The widely-anticipated Immigration Bill has now received Royal Assent, signalling a further legislative crack-down on the employment of illegal workers in UK industry.
Designed to improve the ability of prosecutors to pursue criminal sanctions against individuals and businesses that do not comply with immigration policy, the Act is a timely reminder to firms of the importance of due diligence when appointing and vetting potential recruits.
Whereas previously, the law required evidence that a business had ‘knowingly’ employed an illegal worker, this new legislation has reduced the burden of proof, requiring only evidence that the business had ‘reasonable cause to believe’ that the individual was ineligible to work in the UK.
Business could be hit two-fold if found to be in breach of immigration law. While the organisation itself is subject to an unlimited fine, both the individual with overall responsibility for employment, as well as the individual with day to day responsibility for immigration could now face up to five years’ imprisonment, up from the previous two year maximum sentence.
This new legislation must be viewed as a call to action for UK businesses. Under these parameters, whilst merely carrying out a partial rather than a full right to work document check would constitute grounds for a civil penalty, it could potentially constitute a criminal penalty too. While historically business immigration law was perceived as somewhat of a ‘toothless tiger’, with these new powers in hand, it is likely that we will see the number of prosecutions rise significantly.
Businesses must review their recruitment processes and ensure that the required time and resources are devoted to carrying out and storing evidence of full right to work checks for all new recruits. It is important to remember that the individual liable for prosecution may well not be responsible for all day-to-day immigration-related administration. Therefore, implementation of due diligence checks must occur from the top down. Failing to do so could leave both the business, and its representative decision-makers open to crippling financial and criminal sanctions.”
The Immigration Act 2016 applies to all UK employers, both with and without a sponsorship licence.
By Beverley Smith, employment and business immigration specialist at law firm Shakespeare Martineau