The UK Government has been attempting to develop a comprehensive approach to deal with illegal working and the exploitation by employers of migrant workers who are often vulnerable. The passing into law of the Immigration Act 2016 (the “2016 Act”) is intended to make a significant contribution to this aim. The Act extends to over 200 pages and brings with it major revisions to the UK immigration system. The provisions commented on below will be particularly relevant for employers.
From 12 July 2016 the following provisions will apply:
- Strengthening the existing law around employing illegal migrants Prior to the introduction of the 2016 Act employers would only be liable to criminal prosecution for employing an illegal worker, where they had actual knowledge of having done so. The 2016 Act extends the existing criminal offence to also cover the situation where an employer has “reasonable cause to believe” that someone is an illegal worker. The Act also increases the maximum sentence for either offence from two to five years.
- Introducing a new criminal offence for illegal workers The Act introduces a new offence for those workers who are found to be working illegally in the UK. Workers who do not have permission to enter the UK, have overstayed, or have violated restricted working conditions will be guilty of the new offence of ‘illegal working’. Individuals guilty of this offence could face up to 6 months imprisonment and/or a substantial fine. Furthermore, the Act now allows for the earnings of illegal workers to be seized under the Proceeds of Crime Act 2002. The criminalisation of migrants has been criticised by certain human rights groups who consider it will make it less likely exploited “illegal” workers will speak out against their treatment.
The remaining employment related provisions of the Immigration Act 2016 are not yet in force and do not yet have a commencement date:
- Introducing a new offence of aggravated breach of labour market legislation The Act introduces new measures aimed at tackling deliberate and repeated breaches of employment law. Enforcement bodies will be able to require employers to give an undertaking confirming that they will not breach labour market legislation (e.g. by failing to pay the national minimum wage). Where an employer refuses to give the undertaking, or fails to comply with an undertaking that has been given, they can be issued with an enforcement order. Breach of an enforcement order will be a criminal offence, potentially attracting a custodial penalty of up to two years.
- Reinforcing restrictions on employing non-EEA nationals The Act empowers the Secretary of State to introduce an “immigration skills charge”, to be applied to employers who sponsor skilled workers to come to the UK from outside of the EEA. While certain exemptions do exist, employers subject to the charge will be required to pay £1,000 for each skilled migrant worker they employ.
- Imposing strict language requirements The Act introduces stringent language requirements for public authorities to meet when employing people to work in customer-facing roles. The Act requires that those employed by public authorities have sufficient fluency in English in order to communicate with members of the public. The UK Government is expected to issue a Code of Practice in the coming months to assist public authorities in testing employee language proficiency.
- Encouraging employers to observe their legal obligations The Act confers a new power on immigration officers allowing them to close business premises for up to 48 hours, if there is evidence of employers flouting the law by employing illegal workers and evading sanctions. If the employer can prove they have conducted the right to work checks, the closure notice may be cancelled. Where they cannot, the business may be placed under special compliance requirements, as directed by a Court. This can include continued closure for a period, followed by re-opening subject to compliance inspections and the requirement to conduct right to work checks.
The changes introduced by the Immigration Act 2016 are specifically geared at tackling worker exploitation and illegal working. The new and extended criminal penalties are in addition to the existing civil penalty regime, which since 2014, has meant employers could be liable to a civil penalty of up to £20,000 per illegal worker. As a result, HR teams should already have systems in place to prevent illegal working. However, it could be timely to review current practices to ensure they remain fit for purpose.