The Immigration Act 2016 represents a significant milestone in immigration regulation creating additional duties and responsibilities on individuals and businesses. Immigration is increasingly under the spotlight and likely to remain so for the foreseeable future so it is therefore vital for employers to be fully aware of their responsibilities to effectively manage their risk. Key features of the 2016 Act include the introduction of a new criminal offence of illegal working, criminal liability for employers who employ workers with reasonable cause to believe they do not have the necessary right to work in the UK and increased penalties for those who are found to have broken the law.

The substantive provisions of the 2016 Act are being brought into force in various stages, most recently on 1 December 2016.

By way of summary these are:

  • Closure Notices and Compliance Orders

New penalties now apply to offenders who have been found to be repeatedly employing illegal workers, or failing to pay a civil penalty notice. The new enforcement regime gives the Home Office the power to close an employer’s premises for up to 48 hours. All paid or voluntary work on premises subject to a closure notice will be prohibited.

Following the issue of a closure notice the matter will be urgently referred to a County or Sheriff Court for consideration. In those circumstances the court may apply a Compliance Order which may impose additional specific requirements on employers to follow to make sure that they do not commit further offences. The Court will have a wide discretion as to the measures that it can impose. At the same time it is important to note that an employer will have a defence against a closure notice if it can show that the appropriate right to work checks were carried out.

The potential closure of premises for up to 48 hours without notice or process will be of particular concern to businesses for whom such premises are key, and it is therefore vital for employers to be aware of their obligations in relation to illegal working and in particular to carry out right‑to‑work checks at the appropriate time. Also worth bearing in mind is the provision in the legislation for an application for compensation to be made for businesses which have suffered losses caused by closure orders.

  • Right to Rent Provisions

As of 1 December 2016 it is a criminal offence to rent a property to someone who is not lawfully residing in the United Kingdom. This provision follows on from the recent introduction of “right to rent” checks obliging landlords in England and Wales to conduct checks on tenants. The new landlord/tenant provisions come with strict penalties with potential custodial sentences of up to five years for offenders. This is relevant to employers who provide housing as part of the terms of employment and may present a particular risk to such employers with a cross-border workforce.

Although the legislation is now effective it remains to be seen how it will be enforced by the authorities and interpreted by the Courts. What we do know, however, is that the Home Office are taking steps to “strengthen our immigration system” against a backdrop of getting tough on illegal working. Employers should therefore review their processes to make sure that they are well placed to deal with an inspection and any resulting action.