Immigration: caveat employer

Tighter controls on employing immigrant workers under the Immigration Act 2016 have come into force.

Section 35 of the Act deals with the offence of employing an illegal worker. It was previously an offence for an employer to employ someone who does not have the right to work in the UK. However, employers have had a statutory excuse if they have undertaken checks of documents listed by the Home Office. Section 35 has changed the offence from knowing that the person does not have the right to work to having “reasonable cause to believe” that that is the case. The interpretation of “reasonable cause to believe” is not specified and will no doubt be a matter for the courts.

For businesses that have continued to employ illegal workers despite civil or criminal sanctions the Act has introduced illegal working compliance orders (effective 1 December 2016). These allow immigration officers to close businesses and to apply for a compliance order.

Section 85 of the Act introduces an immigration skills charge. This affects employers who sponsor new tier 2 workers from outside the European Economic Area. Employers will have to pay £1,000 for each tier 2 sponsored worker. A reduced charge of £364 will apply to small employers and charities. The Government intends this, and the apprenticeship levy, to address underinvestment in training to address skill gaps. A further aim is to reduce immigration by encouraging employers to train their workforce to address the gaps.