What are the Employer Duties & Penalties on the Immigration Act 2016?

The 2016 Immigration Act was enforced to frustrate the effort of illegal immigrants who wish to live, as well as take up paid employment, in the United Kingdom.

The act does not only tighten already existing provisions targeted at people who abuse the system and defy the British immigration controls, but it also encompasses measures intended to check the exploitation of immigrants, especially the vulnerable ones.

Employer duties & penalties

The 2016 Act was built on existing measures in the Act of 2014, by establishing a few changes which have a direct impact on British employers as well as their obligations with respect to hindering illegal employment with major penalties, if employers fall short of expectations.

The latest penal measures for illegal employment are binding on company owners who either intentionally or inadvertently violate their responsibilities. This means that even employers with very good intentions may fall into the trap if they don’t comply.

Penalty or punishment for unlawful working

Considerably for British company owners, the 2016 Immigration Act initiated a new criminal offence where workers are found in illegal employment. In addition, it increased the punishment for employers who deliberately and frequently give work to illegal immigrants.

New offences for unlawful employees

Section 34 of the 2016 Immigration Act launched a new criminal offence of “unlawful work” with the insertion of another session 24B as part of the 1971 Immigration Act.

As a migrant, you will be culpable when you accept employment at a period when you are well aware or have logical cause to believe that you are not qualified to work in the UK as a result of your immigration status. 

This way, the offence of unlawful working is likely to be committed where an immigrant is employed at a period when they have not received leave to enter or leave to remain in Britain, or their leave for both options is invalid and is no longer effective. This also applies if they are subject to any situation stopping the person from undertaking work of the kind that he or she is doing.

It has already been made a criminal act not to observe a condition of leave as stipulated by the 1971 Immigration Act. It is also criminal for an individual without rational pretext to fail in observing whatever restriction they have upon them, so the authority to prosecute immigrants who worked without the necessary authorization was already in existence.

However, the 2016 Immigration Act listed unlawful working as a criminal act in its own right.  By so doing, wages received by unlawful immigrants can be confiscated as a proceed from crime. Those caught holding paid employment in violation of the circumstances of their legal leave could have their income confiscated but individuals caught working while staying in Britain unlawfully could not.

Illegal workers in the United Kingdom can now be convicted with a max imprisonment term of up to 51 weeks or alternatively a fine or even both. The 2002 Proceeds of Crime Act stipulate that migrant guilty of unlawful working can have their income confiscated.

Consequences of giving employment to unlawful workers

Before the 2016 Immigration Act, criminal sanctions exist for bosses who intentionally employ workers without leave to work in Britain or take on the job in question. In section 35, the Act of 2016 extended the already existing crime of giving employment to unlawful immigrant under Section 21 of the 2006 Act of Immigration, Asylum and Nationality to comprise business owners who had logical cause to think that a migrant lacked the authorization to take up paid employment by the virtue of his or her immigration status.

Before this change, crooked bosses only faced prosecution upon proof that they were aware that an unlawful migrant lacked the authorization to hold employment. However, practically, it was very difficult to prosecute since the situation is difficult to establish.

The Act of 2016 considerably reduced the test for guilt, from genuine awareness of unlawfulness to reasonable cause. In addition to increasing the extent of prosecution, the 2016 Act widened the max punishment. Upon conviction, employers may get up to five years in a sentence, which was previously two years with the possibility for limitless fine added to the sentence unchanged.

Extra search as well as seizure power

The 2016 Immigration Act also extended the powers of immigration workers considerably. This gives the immigration worker, on lawful duty, the right to search and confiscate any documents in establishing culpability for any civil penal – anywhere they have logical grounds to believe that an employer is in violation of their duties to thwart unlawful working.

Previously, this authorization to search must be backed by a warrant. The employer of an individual found working unlawfully in Britain faces a civil penalty up to £20,000 for each employee, if he or she falls short of carrying out an approved authority to work check. This is stipulated under the 2006 Act of Immigration, Asylum, and Nationality.

Consequences of the 2016 Act

In addition to minimizing unlawful immigration, the Act of 2016 had the intention to seek a balance in shielding defenseless immigrants from exploitation. Many have found the changes too draconian because arguably, they engender human right violations and consequently create bigger defenselessness for immigrants.

The implication of the Act for the immigrant includes;

  • Exploitation risk, it gives rise to the risk whereby victims of human trafficking will be averse to coming forward, thus arming their traffickers with a tool for further control.
  • The likelihood of Proceeds of Crime Act prosecution with the resultant effect of loss of income for low skilled employees already earning very low wages.
  • A lasting criminal record, in addition to the consequences it may have for applications in the future, like naturalization as a British national or additional leave to remain.

In an attempt to apprehend unlawful immigrants, the measure brought in by the 2016 Immigration Act is likely to unintentionally impact negatively and in a big way on the immigrants who require protection the most. However, the new measures have come to stay at least for the present time.

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