The Immigration Act 2016 – illegal working, business closure notices and compliance orders…..

As part of continued measures to deter and tackle illegal working in the UK, the government has introduced tougher measures in the Immigration Act 2016 which received Royal Assent on 12th May 2016.  

All companies, regardless of whether they hold a Tier 2 Sponsor Licence or not, are subject to these changes. Further, there is now a greater risk of criminal action being taken against companies seen to be knowingly hiring ‘illegal workers’, including the temporary closure of businesses whilst the Home Office carries out an investigation.

Key points that you should be aware of are that the Act:

• Makes it a criminal offence to work illegally and provides powers to the Home Office to seize wages from the illegal worker

In situations where an illegal worker is found, the worker can be subject to imprisonment and all wages earned can be seized under the Proceeds of Crime Act. Arguably this will act as a deterrent to those considering working unlawfully in the UK, as not only could they end up in prison but they may also have to repay all that they have earned. This would apply equally to a situation in which a company CEO has unwittingly commenced working in the UK on the incorrect visa or has overstayed. This could lead both to the CEO being convicted and the company being prosecuted. The fact that a sponsored migrant would commit a criminal offence if the company neglects to extend their leave to remain makes it even more important that companies have strict processes in place to ensure that mistakes are not made.

This will come into force on 12 July 2016.

• Provides the ability to prosecute employers who ‘turn a blind eye’ to employing illegal migrants and increases custodial sentences from 2 years to 5 years

The £20,000 civil penalty remains in effect. However, in situations where the Home Office considers that the employer had ‘reasonable cause to believe’ that the person was an illegal worker, the employer commits an offence under the Act which could lead to imprisonment. In our opinion, the reduction of the threshold from ‘knowingly’ to ‘reasonable cause to believe’ will leave more employers open to prosecution.

Again this will come into force on 12 July 2016.

• Provides the ability to close businesses that continue to flout the law by using illegal labour, via closure notices and compliance orders

This new power enables the Home Office to close the whole business where illegal working is suspected, whilst it carries out its investigation. This will therefore affect all employees and the business’s ability to trade. Currently, suspected illegal working cases or Sponsor Licence breaches only affected a few individuals in the business, such as the illegal worker, HR and possibly management and SMS users.

This will come into force on 1 December.

• Provides greater powers to landlords to evict tenants who are illegally in the UK and makes it an offence to drive whilst illegally in the UK

This is yet another move by the government to ‘close in’ on illegal workers in the UK, allowing landlords and road traffic police officers to check immigration status and report illegal workers to the Home Office. The message here is clearly ‘we will find you’.

This will come into force on 1 December.

• Provides greater Home Office search and seize powers

These powers will enable the Home Office to seize documents from the employer’s business, such as wage slips, timesheets etc. to assist in building its case against the illegal worker (and the employer).

It is clear that the current government is sending out a clear message to illegal workers and businesses that the UK will leave no stone unturned and will take criminal action where illegal workers are found. 

This will come into force on 12 July 2016.

Businesses need to ensure that measures are in place to protect themselves from being identified by the Home Office as hiring illegal workers. This starts with ensuring that robust ‘right to work checks’ are in place and can be evidenced to the Home Office and that follow up checks are being carried out prior to visa expiry dates. These will provide a statutory defence against the Home Office. 

Our team is highly experienced in providing training in ‘right to work checks’ and would be happy to assist anyone who needs advice on this, or who finds themselves subject to an investigation or served with a closure notice or compliance order.