After months of rumbling through the political process the much debated Immigration Bill finally received royal assent on 13 May 2016, becoming the Immigration Act 2016.
Hot on its heels came the enabling regulations which will bring many of the measures into force on 12 July 2016, including those detailed below.
The purpose of the Act, put quite simply, is to make it as hard as possible for illegal migrants to live and work in the United Kingdom.
Immigration Minister James Brokenshire stated “The message is clear – if you are here illegally, you shouldn’t be entitled to receive the everyday benefits and services available to hard-working UK families and people who have come to this country legitimately to contribute.”
Below are the key changes employers need to be aware of:
The act of illegal working is to become a criminal offence, punishable by fine and/or up to six months imprisonment. Whether those convicted are in fact jailed at taxpayer’s expense prior to deportation will remain to be seen. However, the obvious point is that, as a criminal offence, any “proceeds” (which would include wages/salary) will now come under the Proceeds of Crime Act 2002 and so therefore open to confiscation.
Employing an illegal worker
The penal sanction in respect of employing an individual illegally is to rise from the existing two years to five years, together with a continuing unlimited fine. This is further “beefed up” by amendments to the existing offence. Previously the risk of criminal liability arose if the employer knowingly engaged the migrant unlawfully.
The Act now provides that the offence will be committed if the employer “has reasonable cause to believe that the employee is disqualified from employment.” This is a lower threshold than previously, and presumably is to prevent those who routinely exploit illegal workers, from using plausible deniability to escape unlimited civil penalty and possible imprisonment.
However, for the purposes of all of those other employers who dutifully carry out right to work checks and then monitor the position as appropriate, the stakes have been raised significantly.
At what point, for example, does “reasonable cause” arise, whereby a consequential dismissal may be defended on the basis of “illegality” or “some other substantial reason”? Inaction or delay in this regard may result in an unlimited fine and imprisonment, whereas erring on the side of caution and moving immediately to termination of employment may subsequently result in a successful unfair dismissal claim, with the inherent further risk of an ancillary race claim.
Current new starter processes
Many companies still have out of date or insufficiently robust starters procedures which fail to check properly whether an individual has the right to work in the UK.
Now, more than ever, it is important to get right to work systems and policies up to date, fit for purpose, and in place, as the consequences for failing to do this are now significantly more severe than they were previously.
See our blog on Right to Work checks for our top tips.