Several important provisions of the Immigration Act 2016 (“IA 2016”) came in to force on 12 July 2016.
Which changes affect employers?
For employers, the offence of employing an illegal worker has been widened. In this article we consider the impact of the expanded employer offence, and the revised guidance that has been issued by UKVI to coincide with its introduction.
The IA 2016 expands dramatically the existing offence of "knowingly" employing an individual who does not have the appropriate permission to undertake work for which they are employed. Explicit knowledge is no longer required, as it is now an offence to allow employment to continue in circumstances where the employer had only “reasonable cause to believe" that the employee was disqualified from the employment by reason of their immigration status.
What’s driven this change?
The apparent intention of this expanded offence was to hold unscrupulous employers responsible if they deliberately choose not to conduct right to work checks.
The change means that an employer who checks an individual’s right to work in the manner required, but later receives information suggesting that the individual might not have that right, may be committing an offence if they allow the employment to continue.
The combination of a lower threshold for the offence and the significant increase in the maximum sentence will be a concern for employers. For Tier 2 sponsor employers, there is the added issue of the sponsor license being revoked and the leave of all their sponsored employees being curtailed.
What checks should employers make?
The UKVI guidance remains the starting point for conducting checks, and employers should focus on three basic steps:
- Obtain original versions of one or more acceptable documents;
- Check the validity of the document in the presence of the holder;
- Make and retain a clear copy of the document, noting the date it was made.
Unfortunately there is no guidance issued on what is meant by “reasonable cause to believe”. This means that for the time being we will have to feel our way in respect of what constitutes reasonable cause to believe that an individual does not have the right to work.
Employers can nonetheless take proactive steps to respond to the increased risks. Now may be the right time to conduct a thorough review of HR systems and procedures to ensure that the right to work checks are being conducted and recorded consistently and correctly. To address the new offence in particular, it may be time to introduce revised systems so that any change in the circumstances of an individual that might indicate a change in their immigration status is reported, assessed and acted upon appropriately.
Where can I get help?
It is more important than ever for employers to get the basics right when it comes to conducting and storing right to work checks in respect of all employees. The updated version of the UKVI guidance does not contain any material changes to how employers should go about carrying out the checks. The starting point for employers should be the Guidance.
Our immigration experts are always on hand to advise on any questions around employing foreign nationals. Please contact: