Immigration raids - rights and responsibilities

Posted on In Focus Jan 2011 - by Tandoori Magazine
Immigration raids - rights and responsibilities

Immigration lawyer Maria Fernandes looks at the impact of immigration raids and the rights and responsibilities of restaurateurs.

Anyone looking through any newspapers or going through the UK Border Agency (UKBA) website will not have missed the fact that immigration raids on restaurants are a daily occurrence and reported in the press as frequently.  The UKBA has a policy of ‘naming and shaming' and they appear to trumpet this task with photographers in tow and juicy statements for journalists to use as quotes.

There are numerous stories of up to 10 officers arriving, sometimes with dogs, during busy periods, shutting down restaurants and sometimes even boarding in customers who have come to eat. All those present are told to sit down and be quiet.

Searches are carried out of the premises and sometimes of accommodation above restaurants. Money and other items are seized. There are reports of employers not being allowed to explain or even sometimes to enter their own restaurant whilst the raid is taking place.

There are theories that the raids are means of securing large fines which provide income to the public purse and also keep a number of people (and dogs) in employment. Those facing criminal charges sometimes of a very serious nature are provided with the safeguards of a society which respects the principle of the rule of law and the human rights of its citizens. The rights facing employers who commit a civil offence is less clear.

This article looks at some of the rights laid down by guidance given to immigration officers called Enforcement Directorate Instructions which can be relied upon in proceedings in certain circumstances.  The rules of fairness and natural justice are a cornerstone of British Law and the sit above any acts or omissions of the State.

Judges will step in to defend the rights of individuals where they feel they have been treated unfairly.  In recent times, a number of cases in other areas of immigration have been struck down because rules of constitutional importance have not been observed.  With that in mind it is worth remembering the obligations of the immigration officers:

Rule 1: An undertaking has been given to Parliament that immigration officers will not carry out fishing expeditions. They must have a clear purpose for the visit.
Many employers have reported the fact that immigration officers arrive with warrants that refer to a particular person they are looking for.  In many cases no one in that business has heard of the named person, yet this is often used as the basis of the shut-down of the business and the questioning of all present.

Rule 2: When keeping local records of visits there must be records kept of all addresses visited.  The records must show the date of each visit, the name of the officers who made the visit and the name of the Inspector who authorised the visit.  These records should be kept for at least 12 months.  There are special rules for repeated visits (more than three), which require senior officer approval.
Rule 3: When visiting places of work, attempts must be made to establish the names of offenders and act on reliable information. The purpose of the visit is to locate an offender.  Those on the premises should be questioned only to eliminate them from enquiries or where there are reasonable grounds for doing so.

Rule 4: The Race Relations Act of 1976 makes it unlawful for immigration officers when carrying out their duties to do any act which constitutes racial discrimination.
The guidance provides that immigration officers "may not stop an individual
based upon their racial appearance and race or colour can never be the basis
of the immigration officers reasonable suspicion."

Rule 5: Statements taken have to be read over and agreed as accurate before signing. Otherwise the interviewee can refuse to sign them and is advised not to do so.

Rule 6: Where there is a warrant authorising officers to enter premises and search
for evidence it should specify what they are allowed to do.  Therefore for example a warrant obtained to enter premises to search for evidence of a suspected offence cannot be used to obtain other information. Receipts must be provided of anything taken. There are specific rules for entry and search without a warrant: where it is suspected an individual has been arrested on suspicion of a criminal offence, documents may be found at his or her address.

Rule 7: The employer must be identified unless the responsibility has been delegated
to another party, for example the Manager.

Rule 8: Officers use a premise search book which must be completed and every office must record their notes.  They record this information in the Visit Record Books (VRB) or a pocket notebook specially issued. Any documents seized can be photocopied before they are taken away.

Employers must be aware of and be confident enough to assert their rights. In any proceedings failure to observe these rules could affect the outcome of the case.

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