Changes have been introduced under the Immigration Act 2016 with effect from 12 July 2016 to strengthen punishments for employers who employ illegal migrants and to stop migrants without the appropriate permission benefiting from work undertaken in the UK.
The new offences are:
- Employing an Illegal Worker (only affecting employers)
An employer now commits a criminal offence if they employ an illegal worker and it knows or has reasonable cause to believe that the person has no right to do the work in question. This widens the scope from the previous criminal offence where only "actual knowledge" the person was working illegally was required arguably leading to an objective test which is easier to prove. The Government's intention is to take a tougher stance against employers who may have previously turned a blind eye to illegal workers. The maximum prison sentence has been increased from 2 to 5 years and/or an unlimited fine.
- Offence of Illegal Working (only affecting the migrant directly)
A migrant now commits an offence of illegal working if they know or have reasonable cause to believe that they are unable to work by reason of their immigration status. The knowledge of the individual is tested on the basis that their leave to enter or remain and work in the UK is no longer valid or has ceased (whether by curtailment, revocation, cancellation, passage of time or otherwise). This new offence covers all types of work including apprenticeships and self-employment. If found guilty the wages obtained by the migrant from illegal work can be seized as proceeds of crime and carries a maximum prison sentence of six months and/or an unlimited fine.
The Home Office have issued an updated version of their "Employer's guide to right to work checks" guidance to address the above.
What does this mean for employers?
Previously an employer could avoid a criminal prosecution for employing an illegal worker provided they did not have actual knowledge the migrant was working illegally, this more objective test creates additional responsibilities because they can be prosecuted if there is reasonable cause to believe the person no longer has the right to work in the UK.
To ensure compliance with the immigration rules and avoid any potential criminal prosecutions, should employers become aware of any circumstances that an employee may have lost the right to work in the UK (or there are grounds to suspect this is the case), employers need to take prompt action and investigate that employee's right to work status, taking steps to end the employee's employment (following a fair process) if the right to work cannot be established.