The Immigration Act 2016 (“the Act”) will be brought into force in stages over the coming months 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”.
Who is an illegal worker?
A person who does not have the right to live or work in the UK which will be established when undertaking a “right to work check”.
The introduction of new sanctions on illegal working
On 12 July 2016, the criminal provisions for breaching the Act were extended. Employers can now be prosecuted if they are found to have “reasonable cause to believe”, that they are employing an illegal worker. The Act has reduced the test for culpability as previously the employer had to be “knowingly”, (actual knowledge) employing an illegal worker to be guilty of an offence.
If an employer is found to have “reasonable cause to believe” that they are employing an illegal worker, the employer could face two to five years imprisonment and/or a fine of £20,000 (per illegal migrant). The Act also allows for businesses to be closed down for a 48 hour period.
Workers themselves, who are illegally in the UK or who are in breach of their restricted working conditions, could face imprisonment of up to 6 months and/or a fine. Illegal workers will also be sanctioned if they hold a driving licence or bank account.
Even landlords under the new Act, could be sanctioned if they rent property to illegal workers.
The Act has also introduced a new post (Director of Labour Market Enforcement) who will oversee the enforcement of worker exploitation legislation. This person will work with the Gangmasters Licensing Authority, the Employment Agency Standards Inspectorate and HMRC.
The new immigration skills charge
To encourage employers employing home-grown talent, rather than recruiting skilled labour from overseas, the Act introduces the new “immigration skills charge”. This charge is £1,000 per each skilled worker brought into the UK under Tier 2 of the Points Based System.
The Act is aiming to make it increasingly difficult for those individuals who are in the UK illegally. The tighter controls and reduced test of culpability on employers is significant. With prosecutions likely to be on the rise it is now fundamental for employers to be extra diligent when carrying out right to work checks on any individual they recruit.
What should the employer do?
Employers should ensure those individuals responsible for right to work checks receive regular training on compliance with immigration law. In addition to this employers should invest in an updated right to work check policy to reduce the risk of employing an individual illegally. Employers looking to recruit a skilled overseas worker should familiarise themselves with the recent changes to the Points Based System.
Should you or your business require training on how to carry out compliant right to work checks or on business immigration generally please contact Laura Kirkpatrick.
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