Rules in relation to illegal working tightened

The first set of measures under the Immigration Act 2016 (“the Act”) came into force on 12 July 2016.  The aim of the Act is to tackle immigration by making it harder to live and work in the UK illegally.

These provisions introduce a new criminal offence of illegal working and strengthen the provisions contained in the Immigration, Asylum and Nationality Act 2006 in relation to employing an illegal worker. Earnings which derive from illegal working can also now be treated as the proceeds of crime and thus confiscated.

New offence of illegal working
With effect from 12 July 2016, a person who is subject to immigration control commits a criminal offence if they work in the UK when they do not have the appropriate permission and they either know, or have reasonable cause to believe, they do not have the appropriate permission.  Prior to 12 July 2016, employers only committed a criminal offence if they “knowingly” employed someone who does not have the right to work in the UK.

This includes where the person has not been granted leave to enter or remain in the UK; where leave was granted but the person’s leave to enter or remain in the UK is, or has become, invalid; where the leave has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise); or where the leave is subject to a condition preventing the person from doing work of that kind.

The penalty for a worker who commits this new offence is 6 months’ imprisonment, an unlimited fine or both.

Offence of employing an illegal worker
A person or company commits an offence if they employ a person who is disqualified from employment by reason of the employee's immigration status and if the person or company has reasonable cause to believe that the employee is disqualified from employment by reason of the employee's immigration status.

The Act introduces tougher sanctions on employers for employing an illegal worker.  It increases the maximum custodial sentence from two to five years.  The Act also introduces a new power to issue a closure notice in certain circumstances.  This is an order that business premises must be closed for up to 48 hours if the business has been found to be employing illegal workers.  The Home Office also has a discretion to place such a business on special compliance measures, which may include continued closure. 

The definition of when a person is deemed to be working illegally is very wide.  This means that even an honest, minor or trivial mistake made in an immigration application that results in the individual not having the appropriate leave to work in the UK could result in the sponsoring employer (and indeed the individual) committing an offence.

The changes also mean that the employer will be committing a criminal offence if the employer has “reasonable cause to believe” that they are employing an illegal worker, even if it cannot be said that they have outright knowledge of this. 

Comment
Employers also risk a civil penalty of up to £20,000 per illegal worker if they employ an individual who does not have the right to work in the UK.  As such, we strongly recommend that:

  • employers take prompt action if they suspect someone may not have the right to work in the UK and seek legal advice;
  • employers carry out the right to work checks before an employee starts work.  If the person has limited leave to remain, these checks must be carried out again upon expiry of the leave to remain;
  • immigration and right to work processes are audited regularly to reduce the risk of an inadvertent breach of the new illegal working laws; and
  • employers obtain advice in relation to employees’ immigration applications, as the rules are becoming increasingly complex.

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