A new Immigration Bill has been published this month, with significant proposals and a tougher approach. The proposals set out in the Bill, many of which emanate from the Conservative party manifesto, have been heralded by the immigration minister, James Brokenshire as, introducing the “full force of government machinery” to tackle abuses.
Key issues for employers:
- extending the existing criminal offence of knowingly employing an illegal migrant, to apply where an employer has "reasonable cause to believe" that a person is an illegal worker. The applicable sentence will also increase from two to, potentially, five years;
- creating a new offence of illegal working which will enable the earnings of illegal workers to be seized under the Proceeds of Crime Act 2002;
- giving 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. This is in order to address the current skills gap in the UK workforce. The Government has asked the Migration Advisory Committee to advise on how this might operate but it is likely to involve an additional charge for each skilled worker brought into the UK under Tier 2;
- requiring public authorities to ensure that public sector workers in customer-facing roles speak fluent English;
- a new role of Director of Labour Market Enforcement, who will pull the strands of enforcement together in whatever form they take –whether against gangmasters, rogue employers, or otherwise.
The broadening of the criminal test for employment of illegal workers will accompany other extensions of existing civil and criminal legislation in this area and will have relevance for all UK employers. Specifically, there will inevitably be increased onus upon employers to consider an individual’s right to work and issues of legality during the recruitment process.
Other changes may be indirectly relevant to employers or significant to specific sectors but are nonetheless suggestive of Government direction. For example, there is definite and deliberate shift in Government emphasis upon enforcement activity, as a result of which unannounced visits are showing a marked increase. The new role to lead enforcement may also herald a more co-ordinated or targeted approach, gong forwards.
Perhaps the most intriguing change and one potentially most fraught with difficulty is the new language skills requirement in the public sector. This could prove practically significant in many respects, not least in its potential for division and, consequently, discrimination, of which employers will need to wary.
The new rules are unlikely to take effect before October 2016 at the soonest.
There is no doubt that immigration presents a fast-moving, as well as politically difficult, challenge for government –the former being clearly demonstrated by the publication of a new Immigration Bill within just months of new legislation last year. Political sway cannot be underestimated but it is equally trite that decisions being made now having potentially long term implications.
These latest Government proposals have already prompted criticism, some commentators fearing that, instead of reducing an unstoppable wave of illegal working, they may drive already vulnerable workers further into illegality and away from any form of protection. It remains to be seen, therefore, whether increased Government emphasis upon enforcement and a new Director of Labour Market Enforcement will act as sufficient – or sufficiently effective deterrent - to allay those concerns.