Out-Law News 1 min. read

Increased risks for employers, says expert, as new illegal working offences come into force

New immigration offences have now come into force, meaning it will now be easier to prosecute those who employ illegal workers.

Employers can now be prosecuted if they have "reasonable cause to believe" that they have employed an illegal migrant, meaning that an employer must now be able to prove that it took reasonable steps to check that individual's immigration status before employing them. Previously, an employer could only be prosecuted for "knowingly" employing an illegal worker.

The maximum sentence for an employer convicted of the new offence has been increased from two to five years, while existing civil penalties also remain in place.

Corporate immigration expert Joanne Hennessy of Pinsent Masons, the law firm behind Out-Law.com, said that the change was a "significant" one, which would likely widen the scope for the UK Home Office to pursue criminal as well as civil proceedings against those employing illegal migrants.

"Our corporate immigration team has seen an increase in illegal working enforcement activity over the last year, often following intelligence provided from other bodies such as HM Revenue and Customs (HMRC)," she said.

"Given the current government's objective of reducing net migration to the UK, these changes could lead to yet more aggressive enforcement of illegal working provisions and increase the risk of criminal liability for employers. The stakes are higher than ever and, therefore, it is vital that employers – particularly individuals involved in recruitment - are aware of their right to work checking obligations and have robust systems in place for carrying out checks on recruitment and monitoring the ongoing right of migrants to be employed throughout the employment relationship," she said."

The 2016 Immigration Act was designed to further strengthen the immigration rules and make it more difficult for people who have no right to be in the UK to live or work in the country.

The new criminal offence for employers came into force on 12 July, along with increased powers for immigration officers to enter business premises to search for documents and to seize and retain evidence in relation to an offence. A new post of 'Director of Labour Market Enforcement' has also been created, who will be responsible for oversight of the worker exploitation legislation and its enforcement through the three main bodies responsible: the Gangmasters Licensing Authority; the Employment Standards Inspectorate; and HMRC.

A new criminal offence of illegal working is also now in force, with sentences of up to six months in prison and unlimited fines for anyone convicted of working while in the UK illegally. Those convicted may also have any wages paid to them while working illegally confiscated under the proceeds of crime laws.

The illegal working offences apply regardless of whether the worker is employed as an employee or as an apprentice; or under a contract to personally perform work or services.

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