New penalties in place under the Immigration Act 2016

The Immigration Act 2016 is now in force and its substantive provisions seek to reflect the Home Office’s aim of making the immigration system more robust in the face of illegal working. The key terms include two new penalties for employers.
1. Illegal Working Closure Notices and Compliance Orders
Where an employer repeatedly employs illegal workers, or fails to pay a civil penalty notice, a Chief Immigration Officer may issue an Illegal Working Closure Notice to close the employer’s premises for up to 48 hours. The notice will restrict paid or voluntary work or access to those premises during the 48-hour period.
Once the officer issues the notice, he or she can then make an application to the court for an Illegal Working Compliance Order. This will impose specific requirements on the employer to ensure it does not commit further offences, and the provisions of the Compliance Order can be extended for up to two years in total. The court has wide discretion and can:

  • restrict or prohibit access to the premises;
  • require the employer to perform right to work checks; and
  • produce right to work check documents.

Where an individual contravenes an Illegal Working Compliance Order, they will commit an offence punishable by up to 51 weeks’ imprisonment and/or a fine.
Employers should be live to the risk that they might be repeat offenders even if they unintentionally employ someone who does not have permission to work in the UK. An example of this would be where the worker has forged a document proving their eligibility to work in the UK.
2. Right to rent provisions
It is now also a criminal offence to rent a property to someone who is not lawfully living in the UK and the landlord knows, or has reasonable cause to believe, the premises are occupied illegally.  Therefore, employers who provide housing as part of the terms of their workers’ employment (in particular, employers with a cross-border workforce) might be at risk if they rent to a person without the right to live in the UK. This may result in an unlimited fine and/or a custodial sentence of up to five years. Where this offence is committed by an employer, it is possible that the directors will be personally liable to serve the custodial sentence.
Employers should note that this is a continuing obligation. Therefore, when carrying out the usual periodic right to work checks, employers should also consider whether an individual’s right to rent has expired during tenancy. It is particularly important that employers keep up-to-date records of their tenants (including visa expiry dates) and make sure that terms are in place to end the tenancy where it is discovered that an individual is disqualified from renting. However, employers might be able to avoid these duties, and any resulting criminal penalties, by appointing agents who will have responsibility for any immigration checks in the employer’s place.

Helena Rozman

About Helena Rozman

Helena has experience in acting for both employees and employers covering both contentious and non-contentious work. Helena's experience includes defending Employment Tribunal claims and engaging in settlement negotiations; advising clients on complex disciplinary matters, exit strategies and large restructuring exercises, including TUPE and redundancy; co-ordinating and responding to data subject access requests; advising on the employment implications on business and asset purchases and outsourcing arrangements; project managing and advising clients on multi-jurisdictional projects with our international offices; drafting settlement agreements for exiting employees; advising on the employment aspects of corporate transactions and undertaking due diligence; and reviewing contracts, company handbooks and policies.

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