The Immigration Act 2016 has received Royal Assent and amongst the provisions which will come into force on 12 July 2016 are the following:
- The creation of the 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 (to be renamed as the Gangmasters and Labour Abuse Authority from 12 July 2016), 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.
- The creation of 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.
- The extension of the existing criminal offence of knowingly employing an illegal migrant to the situation where an employer has a “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.
The following provisions do not yet have a commencement date:
- Giving the Secretary of State of power to introduce an immigration skills charge on certain employers who sponsor skilled workers from outside of the European Economic Area. This is expected to be introduced in April 2017. Please see our e-brief of 1 April 2016 for more details on the immigration skills charge.
- Requiring certain public authorities to ensure that public workers in customer-facing roles speak English (or, in Welsh authorities, English and/or Welsh) to a sufficient degree of fluency to “do their jobs effectively”. Further details of how “fluency” is to be assessed and which public authorities will be covered will be set out in a Code of Practice (and which is awaited). We will provide details of this when the Code is published.