The Immigration Act 2016 came into force to make it more difficult for illegal migrants to live and work in the UK.
As well as tightening existing provisions to target those abusing the system and willing to disobey UK immigration controls, the 2016 Act also includes measures aimed at preventing the exploitation of vulnerable migrants.
Employer duties & penalties
Building on existing measures under the 2014 Act, the 2016 Act introduced a number of changes directly impacting UK employers and their responsibilities in respect of the prevention of illegal working with significant penalties where employers fail in their duties.
New punitive measures for illegal working will impact employers who both knowingly or unwittingly breach their duties, meaning even well-intentioned employers may be caught out if they are not compliant.
We consider the powers and penalties affecting employers that are now in force under the Immigration Act 2016 and allow immigration enforcement officers to work more robustly in dealing with illegal migration and illegal working.
Penalties for illegal working
Significantly for UK employers, the Immigration Act 2016 introduced a new criminal offence where employees are found to be working illegally. It also increased the penalties for those who repeatedly and knowingly employ illegal migrants.
New offence for illegal workers
Section 34 of the Immigration Act 2016 introduced a new criminal offence of “illegal working” by inserting a new section 24B into the Immigration Act 1971.
An individual will be guilty of an offence if they undertake work at a time when they know, or have reasonable cause to believe, that they are disqualified from working by reason of their immigration status.
As such, the offence of illegal working can be committed where a person works at a time when they have not been granted leave to enter or remain in the UK, or the person’s leave to enter or remain in the UK is invalid, has ceased to have effect or the person is subject to a condition preventing him or her from doing work of the kind they are undertaking.
Section 24(1) of the Immigration Act 1971 already made it a criminal offence to fail to observe a condition of leave, and for someone without reasonable excuse to fail to observe a restriction placed upon them, so the power to prosecute those who worked without permission was already available.
However, the Immigration Act 2016 made illegal working a criminal offence in its own right. In this way any wages paid to illegal migrants can now be seized as the proceeds of crime, thereby addressing an anomaly under which those found working in breach of the conditions of their lawful stay could have earnings seized but those found working whilst living in the UK illegally could not.
On conviction, where an individual is found to be working illegally in the UK, the new offence carries a maximum term of imprisonment of up to 51 weeks or a fine, or both. A person convicted of the offence of illegal working may also have their earnings seized under the Proceeds of Crime Act 2002.
Prior to the Immigration Act 2016 there were criminal sanctions for an employer who “knowingly” employed an individual who did not have the right to work in the UK or undertake the work in question.
By virtue of section 35, the 2016 Act extended the existing offence of employing an illegal worker under Section 21 of the Immigration, Asylum and Nationality Act 2006 to include employers who also had “reasonable cause to believe” that an individual was not authorised to work by reason of their immigration status.
Prior to the change in the law, rogue employers would only be prosecuted if it could be proved they actually knew an illegal worker did not have permission to work. In practice, however, prosecutions were rare because it was very difficult to demonstrate that an employer was aware of any illegal immigration status.
Under the 2016 Act, the test for culpability, from actual knowledge of illegality to reasonable cause has been significantly lowered.
Furthermore, the Immigration Act 2016 not only widens the scope for prosecution but also increases the maximum penalty. On conviction for the offence of employing an illegal worker an employer may now face up to 5 years’ imprisonment, previously 2 years, with the potential for an unlimited fine in addition to such imprisonment unchanged.
Additional search and seizure powers
In relation to the imposition of civil penalties, as well as various other matters, the powers of immigration officers have also been significantly extended under the Immigration Act 2016.
This includes allowing immigration officers, who are lawfully on any premises in the exercise of their functions, to search and seize documents in determining liability for a civil penalty where they have reasonable grounds for believing an employer is in breach of their duties to prevent illegal working.
This power of search in relation to a civil penalty previously required a warrant.
Under the Immigration, Asylum and Nationality Act 2006 an employer can incur a civil penalty of up to £20,000 per worker if they fail to carry out a prescribed right to work check and the individual in question is found to be working illegally in the UK.
DM View: 2016 Act
Although many of the measures introduced by the 2016 Act were aimed at reducing illegal immigration, it was also intended that a balance be sought in protecting vulnerable migrants from exploitation.
For many, however, the changes introduced by the 2016 Act are far too draconian, not least because they arguably give rise to various violations of human rights law – and, in turn, creating greater vulnerability for migrants.
By way of example, criminalising working without permission can have the following serious implications for a migrant:
- The risk of exploitation, whereby a real risk arises that the offence of illegal working will both discourage victims of human trafficking from coming forward and provide a tool for further control in the hands of their exploiters.
- The possibility of Proceeds of Crime Act proceedings, resulting in the loss of earnings for already low paid workers in low skilled jobs.
- An enduring criminal record, together with the consequences that this may have for future applications, such as further leave to remain or naturalisation as a British citizen.
In a bid to clamp down on illegal migrants, the measures introduced by the Immigration Act 2016 may inadvertently have a hugely negative impact on those who need protecting the most. However, these measures, at least for now, are here to stay.
Accordingly, given the scope for such harsh criminal penalties, in addition to any potential civil penalties, it is now more important than ever that employers conduct full “right to work” checks for both prospective and existing workers so as to ensure that they remain fully compliant with the law.
It is also important that where any doubt arises as to the application of the law, including the changes under the Immigration Act 2016, that legal advice is sought to ensure that both employers and migrant workers do not fall foul of these legislative provisions.
In this way both employers and their workers can avoid the possibility of either civil and/or criminal sanctions, which the government are so keen to enforce.
Do you have a question about the Immigration Act 2016?
Immigration compliance is a complex area, requiring close and effective management by employers to avoid Home Office scrutiny and penalty.
DavidsonMorris are specialist business immigration solicitors, helping companies of all sizes and across all sectors to meet their duties under the Immigration Act 2016 and wider UK immigration rules, which as vast and subject to frequent change.
For guidance on meeting your immigration duties as an employer, contact us.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals