Immigration Act 2016 - introducing changes to criminal sanctions for employers

Following our blog on 5th May 2016 – regarding the provisions of the Immigration Bill, the Immigration Act 2016 (“the Act”) has now received Royal Assent and passed into law on 12 May 2016. Most significantly for immigration Sponsors, provisions relating to illegal working come into effect on 12 July 2016 and these include:

• A broader definition of what constitutes a criminal offence for employing illegal workers (for employers);
• Increased maximum penalties for employing illegal workers;
• The creation of a criminal offence for working illegally (for employees);
• The creation of a new Director of Labour Market Enforcement; and
• Additional powers for immigration officers to search and seize documents.

The following are some of the offences created under the Act:

Illegal working – employee offence

The Act creates a new criminal offence of illegal working. In summary, the offence is committed where a person works at a time when he or she has not been granted leave to enter or remain in the UK, or the person’s leave to enter or remain in the UK is invalid, has ceased to have effect or the person is subject to a condition preventing him or her from doing work of the kind they are undertaking. The offence will be punishable on summary conviction by imprisonment for up to six months, or by a fine (subject to other legislation), or both. A person convicted of the offence may also have their earnings seized.

Employing an illegal worker – employer offence

The Act amends the existing offence of employing an illegal worker under Section 21 of the Immigration, Asylum and Nationality Act 2006. Previously, an employer had to have known that an employee did not have leave to be guilty of the offence. The offence may now be committed by an employer who either knows or has reasonable cause to believe that a person is working without leave. The test for culpability, from actual knowledge of illegality to reasonable cause has therefore been lowered. The maximum penalty is also raised to five years’ imprisonment as opposed to the current two.

Furthermore, an immigration officer may arrest without warrant a person that they have reasonable grounds for suspecting has committed an offence or is attempting to commit an offence of employing a person illegally.

This offence is in addition to the civil penalties contained in Section 15 of the Immigration, Asylum and Nationality Act 2006, under which a company can be fined up to £20,000 for employing an illegal worker.

What does reasonable cause to believe mean?

Employers may well ask, what does “reasonable cause to believe” mean? Perhaps this is best illustrated by way of example. In the past an employer might have had an employee whom they suspected of working illegally but had no concrete evidence of this. The onus will now be on the employer to take steps at an earlier stage to suspend an employee pending an internal investigation into the employee’s immigration status, if the employee is unable or unwilling to provide satisfactory evidence of their continued right to work in the UK. Employers may therefore need to update their HR policies and processes and ensure their HR staff are aware of the new changes.

New Director of Labour Market Enforcement

At the present time enforcement of the illegal working rules is fairly ad hoc and anecdotally it is believed that immigration enforcement teams tend to adopt a risk based approach in targeting higher risk sectors with compliance visits. The new director of labour market enforcement will be tasked with monitoring and creating a strategy to tackle non-compliance in the labour market. It remains to be seen whether this will lead to increased incidences of unannounced compliance visits to business premises, but employers should be aware that this is on the horizon.

What should employers do?

These new provisions really underscore the need for employers to ensure their continued diligence and to keep abreast of the measures required to remain compliant with the immigration rules and regulations. These are the issues to consider:

• Review your current processes for checking work permission, particularly where a visa is due to expire;
• Ensure that your HR team are fully informed about these new changes; and
• Should you wish to have an audit of your files and HR processes or receive further training for members of your HR team, please do contact a member of our immigration team. We can also refer you to our well respected employment law and criminal law departments should the need arise.

Further information

Should you have any questions about the issues raised in this blog post please contact Nicolas Rollason or members of our immigration team.