New Criminal Offences for Employing Illegal Workers

Starting from July 12, 2016, employers became subject to substantial fines and the possibility of significant jail sentences if there is ‘reasonable cause to believe‘ that they have been hiring illegal workers.

Previously, employers could claim ignorance as a defense when facing accusations of employing illegal workers. Criminal charges would only be brought against them if it could be demonstrated that they knowingly hired an individual without the necessary permission to work. The recent changes in legislation have expanded the grounds for prosecution and raised the maximum penalty.

As of July 12, 2016, anyone found working in the UK without the required permission could be subjected to a maximum penalty of ‘6 months’ imprisonment.

The legislation

The legislative framework aimed at preventing the employment of illegal workers in the UK is established through sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act) and Sections 24 and 24B of the Immigration Act 1971 (the 1971 Act).

Section 15 of the 2006 Act enforces a civil penalty on businesses that hire individuals without the right to work in the UK. Businesses can avoid this penalty only if they adhere to the document checks outlined in the legislation.

Additionally, Section 21 of the 2006 Act introduced a criminal offense for employers who knowingly hire illegal workers.

However, in practice, the prosecution of this criminal offense was infrequent because it was challenging for prosecuting authorities to establish, beyond a reasonable doubt, that an employer was fully aware that an employee was working illegally.

Amendments in effect from 12 July 2016

Sections 34 and 35 of the Immigration Act 2016 (the 2016 Act) were implemented on July 12, 2016. Section 34 introduced the new offense of ‘illegal working’ into section 24B of the Immigration Act 1971. Section 35 made amendments to section 21 of the Immigration, Asylum and Nationality Act 2006, which increased the penalty and expanded the scope of the criminal offense related to employing an illegal worker.

The purpose of these amendments was to enhance immigration regulations and establish a hostile environment for individuals seeking employment in the UK without the necessary permissions. These changes also granted new powers to immigration officers, enabling them to enter business premises, conduct searches, retain evidence, and temporarily close a business for up to 48 hours.

New offence of illegal working

Starting on July 12, 2016, according to Section 24B of the Immigration Act 1971, an individual commits the offense of illegal working if they:

• They are subject to immigration control.
• They engage in employment in the UK.
• Their immigration status disqualifies them from working in the UK.
• At the time, they have knowledge or reasonable cause to believe that their immigration status renders them ineligible for employment.

An individual is rendered ineligible for employment due to their “immigration status” if they:

• They have not received permission to enter or stay in the UK, or
• The granted permission is invalid, has expired, or includes a condition that prohibits them from engaging in the type of work they are currently involved in.

The term ‘working’ encompasses various forms of work arrangements, such as employment contracts, apprenticeships, and self-employment. This offense is punishable by a maximum penalty of six months of imprisonment and/or an unlimited fine. In Scotland, the fine is capped at the statutory maximum. Furthermore, any income derived from illegal working may be confiscated as proceeds of crime.

Offence of employing illegal workers

Starting from July 12, 2016, as stipulated in section 21 of the 2006 Act (modified by section 35 of the same Act), an employer can be charged with the offense of employing an illegal worker if they:

1. Employ an individual lacking the legal right to perform the specified work, and
2. Have either the knowledge or reasonable cause to believe that the person does not possess the necessary work authorization.

The inclusion of ‘has reasonable cause to believe’ expands the scope of criminal liability to situations where an employee has not furnished the employer with the required immigration documents, and the employer should have reasonably known that the employee lacked the right to work.

In cases where employers have disregarded information or failed to conduct proper document checks, they may now be exposed to criminal prosecution.

Until 2006, UK businesses employing illegal workers were subject to civil penalties. Initially, these penalties could amount to up to £10,000. In 2014, the maximum fine was doubled to £20,000.

Consequences of a civil penalty may also include the public disclosure of the penalty on the Home Office website and disqualification from obtaining a sponsor license or other essential licenses for the business.

Now, in addition to incurring civil penalties, employers may also face criminal sanctions in a substantial number of cases involving illegal workers.

If found guilty of a criminal offense, employers could be subjected to an unlimited fine and a maximum prison sentence of five years. Prior to the recent amendments, the maximum custodial sentence was only two years.

How to avoid criminal prosecution

Employers and HR departments need to diligently conduct the appropriate right-to-work checks when hiring any employee to avoid the risk of criminal prosecution for employing individuals without the legal right to work.

In essence, there are three essential steps to ensure proper checks:

1. Acquiring the individual’s original documents.
2. Verifying these documents in the presence of the document holder.
3. Creating and preserving a clear copy of the documents while also noting the date on which the copy was made.

Remember, ignorance is no longer an acceptable excuse.

Is your business’s immigration system fully compliant? Have you faced any breaches of your obligations? We possess extensive expertise in assisting employers and HR departments with immigration compliance, including addressing civil penalties for employing illegal workers. Don’t hesitate to reach out to us for guidance and advice [email protected].

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