The Immigration Bill 2015-16, which is currently working its way through parliament, is intended to clamp down on illegal immigration, tackle the exploitation of low-skilled workers and punish those that facilitate this exploitation. Small business owners need to be alert to developments in order to avoid severe punishment heavy fines.
While employers are already required to prevent illegal working in the UK by carrying out relevant document checks in accordance with guidance from the Home Office, the new Bill will provide immigration enforcement officers with considerable more powers and also increase the penalties handed out to businesses who fall foul of the law. The government already publishes lists of companies that are served civil penalty notices, thereby ensuring maximum damage in both monetary and reputational terms.
Small firms and startups that employ a considerable proportion of low-skilled workers, for example retailers, independent hotels, restaurants, pubs, coffee shops etc. should start preparing now because the repercussions of failing to ensure that there are no illegal immigrants amongst a workforce will be severe. If the Bill progresses without any problems, as anticipated, it will become law by July 2016.
What are the main changes?
For small business owners the most significant proposals are the additional powers that will be given to immigration enforcement officers.
Firstly, the Bill will enable officers to seize the earnings of anyone found to be working illegally. Naturally, this will affect an employee more so than the actual employer but the Bill will also tighten the rules that determine if a worker has been employed illegally. Not many business owners are aware of the criminal sanctions related to illegal working as the Home Office often publicises the £20,000 civil penalty scheme on the basis that it is easier to administer.
Currently, an employer commits a criminal offence if they knowingly employ an individual who did not possess the relevant permission to work in the UK. This is being amended slightly so that an employer may still be guilty if there was “reasonable cause to believe” that a person was an illegal worker. There has also been an increase in the maximum sentence period from two years to five years (upon conviction on indictment).
The Bill will also enable immigration enforcement officers to shut down any business suspected of wrongdoing for up to 48 hours and there is the potential that closure could be extended should the appropriate court order be obtained. Immigration officers will also have increased powers to search a business premises and seize documents should they believe those documents to be related to suspected illegal activities such as suspected illegal working.
The consequences for employing illegal workers were always serious but the new proposed measures add a new level of severity to the situation.
What are the most likely pitfalls?
All of the above proposals are centered on the notion that employers should bear responsibility for who it is they employ and the status of those individuals.
The difficulty that employers face is the ever changing nature of the right to work checks, and so mistakes will inadvertently happen. This is particularly the case for smaller organisations who do not have the luxury of an HR or compliance officer.
There are a number of common pitfalls which can trap employers:
- Employers forgetting to record the date on which a check occurred – this can be done on the actual photocopy of the document or noted on an internal or on-line HR system.
- Employers forgetting to make follow-up checks at the correct time – important to diarise when checks should happen.
- Additional checks are required if the employee is a student with work restrictions. Employers must also obtain, copy and retain details of a student’s academic term and vacation times so that employers can ascertain independently when it is that a student can work full time
- Employers frequently get caught out by not retaining evidence of their checks for the necessary period of time or by not retaining copies in a secure manner (i.e. an unlocked cabinet in an unlocked office)
- Photocopies are unclear or not complete. Historically a partial right to work check would be considered a mitigating circumstance but this has since been done away with meaning that a correct check is now more important than ever before
- Employers can also enter into difficulties by conducting a right to work check after an employee has already started work. All initial right to work checks must be conducted prior to the individual commencing work.
Employers now front line immigration control
The attempts of the Home Office to simplify the right to work checks as well as the desire to make it harder for illegal migrants to work in the UK has resulted in employers being on the front line of immigration control in the UK. Most employers who receive a civil penalty notice only do so due to poor and weak practices – all of which can be avoided with some training and careful planning in advance of the new requirements becoming law.
As always having strong HR procedures that are regularly reviewed will provide a solid foundation for your business to grow. If you are unsure how up-to-date or good your existing practices are, why not get someone external to conduct an operational review? Many employment lawyers offer a legal compliance review and HR consultancies will check that as well as designing and implementing suitable practical procedures if required.
Not making the right checks and potentially employing someone illegally is an extremely serious matter which will be both distracting and damaging to you and your business. Avoid this by getting ahead now and making any necessary changes.