Certain provisions of the Immigration Act 2016 came into force on 12 July 2016 which are designed to further crack down on the hiring of illegal workers.
These provisions are:
Clause 8 creates a new offence of illegal working and it amends the 1971 Act to make it a criminal offence for a person subject to immigration control to work if they: have not been granted leave to enter or remain, have overstayed that leave, or are in breach of a condition on that leave that prohibits work.Workers who either lack leave to enter or remain in the UK or are in breach of restricted working conditions will face a potential custodial sentence of up to 6 months, on conviction and/or fine. Their earnings may also be seized under the Proceeds of Crime Act 2002.
Sections 15 to 25 of the 2006 Act set out the constraints on whether a person subject to immigration control may be employed. The prohibition is supported through both a civil penalty and criminal sanction. Subsection (1) amends section 21(1) of the 2006 Act by inserting after ‘knowing’ the words ‘or having reasonable cause to believe’. The effect is to amend the intention needed to make out the offence in order to make the test more objective and the offence easier to prove. 79 Subsection (2) amends section 21(2)(a) of the Act by substituting ‘five’ for ‘two’. The effect is to increase the maximum term of imprisonment for conviction of the offence on indictment from two years to five years. Subsection (3) inserts a new subsection 9(B) into section 28A of the 1971 Act. The effect is that a person committing or attempting to commit the section 21 offence may be arrested without a warrant. Clause 12 provides immigration officers with a new power to issue a notice to close business premises or a place of work for a specified period if certain conditions are met, and compliance notices that set out the conditions the business must meet before it can be reopened.Explanatory notes published by the government on this subject can be found here.
Comment
Previously, employers could only be prosecuted for ‘knowingly’ employing people who were not legally entitled to work in the country. These new rules mean that employers will be guilty of committing an offence they employ someone whilst having ‘reasonable cause’ to believe that their immigration status disqualifies them from working.
Additionally, immigration officers have new powers to close a business or prosecute employers if they continually flout the law.
These new provisions are further strengthened by upgraded penalties of unlimited fines or imprisonment for up to five years.
We strongly recommend employers take note of these provisions and take steps to spread this out within their organisations.
