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By Ali Qassim
July 19—British employers face tougher sanctions for hiring illegal immigrant workers under new legislation that came into force July 12. The Immigration Act 2016 will also make it easier for government authorities to remove illegal immigrants while at the same time providing better coordination of regulators that enforce workers’ rights, according to the Home Office.
“The overriding intention of the Immigration Act is to create an increasingly hostile environment for those who are in the U.K. illegally by prohibiting what they can do,” Audrey Elliott, employment law partner at London-based attorneys firm Eversheds, told Bloomberg BNA. “This concept of reducing migration through creation of a hostile environment has been introduced in parts of the United States previously with some controversy, a reaction it may similarly spark here.”
The enactment of the new legislation comes as the former Home Office secretary Theresa May, who on July 13 became the U.K.’s new prime minister, faces tough negotiations in the European Union about the future movement of workers between Britain and the EU once the U.K. finally leaves the regional bloc. Widespread calls for greater control over the influx of migrant workers from both within and outside the EU were largely behind the victory of the “Leave EU” vote in the June 23 referendum where voters were asked whether the U.K. should leave or remain in the bloc of 28 nations.
“Even before Brexit,” Elliott said, “the U.K. government was under pressure regarding immigration and despite the legal parameters within which it operates as a member of the EU has sought to tighten areas such as illegal working and worker exploitation.”
The new legislation makes it an explicit offense for an employer to employ someone “whom they know or have reasonable cause to believe is an illegal worker,” the Home Office said.
“For employers, the change in the test required to establish that they have knowingly employed illegal workers is significant,” Elliott said. “We would anticipate a higher number of prosecutions will result from this change.”
Elliott advised employers “to consider carefully the right-to-work checks being made currently.”
To deal with those employers that continue to flout the law by employing illegal workers and evading sanctions, the legislation introduces a power to close premises for up to 48 hours, the Home Office said.
“If the employer can prove they have conducted right-to-work checks, the closure notice may be cancelled,” the Home Office said in its factsheet. “Where they cannot, the business may be placed under special compliance requirements, as directed by the courts. This can include continued closure for a period, followed by re-opening subject to compliance inspections and the requirement to conduct right-to-work checks.”
The Home Office said the new measures will strengthen punishments for employers, including doubling the maximum civil penalty to 20,000 pounds ($26,000) per illegal worker and increasing the maximum jail sentences on indictment from two to five years.
“The number of civil penalties issued for failure to conduct right-to-work checks has increased significantly in recent years,” Elliott said, “but there have been comparatively few prosecutions for the ‘knowingly employing' offense (only nine of these, for example, in 2013).”
In the financial year 2014/15, the Home Office said, its Immigration Enforcement division issued 1,974 civil penalties to businesses employing illegal workers.
The Immigration Act also gives immigration enforcement officers new powers to search individuals and properties and seize identity documents if they suspect someone to be in the U.K. illegally.
“Enhancing the powers immigration officers have will not only help them carry out their own work more effectively, but will also be of benefit to other law enforcement agencies who are working hard to tackle crime,” Immigration Minister James Brokenshire said.
Currently, immigration officers have powers to examine, arrest and detain illegal immigrants for the purpose of removal, but if they find other evidence of use to law enforcement partners, they cannot always act, the Home Office said. Under the new legislation, immigration officers will have the powers to seize and pass on evidence where there are reasonable grounds to believe it has been obtained through or is evidence of a crime and where it is necessary to prevent it being concealed, damaged or destroyed.
At the same time, the Immigration Act aims to crack down on employers that exploit illegal workers.
“Some employers seem to think that by employing workers who are less likely to complain, including vulnerable migrants, they can undercut the local labor market and mistreat them with impunity,” Brokenshire said.
The legislation will create a new director of labor market enforcement appointed by and reporting to both the Home Secretary and the Secretary of State for Business. The director will oversee the three main public bodies responsible for enforcing these requirements: a team in the U.K.’s tax office that enforces the National Minimum Wage, the Gangmasters Licensing Authority and the Employment Agency Standards Inspectorate.
To encourage employers to build home-grown talent rather than recruit skilled labor from overseas, the act gives the secretary of state the power to introduce an “immigration skills charge” on certain employers that sponsor skilled workers from outside the European Economic Area, which includes EU member states, Iceland, Liechtenstein and Norway.
The Home Office said that once implemented, this skills charge of about 1,000 pounds ($1,300) will apply to each skilled worker brought into the U.K. under Tier 2 (Skilled Migrants General Category) of the points-based system.
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The Immigration Act 2016 as introduced is available here.
For more information on British HR law and regulation, see the U.K. primer.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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