A new law, the Immigration Act 2016 came into force on 12 May 2016 with measures, including some relating to employment, being implemented on 12th July 2016. The act is intended to ‘strengthen the immigration system and make it harder than ever for people who have no right to be in the UK to live here’.
A number of changes have come about as a result of this new piece of legislation that employers need to be aware of.
- Making it a criminal offence if an Organisation employs an illegal migrant which will make it easier to prosecute employers (and directors and officers within organisations) under criminal law.
- Increasing financial penalties for non-compliance with illegal working laws.
- Introducing a new sanction of a 48 hour shut down for businesses which are suspected of employing illegal workers in specific circumstances.
New criminal offence and tougher sanctions
Before the implementation of the Immigration Act 2016, it was very rare for an employer to be prosecuted for employing an illegal worker (unlike civil action which is far more common). This is because it was difficult to prove that an employer knowing employed someone who did not have the right to work in the UK. However, under the new Act, the definition of this being a criminal act is where an employer who has ‘reasonable cause to believe’ that an individual is an illegal worker will be prosecuted.
The sanction for committing this new criminal offence will increase so that directors (and others) can face up to five years imprisonment, this use to be two years.
48 Hour business shut down
For those employers who have already been issued with a civil penalty for employing an illegal worker in the last 3 years, there is a further risk that they should be aware of. Where illegal working is suspected an Immigration Officer will have the power to shut down a business for up to 48 hours with the same powers applying if the employer has failed to pay a previous civil penalty or if the employer has an unspent conviction for employing illegal workers.
It is evident from this the potential for reputational and operational damage.
The ‘shut down’ can be cancelled if the employer can demonstrate they have conducted Right to Work checks. This places greater emphasis on conducting and recording right to work checks.
Enforcement action on the rise
The government has shown that it is serious about taking action for those who do not comply with the law, and over the last 2 years has issued 1974 civil penalties, it is envisaged that this action will only increase if employers do not abide by the new, there is also an expectation of witnessing in criminal prosecutions in this area.
What does this mean for the employer?
- Employers need to be much more vigilant with their workers who are not UK residents. Right to work documents need to be monitored regularly e.g re checking of EU passports when they expire, being aware of when visa’s are due to expire and ensuring that if these checks do expire that the appropriate action needs to be taken e.g dismissal (which still needs to be conducted lawfully).
- Having clear procedures in place and trained managers/personnel will prevent illegal working especially as there is the potential for criminal action. Directors and senior managers within a business are likely to want to ensure that their processes are audited regularly to ensure that there is no scope for breaches to arise.
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