Immigration Update - June 2016

Published: 28/06/2016

Immigration, immigration, immigration

Clare Hedges recently wrote an article for Business Weekly regarding the results of the EU referendum and immigration. The article can be read in full here.

The Immigration Act 2016 (the Act) has now received Royal Assent and most significantly, provisions relating to illegal working come into effect on 12 July 2016. These include:

  • a broader definition of what constitutes a criminal offence for employing illegal workers (for employers)
  • increased maximum penalties for employing illegal workers
  • the creation of a criminal offence for working illegally (for employees)
  • the creation of a new Director of Labour Market Enforcement
  • additional powers for immigration officers to search and seize documents.
The following are some of the offences created under the Act:

Illegal working - employee offence

The Act creates a new criminal offence of illegal working. This covers any time that an individual does not have a valid visa or one that permits them to do the work in question. The offence will be punishable on summary conviction by imprisonment for up to six months, or by a fine (subject to other legislation), or both. An important element of the rule is that a person convicted of working illegally may have their earnings seized as the proceeds of crime.

Employing an illegal worker – employer offence

The Act amends the existing criminal offence of employing an illegal worker under Section 21 of the Immigration, Asylum and Nationality Act 2006. Previously, an employer had to have known that an employee did not have a valid right to work to be guilty of the offence. The offence may now be committed by an employer who either knows or has reasonable cause to believe that a person is working without leave. The maximum penalty is also raised to five years’ imprisonment as opposed to the current two.

Furthermore, an immigration officer may arrest, without warrant, a person that they have reasonable grounds for suspecting has committed an offence or is attempting to commit an offence of employing a person illegally. This is in addition to the civil penalties contained in Section 15 of the Immigration, Asylum and Nationality Act 2006, under which an employer can be fined up to £20,000 for inadvertently employing an illegal worker.

Given this new criminal offence, it is important to ask what does “reasonable cause to believe” mean. Perhaps the best way to look at this is by way of example. It could be the case that an employee keeps making excuses for failing to provide original documentation. Rather than let this go, the onus will now be on the employer to take steps at an earlier stage to suspend an employee pending an internal investigation into the employee’s immigration status, if the employee is unable or unwilling to provide satisfactory evidence of their continued right to work in the UK. Employers may therefore need to update their HR policies and processes and ensure their HR staff are aware of the new changes.

New Director of Labour Market Enforcement

The new Director of Labour Market Enforcement will be tasked with monitoring and creating a strategy to tackle non-compliance in the labour market. At present we know that the UKVI targets certain groups on a fairly ad-hoc basis. It remains to be seen whether this will lead to increased incidences of unannounced compliance visits to business premises, but employers should always be aware that this is a possibility.

What does this mean for employers?

It is essential that employers seek to ensure their continued diligence to remain compliant with the immigration rules and regulations. We recommend that regular audits are undertaken to ensure that records are well maintained and up to date. In addition employers should ensure that they have:

  • a policy in place that clearly sets out the requirement for Right to Work Checks to be carried out before an employee starts work and that the check complies with the UKVI requirements
  • diarised visa expiry dates and that contact details are up-to-date so that you can ensure that the Right to Work has been maintained.
  • fully informed their HR teams about these new changes.
Birketts is able to assist with an audit of your files and HR processes and also provides bespoke training on all aspects of the prevention of illegal working.

Access to the NHS

With the Brexit debate highlighting the tension between immigration and public services, the Government is seeking to introduce a law to specifically exclude foreign nationals from NHS coverage. This means that foreign nationals will be more likely to be charged for most medical treatment received in the United Kingdom. Foreign nationals who have already paid the Immigration Health Surcharge and those who are exempt are likely be excluded from the provisions of the new law, however this is subject to change. Those likely to be most impacted are short-term visitors to the UK, as the bill seeks to introduce new residency rules that would restrict free medical services under the National Health Service for European Economic Area visitors, who are currently exempt from the Immigration Health Surcharge.

Administrative review

Following the removal of appeal rights for the majority of applications made in the UK, the Government introduced the concept of Administrative Review by which the applicant could request that the case is reviewed in light of the wrong application of rules and procedure by the caseworker.

The Government has now published the Chief Inspector of Borders and Immigration’s ‘An inspection of the Administrative Review processes introduced following the 2014 Immigration Act’.

The report is scathing, with reports that the bulk of Administrative Officers deployed into the Administrative Review team had no experience in points-based system casework and limited experience of other immigration casework; quality assurance was ineffective and there was no evidence of complex cases being passed to Executive Officers. This resulted in valid applications being incorrectly rejected and the quality assurance process was not identifying and rectifying this. Scrutiny was inadequate and too many decisions were wrong. Record keeping was inadequate.

We have yet to receive the response of the Government to the report.

MAC report on Partial review of the Shortage Occupation List: Teachers

The Migration Advisory Committee (MAC) is calling for evidence to support the inclusion of teachers in the shortage occupation list (for Tier 2 visas). If you are interested in contributing to the MAC please follow the link for further information

For more information on any of the matters covered in this update, please contact Clare Hedges or Janice Leggett in our immigration team.

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