and if even they don’t then certainly nobody else will.

*update* – this will probably change as events will move quickly. For example, it seems that Jersey will give some form of residual rights to EU nationals living there. What impact will this have? Probably very little, but it is an example of one of the many, many things that had probably not been considered.

Also – I should have made it clearer that the position of Irish Citizens will probably be very different due to the historical arrangements between the UK and Ireland which pre-date the EU.

Should I worry if my barrister works for the CPS in other cases?

Introduction

Note: This is prompted by a post from Lucy Reed on the Pink Tape family law blog about whether a parent facing family law proceedings should worry if their barrister has also acted for social services in the past (or in other current cases). It’s a great take down of former MP John Hemming’s slightly ‘unorthodox’ take in the professional conducts, and is well worth a read.

This is an issue that often comes up in criminal law. Barristers in chambers are self-employed and, nowadays at least, will normally specialise in one or two areas of the law. But it’s not unusual for barristers who do criminal law to both prosecute and defence.

Obviously not in the same case, but I have seen it many times where a barrister, Ms Smith, is in Court 4 at 10am representing a defendant. Then 15 minutes later she has swapped sides and is representing the prosecution in the same court room. Is that wrong? Should her defence client be concerned?

Is this a problem?

The CPS are obviously used to this, but for individual defendants, particularly those that aren’t particularly familiar with the system, it may seem odd. If my barrister gets part of their income from the CPS doesn’t that mean that sometimes they’ll ‘pull their punches’ in my case for fear of what the CPS may say?

I don’t think that it’s a problem at all. Firstly, on a practical level,the CPS is a pretty big organisation. Unless it’s a highly specialist unit, it’s unlikely that anyone in it would know what ‘their’ barrister in a particular case is doing the rest of the time. But it’s not just the practicalities.

Although there are more and more people who are doing just one of prosecution or defence, I think that the majority of people still do both. It’s ‘the way that things have always been done’. This may or may not be a good reason for carrying on doing something in general, but it does mean that the CPS do not expect barristers to only prosecute, and would not expect a defence lawyer to approach their defence case differently whether or not they sometimes prosecute.

In days gone by, barristers had no choice, in theory at least. Due to the cab rank rule, barristers couldn’t pick and choose which cases they do, so would have to do both. Even if that ever existed, it has gone now in crime, in that fees for most criminal cases were ‘undeemed’ – taken out of the scope of the rule.

Now is not the time to analyse whether or not that is actually the exact position, but the idea behind it (that barristers don’t just act for one side only) lives on.

It may also work to your advantage, in that someone who prosecutes obviously has a much better knowledge of how the CPS works than someone who doesn’t. This may mean that they find it easier to hone in on the weaknesses in the CPS case, and know their vulnerabilities.

That’s not to say you should only have a barrister that prosecutes and defends. Just that, in my view, it’s not a way of telling whether you should be using that barrister or not.

So, should I be worried?

Although it may seem odd, I’d say it doesn’t matter one bit if your barrister only defends, or prosecutes as well as defends.

I would recommend reading Lucy’s post as to what questions you should be asking of your lawyer, they’re applicable to criminal law too.

There are brilliant defence lawyers who don’t prosecute (and fairly ropey ones who do of course), and brilliant ones who do. The key point is that you shouldn’t use that as test. If your lawyer does both, don’t be alarmed. It’s normal, and it doesn’t mean that they will fight for you any less

Note 2 : I’m using barrister here, but the same rules apply to solicitor advocates too of course. It’s just that the majority of advocates who do prosecution and defence work are freelance barristers in chambers. 

Can EEA family members be guilty of obtaining leave by deception?

In February 2016 I was in the Court of Appeal representing the Appellant in the case of Boateng [2016] EWCA Crim 57.

I wasn’t his lawyer in the Crown Court (where he had pleaded guilty) but took the case on to go to the Court of Appeal – you can read above some of the arguments that there were.

One of the conclusion was this – where someone is applying for a Residence Permit as a family member of an EEA national, they are not applying for ‘leave to enter’ the UK. The significance of this is that my client in that case was accused of trying to get a Residence Permit by deception. In that case it was as a family member of someone pretending to be an EEA national, but this could equally apply to someone who is accused of entering a sham marriage with an EEA Citizen.

He was charged with an offence contrary to s24A(1)(a) Immigration Act 1971 – Obtaining Leave to Enter or Remain by Deception and he pleaded guilty. But could he be, in law, guilty of this offence.

The Court of Appeal agreed that the framework of immigration law relating to ‘leave to enter (or remain)’ is very different to the system of immigration control for those who are either EEA nationals or family members of EAA nationals.

