The Immigration Act 2016 - what does this mean for you?
The Immigration Act finally became law on the 12th May this year with the main objective of making it harder for illegal immigrants to live and work in the UK. To prevent illegal immigrants from accessing housing, driving licenses and bank accounts the Act will also impose tougher sanctions on employers, landlords and banks if they are not able to show evidence of the appropriate checks.
The first set of new measures went live on the 12th July, including:
- The maximum custodial sentence for an employer (usually the directors) has increased from two to five years.
- The civil penalty per illegal worker rose to £20,000.
- Illegal working will be a criminal offence, as migrants face a maximum custodial sentence of six months and/or an unlimited fine (in England and Wales).
- Wages paid to an illegal immigrant are recoverable under the Proceeds of Crime Act 2002.
- In certain circumstances, immigration officers will now have the power to close an organisation for up to 48 hours or place it under special compliance measures where the organisation is suspected of employing an illegal worker. This can be over ruled if the employer is able to demonstrate the appropriate ‘right to work’ employment checks have been carried out and reasonable steps have been taken to prevent illegal working.
What are Right to Work checks?
All employers must now ensure that Right to Work checks are completed. There are three steps involved:
- Obtain original versions of one or more of the acceptable documents (a full list can be found here) before employment commences.
For most migrants the BRP – Biometric Residence Permit is the main document that shows proof of their permission to work in the UK.
- Check the documents authenticity and validity in the presence of the holder. Beware of possible forgeries.
- Copy and keep clear electronic or hard copies of the documents showing the relevant information (for example the applicant’s personal details and any immigration related endorsements) with a note of the date of the check and initials of the checker. Documents should be retained for two years following cessation of employment.
When checking the documents, employers should ensure the following:
- the documents are genuine and associated with the applicant;
- the documents have not expired;
- the photographs are the same in all documents and appear to be of the applicant;
- the date of birth is the same on all documents;
- the applicant has permission to undertake the type of work he/she is seeking;
- in the case of students, the documentation clearly shows study and vacation times; and
- if two documents show different names, the applicant can demonstrate the discrepancy (for example marriage or divorce certificates, change of name document, etc).
The Immigration Act makes it all the more important for employers to ensure that they have robust systems in place for carrying out ‘Right to Work’ checks during the recruitment process and for monitoring the on-going right of migrants to be employed within the business throughout the employment relationship. It would be worth checking the dates on the documentation maybe once a year to check that they are still valid.
Employers should make an offer of employment conditional on the job candidate's right to work in the UK, therefore Right to Work checks should be done ideally before employment commences. The employment contract should also make it a requirement that employees provide documentation of their right to work in the UK.
Recent Case: Byron Burger Restaurants
In the case of Byron, although the business conducted the appropriate right-to-work checks and retained adequate records, the employees in question apparently provided them with false documents. Byron’s compliance, however, which established a statutory defence, as well as its cooperation with the Home Office investigation, shielded it from civil and criminal penalties.
- A landlord who has reasonable cause to believe his or her tenants have no 'right to rent' but who takes no action against them can be imprisoned for up to five years and/or be fined.
- The Act creates a new offence of driving when unlawfully in the UK. The penalty will be imprisonment and/or a fine, as well as immigration sanctions. People and premises can be searched for a driving licence.
- Banks and building societies will be required to check the immigration status of current account holders and if they believe that one of their current holders does not have permission to be in the UK they must notify the Home Office.
Immigration Skills Charge- April 2017
To help encourage UK employers to reduce their reliance on migrant workers the Government is introducing an Immigration Skills Charge. The new charge from next year will incentivise employers to invest in training British staff by introducing a levy on employers that employ migrants in skilled areas. The charge which is designed to cut down on the number of businesses taking on migrant workers will be set at £1,000 per employee per year, or at a reduced rate of £364 for small or charitable organisations.
There will be exemptions to the charge including PhD-level jobs, intra-company graduate schemes and international students switching from student visas to working visas. This will help the UK retain the talented workers and students who are vital in helping the economy grow.
As the Home Office continues to crack down on illegal working and employment, and with their approach likely to toughen in light of the appointment of Theresa May as prime minister, it is vital that employers understand how to undertake adequate right-to-work document checks and keep accurate records in the event an audit or immigration action should occur.
Our Employment Law team can audit your ‘Right to Work’ procedures to ensure that your business exposure is minimised. Call firstname.lastname@example.org.* to speak to our team or email
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