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Posted 29 July 2016
by Stephen Jennings

Immigration Act 2016 – Here’s What You May Have Missed



With all the excitement surrounding ‘Brexit’ you may have missed the Immigration Act 2016 which came into force on 12 July 2016.

What is it?

The Act extends the provisions of the Immigration Act 2014 and is a consequence of the Government’s pre-election promise to reduce migration to the UK. The aim of the Act is to make it more difficult for illegal migrants to work, rent property and receive financial support in the UK.

What has changed?

Previously it was only a criminal offence if the employer “knowingly” employed an illegal migrant. Under the new Act, if the employer has “reasonable cause to believe” that a person is working illegally, they could be liable to criminal prosecution and so the offence is now much broader. The Act also increases the conviction on indictment from two to five years imprisonment.

In addition, the Act affords greater powers to Immigration Officers allowing them to enter business premises to search for documents and to seize and retain evidence in relation to an offence. The Chief Immigration Officer now has the power to close a business’ premises for up to 48 hours where the employer; i) has been convicted of employing an illegal migrant; ii) was required to pay a civil penalty within the preceding three years; or iii) has an unspent conviction for employing illegal workers.

The Act will also implement a new ‘Immigration Skills Levy’ from April 2017. Employers will be required to pay an annual skills levy if they sponsor skilled workers from outside of the European Union (EU). This will amount to £1,000 per migrant for large employers, and £364 for small employers or charities.

What should you do?

Finding yourself in breach of the new Act could have serious financial consequences for your business. However there are steps that you can take to reduce the risk:

  • Regularly review employee files to ensure that you hold up to date right to work evidence;
  • Put in place a system that automatically reminds you well in advance when an employee’s visa is due to expire;
  • Ensure that employees know the identity of the staff member(s) who is the point of contact for immigration queries, and make sure that the relevant persons are adequately trained;
  • Review or create (if you do not currently have one) a right to work policy;
  • Review your policies and procedures relating to dismissal and ensure that all staff are aware of any changes. If you become aware of a change in an employee’s personal circumstances meaning that they are no longer able to legally work in the UK then you may need to follow your dismissal process quickly and fairly.

Discrimination

The risk of failing to comply with the Act could be serious, but you also need to be careful not to open yourself up to a claim for discrimination. It is unlawful to discriminate against someone on the grounds of race or nationality. Therefore you should consider carrying out appropriate right to work checks on all prospective employees, not just those who you believe are of non-UK origin.

You will also need to ensure that, as far as possible, you base your recruitment process purely on merit. An Employment Tribunal has previously held that employers should not prevent an individual from submitting an application for employment if they do not have the right to work in the UK at the date of application. The Tribunal emphasised that right to work issues should only come into consideration at the last stages of selection.

Anything else?

Whilst this Act does not currently have an impact on EU-national employees working in the UK, it is worth bearing in mind that this could potentially apply in future once the UK leaves the EU. However this may be several years down the line, and it is likely that the rights of EU citizens will be replaced by some alternative negotiated rights of movement, so ensure you keep up to date with future relevant changes.

 

For any advice, contact our specialist employment team on 01392 207020 or e-mail employment@tozers.co.uk.

 

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About the author

Partner in the litigation department specialising in employment law, he is the relationship manager for many of the firm's employment clients