Advice on upcoming changes to illegal working offences

Alan Price – CEO at BrightHR

June 20 2016

The Immigration Act 2016 aims to tighten the rules around illegal working even further, making it increasingly difficult for illegal immigrants to remain in the country undiscovered. We take a look at the current rules and the changes ahead to ensure you know exactly where you stand... As the law currently exists, employing an illegal worker amounts to a criminal offence. However, the existing criteria states that the employer must knowingly employ the illegal worker. Once the new provisions come into force, the definition of what constitutes an offence will change. Under the new statute, the employer must have: “reasonable cause to believe that the employee is disqualified from employment” in order to be charged with the offence of employing an illegal worker. The burden of proof will be much lower, as an employer would not be required to have actual knowledge: instead a more objective approach will be adopted. This is likely to result in more employers getting ‘stung’ by the law if:
  • They fail to do the required checks prior to employment
  • They ‘turn a blind eye’ to employees who do not meet the immigration requirements
  • If the employee did meet immigration requirements initially, but have not renewed the relevant permits
Harsher sentences, higher powers In addition to the above, if an employer is found liable for this criminal offence, the maximum custodial sentence they can receive will be increased from 2 years to 5, although the maximum civil penalty of £20,000 per illegal worker will remain. Immigration officers will be given:
  • The power to arrest, without warrant, employers who are employing, have employed or attempted to employ illegal workers
  • The right to lawfully carry out a search on any premises where they suspect illegal working might be taking place
  • The power to seize any documents they discover which may be in connection to the offence
Another provision of the 2016 Act will make the action of illegal working itself a criminal offence, which will attract a maximum sentence of 6 months imprisonment for any workers who are employed without permission to work in the UK. In addition or alternatively to this imprisonment, illegal workers may be ordered to pay a fine. Provisions still being awaited include the power for an immigration officer to issue a closure notice, requiring the business to close for a maximum period of 48 hours if the employer repeatedly does not comply with the Act.

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