On 12 May 2016, the Immigration Bill 2015 received Royal Assent and it has now become known as the Immigration Act 2016 (“the Act”).  There will now be a phased introduction of the relevant sections into operating UK law. 

The Act seeks to build upon the Immigration Act 2014 and includes potential far-reaching changes to illegal working legislation, access to services for illegal workers such as housing and the Immigration Skills Charge (“ISC”) as well as provisions regarding immigration enforcement, appeals and border security.

This article covers a summary of the key points of the Act and can be accessed in full here.

Changes in the work place for employers and workers

The Act includes several provisions to further prevent those who do not have the permission to reside in the UK to seek employment. It firstly broadens the definition of someone seeking employment to include those who are working.  This subtle change in the wording is intended to capture not just employees of businesses but also those who are undertaking work but not classified as an employee by virtue of their contract or nature of their work.  “Work” will encompass those who are working:

  1. Under a contract of employment
  2. Under a contract of apprenticeship
  3. Under a contract personally to do work
  4. Under or for the purposes of a contract for services
  5. For a purpose related to a contract to sell goods
  6. As a constable
  7. In the course of Crown employment
  8. As a relevant member of the House of Commons staff
  9. As a relevant member of the House of Lords staff

The Act criminalises those who do not have the right to work in the UK but intend to secure employment or work nonetheless. Those who seek work and are either disqualified by reason of their immigration status and are aware or should have reasonable cause to be aware that they are not able to work in the UK owing to their (lack of) immigration status, are liable to a term of imprisonment not exceeding 51 weeks or an unlimited fine or both.  Furthermore, upon conviction, any earnings they receive during the period of illegal employment may be seized under the Proceeds of Crime Act 2002.

Employers must also be aware of the expansion of criminal liability through employing an individual illegally. An employer will commit an offence if it is aware or should have had reasonable cause to believe an individual did not have the right to work in the UK.  The criminal offence of “employing” someone illegally will increase from two years imprisonment to five years imprisonment, as well as receiving a civil penalty of up to £20,000 per illegal worker.   This offence shall be treated to have been committed by an officer of the employer such as a director, manager, secretary or person purporting to act in any of those capacities.  On the current reading of the Act, the definition of “worker”, outlined above, does not appear to apply to the criminal liability of employers. Instead, the provision appears to use the previous wording – ‘employment’, although further clarification is being sought. 

The Act enables Chief Immigration Officers to have the power to close businesses for a period of 24 to 48 hours where the business is a repeat offender of employing individuals illegally. Employers must also be aware that the Act gives Immigration Officers powers to seize and pass on evidence to those investigating the commission of an offence relating to illegal working.

The above provisions will be implemented into UK law on Tuesday 12 July 2016.

How can an employer protect itself?

In order to protect itself, it is imperative that an employer performs a right to work check on or before each and every individuals’ first day of work.  This should be carried out on all new starters, regardless of their nationality and their type of employment contract with the business.  For those who have a time-bound UK immigration status, such as those on a working visa, an employer must ensure that the date of the check is recorded internally on its system and that it requests new evidence of the individual’s continuing right to work in the UK upon expiry of the existing visa. A compliant right to work check should be kept on file for every ‘worker’, in order to provide a statutory excuse in the event of inadvertently employing somebody illegally.  The BWB Immigration team is able to carry out risk audits on HR files to ensure compliance from an immigration perspective.

Immigration Skills Charge

The Act currently makes provisions for the enactment of the Immigration Skills Charge (“ISC”).  The ISC will be imposed on any Tier 2 sponsor which wishes to facilitate the employment of an individual in the UK who is not a British or European national.  It will be implemented by a regulation which will specify how much the charge will be payable per individual per year and provisions on when and how this ISC can be paid to the Secretary of State. The ISC charge is likely to be set at £1,000 per non-British/European employee per year and should be implemented in April 2017. PhD roles, Tier 2 (Intra-Company Transfer) Graduate Trainees and Tier 4 (General) students switching to a Tier 2 route will be exempt from ISC.

Language skills for public sector workers

Workers, under the new definition, for the public authority are now required to speak fluent English in a customer-facing role. The Act defines ‘fluent English’ as being a “command of spoken English” which enables the worker to effectively fulfil their role. The public authority is defined as one carrying out public functions, not including the Security Service, the Secret Intelligence Service or the Government Communications Headquarters.

Changes for individuals – access to services and legal enforcement

Access to services

Renting

The Act implements further restrictions on the right to rent in the UK.  The Act introduces two new criminal offences for landlords:

  1. If the landlord or agent knows or has reasonable grounds to believe that its premises are occupied by an adult without immigration permission.  This applies to those who are physically residing in the property but not a named tenant on the tenancy agreement. 
  2. If the tenant’s leave to remain in the UK expires during the course of his tenancy but continues to occupy the property and the landlord/agent knows or has reasonable cause to believe this has happened and does not take reasonable steps to terminate the residential tenancy agreement.

If a landlord or agent is found to have committed either of the above offences, it may be liable upon conviction on indictment to imprisonment of not exceeding five years, a fine or both.  If summarily convicted, the landlord or agent may be liable for imprisonment not exceeding 12 months, a fine or both.

The second provision may cause particular complications for workers who are within the UK and made an application to extend their current leave but are unable to currently evidence it to their landlord or rental agent.  It is therefore important for those who are extending their leave to do so in good time, where possible, prior to their leave expiring and retain all evidence of this extension application to evidence it to their landlord or rental agent.

Banks accounts

The Immigration Act 2014 prohibited those who were residing illegally in the UK from opening a bank account.  Placing the obligation on banks and building societies, banks are required to conduct a check on their customer’s immigration status when opening a current account. The Act now includes provisions whereby the bank will need to carry out an immigration check on its customers “at such times or with such frequency” specified by the Treasury. These checks will be made via specified anti-fraud organisations or a specified data-matching authority which should link up with UK Visas & Immigration (“UKVI”) to flag anyone known to be illegally residing within the UK.

If it is discovered that an individual is operating a UK bank account and he/she is not legally entitled to be in the UK, the bank must inform UKVI and provide as much information as possible regarding the individual.  UKVI will expect the bank to close the illegal migrant’s account as soon as reasonably practicable and it can also apply, without notice, for a freezing order to be made to limit the funds available to the illegal migrant. 

Driving licences and offences

Immigration Officers will now have the power to seize revoked and unrevoked UK driving licences from illegal migrants.  The Act has also created a new offence of driving whilst unlawfully present in the UK which can carry a custodial sentence of up to 51 weeks imprisonment, a fine or both in England and Wales, and up to six months imprisonment, a fine or both in Scotland and Northern Ireland.

As yet, the above provisions under access to services have not yet been brought into UK law and an implementation date, along with UK government guidance for landlords and rental agents, should be released shortly. 

If you would like to discuss any of the issues raised in this article, please contact Chetal Patel, an Associate or Lisa Roberts, a Solicitor in the Immigration Department


Chetal  Patel photo

Chetal Patel

Senior Associate

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+44(0)20 7551 7741

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c.patel@bwbllp.com
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Posted on 27/06/2016 in Legal Updates

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