What about the fact that he pleaded guilty? It doesn’t matter. Even if the offence could be indicted under s24A(1)(b) (and if the CPS tried to, there would have to be more legal argument) the charge “cannot possibly be regarded as “a mere drafting or clerical error” or “a purely technical defect”. The counts were “fundamentally flawed”“.

And so, even though there was a guilty plea, the appeal succeeded and those convictions quashed.

I assumed that this was a one off – a piece of bad drafting that just arose in this case. But recently I was talking to a colleague who was off to do a trial where someone accused of a sham marriage where this was the charge. It seems that there may be plenty of other people in the same position.

So, if you have been charged with this and have a trial coming up, you need to be aware of this case. If you’ve been convicted of a s24A offence when the allegation was you were trying to get a right under EEA law, you want to look at whether you can appeal the conviction, even if you pleaded guilty.

Do I need a lawyer?

One often asked question is “Do I need a lawyer” and, if so, “when“?

To be honest, if you’re asking the question, then the answer to the first question is almost certainly ‘yes‘, and ‘yesterday‘ to the second.

Although on the TV a lawyer can pick up a case in the morning and go straight off to do a trial, in practice this is no longer possible (it doesn’t stop people trying unfortunately). Apart from the simplest of cases, there will be disclosure to be obtained from the the CPS, witnesses to be spoken to, and investigations to be undertaken. If you speak to a lawyer the day before your trial, then sure they will do their best. And sometimes their best will be enough to win, but not always.  

To give yourself the best chance to win, get in early. Not only will this give enough time to prepare the case to put yourself in the best possible position to win, it will actually probably be cheaper. That sounds counter-intuitive, but if there’s an urgency then diaries will need to be rearranged, etc, etc, and it is likely that you will be charged more. 

The worst thing that can happen is you’re told it’s too early – come back in a month, or when you’re charged by the police, or something like that. You probably won’t have to pay for that either.       

Can I appeal my criminal conviction?

Introduction

One of the most common questions I get is “can I appeal against my conviction”?

This is an overview of the process, and a couple of pointers.  As always, this is for general information and is not, and should not be taken as, legal advice.

 

How do I appeal?

I have written an overview of the procedure here. It’s important to remember that you cannot just ‘appeal’ – you need to have some reason, something that went wrong in the case that you can point to that would have made a difference.

If you have had a trial in the Crown Court and been found guilty (of some or all of the charges) then the advocate who did your trial should give you a formal (written) advice on appeal. This is presumably negative, or you wouldn’t be here.

Even if they have told you after the hearing that there are no grounds of appeal, you are still entitled to ask for a written advice. If you haven’t had one, then ask for it.

You have 28 days to lodge grounds of appeal against conviction from the time that you are found guilty. If you are within that time period then you have to act very quickly.

If that time has passed then you should still be as quick as you can, but you will have to give reasons as to why you were late with the application.

 

How could you help me?
In reality, you will probably need transcripts of parts of the trial, or at least the summing up. It may be that I can give you an initial view on less than that (possibly just from the papers), but this would probably be a provisional one.

Be aware that it is very difficult to appeal a conviction. Anyone that tells you otherwise should be approached with caution. Sadly there are plenty of people out there who will happily give false hope, at a price of course.

If I think that there are grounds of appeal, then I will draft them for you to ‘lodge’. Please note that I can only draft grounds if I think that they are sufficiently arguable. That means that I think that there is something that went wrong that would lead the Court of Appeal to allow an appeal. In any event, it is not fair on you to get your hopes up with grounds that are going nowhere.

If the Single Judge gives permission to appeal, then s/he will also grant legal aid. From then on, the case will proceed as an ‘ordinary’ appeal against conviction and I normally would carry on representing you under the legal aid order.

If the Single Judge says no, then you can renew the application. At that point we would have to discuss what to do. Again though, you have only a limited amount of time – 14 days – to lodge a renewal application.

 

Can I get legal aid?

Possibly. It’s a complicated area. It will depend on your financial position (and your spouse’s, even if you are in prison), when you have had advice from another solicitor, and how strong your case would appear to be.

If you want to investigate the availability of legal aid, then it’s probably best to contact me to discuss it, or approach a solicitor with a legal aid contract (it will be an application on a CDS/1 & 2. You can find some details about means testing here.

You can use a barrister on public access even if you are, or may be, eligible for legal aid. But that is only if you make an informed choice to do so.

 

Is there any risk in appealing my conviction?

The Court of Appeal have got a lot ‘tougher’ on what they consider to be unmeritorious applications, and are much more inclined to use their powers to stop this. For someone in prison, they can order a ‘loss of time’ – a direction that some of the time spent inside before the appeal doesn’t count.

There is also the power to make you pay towards the costs of the appeal. It’s important to remember this – there is always a risk in trying to appeal.

