1. Yet another Immigration Act on the way?
It feels like the ink is barely dry on the implementation of the Immigration Act 2014. The Race Equality Foundation and partners – the Movement Against Xenophobia (MAX), the Entitlement Working Group (EWG), the Immigration Law Practitioners Association (ILPA) – continue to have major, and ongoing, concerns about the implementation of the 2014 Act, the associated healthcare and access to services’ provisions, and a key consultation on whether, and if so how, the Department of Health will extend NHS charging to primary care. Nevertheless, we all now have to get to grips with a new Immigration Bill which may become the Immigration Act 2015 or 2016. It augments the 2014 Act and exacerbates serious concerns about the direction of the UK’s immigration legislation.
This briefing, the first in a series, overviews the new Bill’s legislative proposals and examines clause 38, ‘language requirements for public sector workers’. If implemented, the proposals will enhance the damaging impact of the Immigration Act 2014 and the associated healthcare provisions. The proposals are likely to encourage the hostility, racism, discrimination, exploitation and serious human rights breaches too often faced by refugees, asylum seekers and the UK’s Black and Minority Ethnic (BME) communities but do nothing to reduce or address the ongoing and increasing humanitarian refugee and migrant crisis.
2. The Government’s overview of the Immigration Bill 2015
The Bill, published on 17th September 2015 together with a series of government ‘factsheets’, is divided into 9 parts: 1) labour market and illegal working; 2) access to services; 3) enforcement; 4) appeals; 5) support for certain categories of migrant; 6) border security; 7) language requirements for public sector workers; 8) fees and charges; and 9) final provisions. A government summary says that the Bill ‘will introduce new sanctions on illegal immigration, protect our public services and tackle exploitation of low-skilled workers’. The Bill will:
- ‘introduce new sanctions on illegal workers and rogue employers’;
- ‘provide better coordination of regulators that enforce workers’ rights’;
- ‘prevent illegal migrants in the UK from accessing housing, driving licences and bank accounts’;
- ‘introduce new measures to make it easier to enforce immigration laws and remove illegal migrants.’
3. New English language requirements for public sector workers
The proposals for new English language requirements for public sector workers exemplify how easy it is for a combination of rhetoric, clouded thinking, a preoccupation with immigration and a failure to commit to evidence-based policy-making to result in exceptionally poorly thought through policy prescriptions. It is a matter of serious concern that such poorly considered and ill-thought through proposals, with the potential to encourage wide spread racial discrimination, could make it into a published UK Bill to be considered by Parliament. If introduced, workers working in customer-facing public sector roles would be required to demonstrate that they have ‘fluent’ English language skills; the effect of these provisions should not be underestimated.
The provisions would: a) encourage racially biased testing and complaints; b) leave BME workers disproportionately open to such complaints; c) burden a wide range of public bodies with the task of developing new English language tests and complaints procedures; d) task such public bodies with applying new English fluency requirements across very different ‘customer facing roles’; e) encourage discrimination against a range of disabled people whose language skills may be affected by their disability (e.g. the hearing impaired, learning disabled people and those who have speech impairments; and f) adversely impact on anyone whose English language skills are deemed not to be ‘fluent’. The English language provisions in the Bill are considered further in appendix 1.
4. So why is REF concerned?
If the Government’s analysis and prescription were correct then the new Bill would be welcome. However, our assessment is that implementing the Bill’s provisions would:
- extend stop and search like policing measures which have been proven to disproportionately and adversely impact on members of BME communities;
- make landlords wary to let accommodation to BME tenants for fear of risking fines and up to 5 years’ imprisonment as provided for under clause 12 of the Bill;
- discourage employers from employing BME workers and encourage racism and discrimination by introducing further employment sanctions;
- encourage rogue employers and landlords to exploit vulnerable individuals;
- reduce the likelihood of victims coming forward, leave those individuals with no legal recourse, worsen the situation of those subject to human trafficking and exploitation and, according to the Guardian, create ‘thriving conditions’ for human slavery;
- make those denied access to housing, driving licences and bank accounts more vulnerable to exploitation and human rights breaches while doing little or nothing to remove those in the UK unlawfully;
- make it more difficult for individuals to appeal and secure justice.
 These final provisions, set out in part 9 of the Bill, include commencement powers and provisions in respect of the parliamentary procedure to be applied to regulations made under the Bill.
 Part 3 of the Bill, clauses 19 – 28, sets out new enforcement provisions.
 Part 7, clause 38 ‘English language requirements for public sector workers’. Clause 38, ‘(1) A public authority must ensure that each person who works for the public authority in a customer-facing role speaks fluent English. (2) In determining how to comply with subsection (1), a public authority must have regard to the code of practice under section 41 that is for the time being applicable to that authority. (3) A public authority must operate an adequate procedure for enabling complaints to be made to the authority about breaches by the authority of 35 subsection (1) and for the consideration of such complaints. (4) In determining whether a procedure is adequate for the purposes of subsection (3), a public authority must have regard to the code of practice under section 41 that is for the time being applicable to that authority.’
 Equality Act 2010
 Equality Act 2010, sections 9, 13, 19, part 3 and part 5.