On 12 May 2016 the Immigration Act 2016 received Royal Assent. The 2016 Act focused heavily on creating a ‘hostile environment’ for those living and working in the UK illegally. It did so by creating a range of enforcement powers upon employers.

Schedule 6 of the 2016 Act specifically created powers for the Home Office to close a business and compel the production of either right to work checks or previous right to work check documentation by way of ‘Illegal Working Closure Notices’ and ‘Illegal Working Compliance Orders’. On 1 December 2016, the Illegal Working Compliance Order Regulations 2016 will come into force which further detail the right to work checks documentation that must be produced when faced with an ‘Illegal Working Compliance Order’.

To recap on the powers in Schedule 6 of the 2016 Act:

  • The Illegal Working Closure Notices is issued by a Chief Immigration Officer or higher and is issued to close a business premises where an employer operating at that premises is found to be employing a person who has no permission to work in the UK. The closure notice closes the business for up to 48 hours.
  • When an Illegal Working Closure Notice is issued, an immigration officer can then make an application to the court for an Illegal Working Compliance Order in order to extend the provisions of the order for up to 12 months. This can again be extended by a further 12 months if allowed by the court.
  • The order can restrict or prohibit access to the premises, require the employer to perform right to work checks and produce right to work check documents and any other provision deemed appropriate. The documents to be produced as per the Illegal Working Compliance Order are specified in the Illegal Working Compliance Orders Regulations 2016.
  • Where an Illegal Working Compliance Order is in place, a person who enters a premises or contravenes the order will be committing an offence punishable with up to 51 weeks imprisonment and/or a fine.

Comment

There has never been a legal obligation to undertake a right to work check. However, by having a right to work policy and undertaking right to work checks correctly, employers protect themselves against being fined for being found to have employed someone without the right to work.

The Home Office began cross referencing HMRC PAYE data against their own immigration status data in order to locate employees potentially working illegally and began issuing penalty notices over a year ago. These new powers add to that power to fine employers where an illegal worker is found to be working for a business by effectively now ceasing the business trading while investigations are undertaken. Where the business is a hotel, a factory, a restaurant – a business dependent on trading from a specific location – it is clear that the financial impact on closing a business premises is very significant. These businesses also tend to be high risk typically employing short term staff on short notice with a decentralised right to work check procedure meaning many employees slip through the net.

What is not clear is the consequence of being compelled to produce right to work check documentation where there is none, or compelling right to work checks to be done where employees do not have right to work documents.

For employers with a Home Office Tier 2, Tier 5 or Tier 4 sponsor license, failure to be able to produce compliant right to work documentation has more serious implications representing a breach in sponsor duties.

The new legislation does not create new obligations for employers but certainly increases the need to make sure new employees have right to work documents on file, that documents are checked pre employment and that effective visa tracking systems are in place.