 

Is this the same if I want to appeal my sentence?

In essence, yes.

The test for an appeal against sentence is that there is an error of law, or the sentence is ‘manifestly excessive’. Although it is not enough that the sentence is a bit harsh, in practice this is a bit more flexible than the test for an appeal against conviction.

 

What about appealing a magistrates’ court conviction?

Different considerations apply, but here is an overview of how the process works.

Whether it is an appeal against the conviction, the sentence, or both,  it is a re-hearing of the original case. This means that you don’t have to have specific ground – reasons as to why you shouldn’t have been found guilty.

Public Access FAQ

How do I know if my case is suitable for public access?

The best way is to ask, and give me a quick summary of the problem you have.

I will happily look at that for free, and give you an initial (free and no-obligation) view as to whether the case is one where we can work together.

It will be helpful if you could give a brief overview of your case. I’ve put down two examples here  –

Case Study I – Crime

I want to appeal my sentence. I received 8 years imprisonment on 1st February 2015 for possession with intent to supply“.

This is not really enough information. It would be helpful if you were to include such information as : what was the drug? was this a trial, or did you plead guilty? If a guilty plea, when was this? What did the Judge say? Did you have solicitors? What did they say about an appeal.

And, most importantly, why do you think that the sentence is wrong?

 

Case Study II – Immigration

I am in the UK on a Tier 2 General Visa and want to leave my job, but stay in the UK. What are my options?

Again, it would be helpful if you could give some more information such as : what country are you from? Which Tier 2 visa are you on? When did you come to the UK? What job do you have? What industry do you work in?

 

What information would you want for a public access case?

As much as possible!

I appreciate that it is hard sometimes to know exactly what is and isn’t relevant. The general rule is that the more information I have the better.

What I would probably do is send you a list of further questions and documents that I would like to see.

Using the two examples above –

Case Study I – Crime

After agreeing that we work together, it would be helpful to have as many documents as possible. In a case like this, I would expect that you would have a file from your previous solicitor that I could look at.

 

Case Study II – Immigration

In a case such as this, there probably won’t be much documentation. I would have asked you a list of questions, and it may be that we would speak on the phone or arrange to meet.

 

 Do we meet up, or do it all by phone/email/letter?

It depends on the issue. A trial will often require a face to face meeting. Other cases can be dealt with just as well on by phone or even email.

Both of the ‘Case Studies’ above are good examples of cases where there would no need to meet.

Of course, if you do want to meet up, then we can arrange that.

There’s more details here – Can I appeal my criminal conviction?

 

When is the best time to get you involved?

As early as possible. Worse case scenario is that it’s too early – in which case I will tell you that, nothing lost.

However, nothing is worse than leaving it too late. As an example from Case Study I above, there are often deadlines that have to be met. The more time we have to work on the case the better.

As an example, much better to get advice before putting in grounds of appeal, than wait until your grounds have been refused.

 

 How much does it cost?

It’s impossible to give an exact figure in advance. It will depend on what the sort of case is, how much work is needed, if it is a Court hearing then where it is, lots of things like that.

After the initial enquiry I will be able to give you a quote. Normally this will be a fixed amount for each part of the case, as this gives you certainty and all the information that you need.

 

Can’t you just give me a quick bit of legal advice without all the hassle/paperwork etc?

Unfortunately not.

I know that it can seem frustrating, especially when it is something that seems simple and can be responded to in 5 minutes in an email. Unfortunately, the regulatory position is that I cannot give any legal advice without being ‘instructed’ by a solicitor or going through the process of agreeing terms (you can see the standard letters on which any agreement would be based on the Bar Standards Board website). This is the case whether or not the advice is being given for free.

There is an overview of (some of) the rules on the Bar Council website.

 

Do I need a lawyer? Do I need one now?

This is such an important question, it gets its own page.

 

Are you a ‘top lawyer’?

It seems every lawyer on the internet is described as a ‘top lawyer’. I don’t think it’s a particularly helpful term, as there is no way of telling what it actually means. Although I have been described by others as a ‘top criminal barrister’, this may be tongue in (legal) cheek after I had criticised some of the media for using that term too much.

I’m wary when people describe themselves as a ‘top’ lawyer, or even the ‘best’ lawyer. I believe that my record speaks for itself. But it’s also true that someone who may be the best for one case, it not for another. And someone who interacts really well with one client, may not work well with another.  Ask questions and do your research until you find a lawyer you’re comfortable with and you have confidence in.

 

How much do you charge?

It’s not possible to give a ‘one size fits all’ charge, it all depends on the circumstances. I appreciate that that may be frustrating, but until I know roughly what the case is about, it’s not possible to give a specific figure.

Dan will always offer a fixed fee so that you have certainty.