Right to work freely!

Posted on September 20, 2010

5


The UKBA have been telling prospective employers that a person who has the right of abode should not be employed if their passport containing the right of abode is on a expired passport

They are citing regulation 8 of the secondary instrument as a means of achieving control over those persons over whom they have no right of immigration control and do not require immigration permission to live and work in the UK as many have been doing for many years.

Such persons are the children of British citizens and under the law are not subject to control. By using the regulations they have inferred that a persons right is not vested in their person but on their documents while at the same time denying any such complicity. The regulation does allow for the certificate to have effect but given that the certificate is used for travel purposes and is only valid for presentation at a UK port the UKBA SEHL has created their own policy without proper parliamentary approval as this is not explicit. In so doing the UKBA itself is acting unlawfully and attempting to over ride the primary legislation and its objectives.

The following contains statutory information on the legislations as well as the regulations which a person can use in a court of law to show how a breech of their rights have been conducted.

The Immigration (Restrictions on Employment) Order 2007 Order no 3290

In accordance with section 23(2) of that Act the Secretary of State has consulted those
bodies specified in section 23(2)(a) about a code specifying what an employer should or should not do to
avoid contravention of the Race Relations Act 1976(b) or the Race Relations (Northern Ireland)
Order 1997(c), published a draft code, considered representations made about the published draft
code and has laid a draft code before Parliament, after modifying the code to reflect the
representations.

Under this order a set of acceptable documents to establish a statutory excuse are

“6. A passport or other travel document endorsed to show that the holder is exempt from
immigration control, is allowed to stay indefinitely in the United Kingdom, has the right of abode
in the United Kingdom, or has no time limit on their stay in the United Kingdom.”

Regulation and warning about contravening the race relations act 1976

Source: Si 2007 No 3290

The Immigration (Certificate of Entitlement to Right of Abode in the United Kingdom)
Regulations 2006 NO 3145

8. A certificate of entitlement shall cease to have effect on the expiry of the passport or travel
document to which it is affixed.

“The certificate of entitlement bears the following words on it “Valid for presentation at a United
Kingdom Port within the validity of the passport”

It is issued to facilitate travel and is not a visa nor does it contain any conditions on a persons right
of abode based on the document. The right of abode is vested in a person not in their document. A
British citizen would not lose his/her right of abode just because their passport expires and nor will
a commonwealth citizen. The fact that the passport is not in date does not invalidate a persons
right to work!

All it states on the certificate are the following:-

“Valid for presentation at a United Kingdom port within the validity of the passport”

It is evidence that such a person has a right of abode based on their descent and that such a right is vested in the person not their documents. It is the same as when a British citizens passport expires their right of abode does not with the expiry of their passport!

Source: SI 2006 No 3145

THE UKBA OWN  POLICY AND LAW DOCUMENT FOR CASE WORKERS

The only thing that has expired is the effect of the certificate to be used to enter a port. However we find case workers guidance of the UKBA’s own policy and law states

CHAPTER ONE – SECTION RIGHT OF ABODE states the following

“3.2. Procedure
When a passenger presents a valid document as noted at paragraph 3 (above) he
should, subject to paragraph 2, be accepted immediately as being exempt from control
unless the immigration officer has reason to believe or suspect that the passport has
been forged or falsified or was improperly obtained. The fact that a passport is out of
date does not in itself render it invalid as evidence of nationality and identity
, but this
fact may justify the immigration officer in continuing his examination until he is
satisfied on these points. Note that it is for the Immigration Officer to prove fraud, not
for the passenger to disprove it.”

Source:
Chapter 1 Section 1 Right of Abode UKBA Case Workers Guide

The comprehensive guide states the following on page 45 and is flawed as the question asked is
never in fact answered and it suggests the immigration status ILE/ILR are one and the same which
is not correct. A Right of abode unlike an ILE does not impose immigration control nor does it
require permission of an Immigration officer to enter and work in the UK.

Q11 Will I have an excuse against liability to pay a civil penalty if I make a copy of a right of abode certificate from an expired passport?

A. A non-European Economic Area national passport endorsed to show that the holder has
indefinite leave to enter or remain is evidence of a person’s entitlement to work only if the
passport is valid. Checking the passport of a prospective employee will not provide an excuse
against liability to pay a civil penalty if the passport has expired. However, there may be occasions
when a prospective employee presents a passport containing the following ink stamp, which
was formerly used by Immigration Officers to transfer a person’s conditions from an old
passport into a new passport. If someone presents this ink stamp to you in their passport,
they should also present their previous passport, which you should also copy, containing their
previous leave, to demonstrate that they are permitted to take the job you are offering.

Question 13 on page 46 on the other hand is correct

A. The main groups who are not subject to immigration control in the UK, and who you
can employ without restriction are:
British citizens; and Commonwealth citizens with the right of
abode; and Nationals from the Common Travel Area
(CTA); and
Nationals from European Economic Area
(EEA)/European Union (EU) countries and
Switzerland; and
Family members of adult nationals from
EEA/EU countries and Switzerland,
providing the EEA/EU national is lawfully
residing in the UK.

