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Immigration Act widens criminal liability for employers and employees

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By Patrick Stewart

The Immigration Act 2016 (Commencement No.1) Regulations 2016 (“the Regulations”) will introduce three new changes to the Immigration Act 2016 as of 12 July this year.

For employers, the most important of these changes is section 35. Currently it is a criminal offence to knowingly employ an illegal worker. The new amendment extends the offence to include where the employer has ‘reasonable cause’ to believe the employee is unable to work due to their immigration status.  In essence this means that if you suspect or should be aware that you are employing an illegal worker, you may be guilty of an offence. In addition, the maximum term of imprisonment will increase from two to five years.

Employers should be careful when employing new staff, ensuring they have the correct documents in place. In addition, employers should regularly audit employee files to ensure that there is no lapse in document renewals and update their company handbooks so that employees are aware of the responsibilities on both the employer and, as per below, on the employee. (For detailed information from the Home Office on the correct document please click here.)

The Regulations have also created a new offence for employees. Under Section 34 it will be an offence for an employee to work at a time when he or she reasonably believes that they are disqualified from doing so because of their immigration status. As with employers, this means that there is an onus on the employee to be aware of their immigration status. A breach of section 34 could result in imprisonment of up to 6 months or a fine or both and the employee could also be subject to a confiscation order of wages.

The third amendment, contained in sections 1 to 9, deals with the creation of a new post of Director of Labour Market Enforcement who will oversee compliance in the labour market in general for example compliance with the National Minimum Wage. It is unclear what practical effect this will have on employers, in particular whether employers will be subject to compliance visits.

For further information, please contact patrick.stewart@twmsolicitors.com

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