Earlier this month, the UK Government passed the Immigration Act 2016. It introduces changes to the law on various aspects of immigration, some of which are relevant to employment. The rationale behind the Act is that migrant workers are particularly vulnerable to exploitation in the labour market, and that such exploitation is an increasingly organised criminal activity, necessitating measures to tackle this as well as tackling illegal immigration. Regulations passed last week provide that three relevant provisions will come into force on the 12th July this year:
1. The creation of a new post of Director of Labour Market Enforcement, whose role will be to oversee and co-ordinate enforcement of worker exploitation legislation by the three main regulators: the Gangmasters Licensing Authority (which will be renamed the Gangmasters and Labour Abuse Authority), the Employment Agency Standards Inspectorate and HMRC. It was believed that the regulators need better co-ordination, thus it is intended for the new Director to establish a central hub of intelligence and allow for better allocation of resources across the three regulatory bodies. The Director will report each year on the extent of non-compliance with relevant legislation, such as the National Minimum Wage Regulations and the Modern Slavery Act.
2. The creation of a new offence of illegal working (section 34), which means that a person commits an offence if they work in the UK when knowingly disqualified from doing so, or have reasonable cause to believe they are disqualified from doing so. Such an offence carries a penalty of up to 6 months imprisonment, a fine or both. The Act also provides for prosecutors to consider acting under the Proceeds of Crime Act 2002, which would also the earnings of such illegal workers to be confiscated.
3. The extension of the existing criminal offence of knowingly employing an illegal worker – being a person disqualified from working in the UK by virtue of their immigration status - to the situation where an employer has a reasonable cause to believe that a person is an illegal worker. The maximum term of imprisonment on conviction of such an offence will be raised to five years.
Further employment related provisions of the Immigration Act 2016 are not yet in force and do not yet have a confirmed commencement date. These include:
- Giving the Secretary of State power to introduce an immigration skills charge on certain employers who sponsor skilled workers from outside of the European Economic Area. The rationale behind this measure was stated to be to increase funding for apprenticeships in the UK and address a skills gap in the UK workforce. This is expected to be introduced in April 2017.
- Requiring public authorities to ensure that public workers in customer-facing roles speak fluent English.
The new provisions coming into force should not have much effect on employers who are taking appropriate steps to ensure that all employees have the right to work in the UK. The extension of the offence to include ‘reasonable cause’ suggests that employers should be more vigilant and cannot necessarily take a worker’s word on the matter if there is evidence to suggest they might be working illegally.
The proposed skills charge may be of more concern to employers who employ skilled workers from outside the European Economic Area, but at the moment it remains to be seen when this provision will come into force, whether the Secretary of State will exercise the power, and how much such a charge might be if introduced.
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