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The Immigration Act 2016 – consequences for employers

Background

The new tighter controls to be introduced under the Immigration Act 2016 (“the Act”) aim to prevent employers ‘turning a blind eye’ to illegal workers in a bid to create an increasingly hostile environment for those who are working in the UK illegally.

Lower threshold for conviction

The Act will implement a stricter and lower threshold for conviction of the criminal offence of employing an illegal worker.

Previously, employers could only be prosecuted if they “knew” that the employee was working illegally. The threshold for culpability will now be lowered from ‘knowing’ a person is an illegal worker to ‘having reasonable cause to believe’ that the person is an illegal worker. This lower burden of proof is likely to result in increased criminal prosecutions of employers.

Coupled with this lower threshold, if convicted, employers (directors and officers of the organisation) will be exposed to an increased penalty, from two years, to potentially 5 years’ imprisonment. Repeated breaches could also result in the temporary closure of a business.

It won’t however just be employers who pay the price for employing illegal workers. Those workers who lack the relevant leave to enter/ remain in the UK or breach restricted working conditions may also be imprisoned for up to 6 months and have their earnings seized.

Immigration skills charge

In a bid to incentivise employers to develop British talent as opposed to recruiting overseas workers, from April 2017 the Secretary of State will also have the power to introduce an ‘immigration skills charge’ of £1000 per worker for employers wishing to sponsor certain skilled workers from outside of the European Economic Area.

Summary

The lowered test for culpability for employing an illegal worker poses a significant risk to employers and will have the knock on effect of increasing the burden on employers to adequately check their workforce’s ‘right to work’. There are often times when a person’s immigration status is unclear and employers will need to consider when they could be deemed to have reasonable cause to believe that someone is an illegal worker.

It is advisable that employers consider their current right to work checks and procedures to minimise the chances of inadvertently employing an illegal worker, which as we can see, may have serious implications for a business and its owners.

 

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