Employers found not to be complying with new immigration rules affecting illegal workers could face a fine, and their directors could face imprisonment.

The Immigration Act 2016 came into force on 12 July 2016, under which employers can face criminal prosecution where they have a “reasonable cause to believe” that a person is working illegally.

Previously, employers had to be “knowingly” employing an illegal migrant, so the new offence is much wider in effect.

Immigration powers

The new Act also allows immigration officers to enter an employer’s business premises and seize and retain any documents that could relate to an offence. In addition, the Chief Immigration Officer has the right to close an employer’s business premises for up to 48 hours under certain circumstances.

New skills levy

Another new cost for employers under the Act is an “Immigration Skills Levy” to be introduced from April 2017. Where employers sponsor skilled workers from outside the EU, they will have to pay a yearly skills levy – amounting to £364 per migrant employee for small employers and charities, rising to £1,000 per migrant for large employers.

Whether this will also apply to EU workers post Brexit remains to be seen.

This levy comes on top of the new Apprenticeship Levy which also starts in April 2017.

Action points

Being in breach of the new Act could have serious financial outcomes for employers, so there are steps they can take to reduce the risk:

  • Prior to someone starting a job, employers should have sight of original right to work documents. The Home Office has guidance on which documents to examine;
  • Employers should securely retain right to work information;
  • Review on a regular basis employee information to ensure they have a right to work;
  • Set up reminders to alert when an employee’s visa is due to expire;
  • Have a central contact who is trained to deal with immigration queries;
  • Ensure an up to date right to work policy is in place;
  • Review dismissal policies and procedures, and make sure they are followed where an employee is no longer able to legally work in the UK.

Avoiding discrimination

Whilst it is important to comply with the new rules, it is equally important to avoid discrimination. In this regard it may be advisable to carry out right to work checks on all potential employees to ensure equal treatment. Such checks should only be carried out at the last stages of recruitment.

Should you wish to discuss the issues raised, please contact your usual Bishop Fleming adviser, or a member of our Payroll Services team.


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