The Immigration Act, which has received Royal Assent today and will be put into effect over the coming months through new regulations, demonstrates a tougher approach by Government to both illegal working and exploitation of vulnerable workers –and more.
Key provisions in the Act affecting employers include:
- tighter controls on illegal working;
- strengthening enforcement against worker-exploitation;
- charging employers for recruiting from outside EEA; and
- a new language fluency requirement for certain employees.
Tighter controls on illegal working
There are two principal aspects of illegal working introduced by the Act:
- an extension of the existing criminal offence of knowingly employing an illegal migrant; and,
- the creation of a new offence of illegal working.
Extending the current criminal provisions will now see employers exposed to prosecution where they are considered to have "reasonable cause to believe" that a person is an illegal worker. This reduction in the test for culpability, from actual knowledge of illegality, is likely to result in increased criminal prosecutions since the burden of proof will be lower.
Employers who are not diligent in carrying out checks on an individual’s right to work will not only be more likely to face prosecution but will also find themselves exposed to an increased penalty going forwards. The applicable sentence for knowingly employing an illegal worker is increasing from two to, potentially, five years under the Act. Moreover, organisations which repeatedly flout the Act face potential closure of the business for up to 48 hours.
A much-criticised aspect of the Act is its criminalisation of illegal work itself through the new offence of illegal working. Workers who either lack leave to enter or remain in the UK or are in breach of restricted working conditions will face a potential custodial sentence of up to 6 months, on conviction and/or fine. Their earnings may also be seized under the Proceeds of Crime Act 2002.
Provisions also exist to make it an offence to hold a driving licence whilst in the UK illegally, to make it difficult to hold a bank account and increased penalties on those who rent property to people without the right to live here.
Strengthening enforcement against exploitation in the labour market
Following consultation in 2015, the Government is introducing a more cohesive approach to addressing worker-exploitation - an aspect of organised criminal activity which is on the rise.
The Act’s most significant changes in this regard include:
- the creation of a new post of Director of Labour Market Enforcement.
The Director will be tasked with over-seeing and co-ordinating enforcement of worker exploitation legislation by the three main public bodies responsible: the Gangmasters Licensing Authority, the Employment Agency Standards Inspectorate and HMRC. He or she will also be required to devise an annual strategy to ensure a targeted approach and to report upon progress;
- a new criminal offence of aggravated breach of labour market legislation, following breach of a new-style enforcement order;
- enhanced powers for Gangmaster Licensing Authority, which is renamed under the Act as the “Gangmasters and Labour Abuse Authority”.
Charging employers for recruiting from outside EEA
To encourage employers to build home-grown talent, rather than recruit skilled labour from overseas, the Act gives the Secretary of State the power to introduce an "immigration skills charge" on certain employers who sponsor skilled workers from outside of the European Economic Area.
Once implemented, this charge will apply to each skilled worker brought into the UK under Tier 2 of the points-based system. Regulations (not yet available) will increase the minimum salary threshold for most sponsored employment to £30,000 per annum, with an interim increase to £25,000 from this autumn. The skills charge will be £1,000 for each applicable skilled worker. (For further information, see our previous briefing)
New language fluency requirement
The Act requires public authorities to ensure their workers in customer-facing roles speak English (or, in Welsh authorities, English or Welsh) to a sufficient degree of fluency to “do their jobs effectively”.
Further details of how “fluency” is to be assessed will be set out in a Code of Practice to which the public authorities will be subject (and which is awaited). Authorities will also need to have in place a complaints procedure, to which those inter-acting with staff can raise any concerns over language concerns.
This aspect of the Act is perhaps the most intriguing and difficult for the public sector employers it affects. For example, there are many hidden pitfalls for the unwary, not least the potential for division and, consequently, discrimination if employers are not careful.
The overriding intention of the Act is to create an increasingly hostile environment for those who are in the UK illegally, by prohibiting what they can do. In addition to the tighter controls over organisations which exploit workers from overseas, therefore, the Act will also have direct impact on the migrant workers themselves, introducing a legal framework whereby those without permission to stay can be penalised for common activities, including being paid wages and driving. This concept of reducing migration through creation of a hostile environment has been introduced in parts of the United States previously with some controversy; a reaction it may similarly spark here.
For employers, the change in the test required to establish that they have knowingly employed illegal workers is significant. The number of civil penalties issued for failure to conduct right to work checks has increased significantly in recent years, but there have been comparatively few prosecutions for the “knowingly employing” offence (only nine of these, for example, in 2013). We would anticipate a higher number of prosecutions will result from this change. Employers are advised to consider carefully the right to work checks being made currently.