The Immigration Act 2016: tightening controls over illegal working

New provisions targeted at increasing prosecutions and penalties for illegal working come into force today, 12 July 2016.

Employing an illegal worker
The Act widens the scope of the criminal offence of employing an illegal worker to include not only employers who 'knowingly employ' illegal workers but also those who have 'reasonable cause to believe' that the employee is disqualified from employment by reason of their immigration status.

The changes are likely to increase the number of criminal prosecutions of employers. The maximum penalty for the offence has been increased from two to five years. Immigration Officers will also be able to issue 'illegal working closure notices' to close premises for up to 48 hours and arrest, without warrant, any person who they have 'reasonable grounds to suspect' has committed/attempted to commit this offence.

Illegal working
The Act also creates the new offence of illegal working. The offence is committed when a migrant works in the UK and 'knows or has reasonable cause to believe' that s/he is disqualified from working in the UK, including instances where the migrant's leave to enter/remain in the UK is invalid, has expired, been cancelled or is subject to a condition preventing work of that kind.

The offence carries a maximum term of imprisonment of up to 51 weeks in England in Wales (and up to six months in the rest of the UK) or a fine, or both. Further, a confiscation order under the Proceeds of Crime Act 2002 may be made to seize the earnings of the convicted illegal worker.

Adequate Right to Work checks
The expansion of these offences is an opportune prompt for employers to review their compliance systems. To establish the statutory defence against a civil penalty, employers must:

It is crucial that businesses have adequate Right to Work check systems in place and take appropriate action if they receive information post-check giving them reasonable cause to believe that the worker no longer has the right to work in the UK.

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