Aside from Brexit, the immigration rules have been in the news this week with the introduction of new criminal sanctions for employing workers who do not have the right to work in the UK. The changes, brought into force as part of the Immigration Act 2016,strengthen the government's commitment to tackling illegal working - immigration enforcement issued 2,594 civil penalties in the financial year 2015/16.

Criminal offence of employing an illegal worker

It was already a criminal offence to knowingly employ someone who does not have a right to work in the UK. From 12 July 2016, it is now also an offence if an employer has reasonable cause to believe that a person is working illegally. It is, therefore, no longer necessary for the investigating agency to prove that the employer knew that the worker did not have the correct permissions to work here. This lower threshold could well lead to an increase in prosecutions.

As well as the offence being widened, the maximum sentence has increased from two to five years.

The offence of illegal working

The Immigration Act 2016 has also created a new criminal offence of illegal working. This means that workers found guilty of working illegally could themselves face imprisonment for up to six months and / or a fine.It is possible that their wages could be seized as the proceeds of crime.

Civil penalties

The criminal sanctions are in addition to the existing civil penalties which can be imposed on employers employing illegal workers. The maximum civil penalty is £20,000 per illegal worker. There is a 'statutory excuse' against liability for a civil penalty if the correct document checks have been carried out.

In practice

  • As part of the recruitment process, carry out right to work checks on all employees before they start work. Do not make assumptions about a person's right to work in the UK based on their ethnic or national origin; colour; nationality; accent; or length of residency. Carrying out checks on all applicants minimises the risk of discrimination claims.
  • Undertake follow-up right to work checks if a worker has time-limited permission to work in the UK.
  • Check the immigration status of employees acquired as a result of a TUPE transfer - there is a grace period of 60 days following the transfer date.
  • If there is a suspicion of illegal working at any time during employment, investigate the individual's immigration status. Lack of knowledge is no longer a bar to a criminal prosecution.

There is government guidance on carrying out right to work checks which looks at what documents are acceptable; how to check their validity; retaining evidence etc. The guidance has been updated this week and is available here.

Other parts of the Immigration Act 2016 will come into force at a later date (as yet unknown) including the requirement on public authorities to ensure that employees in customer-facing roles speak fluent English; the power for immigration officers to close premises for up to 48 hours in some circumstances where illegal working is suspected; and the "immigration skills charge" on employers sponsoring non-EEA nationals who come to the UK under Tier 2 of the points-based system.

Please get in touch with your usual Brodies contact for more information.


Julie Keir

Practice Development Lawyer