The government has recently published its Immigration Bill 2015/2016. The aim of the Bill is to tackle illegal immigration by creating “a hostile environment” for illegal workers.
The new Bill will create a new criminal offence for those who are found to be working illegally, punishable by up to 6 months imprisonment and tougher penalties on the employers who employ them. The Bill will also introduce a power for the Home Office to confiscate earnings from illegal working under the Proceeds of Crime Act.
How will this differ from the current law?
The sanctions on employers will be much tougher. Currently, employers who do not properly check their employees’ right to work in the UK face a civil penalty of up to £20,000 per illegal worker. In theory, they can also be prosecuted in the criminal courts but this is a very difficult test to satisfy and only 25 employers have been convicted in the last 5 years. The existing test of “knowingly employing” an illegal worker will now be widened to catch those situations where an employer knows or has “reasonable cause to believe “that a person is an illegal worker. This will make it easier to prove the offence and therefore easier to prosecute employers. Conviction on indictment for such an offence will also increase from 2 to 5 years.
Importantly, the Bill will also introduce a new power for immigration officers to close an employer’s premises for up to 48 hours if they believe that the employer is employing illegal workers.
The Bill also makes provisions for company officers including directors to be prosecuted in their personal capacity, if the company they work for is prosecuted for knowingly employing an illegal worker.
The Bill will also introduce a power for the Secretary of State to insist on a skills charge payable by an employer for each skilled worker they sponsor from overseas under tier 2. It is hoped that this, alongside the current requirement to conduct a resident labour market test, will incentivise employers to fill roles from within the European Union.
What does this mean for Employers?
With immigration top of the political agenda, the Bill proposes increased powers of enforcement which could have a huge impact on employers who are taking risks in their recruitment policy.
The Bill is currently proceeding through Parliament and is due to have its third reading next week. However, there is still some way to go before it becomes law.
However, it is now more important than ever that employers get the right procedures in place to show that they have properly checked an individual’s right to work in the UK. Employers already face penalties of £20,000 per illegal worker but if a business also faces being shut down by immigration officers the costs and reputational damage could be far more significant.
Employers should ensure that documents are checked before an individual commences employment and for those individuals who have a time-limited right to work in the UK, employers should diarise to check again shortly before their current permission is due to expire.
For those employers who suspect that their procedures may not stand up to scrutiny, now would be a good time to carry out an audit. It is far better for you to discover any discrepancies than an immigration officer!
For more information about the Immigration Bill 2015/2016 or to find out more about how the Employment team can help you please contact Claire Taylor-Evans on 0118 952 7297 or email [email protected].
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.