The Immigration Act 2016 requires employers to use extra caution when dealing with right to work checks.

Currently, an employer who fails to carry out right to work checks risks a civil penalty of up to £20,000 if the employee does not have the right to work. Only if the employer can be shown to have known that the employee was illegal can there be a further punishment, including imprisonment of up to two years.

The Government says that this does not do enough to deter employers who “wilfully fail” to carry out the checks or “deliberately turn a blind eye” to signs of illegal working. So from 12 July 2016, employers will face criminal prosecution if it can be proved that the employer “had reasonable cause to believe that [an] employee is disqualified from employment by reasons of the employee’s immigration status”. The main difficulty that this creates for employers is that there are a number of situations where an employee’s right to work is not easy to ascertain, even if proper checks are attempted.

The majority of illegal working cases are still expected to be dealt with under the civil penalty regime. This reflects the high cost of bringing criminal prosecutions. Unfortunately, it is not possible to rule out all risk of legitimate businesses being prosecuted under the new test due to their oversight. An officer of the company who consents to or connives with the offence will face a prison sentence of up to five years.