Illegal Working and Employing Illegal Workers

13 July 2016


The provisions of the Immigration Act 2016 as they relate to illegal working and labour market enforcement came into force on 12 July 2016.  Tougher penalties have been introduced for those employing illegal workers and the offence of illegal working has been introduced for individuals who work in the UK without having the correct immigration permission to do so.  

Illegal Working

From 12 July 2016, it is a criminal offence for individuals to work in the UK without the correct, valid immigration permission to do so or, who have a condition attached to their visas preventing them from carrying out the type of work which they are undertaking. The offence applies to all types of work including: work under employment contacts, apprenticeships and services provided by self-employed individuals.  

Individuals found guilty of the offence of illegal working can have their wages seized as the proceeds of crime, can be sentenced to a maximum of 6 months imprisonment and/or receive an unlimited fine (the fine is limited to the statutory maximum in Scotland and Northern Ireland). 

Employing an Illegal Worker  

The new provisions have seen a tougher approach to those who employ illegal workers. Previously, employers were subject to criminal liability only if they had knowledge of illegal working. From 12 July 2016, employers are now criminally liable should they have reasonable cause to believe an employee is working illegally. This also extends to situations where an employer has been misinformed by the worker as to their UK immigration permission.  

The maximum prison sentence for employing an illegal worker has now increased to 5 years and the maximum fine has doubled to £20,000 per illegal worker. In addition, immigration authorities have the power to close businesses who are repeat offenders for up to 48 hours.  

Labour Market Enforcement  

The new post of Director of Labour Market Enforcement has been created to improve the enforcement of employment rights and protect vulnerable workers. The Director will be responsible for overseeing worker exploitation enforcement bodies to assist in tackling businesses who exploit workers for their own gain.  

What does this mean for you as an employer? 

Employers should review their on-boarding processes and policies to ensure that their right to work checks are sufficiently robust and comply with the new rules, and the evidence is stored in the required format to mitigate the risk of liability.  

Tighter HR controls need to be implemented to ensure that migrants are only undertaking work activities which are permitted under their immigration permission, as the employer and the worker are now criminally liable.  

Employers will need to ensure that minimum employment standards for workers are met and amongst other requirements, that migrants are being paid at the appropriate rate to avoid the risk of enforcement action.

Please do not hesitate to reach out to your usual PwC Legal contact for further details




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