We recently reported on the changes to the Immigration Act 2016, which came into force on 12 July 2016. The new rules in the immigration Act include tougher sanctions for employers who employ illegal workers. We have reported on tougher sanctions and fines which have been issued to UK businesses and employers caught employing illegal workers. UK businesses and employers face fines of up to £20,000 per individual employed without the right to work. The Home Office has published updated guidance on steps employers are required to undertake when conducting right to work checks, we summarise the recent changes below.
Businesses and Employer’s Responsibility to Prevent Illegal Working
If you are an employer in the UK, you must carry out document checks on people before employing them to make sure they are allowed to work. It is the duty of businesses and employers to prevent illegal working in the UK.
Under current UK Immigration Rules, an employer may be liable for a civil penalty of £20,000, if they employ someone who does not have the right to undertake the work.
The new rules which came into force last week, has amended the offence from employing someone ‘knowingly’ to employing a person by employer who has ‘reasonable cause to believe’ that the employee does not have a right to work because of their immigration status. This means that it is even more easier to find an employer liable for this offence.
Other changes brought about by the Immigration Act 2016, include the following;
- Convicted employer will face a maximum prison sentence of five years, up from two
- Rise of civil penalty from £15,000 to £20,000
- Custodial sentence of six months/unlimited fine for employing an illegal worker
- Immigration officers will have the power to close premises for up to 48 hours if illegal migrants are employed
Changes to Right to Work Checks
When a business or employer is issued a civil penalty notice, they are given notification on how to appeal the decision, one of reasons a civil penalty fine or closure notice may be cancelled or a fine reduced, is if the employer can prove that the appropriate checks were conducted.
The new Home Office guide sets out what an employer needs to know about conducting right to work checks. It provides guidance on what right to work checks are and why it is important that employers do them. It also explains on whom an employer needs to make checks, how frequently they need to do so, and how to do the checks correctly. The Home Office updated guide on the checks states that should be conducted by the employer include the following steps must be undertaken;
- Employers must 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; and
- Copy and keep the documents securely and record the date of the check and date for follow-up checks.
It should be noted that all of the above steps must be conducted, if employers wish to be able to establish or retain an excuse against a liability for a civil penalty for employing a person who is not permitted to work in the UK.
The guide has been issued alongside other guidance for Employers and Sponsors’ such as ;
- An employer’s guide to the administration of the civil penalty scheme;
- An employer’s guide to acceptable right to work documents;
- Code of practice on preventing illegal working: Civil penalty scheme for employers;
- Code of practice for employers: Avoiding unlawful discrimination while preventing illegal working;
- An employer’s ‘Right to Work Checklist’;
- The online interactive tool ‘Check if someone can work in the UK’; and
- The online interactive tool ‘Employer Checking Service Enquiries’. These can all be found here.
Immigration Legal Advice for UK Employers & Illegal Workers
If you are a UK business or an employer and wish to obtain a Sponsor Licence, contact us to discuss this further. Business owners sponsoring migrants from outside the EEA must ensure that they are legally registered to sponsor migrants and must have a valid Tier 2 Sponsorship Licence. If the Home Office has contacted you in relation to carrying out a compliance visit at your business premises or if you have been issued with a civil penalty, contact us for legal advice.
Illegal migrants with strong Human Rights arguments ought to take legal advice and regularise their stay in the UK as soon as possible and before it is too late. Contact us to discuss your immigration situation and we will assess your case and provide you with options of regularising your stay.