As part of a raft of changes being introduced to the UK’s immigration system, from 1 December 2016 Immigration officers (IOs) have the power to issue a closure notice to prevent trading from a premises for up to 48 hours.
A forced closure, even for a short period of time, could have disastrous financial and reputational consequences for a business. Here we look at how closure notices work, and the steps businesses can take to avoid being subject to one.
When can a closure notice be issued?
The new powers were introduced to tackle businesses that repeatedly employ illegal workers, so it is anticipated that notices will be issued only in the most serious of cases.
There are two key elements that entitle an IO to issue a closure notice.
- The IO must be satisfied, on reasonable grounds, that an employer operating at the premises is employing an illegal worker; and
- The relevant employer, or any relevant person to which it is connected (e.g. a manager, director or secretary) has either:
- an unspent conviction for employing an illegal worker; or
- been issued with a fine for employing an illegal worker in the last three years; or
- been issued with such a fine at any time which remains unpaid.
It remains to be seen what will be treated by IOs as sufficient evidence to establish “reasonable grounds”. Although the Home Office has issued some guidance to frontline officers, it does not directly address the issue and the threshold could be relatively low.
The second key element (prior offence/fine), should rule out the issuing of a notice in most instances. However, it is important to note that the rule applies not just to the business itself but to its connected persons, old and new.
There is an unfortunate risk that innocent employers and legal workers, who are not able to produce right to work documents at the time of a visit, will cause the temporary and publicised closure of the business premises.
Consequence of a closure notice
Aside from the immediate financial and reputational risk, once a notice is issued the IO must apply to the court for an illegal working compliance order (an Order) to be made against the employer.
The Order can have effect for up to one year, and can include:
- a prohibition or restriction on accessing the premises;
- a duty to carry out right to work checks;
- a duty to produce right to work documents;
- an obligation to permit inspections of the premises; and
- other provisions as deemed necessary by the court
What steps should businesses be taking?
Here are three things businesses can do to protect themselves.
Undertake right to work checks/audit
It is now more important than ever for employers to undertake right to work checks in the prescribed manner across the workforce. Businesses should ensure that the relevant evidence of right to work is accessible on the business premises on short notice, so that it can be shown to a visiting IO.
If one hasn’t been completed recently, an audit of all staff right to work documents should be undertaken by employers to avoid any unwelcome surprises.
Know your ‘connected persons’
Due diligence of connected persons, with respect to past immigration offences, is one way of assessing whether your business is at particular risk of a closure notice. Care will need to be taken when conducting enquiries, to ensure that the company does not seek to force the disclosure of information contrary to the Rehabilitation of Offenders Act 1974 legislation.
Implement robust systems for conducting checks and reporting concerns
Businesses may need to conduct a thorough review of HR systems and procedures, to ensure that a robust system is in place so that right to work checks are conducted and recorded consistently and correctly going forwards.
To address, in particular, the employer’s offence (introduced in July 2016) of employing someone where it has reasonable cause to believe they do not have the right to work; it may be time to introduce revised systems so that any change in an individual’s circumstances that could affect their immigration status is reported, assessed and acted upon swiftly and appropriately.
Where can I get help?
Our business immigration experts are always on hand to advise on any questions around employing foreign nationals. Please contact