Government keen to demonstrate tough stance on illegal working with legal changes

Under the new Act the employment of an illegal migrant will be treated as a criminal offence, which will be punishable by either a financial penalty or prison sentence of up to five years – which was raised from a two year limit. 

More importantly is the fact that employers will be liable for the criminal offence if they “have reasonable cause to believe the employee is disqualified from employment” due to their immigration status. Businesses suspected of not adhering to the law may also now be closed for up to 48 hours, and an immigration officer may arrest without warrant someone suspected of employing a person illegally.

In terms of staff, the offence will be punishable by a prison sentence of up to six months, a fine, or a combination of both options. Their earnings will also, according to the government, be up for grabs.

Read more about employing immigrants:

Kate Hodgkiss, a partner at City law firm DLA Piper, suggested the changes reflected the government’s continued efforts to create a “hostile environment for persons who are in the UK illegally, and to clamp down on employers who turn a blind eye to illegal working.”

She added: “The latter point is a big shift in employment law and will be of concern to many business leaders, as it not only requires them to actively check the right to work of anyone who they have ‘reasonable cause to believe’ is under illegal employment whilst simultaneously increasing the maximum penalties.

“Employers will no longer be protected from prosecution on the basis they did not explicitly know that an individual did not have the correct immigration permission for the work in question. That said, it remains to be seen how the new wider culpability for a ‘reasonable cause to believe’ will be interpreted.”

Bosses will thus need to ensure that right to work checks are properly conducted before an individual starts working, Hodgkiss said, as this is the only “statutory excuse” which will protect them from civil or criminal liabilities.

Similarly, Bar Huberman, employment law editor at XpertHR, suggested the commencement of these provisions shows the government is keen to demonstrate a tough stance towards employers that “turn a blind eye” to employing illegal migrants.

“It is a clear signal from the government that it will not stand by as employers ‘exploit illegal migrants for their own gain’,” he concluded.

Also, immigration law expert Katrina Cooper provides critical advice on the steps businesses must go though to ensure new hires are legal, including the Right to Work check and document management.

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