Since 12 July 2016 the law regarding the consequences of employing illegal workers has changed.
The Immigration Act 2016 creates new criminal offences regarding illegal working. These are inserted into previous legislation.
The first is the offence of illegal working. A person who is working can be convicted of an office for working while knowing or having a reasonable cause to believe that they are not able to work because of their immigration status (new S.24B Immigration Act 2014).
The maximum penalty on conviction is 51 weeks imprisonment and an unlimited fine. In addition earnings can be confiscated.
In fact it is already a criminal offence under S.24 of the Immigration Act 1971 to enter the UK without leave, overstay or breach a condition of leave (e.g. work when not allowed to) and so illegal workers could already have been prosecuted. However these provisions were very rarely used.
By creating this new offence, the government’s keenness to actively prosecute illegal workers is demonstrated. It is likely to increase enforcement focus on employees as well as employers.
The second is the offence of employing an illegal worker. An employer can be convicted for employing a worker when they have reasonable cause to believe that they are not able to work because of their immigration status (amended S. 21 and 22 S.24B Immigration, Asylum and Nationality Act 2006).
Under the 2006 Act, an employer could already be convicted if they knowingly employed an illegal worker. The new criminal offence however requires a far lower threshold to be met.
No criminal office is committed if the worker is not an illegal worker, even if the employer has not undertaken proper documents checks, in contrast with the Civil Penalty scheme which requires document checks to have been done to establish a statutory excuse.
The maximum penalty on conviction is 5 years imprisonment.
In addition the UKVI continues to vigorously impose Civil Penalties for illegal working on employers. In North East England, Yorkshire and the Humber region Civil Penalties of £885,000 in total were imposed between 1 July and 31 December 2015. The amounts varied from £10,000 up to £60,000 per employer, with 58 employers being penalised.
Employers need to protect their businesses by being very aware of the right to work checks that they need to carry out on all workers prior to employment commencing and the continuing checks that they need to conduct for those with time-limited visas.