Carter Jonas
Carter Jonas

Employers must take care over foreigners in their workforce

Employers of workers from overseas – and the workers themselves – now have to be aware that The Immigration Act 2016 is on the statute books and will be implemented through new regulations over the coming months.

One of the major concerns for employers should be the expansion of criminal liabilities.

For instance, where an employer has reasonable cause to believe a person is an illegal worker the maximum sentence rises from two to five years’ imprisonment. But even those who do not know they are employing a foreign national illegally can be fined up to £20,000 per illegal employee. Employers who knowingly employ an illegal worker now face both a prison sentence and unlimited fines.

Employers need to ensure they can establish the “statutory excuse” if an illegal employee is found to be in their employ by:
•    obtaining original proof of the right to work in the UK from the prescribed lists;
•    checking the authenticity of those documents in the presence of the employee in question; and
•    keeping copies of the checked documents.

Immigration officers will have power to issue “illegal working closure notices” to shut down organisations committing multiple breaches under the Act for up to 48 hours.

An additional part of the legislation creates a new criminal offence of “illegal working” meaning the earnings of illegal workers can be seized as proceeds of crime.

Illegal immigrants will not be able to hold a bank account or a driving licence and landlords will be required to check the immigration status of their tenants.

A new “immigration skills charge” will be imposed on employers who sponsor skilled workers from outside the European Economic Area at the annual rate of £1,000 per Certificate of Sponsorship for each employee brought into the UK under Tier 2 of the points-based system which applies to those recruiting migrants in skilled areas, with a reduced annual rate of £364 for charitable or small organisations. The aim is to encourage organisations to recruit and train UK employees. This requirement is expected to apply from April, 2017 with few exemptions.

A new post of Director of Labour Market Enforcement will be created under the Act, with the Director tasked with over-seeing and co-ordinating enforcement of worker exploitation legislation by the three main bodies responsible: the Gangmasters Licensing Authority, the Employment Standards Inspectorate and HMRC. The Director will be responsible for publishing plans and reports on the enforcement bodies and will lead an 'intelligence hub' as a single point of information across the spectrum of non-compliance – from accidental payroll errors to serious criminality.

Tim Jones

Tim JonesFRICS

Partner - Head of Rural Division

Tim is head of the firm's Rural Division and of the Cambridge office, although he spends a considerable amount of time in London.  He has over 20 years experience in advising institutional and pri...

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