Fines of £20,000 and a tougher approach to enforcement mean that employers need to get to grips with the new Immigration Act.
The controversial Immigration Act 2016 has been placed on the statute books this month – part of a new, tough approach to workers from overseas and the organisations that employ them. Ashley Norman, head of our Business Immigration Group, reports.
As we highlighted in our Immigration Alert last year, the government has committed to an 'onslaught' on illegal working. Tightening controls on organisations which may provide a source of work for such illegal workers is central to this 'onslaught' – and the latest development in this regard is that, on 12 May 2016, the Immigration Bill received Royal Assent and became the Immigration Act 2016 ('the Act'). The Act will be implemented through a series of new regulations, coming into effect over the coming months.
The Act contains five areas of particular interest to those working in HR and employment law.
The Act extends the existing criminal offence of knowingly employing an illegal migrant, to apply where an employer has reasonable cause to believe that a person is an illegal worker. The maximum sentence for this offence will increase from two to five years.
Given that the fine for unknowingly employing a foreign national illegally is now £20,000 per illegal employee; and employers who knowingly employee an illegal national face a prison sentence and unlimited fines, you need to ensure you can establish the 'statutory excuse' (i.e. defence) if an illegal employee is found to be amongst your workforce. You can do this by
- obtaining original proof of the right to work in the UK from the prescribed lists;
- checking the authenticity of those documents in the presence of the employee in question; and
- keeping copies of the documents you have checked on file.
There will also be a power for immigration officers to issue 'illegal working closure notices' to shut down, for up to 48 hours, organisations who have committed multiple breaches under the Act.
Additionally, and controversially, the Act creates a new criminal offence of 'illegal working', which will enable the earnings of illegal workers to be seized as proceeds of crime.
The Act will also introduce a raft of measures designed to make it more difficult for illegal immigrants to live and work in the UK: illegal immigrants will not be able to hold a bank account or a driving licence and landlords will be required to check the immigration status of their tenants.
Public authorities will be required to ensure that all public sector workers in 'customer-facing' roles can speak fluent English. Public authorities are defined as organisations with functions of a public nature.
In addition, public authorities must ensure that they have in place an appropriate complaints procedure for members of the public who believe that the English language requirements have been breached.
The Act requires a Code of Practice to be produced, which will explain the standard of English which is required and how public authorities should comply with the duty without being discriminatory. The Code of Practice has not yet been published.
A new 'immigration skills charge' will be imposed on employers who sponsor skilled workers from outside the European Economic Area. The charge will be £1000 per employee brought into the UK under Tier 2 of the points-based system. The aim of this development is to encourage organisations to recruit and train UK employees. This requirement is expected to apply from April 2017.
A new post of Director of Labour Market Enforcement will be created under the Act. The Director will be tasked with over-seeing and co-ordinating enforcement of worker exploitation legislation by the three main bodies responsible: the Gangmasters Licensing Authority, the Employment Standards Inspectorate and HMRC. The Director will be responsible for publishing plans and reports on the enforcement bodies and will lead an 'intelligence hub' as a single point of information across the spectrum of non-compliance – from accidental payroll errors to serious criminality.
If you require further information regarding the developments outlined in this briefing, or if you have a more general immigration enquiry, please contact me or your usual Bevan Brittan contact. Alternatively, please email a member of the Business Immigration Group: firstname.lastname@example.org.
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