On 12 May 2016, the Immigration Bill received Royal Assent and is now the Immigration Act 2016 (the “Act”). A number of the provisions of the Act came into force from 12 July 2016, including the offence of illegal working.
The Act reflects a number of government commitments which are aimed at tackling illegal working and also preventing the exploitation of migrant workers. The government considers that the new immigration system supports the best interests of the UK and “those who play by the rules”. The Act is wide-ranging, and makes it more difficult for people living unlawfully in the UK to have access to services such as UK bank accounts and rental accommodation.
In this article we explain the employment provisions of the Act, and what is (and is not) yet in force, and the implications for employers.
Key Employment Provisions of the Act
The Act has extended the existing criminal offence of knowingly employing an illegal migrant to apply where an employer has “reasonable cause” to believe that a person is an illegal worker. Along with this, the government has increased the penalties which apply, so that conviction on indictment for this offence will increase from two to five years. The Act has also created a new offence of illegal working, which applies to individuals who work in the UK illegally. This will enable the earnings of illegal workers to be seized under the Proceeds of Crime Act 2002. Each of these provisions came into effect from 12 July 2016.
The Act has also given the Secretary of State the power to introduce an “immigration skills charge” on certain employers who sponsor skilled workers from outside of the European Economic Area. However, this provision is not expected to come into force until April 2017.
Public authorities will also be required by the Act to ensure that public sector workers in customer-facing roles speak fluent English. Again, this provision is not yet in force, and there is not yet an anticipated commencement date.
Implications for Employers
The new restrictions and offences mean that it is more important than ever for employers to take steps to ensure that its employees have the right to work in the UK. Before an individual starts employment, employers need to carry out appropriate "right to work" checks, and make sure they conduct follow-up checks on those who have a time-limited permission to work. Employers should also keep a record of all the checks it has carried out.
Employers should remember that in addition to the risk of criminal prosecution, there are civil penalties which apply for employing illegal workers. The maximum civil penalty is £20,000 for each individual who does not have the right to work.
There are also further potential costs to employers. In the March 2016 budget, the government announced that employers will be denied the employment allowance for National Insurance contributions for 12 months if they are subject to a civil penalty for employing illegal workers. This measure will be introduced by regulations and is likely to apply from tax year 2017 to 2018 onwards.
In addition, if you hold a sponsorship licence under Tiers 2, 4 and 5 of the Points-based System, receiving a civil penalty may result in your status being downgraded or could even lead to the revocation of your licence.
For further advice in relation to right to work checks, or obtaining a sponsorship license, please contact the Employment Team