With immigration and migrant workers making the headlines in the UK, we consider what the government’s proposals on curbing migration and illegal working could mean for employers.
Currently, an employer in the UK can be fined up to £20,000 per illegal migrant worker if they are found to have negligently employed a migrant worker who is illegally working in the UK.
As part of their plans to tackle illegal working and curb migration, the Government intends to introduce new provisions to deal with issues surrounding the labour market and illegal working. The Immigration Bill 2015 (which had its second reading in the House of Commons on 13th October 2015) proposes to introduce a director of labour market enforcement, together with new offences and penalties to deal with aspects of illegal working.
A ‘director of labour market enforcement’ will be appointed to monitor and tackle non-compliance in the labour market. This doesn’t simply mean dealing with aspects of illegal working but a number of matters including the enforcement of the national minimum wage.
Although most of the changes will affect the individual who is working illegally, a number of the provisions proposed do affect businesses and impose further and more onerous obligations on employers.
The new Bill goes further than the Immigration Act 2014 in that it restricts appeal rights open to migrants even more by extending the “deport now, appeal later” certification powers to more immigration cases.
Previously, under the Immigration Act 2014, an in-time appeal would extend a person’s leave automatically. However, the Bill proposes that the only in-country route of challenging refusals will now be judicial review. Migrants who wish to challenge a Home Office decision will either have to leave the UK and make an out-of-country appeal, or stay to judicially review the decision with no ability to work or access to services and support.
The intention here is to make it harder for people to settle in the UK when they have no right to do so and that without access to work, illegal migrants will depart voluntarily.
The Bill intends to:
- Amend the existing offence of employing an illegal worker under section 21 of the Immigration, Asylum and Nationality Act 2006, where an employer had to have knowingly employed a migrant who was illegally working in the UK. Under the new proposals an employer who either knows or has reasonable cause to believe that a person is working illegally will be guilty of an offence and could face up to five years imprisonment, an increase in the current maximum penalty of 2 years imprisonment.
- Introduce illegal working closure notices and illegal working compliance orders. Where a business has previously been penalised for employing illegal workers, a chief immigration officer can issue a notice to close a business premises for up to 48 hours if there is an illegal worker employed there. This allows the Home Office to carry out an audit to check that the appropriate checks were carried out by the employer. A compliance order can then be made by the court to prevent an employer from employing an illegal worker. These orders can be in force for up to 12 months and can be extended up to 2 years and may prohibit access to the premises and impose a number of duties on the employer.
One of the concerns for employers is the difficulty for them to establish whether or not a person does in fact have the right to work in the UK and transfers a significant burden to businesses to understand whether someone is in the UK lawfully or not. The employee checking service offered by the Home Office is not always accurate in the information they hold nor are their records always up-to-date when a valid application for leave to remain has been made or an appeal granted. This again places a significant burden on employers and may result in a number of employees being dismissed unnecessarily due to the uncertainty surrounding their status and the employer’s fear of getting it wrong!
At present, these are only proposals. However, if introduced it could add a significant burden to employers who employ migrant workers as it is for employers to police their employees and ensure that they have the right to work and remain in the UK in order to satisfy UK Immigration and Visa requirements. Employers will need to be cautious not to fall foul of the provisions on illegal working. If they fail to do so, they could be subject to tough penalties.
In addition, the Government have also announced that they intend to introduce an immigration skills charge which will apply to all Tier 2 sponsored migrants. The purpose of this change is to encourage UK businesses to fill vacancies using the resident labour market and to reduce demand for migrant labour. The Government state that the funds raised will be used to develop skills in the resident labour market. Employers who employ and sponsor migrant workers need to be prepared to incur additional costs once the new charge is introduced.
In the meantime, businesses should continue to ensure they have robust checks and systems in place to monitor immigration status and prevent illegal working. Employers need to be aware of what documents are valid to prove immigration status, such as an employee’s passport, to show that the appropriate checks have been carried out, in the event of a Home Office visit/inspection. For employers who do employ migrant workers, you should ensure that you have a notification system in place to alert you of when visas are due to expire and have in place a procedure for managing employees with expired visas.
If you have any questions on any of the issues raised in the above article, please contact Lyndsey Saunders