From 12 July 2016 there is a tougher offence of illegal working and a tougher criminal offence of employing an illegal worker.
The law on preventing illegal working is set out in the Immigration, Asylum and Nationality Act 2006 (the 2006 Act) and the Immigration Act 1971. Under the 2006 Act, an employer may be liable for a civil penalty if they employ someone who does not have the right to undertake the work in question.
Employers have a duty to prevent illegal working in the UK by carrying out prescribed document checks on people before employing them to ensure they are lawfully allowed to work. These checks should be repeated in respect of those who have time-limited permission to work in the UK.
Under the Immigration Act 2016 (2016 Act) a person commits the offence of illegal working if he is:
a) subject to immigration control and works when disqualified from doing so by reason of his immigration status; and
b) at the time, he knows or has reasonable cause to believe that he is disqualified from working by reason of his immigration status.
The new offence enables wages from illegal working to be seized as the proceeds of crime. In England and Wales, the offence carries a maximum penalty of six months’ imprisonment and/or an unlimited fine.
Under the 2016 Act an employer commits an offence if he employs an illegal worker and knows or has reasonable cause to believe that the person has no right to do the work in question.
This means that an employer can no longer evade prosecution where the investigating agency cannot prove that the employer knew that the employee had no permission to work. The amended offence enables employers to be prosecuted where they have reasonable cause to believe that the employee could not undertake the employment, even where they have perhaps deliberately ignored information or circumstances that would have caused the employer to know that the employee lacked permission to work. The maximum sentence on indictment for this offence has been increased from 2 to 5 years.
A right to work check involves a person’s documents being checked to determine if they have the right to carry out the type of work being offered. This hasn’t changed. It comprises three key steps:
1. Obtain the person’s original documents;
2. Check them in the presence of the holder; and
3. Make and retain a clear copy, and make a record of the date of the check.
If an employer is liable to a civil penalty, it could also affect their ability to sponsor migrants who come to the UK in the future, including those they wish to work for them under Tiers 2 or 5. If an employee with a visa is undertaking a role which is different from that for which the certificate of sponsorship was issued and permission to enter or remain was granted, the position is that employer is employing the worker illegally.
Since July 2015, Biometric Residence Permits are the only evidence of lawful residence currently issued by the Home Office to most non-EEA nationals and their dependants granted permission to remain in the UK for more than six months.
If you would like a right to work audit done by us or advice on how to carry one out, please get in touch.