Illegal Working – all change? : Immigration Act 2016 Briefing

Introduction

On 12th July 2016 we will see the biggest shakeup in the law relating to illegal working for the last 10 years. These are contained in Chapter 2 (ss34-38) Immigration Act 2016.

Set out below is an overview for both employers and employees as to what the law will be when this is implemented.

 

For employers 

The current offence is widened considerably. The main points to note are :

  • the maximum sentence increases from 2 years to 5 years
  • the definition of ‘who is an illegal worker’ is changed
  • the offence becomes objective, rather than subjective

 

Overview of offence

A person, A, commits the offence if they –

  • employ somebody (B) who is
  • disqualified from working due to their immigration status, and person A
  • has reasonable cause to believe that B is disqualified

 

Who is ‘disqualified from working’?

Someone will be ‘disqualified from working’, if :

  • they have not been granted leave to enter or remain in the United Kingdom, or
  • their leave to enter or remain in the United Kingdom— 

          (i) is invalid,

          (ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or

          (iii) is subject to a condition preventing the person from doing work of that kind.

The fact that an employer does not know that that their employee is disqualified is not a defence. If they have ‘reasonable grounds to believe’ that somebody is disqualified – i.e. if another person looking at the grounds would believe so (as a rough guide – it’s a bit more complicated than that) then they will still be guilty.

What is meant by ’employ’?

There is a definition of employment in s25 Nationality, Immigration and Asylum Act 2006 which states that employment means “employment under a contract of service or apprenticeship, whether express or implied and whether oral or written“.

Although it appears straightforward, this can be an incredibly complicated question of employment law, where a number of different factors come into play.

In addition it should be noted that, sightly confusingly, this is different to the test for somebody who is an employee for that offence, although in practice this will probably not make much of a difference.

 

Who in a company is liable?

This can get quite technical – if there is any issue then you would be advised to seek legal advice.

But as an overview, if someone in the company (or other body) who has responsibility for the employment is in a position where they know, or should know, that someone is being employed illegally, then the company will be liable.

In addition, any ‘officer’ of the body (Director, Manager, etc) will be liable provided that they also have the requisite state of mind.

 

Sentence and Procedure

The maximum sentence is increased from 2 years to 5 years.

The case is either way – meaning that somebody charged with it can have their trial in the Crown Court in front of a Judge and Jury if they want.

 

For employees

There has never been a simple offence of working illegally. Those that did so often faced other charges (fraud being an obvious example) as well as enforcement action by the immigration authorities.

The Immigration Act 2016 introduces a ‘catch all’ offence of illegal working. This is achieved by way of an addition to the Immigration Act 1971 (a new s24B).

 

An employee commits an offence if they :

  • work
  • whilst disqualified (on immigration grounds), and
  • they know that (or have ‘reasonable cause to believe’ that) they are disqualified

 

Who is ‘disqualified from working’?

Someone is disqualified from working if :

  • they have not been granted leave to enter or remain in the United Kingdom, or
  • their leave to enter or remain in the United Kingdom—

          (i) is invalid,

          (ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or

          (iii) is subject to a condition preventing the person from doing work of that kind.

This is the same test as for an employee.

If somebody is disqualified from working, then they will fall foul if the law if they know that they are disqualified, or if they have ‘reasonable cause to believe’ that they are. That is an objective test, and so if someone buries their head in the sand and ignores the obvious, it does not mean that they can get away with it.

 

What is ‘work’?

For the purpose of the offence, employment is defined as someone who works :

  • under a contract of employment
  • under a contract of apprenticeship,
  • (under a contract personally to do work,
  • under or for the purposes of a contract for services,
  • for a purpose related to a contract to sell goods,
  • as a constable,
  • in the course of Crown employment,
  • as a relevant member of the House of Commons staff, or
  • as a relevant member of the House of Lords staff

You should note that this is different definition of employment to the one that applies to employers under s21 Immigration, Nationality and Asylum Act 2006.

 

Sentence and Procedure

The offence is summary only, and so the maximum penalty is 6 months imprisonment and/or an unlimited fine.

The kicker here is that the prosecution can apply for the case to go to the Crown Court for confiscation proceedings under the Proceeds of Crime Act 2002.

 

Will this apply to people who started employment prior to 12th July 2016?

A very good question. The law normally has ‘transitional provisions’ – guidance as to what happens to people when the law comes into force, but there aren’t any in this case.

So we are left to guess. As always, if there is any doubt then seek legal advice. My view, for what its worth, is that Courts will interpret ’employs’ to be a continuing act – i.e., if you start your employment on 1st July 2016 then come 12th July 2016 the offence will be committed, provided the relevant person has the relevant knowledge. That should not be taken as a legal opinion however.

 

Conclusion 

This law will potentially have a big impact on those who are, or who employ, foreign nationals. If you are in that category then you should take stock of your position to ensure that you stay on the right side of the law.

*As always, this is an overview of the law and is not intended to be legal advice, and is not a substitute for legal advice. If you want to ask me any further questions, then please contact me*.