Like many professionals in the UK, my Saturday mornings are always earmarked for 'errands' (an adult version of chores and something that I had hoped I would grow out of). One of those errands often involves me standing in a long queue in my bank. The thrills of adulthood.
Except, this weekend, my mind was brought out of the fog of boredom when I heard the bank manager talking to a customer in front of me. The conversation started by the bank manager asking the customer about the purpose of their visit. The customer commented that he wanted to change his address and the bank manager dutifully responded by confirming that the customer was in the right place. Relief.
"It would just be a simple case of me seeing some ID and I can change your address for you".
I could see the joy radiate from this individual – he was going to escape the long queue! I was pleased for him, really I was. Then came the curve ball.
"I have my passport with me". The customer hands over his passport – it is not a British passport.
The bank manager froze.
"Do you have your visa sir?"
"It is in my old passport – I was granted permanent residence in 1999".
Now, as an immigration lawyer, this all seems fairly normal. I am even nodding my head in slight agreement. Perfectly legitimate.
"We will have to run some checks sir, do you mind stepping to the side".
The customer was perplexed, I was sympathetic. The 'checks' referred to are the new enhanced 'right to bank' checks. The pair scurried off into a pod room which gives the illusion of privacy but only acts as a megaphone to your conversation.
This encounter got my mind thinking and being the immigration nerd that I am, I went to a coffee shop, pulled out the iPad and pulled up the Home Office guidance on 'right to bank' checks.
In January 2017, legislation was brought in which meant that you could only open a current account in the United Kingdom if you could establish that you were lawfully present in the United Kingdom. In January 2018, these checks were enhanced so that the banks and building societies were required to conduct checks on the existing 76 million current accounts (to make sure that those accounts already set up are being held by persons lawfully resident in the UK).
These checks must be conducted every quarter and are done by scrutinising the immigration status of all current account holders against a government database (operated by the Home Office). These checks, along with other legislative measures, are designed to create a hostile environment for those who do not have status in the UK – the real consequence is that it creates a hostile environment for everyone involved. Bank managers, cashiers and advisors are now turning into immigration officers.
As I was reading the guidance, I began to feel unsettled– banks (just like landlords) were being used as an external resource to enforce immigration control. Sections 40A to 40H of the Immigration Act 2014 requires banks to conduct checks and then notify the Home Office should they identify a 'disqualified person'. Once a disqualified person is identified, the bank must also report on any other accounts held by that person (not just current accounts). But perhaps more disconcerting is the fact that the bank must also provide information on any regular payments made into the account which is over £200. The purpose of this requirement is that the Home Office will then require the banks to trace the source of those payments and will then investigate whether the source of these funds are legal. In other words, if someone is working and is receiving regular payments for that work, those details can be passed on to the Home Office and the Home Office will use this intelligence as the basis for conducting a visit on the reported business.
Should the Home Office conduct a visit and find that the business has neglected to carry out the correct checks or that something has slipped through, then a Civil Penalty Notice can be issued. These Civil Penalty Notices can be as high as £20,000 per illegal worker. In addition to the financial consequences, there is also the damage to the brand and the reputation of the business – some of you may recall the fallout from the Byron Burger raid which resulted in protests and cockroaches being released into restaurants. These consequences are all sufficiently terrifying but there is one other consequence which makes me nervous - the issuance of a Civil Penalty Notice does bring into play the possibility of a future Illegal Working Closure Notice.
An Illegal Working Closure Notice is a relatively new power where an immigration officer can close a business for 24 or 48 hours if they suspect that there is illegal working taking place on the premise and the employer (or a connected person) has been issued with a Civil Penalty Notice in the three years prior to the making of the Illegal Working Closure Notice. Now this power should only be used in the most serious of cases but I would not want to be the first to test out this theory.
And so I reached the conclusion that the right to bank checks are not simply another 'hostile measure' but are also an attempt by the Home Office to bolster their enforcement team by recruiting banks and building societies to their cause. The spider web of immigration law and enforcement is continuing to spread and businesses need to be careful to not get tangled in its intricate web.