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Immigration Act 2016 - Employers beware!

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The provisions of the new Immigration Act 2016 (IA 2016) relating to offences of illegal employment and working in the UK illegally come into effect on Tuesday 12 July 2016

Given the serious consequences attached to the new offences, organisations that employ migrant workers should ensure they are familiar with the changes and have robust systems in place to ensure they are compliant with the law. 

The changes will effect both migrant workers directly, but also organisations that employ migrant workers.

What are the changes for migrant workers?

The IA 2016 introduces a new provision into the Immigration Act 1971 to create a new criminal offence of illegal working.  Under the new provisions, an offence will be committed if a migrant works in the UK when they know or have ‘reasonable cause to believe’ that they are ‘disqualified’ from working in the UK. ‘Disqualification’ in this sense includes situations where a migrant has not been granted leave to enter or remain in the UK, or their leave is invalid, has ceased to have effect or is subject to a condition preventing work of that kind.

What are the consequences of breach for the migrant?

This new offence carries a maximum term of imprisonment of up to six months, a fine, or both. In addition, orders relating to confiscation of earnings can be imposed to seize earnings from the worker.

What are the changes for employers?

The IA 2016 amends the Immigration, Asylum and Nationality Act 2006 by widening the offence of employing illegal workers.  The new provisions will now capture employers who have ‘reasonable cause to believe’ that the employee is disqualified from employment by reason of their immigration status, in addition to those who knowingly employ illegal workers. This aspect in particular has been met with heavy criticism.

What are the consequences of breach for the employer?

The maximum term of imprisonment for the offence has been increased from two to five years. Organisations holding Tier 2 sponsor status could be subject to revocation of their licenses in addition to the approval of all employees sponsored under the organisation’s licence being curtailed. This could also preclude the organisation from applying for another Tier 2 licence for up to 12 months.

Other provisions to be aware of

Immigration Officers will now have the power to arrest without warrant any person who they have ‘reasonable grounds for suspecting’ has committed or is attempting to commit the offence of employing a person illegally.  These provisions also allow Immigration Officers to issue an ‘illegal working closure notice’ to close business premises for up to 48 hours in certain situations.

Why are these changes necessary?

The government’s policy decision behind the implementation of the new provisions is to take action against employers who choose to ignore illegal working, however many argue that the changes go much further than this.  Criticism has been particularly focused on the fact that the changes lower the threshold for liability for employers, from ‘knowingly’ employing illegal workers, to having ‘reasonable cause to believe’ that illegal working or employment of an illegal worker is taking place, whilst at the same time, increasing penalties for those who fall foul of the rules. 

There is significant uncertainty as to what having ‘reasonable cause to believe’ actually means and concern as to the level of discretion this leaves for enforcement officials involved in making such assessments. It is widely thought that the new provisions may result in more suspensions or terminations of employment by employers who are concerned about possible liability under the new provisions, but this opens up the potential risk of claims against the employer in the wider context of general employment law.

What can employers do to prepare?

In view of the new rules it would be sensible for organisations to audit the systems and processes they currently have in place to ensure that they are sufficiently robust to detect and deal with any problems that may be identified.  Right to work documents should be checked and appropriate practices should be adopted to allow problems to be identified at an early stage, particularly with a view to flagging up a change of circumstances for any migrant workers and any possible further checks that then need to completed.   Those involved in employing and managing migrant workers should be aware of the new provisions and what they mean in practice, particularly relating to what might prompt a ‘reasonable cause to believe’ and the steps that should be taken upon receipt of new information about an employee’s immigration status.