The Immigration Act 2016 (the ‘2016 Act’), which builds on the Immigration Act 2014, aims to curtail the rights of those living unlawfully in the UK, with a particular focus on limiting their right to work and rent. Following the implementation of most of the provisions relating to working and renting, the first provision in relation to driving (section 43 of the 2016 Act) was brought into force on 31 July 2017 in West Yorkshire and Kent.
Under this new provision, officers (such as immigration and police officers) who suspect that someone has a driving licence but is not lawfully in the UK will now have the right to not only search that person for their driving licence but also search any premises occupied or controlled by them. A person may find themselves no longer lawfully residing in the UK if, for example, they remain in the country following the expiry of their visa, or where their leave has been curtailed due to a breach of the conditions of their visa (for example taking up employment not allowed under their visa category). Officers will also be able to search the premises where they encountered that individual, even if this is not their home or a premise occupied by them. Employers should therefore be warned as this may include the search of an individual’s place of employment.
If the officer has reasonable grounds to believe that the person on which the driving licence is found or the person in whose name it is registered is living unlawfully in the UK, they will have the right to seize and retain the driving licence. The Secretary of State will then take a decision on whether to revoke the driving licence indefinitely, though this decision can be appealed.
It is important to note that for both the search and seize powers, the officer need not ‘know’ that a person is in possession of a driving licence while not lawfully residing in the UK as reasonable grounds for believing this is sufficient to trigger the search and seize powers. This scenario may arise where a driver has been stopped for an offence and the driver’s details are matched against a Home Office record. A concern that has been flagged is it that out-of-date databases raise, may lead to an individual having their driving licence incorrectly seized.
The new provisions under the 2016 Act will eventually be complemented by provisions whereby those found guilty of driving whilst living unlawfully in the UK will be liable to a fine and/or imprisonment.
Section 43 is currently only in force in West Yorkshire and Kent, where the new powers introduced by the section were initially piloted. It will eventually be implemented in all of England and Wales, Scotland and Northern Ireland. Guidance to police and immigration officers on the use of the powers will be published following a public consultation.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of August 2, 2017.