The Immigration Act 2016 came into force on 12 July 2016. Immigration minister James Brokenshire said:
“Some employers seem to think that by employing workers who are less likely to complain, including vulnerable migrants, they can undercut the local labour market and mistreat them with impunity…. The unscrupulous need to know that breaking the law is a high-risk activity and the full force of the state will be applied to them.”
The Immigration Act 2016 makes a number of changes to address the criminal offence of employing illegal workers and to tackle the exploitation of low-skilled migrant workers. Illegal workers are defined as individuals that do not have leave to enter or remain in the UK, or are in breach of a condition preventing them from working.
UK employers already have to carry out immigration checks before employees start employment. Previously, employers would have breached their duties by “knowingly” employing an illegal worker. Under the new Act, employers will commit are in breach if they employ someone they have “reasonable cause to believe” is disqualified from employment because of their immigration status. A Government Factsheet on the new legislation says:
“By making the test more objective we are making it easier to prove the offence.”
Employers must now undertake three checks in order to comply with the law:
- Obtain the employee’s original documents as prescribed in the Home Office Guidance.
- Check, in the presence of the employee, that the documents are original and valid.
- Copy and keep the documents securely and record the date of the check and date for follow up checks.
To avoid discrimination claims, employers should carry out right to work checks on all prospective employees, not just those who appear to be of non-British descent.
The Act also introduces increased scrutiny and tougher potential sanctions for employers:
- The maximum custodial sentence on indictment has been increased from 2 to 5 years
- A maximum financial penalty of £20,000
- A visa levy (immigration skills charge) on employers that use foreign labour.
- A new power is introduced to close premises for up to 48 hours where a business employs illegal migrants. If the employer cannot prove they carried out appropriate checks then the business could be placed under special compliance requirements, including a period of continued closure.
- A new Director of Labour Market Enforcement will oversee public bodies which enforce the different minimum standards for workers, including HMRC.
While the Immigration Act 2016 is now law, the majority of new measures will take effect only once further regulations are made. If you have any questions or if we can help in any way then please contact Paul Neilly on 0141 552 3422 or by email pdn@mitchells-roberton.co.uk