Source:
Comprehensive Guidance Feb 08

SECTION 15 of the 2006 Asylum, Immigration, and Nationality Act
Section 15 with reference to civil penalties as fines on an employer only applies towards those who
are subject to immigration control. As the right of abode is not subject to immigration control the
use of this as a means of incurring a potential fine is incorrect.

15 Penalty
(1) It is contrary to this section to employ an adult subject to immigration control if—
(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.
(2)The Secretary of State may give an employer who acts contrary to this section a notice requiring
him to pay a penalty of a specified amount not exceeding the prescribed maximum.
(3)An employer is excused from paying a penalty if he shows that he complied with any prescribed
requirements in relation to the employment.
(4)But the excuse in subsection (3) shall not apply to an employer who knew, at any time during
the period of the employment, that it was contrary to this section.
(5)The Secretary of State may give a penalty notice without having established whether subsection
(3) applies.
(6)A penalty notice must—
(a)state why the Secretary of State thinks the employer is liable to the penalty,
(b)state the amount of the penalty,
(c)specify a date, at least 28 days after the date specified in the notice as the date on which it is
given, before which the penalty must be paid,
(d)specify how the penalty must be paid,
(e)explain how the employer may object to the penalty, and
(f)explain how the Secretary of State may enforce the penalty.
(7)An order prescribing requirements for the purposes of subsection (3) may, in particular—
(a)require the production to an employer of a document of a specified description;
(b)require the production to an employer of one document of each of a number of specified
descriptions;
(c)require an employer to take specified steps to verify, retain, copy or record the content of a
document produced to him in accordance with the order;
(d)require action to be taken before employment begins;
(e)require action to be taken at specified intervals or on specified occasions during the course of
employment.

Source:
Section 15 of the 2006 Asylum, Immigration and Nationality Act

The provisions of section 15 applies to those who are subject to immigration control such
as ILE/ILR. It does not include those who are not subject to immigration control such as
Right of Abode.

Explanatory Memorandum accompanying section 15 and the 2006 Immigration Act states the following:-


Employment
9.The provisions:
* create a power for the Secretary of State to apply a civil penalty, determined by a Code of
Practice, to an employer of an adult subject to immigration control who has not been granted leave
to enter or remain, whose leave is invalid, has ceased to have effect (whether by reason of
curtailment, revocation, cancellation, passage of time or otherwise) or whose conditions of entry or
stay prevent them from undertaking the employment. The provisions allow for objection and/or
appeal by the employer against the imposition of a penalty and the amount. An employer who
complies with requirements prescribed in an order of the Secretary of State is excused from paying
a penalty.
* create a new criminal offence of knowingly employing an adult who has not been granted leave
to enter or remain, whose leave is invalid, has ceased to have effect (whether by reason of
curtailment, revocation, cancellation, passage of time or otherwise) or whose conditions of entry or
stay prevent them from undertaking the employment in question.
*allow the Secretary of State to issue a code of practice to employers on how to avoid unlawful
racial discrimination when applying these provisions.
Section 15: Penalty
37.Section 15 provides that a person is liable to a civil penalty if he employs an adult subject to
immigration control who has not been granted leave to enter or remain in the United Kingdom or
whose leave is invalid, has ceased to have effect (whether by reason of curtailment, revocation,
cancellation, passage of time or otherwise), or is subject to a condition preventing him from
accepting the employment. An employer is excused from paying a penalty if he complies with the
requirements of an order made by the Secretary of State. The excuse does not apply where the
employer knew that his employment of the individual was unlawful. The section describes the
matters to be covered in the penalty notice and sets out the parameters of the requirements which
may be provided for in an order of the Secretary of State. Those are the requirements which, if
complied with, will excuse the employer from paying the penalty.
38.Subsection (1) sets out the circumstances in which an employer may be liable to a penalty.
Subsection (2) provides the Secretary of State’s power to impose a penalty.
39.Subsection (3) sets out the circumstances in which an employer is excused from paying a
penalty. Subsection (4) provides that the employer loses the excuse if he knew at any time during
the employment that it was contrary to this section. Subsection (5) provides that as a matter of law,
the onus is on the employer to satisfy the Secretary of State that he can establish an excuse under
subsection (3), rather than on the Secretary of State to establish this prior to the service of a
penalty notice.
40.Subsection (6) sets out the specific matters to be covered in a penalty notice, including the
reason why the Secretary of State thinks the employer is liable, the amount of the penalty, the date
before it should be paid, and other practical points.
41.Subsection (7) sets out the parameters of the requirements which may be placed on employers
by way of an order of the Secretary of State. The requirements, if complied with, will excuse the
employer from paying a penalty. They relate to the checking, copying and retention of specified
documents.
Source: Explanatory Memorandum for 2006 Asylum, Immigration and Nationality Law

Advertisements
Posted in: Right of Abode