The Government plans to introduce new measures under the Immigration Bill 2015. We examine the proposed changes and how they will impact business particularly in the light of the Modern Slavery Act.
The summer's refugee crisis across Europe has kept the issues of immigration control and human trafficking firmly at the top of public consciousness and the government's agenda. The sight of migrants attempting to enter the Eurotunnel at Calais and boat loads of migrants in the Mediterranean have made regular appearances in the media. You may ask what this has to do with business. Well, the government is seeking to shift some of the burden of policing these issues on to companies so it is important to know what will be required of you.
Immigration Bill 2015 : Impact on Businesses
The majority of the proposals under the Bill that have hit the headlines are changes that will affect the individual who is working illegally, for example the fact that working illegally will become a criminal offence punishable by imprisonment and a fine and the bill will also allow wages to be seized under the Proceeds of Crime Act 2002. However, there are also changes affecting businesses.
Offence Widened and Penalties Increased
Under the current rules there is a criminal offence of knowingly employing an illegal worker. This is being changed to knowing or having reasonable cause to believe that an illegal worker is being employed. In addition to widening the offence, the penalty is being increased from a prison sentence of up to 2 years to a possible 5 year sentence both with an unlimited fine. There are currently very few prosecutions (7 in 2012) under this offence but the fact that the Home Office now only need to show that the employer had reasonable cause to know the person was working illegally is likely to lead to an increase, particularly given that more prosecutions will be good for government's tough stance on immigration.
Immigration Skills Charge
The Bill will also introduce an 'immigration skills charge'. This charge will be levied on all employers who sponsor non-EEA nationals under the points based immigration system. This is part of the government's drive to incentivise businesses to recruit from within the resident labour market and assist with the up skilling of resident workers. This shows a similar approach to the one that the government is taking in respect of funding for apprenticeships i.e. to push the burden of costs away from central government although it is unclear whether the additional funds raised by this charge will be used to help generate skilled workers within the resident labour market.
Director of Labour Market Enforcement
The government is also proposing to appoint a Director of Labour Market Enforcement. They will be responsible for overseeing budgets of various regulatory authorities and coordinating an information hub. They will be responsible for producing a strategy to deal with offences in labour market enforcement including offences related to the Employment Agencies Act 1973, National Minimum Wage 1998, Gangmasters (Licensing) Act 2004 and the Modern Slavery Act 2015. The hope is that a coordinated approach will tackle issues of exploitation of vulnerable individuals and help to tackle issues of trafficking.
However the organisation Focus on Labour Exploitation believes that this strategy will just allow modern slavery to thrive. Making the same people responsible for policing modern slavery offences and prevention of illegal working will mean that those who are being exploited will be unable to trust those enforcement officers as they run the risk of being arrested and deported if they make any complaint about the way that they are being treated.
Other powers include the ability to close businesses which have previously been penalised for employing illegal workers for 48 hours while the Home Office carries out an audit to check that illegal working checks have been carried out. This applies to businesses which have previously been fined for employing illegal workers. A compliance order will then be made for those businesses to ensure that they stop employing illegal workers. Any business requiring a licence to operate may have that licence revoked where it serially employs illegal workers.
What do you need to do?
Businesses should consider taking the following steps:
1. Illegal working checks:
- Ensure your prevention of illegal working checks are robust and fit for purpose
- Employees who are responsible for carrying out the required checks should know what they are looking for and understand what documents are valid to establish that the necessary checks have been carried out
- Any follow up checks which are required e.g. when an employee's current leave expires, should be diarised centrally so that they are not missed and the employee allowed to continue working
2. Letters from the Home Office:
- We are seeing a more joined up concerted effort to deal with the issue of illegal working. Businesses are now receiving letters from the Home Office to advise them is an employee is continuing to work beyond the end of their leave
- If you receive a letter action should be taken immediately
- Meet with the employee to discuss the issue and ask them to provide proof of their right to work in the UK
- A word of caution, not all of the letters contain correct information and so employees must always be given the chance to show that they do have the right to work before any decision is made about their ongoing employment
If you would like advice on how these changes will affect your business, please contact Sarah Lovell who specialises in immigration issues for businesses or a member of our employment team.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.