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.
All employers in the UK already have a duty to carry out immigration checks prior to employees commencing employment. However, the new rules lower the threshold on employers’ awareness of migrants’ entitlement to work and place increased penalties on employers that breach their duties.
The Act states employers will have breached their duties if they employ someone they have “reasonable cause to believe” is disqualified from employment because of their immigration status. Previously, employers would only have breached their obligations if they had “knowingly” employed an illegal worker.
The potential penalties for employing illegal workers are:
- a custodial sentence, the maximum sentence has been increased to five years (previously two years);
- a maximum financial penalty of £20,000.
An employer can avoid liability from paying a civil penalty if they can show that it complied with prescribed requirements in relation to the employment of an individual.
Immigration Officers have increased powers to search workplaces where they have reasonable grounds for believing the employer is in breach of their duties to prevent illegal working.
The Act will also introduce the following (although no implementation date has been set yet):
- Powers to close premises for up to 48 hours where an employer has been convicted of employing an illegal immigrant, was required to pay a civil penalty within the previous three years, or at any time where the penalty remains unpaid;
- Introduction of an ‘immigration skills charge’ on employers who sponsor skilled workers from outside the EU.
Right to work checks
The three-step checks that employers must undertake to comply with the law are:
- 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.
Comment
Christopher Meaden, a trainee solicitor in our Employment team comments:
“The new rules have placed increased importance on employers complying with the right to work checks to avoid being liable for civil or criminal penalties.
“It is recommended that employers keep a record of all right to work checks and that all offers of employment are on condition of satisfactory immigration checks.
“We would suggest that employers ensure that records of checks are kept up-to-date and are easily accessible so that they can be provided on request.
“Furthermore, 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.”
