Immigration Act 2016: Changes to Illegal Working Offences

Changes to illegal working offences introduced by the Immigration Act 2016 are due to come into force on 12 July 2016.

The Government is keen to demonstrate a tough stance towards employers that turn a blind eye to employing illegal migrants. Employers cannot exploit illegal migrants for their own gain.

Amongst the provisions which will come into force are the following:

  1. What constitutes the criminal offence is being extended. Under the new Act, an employer will be liable for the criminal offence if they “have reasonable cause to believe that the employee is disqualified from employment” by reason of his/her immigration status. (This contrasts to the current position which requires employers to have actual knowledge of illegal working before they become liable.)  This change is likely to result in increased criminal prosecutions since the burden of proof will be lower.
  2. The penalty under the new criminal offence is also being increased with those responsible facing a potential custodial sentence of up to 5 years (increased from 2 years) along with a potential unlimited fine.

    (This is over and above the existing civil offence for employing illegal workers, which carries with it the potential of a £20,000 fine per illegal worker.)
  3. As a further penalty, employers who repeatedly flout the Act face potential closure of their business for up to 48 hours.
  4. A new offence has also been created to make illegal working itself a criminal offence. This applies where a foreign worker takes up work where he or she does not have the appropriate immigration permissions. A worker convicted of this offence faces a custodial sentence of up to 6 months and/or a fine.
  5. A further new offence will be created which will enable the earnings of illegal workers to be seized under the Proceeds of Crime Act 2002.
  6. The Act also provides for the creation of a new post of Director of Labour Market Enforcement. The Director will have the responsibility of over-seeing and co-ordinating enforcement of worker exploitation legislation by the main public bodies responsible. Whilst ensuring that minimum standards for workers are met, the Director will also be required to devise an annual strategy to ensure a targeted approach, and to report on progress

Aside from illegal working offences, the Immigration Act 2016 makes a number of other changes in respect of which further details and/or implementation dates are awaited. These include;

  • Giving the Secretary of State of power to introduce a visa levy (immigration skills charge) on employers that use foreign labour from outside of the European Economic Area.  All employers who recruit migrant workers under the Points Based system should keep a watchful eye on the implementation of this new charge, as this will increase the costs associated with such hires significantly; and
  • The requirement for public-facing public-sector workers to speak fluent English (or Welsh if they are in Wales) to do their jobs effectively. Details of how fluency will be covered will be set out in a Code of Practice, which has not yet been published. 

If you have any questions arising from this article or would like further information on the changes to the Immigration Act 2016, please get in touch with a member of our Employment Team.