The government has published its proposed new Immigration Bill which had its first reading in the House of Commons on 17 September 2015. This new Bill sets out the government’s plans to crack down further on illegal migration: “The provisions in the new Bill to toughen our action against those with no right to be in the UK have three main themes:

• new measures cracking down on the exploitation of low-skilled workers, increasing the punishments for employing illegal migrants, and strengthening sanctions for working illegally

• building on the Immigration Act 2014 to ensure that only people living lawfully in the UK can have access to UK bank accounts, driving licences and rental accommodation

• increasing powers to make it easier to remove people who have no right to be in the UK”

The changes may have huge effects on employers. If an employer cannot prove that they have made the necessary checks on employees, and is found guilty of employing illegal workers, they may have trading licences revoked and may even be closed down for up 48 hours whilst they demonstrate their compliance. Employers who know or suspect that an employee does not have permission to work may face up to five years’ imprisonment.

The current position

As an employer, you have a duty to prevent illegal working by carrying out document checks to confirm if a person has both the right to work in the UK and the right to carry out the type of work you are offering. If you do not carry out these checks and you employ an illegal worker, you may be required to pay a fine, known as a civil penalty.

The civil penalty system favours employers who can show full commitment to the prevention of illegal working provisions, who have appropriate systems in place to carry out the appropriate checks before an employee starts work, and who fully cooperate with the Home Office, including reporting any suspected illegal workers. This means that the level of a civil penalty might be reduced if mitigating factors can be proved.

If you correctly carry out the document checks required, then there is a legal excuse (known as a statutory excuse) against the payment of a civil penalty if the Home Office find you employing an illegal worker.

However, if you knowingly employ person who is not allowed to work in the UK, then you will not have an excuse against payment of a civil penalty, regardless of whether you have carried out any document checks. In such circumstances, you will commit a criminal offence of knowingly employing an illegal worker and may face up to two years imprisonment and/or an unlimited fine.

The proposed new powers

Under the proposed new regime, illegal working will become a criminal offence in its own right, with an illegal worker potentially facing a custodial sentence and/or an unlimited fine.

The Bill will also widen the criminal offence of knowingly employing an illegal worker to make it an offence for an employer to employ someone whom they ‘know or have reasonable cause to believe’ is an illegal worker.

In requiring that the employer need only have had reasonable cause to believe to commit the offence rather than to needing to show the employer’s full knowledge, the number of convictions may increase. The Bill also raises the maximum custodial sentence for an offence of employing an illegal worker from two years to five years.

Closure Notices

The Bill will give immigration officers the power to close business premises for up to 48 hours where illegal working is suspected, and the employer cannot provide evidence that right to work checks have been conducted.

Although aimed at employers who continuously employ illegal workers, the power as drafted currently will allow immigration officers to close business premises of any employer who cannot provide evidence that right to work checks have been conducted and:

• has received one other civil penalty for employing illegal workers in the last three years (and who under the current rules would have at the very worst received the maximum of a £20,000 fine);

• had failed to pay a previous civil penalty and the period of 28 days to appeal has expired with no appeal awaiting its determination; or

• the employer (including its directors, managers or company secretary) has an unspent conviction for employing illegal workers.

Additionally, any person who contravenes a closure notice by entering or working at the business premises without reasonable excuse will be committing an offence and may face imprisonment, a fine or both.

Finally, immigration offences under the new Bill will be a ground for seeking revocation of a licensed premises’ licence. Immigration offences will also be material factor in assessing any application to the licensing authority.

What can employers do?

The proposed Bill will make the penalties for employing workers who are determined to be without the right to work more severe. However, as with the current immigration rules, employers will not be in breach of the new Bill’s powers if they can show that they have conducted the required right to work checks on potential and current employees. Employers need to remember that whilst conducting the right to work checks, it is important that all job applicants are treated in the same way at each stage of their recruitment process to ensure that there is no discrimination. This will place an obvious burden on many businesses and their resources, especially SMEs.

It will be more important than ever for an employer to get the right procedures in place and to be able to show that it is checking potential employees’ right to work. Checks need to be made before employees’ commence employment and shortly before an employee’s permission to work in the UK is about to expire.

If an employer can show compliance then it will not fall foul of these new rules. A mock audit is a good way to test the procedures that you currently have in place.

If you are concerned about the severity of these unintended consequences proposed in the new Bill you should raise them with your local MP. The Immigration Bill 2015 has its second reading in the House of Commons on 13 October 2015.

If you would like to discuss any of the issues raised, would like to arrange a mock audit or just talk about reviewing your processes, our Immigration team can help. Please click here to learn more. 

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Philip Trott

Partner and Head of Immigration

+44(0)20 7551 7652

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Posted on 07/10/2015 in Legal Updates

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