WorkLife

Our thoughts on the world of employment law - and beyond.

Immigration Act 2016

The Immigration Act 2016 (the Act) came into force on 12 May, bringing with it some stringent measures against illegal immigrants and anyone who employs them. This applies equally to businesses and individuals employing staff.

The key points to be aware of are:

- Under the Act it is not only an offence to work illegally but is an offence to employ an illegal worker;

- The offence is committed if the employee either does not have the right to work in the UK by virtue of their immigration status or the employer had reasonable cause to believe that the employee did not have the right to work due to their immigration status.

- This offence already existed under separate legislation; however, the Act increases the maximum prison sentence which can be given to an employer from 2 years to 5 years. This applies both to corporates and individuals.

- An employer (whether a corporate or not) will have reasonable cause to believe a fact about an employee if a person who has responsibility for an aspect of employment (within the company) has reasonable cause to believe that fact.

- Immigration officers have the power to arrest without warrant anyone committing or attempting to commit this offence where the officer has reasonable grounds for suspicion.

- Under the Act it is also an offence to drive a vehicle when not lawfully resident in the UK. Police can operate 'stop and search' checks and require immigration documentation to be provided.

What does this mean for employers?

Both individual employers, including householders employing domestic staff and companies need to have effective systems in place for checking and monitoring the immigration status of their employees. This means asking for the correct documentation when a new employee is taken on and making a note of any expiration dates so that new visas can be applied for in a timely manner if relevant.

It is also important that staff, particularly those working in Human Resources, are made aware of their responsibilities. Under the Act, the HR team is likely to be viewed as having responsibility for an aspect of employment and therefore, if they have cause to believe that an employee's immigration status has changed this will be enough for the company as a legal entity to be deemed to be aware of it.

Additionally, companies and private individuals employing drivers or chauffeurs may potentially be at greater risk if paperwork is not kept up to date, depending on how strictly the legislation is enforced. Even where this is not relevant, employers should inform any driving staff in advance that they could experience 'stop and search' requests by the police.

It remains to be seen just how far these powers will be used or the impact they will have on immigrants who are in the UK legally. Coupled with uncertainly over Brexit, the Act could make employing non-UK workers in general, potentially less appealing to private and corporate employers alike

Overall, however, good governance, such as organised record keeping and staff communication, both of which must be demonstrated to the authorities upon request will go some way to reducing any potential risk and negative impact.

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