On 12 May 2016, the Immigration Bill received Royal Assent and became the Immigration Act 2016 (the Act). The Act is intended to introduce further measures to curb illegal working and prevent the exploitation of migrant workers including the following measures:
The Act extends 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. Conviction on indictment for this offence will increase from two to five years. This is part of the Government's plan to prosecute employers who ‘turn a blind eye’ to employing illegal migrants. This provision reduces the threshold for conviction from 'knowing' that a person is an illegal worker to 'having reasonable cause to believe' someone is an illegal worker and could result in a higher number of criminal prosecutions because the burden of proof is much lower. We often encounter circumstances where an employee's immigration status is not clear and needs to be investigated further. With the introduction of the Act, managers and HR professionals will need to be aware as to when during that investigation they could be said have to have reasonable cause to believe someone is an illegal worker and take the appropriate steps. We anticipate that this could lead to an increase in claims for unfair dismissal, if it subsequently transpires that an employee dismissed because there is reasonable cause to believe they are an illegal worker does actually have the right to work in the UK.
The Act also creates a new offence of illegal working, which will enable the earnings of illegal workers to be seized under the Proceeds of Crime Act 2002.
For employers who are also Tier 2 Licenced Sponsors, the Act will give 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. The charge, due to be introduced in April 2017, will be set at £1,000 per employee per Certificate of Sponsorship per year, and a reduced rate of £364 for small or charitable organisations. It is designed to cut down on the number of businesses taking on migrant workers and incentivise training British staff to fill those jobs.
The Act will also require public authorities to ensure that public sector workers in customer-facing roles speak fluent English. There will be a code of practice published (this is awaited), which will provide guidance to organisations on how to test for fluency.