Immigration Act 2016: Employers ignore it at their peril

The Immigration Act 2016 (“the Act”), which comes into force in stages from 12 July 2016, has made fundamental changes to the test threshold for and consequences of employing illegal workers. It has also introduced a criminal offence of working in the UK without permission.

Employers should consider the points below in their recruitment process and adequate HR procedures should be in place as a crucial and ongoing exercise.

The test threshold

The Act preserves the criminal element of employing illegal workers introduced in earlier legislation but makes fundamental changes to the test threshold. It is now a criminal offence to employ someone if you have reasonable cause to believe that you are employing a person who does not have permission to work in the UK, thus, changing the test from knowingly employing an illegal worker to having reasonable cause to believe. The new test has a much lower threshold.

The offence of employing an illegal worker is punishable by a fine and/or imprisonment.

The Act increases the level of fine from £10,000 to up to £20,000 for each person that does not hold the required permission to work.

In addition, the offence is now punishable with a sentence for the employer of up to 5 years’ imprisonment.

Defence

The employer will maintain a defence against a civil penalty if adequate immigration compliance systems are in place.

Prior to commencement of employment, the employer must confirm the identity of the employee and the employee’s permission to work in the UK. Copies of original documents together with a note of the person that carried out the check and the date of the check are required.

Systems should also be in place to notify the employer in advance of the expiry of an employee’s permission to work.

A criminal offence by the employee

The Act also makes it a criminal offence for a person to work in the UK:

  • without permission to work
  • with an invalid work permit
  • with an expired work permit
  • with a work permit conditional upon conditions prohibiting the person from carrying out the work in question

The offence is punishable with a sentence of up to 51 weeks imprisonment and/or a fine. In addition, the employee may have their earnings seized.

Compliance audit

Most employers already have compliance systems in place to ensure they document their employees’ permission to work in the UK. With the new Act increasing the level of the fine, employers will want to be able to rely on the only defence they have and should therefore carry out a compliance audit of their HR files to confirm that all their current employees have the right to work in the UK, and that they can prove that those checks have taken place. A paper trail will be essential.

Procedures must be put in place to check prospective employees’ documents to verify that they have the right to work in the UK prior to the commencement of employment. A robust system of document checking, which is in accordance with the government’s guidelines on preventing illegal working, will help ensure that any penalties are avoided.

We recommend that you review your HR compliance processes and if necessary revise them to ensure these provide the maximum protection for your organisation. Staff engaged in recruitment should be made aware of and trained on these changes.

For further information and advice on any immigration issues in your organisation or to organise a compliance audit of your HR files, please contact the Immigration Team.

The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

© Miller Rosenfalck LLP September 2016

 

 

 

 

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