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Employers need to be aware that the law on illegal workers has changed. The Immigration Act 2016 came in to force on the 12th July 2016 and has amended the criminal offence to employ an illegal worker. The penalty for the offence of employing illegal workers has also been increased from two years imprisonment to up to five years, as well as an unlimited fine.

Background

Employers can now be prosecuted if they have “reasonable cause to believe” that they have employed an illegal migrant, meaning that an employer must now be able to prove that it took reasonable steps to check that individual’s immigration status before employing them. Previously, an employer could only be prosecuted for “knowingly” employing an illegal worker.

Illegal workers include not just illegal migrants but also students with expired visas, students working more hours than they’re allowed to, people who work on a visitor’s visa and people doing work that’s not listed on their visa.

Penalties

Penalties for an employer include closing work premises for up to 48 hours if it is discovered that the business employs illegal workers and if the employer cannot provide proof that they have conducted the right to work checks. Your business may also be placed under special compliance requirements which may include continued closure with re-opening contingent upon successful compliance inspections and agreeing to conduct right to work checks in future.

Illegal workers themselves also face tough new penalties. Illegal working will be a criminal offence in its own right, and those caught working illegally liable for prosecution and facing a fine or maximum imprisonment of six months. Employees’ wages can also now be seized as “proceeds of crime” if they are working in the UK illegally under the Proceeds of Crime Act 2002.

Right to Work Check

These changes mean that is now even more important that employers conduct right to work checks on their prospective employees before they begin working for them. Employers must make sure they see the applicant’s original documents, check that the documents are valid with the applicant present, and make and keep copies of the documents and record the date they made the check.

Aside from illegal working offences, the Immigration Act makes a number of other changes which further detail and implementation dates are awaited.

These include:

  • a visa levy on employers that use foreign labour
  • the requirement for public-facing public-sector workers to speak fluent English (or Welsh if they are in Wales)

However, by undertaking the required document checks, a company will have a “statutory excuse” against liability for illegal working penalties; meaning that, if the Home Office finds out that a company has employed someone who does not have the right to work but the appropriate checks were conducted, the company will not receive a civil penalty in respect of that employee.

Employer Responsibility

Common pitfalls for employers include:

  • allowing individuals who enter the UK with a Standard Visitor Visa to undertake work
  • allowing students to work in breach of the terms of their visa, e.g. by filling a permanent position or working in excess of the permitted number of weekly hours
  • employing individuals with a working visa in a role that is not permitted

It is an employer’s responsibility to be aware of their obligations and ensure that they understand the immigration landscape to avoid the risk of prosecution.

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If you need guidance on the prevention of illegal working and need advice on how to carry out a right to work check, please speak to Tom Evans on 0151 230 1217 or tom.evans@dtmlegal.com.

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