Tighter controls have been introduced under the Immigration Act 2016 which aim to prevent employers from turning a blind eye to worker exploitation and illegal working. From 12 July 2016, stricter rules and harsher sanctions will be imposed on employers.
It is currently a criminal offence if an employer "knowingly" employs an illegal immigrant worker. The new Act extends what constitutes a criminal offence. From 12 July the Home Office only needs to prove that an employer had "reasonable cause to believe" that an employee does not have the right to work, for the employer to commit a criminal offence. This is likely to result in an increase in the number of criminal prosecutions as the burden of proof has been lowered so that actual knowledge is no longer a requirement.
Employers will therefore need to increase their awareness of employees' right to work, investigate any suspicions of illegal working and carry out more stringent checks in order to avoid criminal sanctions.
Employers who are not proactive in carrying out thorough right to work checks will not only be more likely to face criminal prosecution, but will face harsher penalties.
The penalty under the new criminal offence is being increased with those responsible facing a potential custodial sentence of up to 5 years (it was previously 2 years) along with a potential unlimited fine.
This is in addition to the existing civil offence of negligently employing illegal workers which carries a fine of up to £20,000 per illegal worker.
It is therefore critical that employers have systems in place to check and monitor the immigration status of all of its employees.
English Language Requirements
The Act also imposes a requirement for public-facing public-sector workers to speak fluent English (or Welsh if they are in Wales) to do their jobs effectively.
No date has been set for when this requirement will come into force and guidance on the practicalities of meeting this requirement is yet to be published. The Government is expected to issue a Code of Practice to assist public authorities in testing employee language proficiency.
Whilst the Act also makes illegal working a criminal offence in itself (meaning that employees can now be prosecuted) the real burdens and responsibilities remain with employers.
To avoid falling foul of these new requirements, employers should review their current practices and procedures to ensure that they remain fit for purpose and comply with the new legislation.