The Immigration Bill 2015/16 is currently making its way through parliament and is likely to be in force very soon.
The Home Office wants to make it harder for an illegal worker to live and work in the UK. The vast majority of compliant employers will have to be even more vigilant in establishing procedures that prevent employment of illegal workers, particularly in those sectors with a high employee turnover such as retail and hospitality.
In addition to the current £20,000 per illegal worker civil penalty, it will be a criminal offence to hire someone who an employer knows or has reasonable cause to believe is an illegal worker, with an increase in the maximum custodial sentence on indictment from two to five years for the employer.
The Bill introduces a power to close the business of an employer who continues to employ illegal workers for up to 48 hours. If the business can prove that the employer has conducted right to work checks the closure notice can be cancelled. Where this cannot be proved the closure may continue and the business will be subject to a greater degree of ongoing scrutiny around its right to work checks.
The Bill also introduces an Immigration Skills Charge (ISC). The ISC will be payable by employers sponsoring overseas workers. The Treasury will set the level of the charge, although the Migration Advisory Committee (MAC) has made general recommendations of £1,000 per immigrant worker.
Who is responsible for Right to Work checks?
People issues rest with the HR department. Therefore HR professionals should ensure that:
- The business understands why it must conduct Right to Work checks and when – the check must be carried out before an employee starts work, not afterwards
- They avoid discrimination claims by ensuring checks are carried out consistently on all potential new employees, and don’t forget the expats
- The Right to Work check is conducted properly. Simple mistakes such as failing to record the date of the check or not signing it can open up an employer to a £20,000 penalty per worker, and reputational damage.
Top tips to help you remain compliant
- Make having robust Right to Work compliance checks in place throughout the organisation a priority. If you are concerned about any historical compliance conduct a sample review so you can identify areas for improvement
- Remember the Home Office is not expecting employers to be forensic experts. Your role is not to work out whether a document is false or not. It is to carry out checks with care and in accordance with the Home Office’s published guidance
- Consider the training given to HR and recruitment staff in your organisation; is the need to do these checks an integral part of your employee on-boarding and emphasised to all your HR teams?
- Communicate with the business early on and continue to keep them updated as the rules and requirements change – however the country votes on 23 June, immigration will remain on the agenda
- Understand that anyone who works without permission, anyone who works while on a business visitor visa, or any student who works more hours than allowed under the terms of their visa, are all potentially working illegally. Immigration rules aren’t straightforward, so seek legal advice if unsure
- At your next budget meeting don’t forget Right to Work-related tasks and adjust your resource requests accordingly.
Punam Birly is partner at KPMG Legal Services – Employment & Immigration
