Preventing Illegal Working

The Immigration Act 2016 contains a wide range of measures, including new rules intended to was introduced to crack down on businesses that employ those who do not have permission to work in the UK and to prevent employers from exploiting vulnerable migrants. There is no reason to believe that the EU referendum result will have any impact on their operation in the short term.

The following measures came into force on 12 July 2016:

• the scope of the existing criminal offence of knowingly employing an illegal worker was extended to include cases where the employer is considered to have 'reasonable cause to believe that the employee is disqualified from employment' because of their immigration status;
• the penalty for knowingly employing an illegal worker was increased from a maximum custodial sentence of two years to one of five years; and
• immigration officers were granted enhanced search and seizure powers to collect evidence of immigration and employing illegal worker offences.

 In addition, with effect from 12 July illegal working became a criminal offence in its own right, punishable by a maximum custodial sentence of six months and/or an unlimited fine. This measure enables wages paid to illegal workers to be recovered under the Proceeds of Crime Act 2002.

To crack down on exploitation in the labour market, which often appears to involve vulnerable migrant workers, a new role – Director of Labour Market Enforcement – was created to oversee the relevant enforcement agencies and provide a coherent enforcement strategy to deal with non-compliance.

From 1 December 2016, provisions in the Act introduced a power to close, for up to 48 hours, the premises of employers who continue to flout the law by employing illegal workers came into force. Following an initial closure notice, the Home Office also has the power to seek continued closure notice from the courts and to impose special compliance requirements on offending employers.

Also from 1 December 2016, applications for private hire and taxi licences are subject to immigration checks to prevent them being issued to anyone who does not have the right to work in the UK.

Revised Code of Practice on Preventing Illegal Working

Employers have a responsibility to prevent illegal working in the UK by ensuring that their employees have the right to work here. This involves carrying out document checks on people before employing them in order to confirm that they have a legal right to work here, either permanently or on a temporary basis. Where the employee only has a limited entitlement to remain in the UK, follow-up checks must be carried out.

An employer who fulfils the statutory requirements as regards document checks will have a legal excuse, known as a statutory excuse, and will not be liable for a civil penalty under Section 15(2) of the Immigration, Asylum and Nationality Act 2006. Where an employer is found to have failed to comply with the requirements but is not guilty of a criminal offence, a civil penalty, calculated on a sliding scale depending on the level of non-compliant behaviour, will result.

Following changes introduced by the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018, the Home Office issued a revised 'Code of practice on preventing illegal working: Civil penalty scheme for employers'.

This sets out the factors to be considered by the Home Office when determining the amount of the civil penalty payable for different levels of breach and takes into account the introduction of the online 'Employer Checking Service' whereby, since 28 January 2019, employers have had the option to conduct an online right to work check, which will establish a statutory excuse against a civil penalty in the event that the employee is found to be working illegally. However, not all employees or prospective employees will have an immigration status that can be checked at this stage, in which case a manual check must be completed. Follow-up checks for those whose right to work is time limited can also be carried out online or manually.

The code of practice applies when calculating the penalty amount in respect of any employment which commenced on or after 29 February 2008 where the breach of Section 15 of the Act occurred on or after 28 January 2019, or when determining liability where an initial check on a potential employee, or a repeat check on an existing employee, is required on or after 28 January 2019 in order to establish or retain a statutory excuse.

Employers should ensure that rigorous right-to-work checks are carried out and managers are trained to identify circumstances that could constitute a 'reasonable cause to believe' that someone is an illegal worker and result in a criminal prosecution.

Advice for employers on the checks on an individual's right to work in the UK that should be carried out can be found on the GOV.UK website.