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16.12.24

Frozen bank accounts and the Home Office

In recent times, there appears to have been an increasing interest shown by the Home Office in the financial background of foreign nationals are accused of staying in the UK beyond the expiry of their visa, or working when the terms of their visa prohibit this.

The Criminal Offence

The Immigration Act 1971 provides that a person who works in England and Wales after the expiry of their visa, or when their visa does not permit working, is committing a criminal offence.

Section 24B(1) of the Immigration Act 1971 provides:

A person (“P”) who is subject to immigration control commits an offence if—

 (a) P works at a time when P is disqualified from working by reason of P's immigration status, and

(b) at that time P knows or has reasonable cause to believe that P is disqualified from working by reason of P's immigration status.

The Act goes on to define the meaning of “disqualified from working” in section 24B(2) as:

a person is disqualified from working by reason of the person's immigration status if—

(a) the person has not been granted leave to enter or remain in the United Kingdom, or

(b) the person's 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 the person from doing work of that kind.

The penalty for a person guilty of the offence ranges from a financial penalty up to a custodial sentence.

Significantly, section 24B(5) requires a prosecutor of this offence to consider asking the Court to commit the matter to the Crown Court for Proceed of Crime Act proceedings to be commenced. This means that a person convicted of this offence can become subject to a Confiscation Order.

Account Freezing Orders applied for by the Home Office

It follows from these provisions that the section 24B(1) offence falls within the scope of the Proceeds of Crime Act 2002. Consequently, the Home Office often assert that funds held in the bank account of a person suspected of being guilty of this offence should be frozen. The rationale for this is that the funds should be frozen while the person is investigated, with a view to a prosecution being commenced, in case they are dissipated or used to fund further illegal working.

The Home Office is able to apply to the Magistrates’ Court for an Account Freezing Order under section 303Z1 of the Proceeds of Crime Act 2002. This section permits a Court to grant an Account Freezing Order if it considers there are reasonable grounds for suspecting that money held in an account is either “recoverable property” or “is intended by any person for use in unlawful conduct”.

The Proceeds of Crime Act provides that recoverable property is “property obtained through unlawful conduct”. In these types of cases, the Home Office will assert that working illegally is the unlawful conduct and so it follows that any wages received will be recoverable property.

The Home Office frequently assert in these applications that the money held in the bank account of a suspect must be from illegal working, as there is no other obvious explanation as to how the money has been obtained. In the alternative, they may assert that the money in the bank account is being used for everyday expenses, such a accommodation costs and food, and so intended for the use of unlawful conduct in that it enables the person involved to carry on working illegally.

Often applications for Account Freezing Orders are made by the Home Office without giving notice to the suspect, and the first they will know of it is when they are unable use their debit card to spend money or access their online banking.

What happens next?

For suspects subject to Account Freezing Orders, it is possible to enter into negotiations with the Home Office (preferably via solicitors) and provide evidence as to why the funds in their account are legitimate. For example, some of the funds may be from savings made prior to the expiry of a visa or gifts or loans from family members.

It is also possible to make an application to the Court to discharge the Account Freezing Order.

Alternatively, the Home Office may ask the suspect to attend a voluntary civil interview or an interview under caution under the Police and Criminal Evidence Act 1984 ('PACE').

At the conclusion of their investigations, the Home Office may decide to prosecute a suspect if they consider they have sufficient evidence to prove they are guilty of an offence under the Immigration Act. Upon conviction, the Home Office can apply for a Confiscation Order under the Proceeds of Crime Act to confiscate the money held in the bank account. However, the burden of proof is high in such cases, and frequently the Home Office will initiate Forfeiture proceedings in relation to the funds in the bank account instead.

Section 298(2) of the Proceeds of Crime Act 2002 provides that:

“The court or sheriff may order the forfeiture of the cash or any part of it if satisfied that the cash or part—

(a)is recoverable property, or

(b)is intended by any person for use in unlawful conduct.”

Although the terminology is similar to the legal test applied by the Court when determining an application for an Account Freezing Order, the Home Office have to prove that the money in the account is recoverable property or intended for the use in unlawful conduct on the balance of probabilities in a forfeiture application. This is a higher threshold than simply establishing that there are  “reasonable grounds for suspecting” as under an application for an Account Freezing Order.

In summary, it is advisable for anyone accused of committing an Immigration Act offence to take legal advice at an early stage. Often actions taken early can influence the way an investigation proceeds and influence what next steps the Home Office may take.

 

If you are facing investigation or are the subject of an account freezing order, send us an email, complete our online enquiry form or call us on 020 3944 1277  to find out how our specialist criminal solicitors can help you.  If emailing or using the online form, please provide a short outline of your situation.


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Legal Disclaimer

Articles are intended as an introduction to the topic and do not constitute legal advice.