From 12 July 2016 employers face hefty fines and significant jail terms if there is ‘reasonable cause to believe’ they have been employing illegal workers.

Before these amendments an employer could plead ignorance when it came to employing illegal workers.

Employers would only have criminal charges brought against them if it could be proved they actually knew an illegal worker did not have permission to work.

The new legislation widens the scope for prosecution and increases the maximum penalty.

Also in force from 12 July 2016 any person discovered to be working in the UK without permission faces a maximum penalty of six months imprisonment.

The legislation

Together, sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”) and Sections 24 and 24B of the Immigration Act 1971 (“the 1971 Act”) contain the UK’s legislative scheme designed to prevent illegal workers from being employed in the UK.

Section 15 of the 2006 Act imposes a civil penalty on businesses that employ someone who does not have the right to undertake work in the UK. A business can only escape penalty if it has complied with the document checks prescribed in the legislation.

Section 21 of the 2006 Act created a further criminal offence for employers who knowingly employ an illegal worker.

In practice, this criminal offence was rarely prosecuted because it was very difficult for a prosecuting authority to prove beyond a reasonable doubt that an employer knew for certain that an employee was working illegally.

Amendments in effect from 12 July 2016

Sections 34 and 35 of the Immigration Act 2016 (“the 2016 Act”) came into effect on 12 July 2016.

Section 34 inserts the new offence of ‘illegal working’ in section 24B of the 1971 Act.

Section 35 amends section 21 of the 2006 Act, increasing the penalty and widening the scope of the criminal offence of employing an illegal worker.

The amendments were designed to strengthen immigration rules and create a hostile environment for illegal workers attempting to secure employment in the UK.

These amendments are also accompanied by new immigration officer powers to enter a business’ premises, search for and retain evidence and close a business for 48 hours.

New offence of illegal working

From 12 July 2016, under section 24B of the 1971 Act, a person commits the offence of illegal working if he or she is:

  1. subject to immigration control;
  2. works in the UK;
  3. is disqualified from working in the UK by reason of his or her immigration status; and
  4. at the time, he or she knows or has reasonable cause to believe that he or she is disqualified from working because of his or her immigration status.

A person is disqualified from working ‘by reason of immigration status’ if he or she either:

  • has not been granted leave to enter or remain in the UK; or
  • the leave granted is invalid, has ceased to have effect or is subject to a condition which prevents the person from doing the kind of work he or she is engaged in.

‘Working’ includes all types of working arrangements, including contracts of employment, apprenticeships and self-employment.

The offence carries a maximum penalty of six months imprisonment and/or an unlimited fine. In Scotland the fine is limited to the statutory maximum.

Any income that has been earned as a result of illegal working may be seized as the proceeds of crime.

Offence of employing illegal workers

From 12 July 2016, under section 21 of the 2006 Act (as amended by section 35 of the 2006 Act), an employer commits the offence of employing an illegal worker if he or she:

  • employs an illegal worker; and
  • either knows or has reasonable cause to believe that the person has no right to do the work in question.

The insertion of ‘has reasonable cause to believe’ extends criminal liability to circumstances where an employee has not provided the employer with necessary immigration documents and the employer should have known that the employee did not have the right to work.

If an employer has ignored information or failed to conduct proper document checks, they may now face criminal prosecution.

Since 2006, UK businesses employing illegal workers have faced civil penalties.

When the legislation was first introduced, employers faced a fine of up to £10,000 if found to be employing an illegal worker. In 2014, the maximum fine doubled to £20,000.

Other consequences that may flow from a civil penalty include publication of the penalty on the Home Office website and disqualification from obtaining a sponsor licence or other licences necessary for the business.

Now, in addition to attracting a civil penalty, employers may also face criminal sanctions in a high number of illegal worker cases.

If found guilty of a criminal offence, employers face an unlimited fine and maximum custodial sentence of five years. Before the recent amendments, the maximum custodial sentence was only two years.

How to avoid criminal prosecution

Employers and HR departments must ensure that they are carrying out the correct right to work checks before hiring any employee, if they want to ensure they are not liable to criminal prosecution for employing illegal workers.

Essentially, there are three steps required to maintain proper checks:

  1. Obtaining the person’s original documents;
  2. Checking them in the presence of the holder; and
  3. Making and retaining a clear copy, as well as making a record of the date that the copy was made.

Ignorance is no longer an excuse.