14th July 2016

Immigration Act 2016 - commencement of first illegal working measures

It is now a criminal offence to work in the UK illegally, with the consequence that wages paid to illegal workers may be seized as the proceeds of crime. 
 
• The offence of employing an illegal worker has been strengthened, so that it is now possible to prosecute employers who employ someone they know, or have reasonable cause to believe, is an illegal worker. They also now face a maximum custodial sentence of five years. 
 
Here is a little more background to these two measures:
 
The offence of illegal working
 
Under changes introduced by section 34 of the Act, it is an offence to work illegally in the UK.  A person commits this offence if they are subject to UK immigration control and work when they know, or have reasonable cause to believe, that they have no permission to do so.
 
The offence of illegal working is not limited to working under a contract of employment and is intended to cover all types of work, including self employment, under both informal as well as formal working arrangements. 
 
The new offence enables wages from illegal working to be seized as the proceeds of crime. In England and Wales, the offence carries a maximum penalty of six months’ imprisonment and/or an unlimited fine.  In Scotland and Northern Ireland, the offence carries a maximum penalty of six months’ imprisonment and/or a fine of the statutory maximum. 
 
The offence of employing an illegal worker
 
Section 35 of the Act amends the existing offence of knowingly employing an illegal worker under section 21 of the Immigration, Asylum and Nationality Act 2006. An employer can now be prosecuted for employing an illegal worker if he knows, or has reasonable cause to believe, that the person has no right to do the work in question. 
 
This means that an employer can no longer evade prosecution where the investigating agency cannot prove that the employer knew that the employee had no permission to work. The amended offence enables employers to be prosecuted where they have reasonable cause to believe that the employee could not undertake the employment, even where they have perhaps deliberately ignored information or circumstances that would have caused the employer to know that the employee lacked permission to work. The maximum prison sentence on indictment for this offence has been increased from two to five years.
 
The civil penalty of up to £20,000 per illegal worker will continue to be applied as a sanction in most routine cases involving the employment of illegal workers. However, in more serious cases, prosecution may be considered where it is an appropriate response to non compliance.
 
The employer guidance at www.gov.uk/government/publicat... contains an update on these measures (on page 5).
 
The remaining illegal working measures in Part 1 Chapter 2 of the Act will come into force over the coming months, and we’ll update you as they commence.
 
Immigration and Border Policy Directorate
Home Office