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Crackdown on illegal working

New measures intended to combat illegal working in the UK have come into force.

Criminal offence and Immigration Officer powers

The new regime extends the existing offence of knowingly employing an illegal migrant. It now includes circumstances where an employer has "reasonable cause to believe" that a person is disqualified from working due to her / his immigration status. The maximum sentence has increased from two to five years' imprisonment. These changes came into force on 12 July 2016. 

An additional measure that has been introduced relates to the delegation of power to Immigration Officers. From 12 July 2016, they are entitled to enter business premises to search for documents and to seize and retain evidence in relation to an offence. It is also now possible to impose compliance sanctions and close businesses that employ illegal workers.

Immigration Act 2016 – measures not yet in force

The new provisions come from the Immigration Act 2016, which was introduced to strengthen the legal framework for prevention of illegal working.

The remaining employment aspects of the Act are not yet in force and do not have commencement dates. These include an immigration skills charge for sponsoring skilled workers from outside of the European Economic Area, which is expected to come into force in April 2017.

The Act also contains provisions that will make applying for, and holding, a licence to sell alcohol or late night refreshment conditional on not breaching immigration laws, including employing illegal workers. 

In addition, there are new provisions that will make immigration checks compulsory and embed immigration safeguards into the existing licensing regimes for drivers of taxis and private hire vehicles.  This is to address the fact that the majority of such drivers are self-employed and so are not subject to the illegal working checks undertaken by employers.

In continuing the trend of measures to combat illegal working, the March 2016 Budget included an announcement that, from April 2017, employers who are subject to a civil penalty for employing illegal workers will be denied the NICs employment allowance for one year.

Impact of Brexit

Whilst Brexit has no immediate implications for UK immigration laws (with the process for exiting the EU expected to take at least two years), the outcome of the exit negotiations for EU citizens working in the UK cannot at this stage be predicted. 

Whilst transitional arrangements are expected to be agreed for such workers, it would be prudent for employers to understand who within their workforce will be impacted by any future changes.

What should employers do?

To date, the Home Office has used the civil penalty for employing an illegal immigrant more than the criminal offence, with more than 1,900 civil penalties issued in the financial year 2014/15 (the penalty for which was doubled in 2014 to £20,000 per illegal worker). This is because the civil penalty does not require actual knowledge of the illegal working on the part of the employer and is therefore easier to administer.  

The government's stance is that the extension of the criminal offence makes it more objective and so easier to prove. This is due to the lowering of the threshold from "knowingly" employing an illegal immigrant to having "reasonable cause to believe" the worker is an illegal immigrant. We therefore expect to see more employers being prosecuted by the Home Office than has previously been the case.

It is clear that the government is cracking down on illegal working. Employers should start preparing now to minimise the potential exposure to civil or criminal penalties. If you have not already done so, you should consider:

  • Carrying out a regular audit of employee files to ensure that there is valid and up-to-date right to work evidence.
  • Putting in place a document checking system that operates throughout the employment life-cycle to minimise the risk of penalties. 
  • Putting in place a central diary system with early warnings ahead of critical dates, for example visa expiry dates. 
  • Reviewing or amending internal policies and procedures to ensure that right to work checks are routinely carried out and that line managers and recruitment are aware of immigration matters.
  • Designating champions who will be experts in immigration matters and will ensure compliance with relevant laws. 
  • In light of Brexit, carrying out an audit of staff who are EU nationals and are registered as such in the UK.

Contributor: Amy Whiting

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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