The Home Office recently announced significant changes to the Immigration Act 1971, which introduces a new illegal working offence for migrants and an amended illegal employment offence for employers.
The offence of illegal working
With effect from 12th July 2016, under section 24B of the 1971 Act, a foreign national commits the offence of illegal working if they are:
- Subject to immigration control and works when disqualified from doing so by reason of his immigration status; and
- At the time, he or she knows reasonable cause to believe that he is disqualified from working by reason of his immigration status.
Guidance on preventing illegal working suggests that a person has been disqualified by reason of his immigration status if:
- They have not been granted permission to enter or remain in the UK; or
- The permission to enter or remain in the UK is: invalid; has ceased to have effect (examples include via curtailment, revocation, cancellation, or has expired); or is subject to a condition preventing them from doing the work in question.
It is important to note that such an offence is not limited to those employed under PAYE, the new offence is intended to cover all types of work, including apprenticeships and self – employment.
The offence now carries a maximum penalty of six months” imprisonment an illegal worker could in addition face an unlimited fine, when found to be working illegally in England and Wales. The new offence also enables wages from illegal working to be seized as the proceeds of crime.
The offence of employing an illegal worker
In addition, the changes that come into effect on the 12 July 2016, stipulate that an employer commits an offence if they are found to employ an illegal worker and ‘knows or has reasonable cause to believe’ that the person has no right to do the work in question.
This is suggesting that an employer can no longer rely purely on the obtaining a Statutory Excuse to demonstrate legal working in the UK, and will not be able to avoid prosecution where the investigating agency cannot prove that the employer knew that the employee had no permission to work.
Employers will now face prosecution where they have reasonable cause to believe that the employee could not undertake the employment in question, even where the employer has deliberately ignored information or circumstances that would have made them aware that the employee did not have permission to undertake the work in question. This would include employers who fail to make Change of Employment applications for Tier 2 workers, or employers who continue to employee dependant”s no longer in subsisting relationships, or where the main applicant of a dependant is no longer resident in the United Kingdom.
The maximum sentence on indictment for this offence has been increased from 2 to 5 years.
Employers or employees who would like further information on preventing illegal working in the UK, or would like to receiving training on preventing illegal working should contact us at firstname.lastname@example.org.