Immigration Act 2016 - Illegal working provisions

In May this year the Immigration Act 2016 had received Royal Assent. The Act introduces new sanctions to tackle illegal migration and illegal working, protect our public services and combat exploitation of low-skilled workers.

Further Commencement Regulations were made on 31 October which will bring two provisions aimed to tackle illegal working in to force on 1 December. These provisions build upon earlier illegal working provisions, which were commenced on 12 July.

Since 12 July 2016:

(i) It has been a criminal offence to work in the UK illegally, with the consequence that wages paid to illegal workers may be seized as the proceeds of crime.

(ii) The offence of employing an illegal worker has been strengthened, so that it is possible to prosecute employers who employ someone they know, or have reasonable cause to believe, is an illegal worker. They also now face a maximum custodial sentence of five years.

From 1 December 2016:

(i) There will be a power to close premises for up to 48 hours if an employer operating at the premises repeatedly flouts the law by employing illegal workers, and immigration officers will be able to apply to the court for a compliance order which may impose special measures on the employer to prevent illegal working.

(ii) Private hire and taxi licence applications will be subject to immigration checks. This will prevent licences being issued to anyone who does not have the right to work in the UK.

The offence of illegal working

It is now a criminal offence to work illegally in the UK, as a result of section 34 of the Act. A person commits this offence if they are subject to UK immigration control and work when they know, or have reasonable cause to believe, that they have no permission to do so.

As well as work under a contract of employment, the offence of illegal working also applies to self employment, and covers both informal as well as formal working arrangements.

The new offence enables wages from illegal working to be seized as the proceeds of crime. In England and Wales, the offence carries a maximum penalty of six months’ imprisonment and/or an unlimited fine. In Scotland and Northern Ireland, the offence carries a maximum penalty of six months’ imprisonment and/or a fine of the statutory maximum.

The offence of employing an illegal worker

The existing offence of knowingly employing an illegal worker has been strengthened by section 35 of the Act. An employer can now be prosecuted for employing an illegal worker if they know, or have reasonable cause to believe, that the person has no right to do the work in question.

This means that an employer can no longer evade prosecution where the investigating agency cannot prove that the employer knew that the employee had no permission to work. The amended offence enables employers to be prosecuted where they should have known the employment was illegal, but deliberately ignored information or circumstances that would have given the employer reasonable cause to believe that the employee lacked permission to work. The maximum prison sentence on indictment for this offence has been increased from two to five years.

A civil penalty of up to £20,000 per illegal worker has been employed as a sanction in most routine cases involving the employment of illegal workers. However, in more serious cases, prosecution may be considered where it is deemed an appropriate response to non compliance.

Illegal working closure notices and compliance orders

From 1 December, where illegal workers are discovered working in a business that has a history of non compliance, the premises can be closed for up to 48 hours. The intention is to apply this power in the most serious cases, where previous civil penalties and convictions have failed to change employer behaviour.

Home Office Immigration Enforcement will apply to the court for a compliance order which may impose requirements on the employer to prevent illegal working. This might include a continued period of closure; mandating the employer to undertake right to work checks, and placing the business under a rigorous inspection regime to ensure illegal working legislation is being complied with. These provisions are set in section 38 and Schedule 6 to the Act

Further information on the content of the Immigration Act 2016, and guidance on how to complete Right to Work checks can be found on:

https://www.gov.uk/government/collections/immigration-bill-2015-16

https://www.gov.uk/government/collections/employers-illegal-working-penalties