Irwin Mitchell | Employment Law Update | Immigration Act 2016

From 12 July 2016 employers will face tougher sanctions for employing illegal immigrants

The controversial Immigration Act 2016 will come into effect over the coming months through new regulations, but some provisions start from 12 July this year. These include prosecuting employers who have “reasonable cause to believe” that the person is an illegal worker. This will lower the burden of proof and is likely to expose more businesses to criminal prosecutions and fines.

1. Expanded criminal liabilities

Separate liabilities will apply to both employers who employ illegal workers and to workers who seek or obtain work where they don’t have the right to do so.

Employing an illegal immigrant

Any employer found to employ an illegal immigrant will face criminal sanctions if it had “reasonable cause to believe” that they are an illegal worker. The Government has not yet provided any guidance about what sort of evidence is likely to show “reasonable cause” but it is clear that the burden of proof will be lower than the existing test and it will be easier to prove the offence.

Currently employers can only be prosecuted if they know that an employee was working illegally.

The custodial sentences that can be imposed will increase from 2 years to up to 5 years. Employers can also be fined (currently up to £20,000 per illegal worked employed).

To avoid criminal prosecution and/or civil penalties employers must be able to establish a statutory defence. This requires:

  1. Obtaining original proof of the right to work from prescribed lists;
  2. Checking the authenticity of those documents; and
  3. Keeping copies of the documents.

Immigration Officers will also be able to close a business (for up to 48 hours) where illegal working is suspected and the employer has already been issued with a penalty or has an unspent conviction for employing illegal workers.

Creating a new offence of illegal working

Workers who obtain employment unlawfully because they lack the right to work in the UK, will face criminal prosecution and can potentially be imprisoned for up to 6 months. This will apply to workers who either do not have leave to enter or remain in the UK, or are in breach of restricted working conditions, as well as those who enter the country illegally.

Any earnings may also be seized under the Proceeds of Crime Act. Strictly, illegal workers are not entitled to be paid and any money paid to an illegal worker may be clawed back by UK Visas and Immigration.

2. Further strengthening of enforcement

A Director of Labour Market Enforcement will be created whose role will be to oversee and to coordinate the enforcement of worker exploitation legislation by the three main public bodies responsible: the Gangmasters Licensing Authority (which will be renamed), the Employment Agency Standards Expectorate and HMRC.

The Director will be responsible for publishing plans and reports and will lead an intelligence hub as a single point of information.

Other provisions (not yet taking effect)

3. Charges for overseas recruitment

A new immigration skills charge will be imposed on employers who sponsor skilled workers from outside the EEA. The charge will be £1000 per year per employee brought into the UK under Tier 2 of the points based system.

Regulations will increase the minimum salary threshold for most sponsored employment up to £30,000 per annum, although we expect an interim level of £25,000 to be introduced first.

4. Public sector English Language Skills

Public authorities will be required to make sure that all staff in customer facing roles can speak fluent English (or Welsh in Welsh authorities) and must set up a complaints procedure for members of staff to complain about poor language skills.These provisions create an extremely hostile environment for illegal workers, not limited to their ability to obtain work. Illegal workers will also find it extremely difficult to obtain bank accounts, rent accommodation or to drive.

 

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