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Is your company compliant when it comes to illegal working offences?

on Fri 5 Aug

The Immigration Act 2016 changed this summer, with the aim of tightening the rules around illegal working even further than at before. The purpose is to make it increasingly difficult for illegal immigrants to remain in the country undiscovered.

On 12th July 2016 sections 34 and 35 of the Immigration Act 2016 commenced. These changes include insertions of a new offence of illegal working, and the criminal offence of employing an illegal worker.

Very simply, the law states that employing a Foreign National without the right to work amounts to a criminal offence.

This changes the landscape considerably for employers. It means that an employer commits an offence if he or she employs an illegal worker and knows or has reasonable cause to believe that the person has no right to do the work in question. If an employer is found liable for the criminal offence, the custodial sentence they can receive will be increased from 2 years to 5, and the maximum civil penalty of £20,000 per illegal worker will remain. 

Another change in the Act will make the action of illegal working itself a criminal offence, which will result in a maximum sentence of six months’ imprisonment for any workers who are employed without permission to work in the UK. Illegal workers may be ordered to pay fines too.

This means an increase in power for the Home Office who produce the guidance around regulations. Immigration Officers for example will be given the power to arrest employers and employees, and can lawfully carry out a search of premises where they suspect illegal working may be in place. They can of course seize documents they discover which may be in connection to the alleged offence.

Sole legal practitioners and Immigration Advisors are at the front-line of these changes, offering employers and individuals advice on the effects and implications of the changes. Marc Gibson is a sole legal practitioner and Managing Director of My G Ltd, operating in the South West of England. Marc comments on the recent changes; “The Onus is now on UK employers to prove fulfilment of HR and Immigration Compliance needs. Failure to undertake the required checks will result in harsher penalties now. These can be avoided with proper due diligence

The important factor for businesses is knowing how to conduct the required checks and implement proper Immigration compliance processes, regardless of the size of organisation. Marc continues “Now that the new provisions have come into force, the definition of what constitutes a criminal offence has changed. Failure to complete appropriate checks, turning a blind eye to those not meeting immigration requirements and incorrect permit renewal procedures are a basis of non-compliance which UKVI can adopt to penalise through civil penalties by targeting those employers who remain non-compliant and continue employing employees without a right to work”

In the eyes of the law, ignorance is no excuse when it comes to Immigration regulations. So whether you are an individual or a business already employing or thinking about employing a Foreign National it pays to seek current and impartial advice. Immigration law is constantly changing, and is a complex set of statutory regulations which warrant respect. Checking your company’s HR /Immigration Compliance procedures in light of recent changes to the 2016 Act may well be a worthwhile investment in time and money in the long run.

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