It is unlawful for an employer to employ a person who does not have the right to work in the UK. Employers can establish a statutory excuse or defence against this offence by carrying out right to work checks on potential employees before they commence employment. Over the years, the penalties for failing to prevent illegal working have become stricter in an attempt to discourage illegal working. The new Immigration Act 2016, which received Royal Assent in May 2016, continues that trend.
Not all of the provisions of the Act are yet in force but certain key provisions of potential relevance for employers came into force last week. The key changes were:
- An extension to the criminal offence of “knowingly” employing illegal migrants – the threshold has been lowered and this now applies where the business merely has “reasonable cause to believe” that the migrant has no right to work in the UK.
- The creation of a new criminal offence of illegal working applicable to the illegal worker themselves - the wages of illegal workers are now capable of being seized as proceeds of crime and the migrant imprisoned for up to 6 months.
- Increased powers for immigration officers where they have reasonable grounds to believe an employer is allowing illegal working. They will now be able to enter premises to search, seize and retain evidence, to impose compliance sanctions and close business premises for companies that fail to comply.
Provisions yet to come into force:
- A requirement that all public sector workers in customer facing roles must speak fluent English.
- The implementation of an immigration skills charge for certain employers sponsoring skilled workers from outside the EEA. This is due to apply from April 2017.
What is the significance for your business?
As the penalties for illegal working are increasing and the threshold for whether the employer knew an employee was working illegally is being reduced, it is now vitally important to have rigorous right to work check procedures in place. Employers should follow the Home Office guidance on right to work checks and the guidance below:
- Only accept original ID and supporting documents, carefully check that the documents are original and valid.
- Keep copies of all documents checked for your files, record the date they were checked and the date of any follow up check which needs to take place.
- Store your records securely but somewhere accessible in the event of an inspection.
- If the employee is a student, don’t forget to check when their term times are and how many hours they are allowed to work per week.
- Check visas to see if the potential employee is permitted to carry out the work in question.
- To avoid discrimination claims, remember to conduct right to work searches on all new employees.
- Make the job offer conditional on having a right to work in the UK.
- Ensure your employment contracts oblige employees to report any changes to their immigration status to you. Provide in their contract for the right to terminate their employment if they no longer have a right to work. However, having no right to work will not necessarily prevent them bringing an unfair dismissal claim against you – so don’t forget to follow a fair process when dismissing them!
- Don’t forget to conduct right to work checks on staff you are acquiring through TUPE transfers too – employers only have 60 days within which to do this!
- Carry out an audit of your workforce if you have any concerns or ask our specialist business immigration team to assist.
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.