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Are you up-to-date with your obligations to prevent illegal working?

02 August 2016

The repercussions of employing illegal workers became more severe on 12 July 2016 when the government introduced additional measures to prevent illegal working under the Immigration Act 2016 (“the 2016 Act”).

For some time, it has been a criminal offence for a person to knowingly employ a worker who does not have permission to work in the UK. This is a personal liability incurred by the individual within a company or organisation who is responsible for the illegal worker’s recruitment (for example, it may be a director, manager or partner). Under the 2016 Act, the offence has been expanded so that an employer will be guilty of a criminal offence where they have ‘reasonable cause to believe’ that the employee is disqualified from employment by reason of their immigration status. This is a lower threshold to meet.

In addition, the 2016 Act:

  • increases the maximum term of imprisonment for conviction of an offence from 2 years to 5 years;
  • imposes serious sanctions on a business if it is found to be employing an illegal worker. The Home Office may make an application for an illegal working compliance order, which would require the business to appoint a person to be responsible for carrying out the right to work checks and produce documents on a regular basis to demonstrate their compliance. A compliance order can be in place for up to 12 months;
  • imposes a new power which allows the Home Office to close a business premises for up to 48 hours pending that application for a compliance order being heard by the court. This will have a damaging effect on the business if it is unable to function without its premises;
  • increases the powers held by immigration officers to enter business premises to search for documents about a person they suspect to be working in the UK illegally, when they have reasonable grounds for believe that there are such documents on the premises and entering the premises is reasonably necessary to obtain that document.

On 12 July, the government published an updated version of ‘An employer’s guide to right to work check’ to reflect the changes made by the 2016 Act. We recommend that all employers have this important guidance document within reach when carrying out their pre-employment checks.