After being first announced in the Queen’s Speech of May 2015, the Immigration Bill received Royal Assent a year later on Thursday 12 May 2016 and will now be known as the Immigration Act 2016. The Act introduces new sanctions that will fundamentally affect employment law in the UK and follows on from the Immigration Act 2014, which promised to create a “hostile environment” for undocumented migrants in the UK.

New sanctions to be introduced in the 2016 Act include further restrictions on illegal working and rogue employers, preventing illegal migrants accessing services such as housing, driving licences and bank accounts and new measures to facilitate easier methods of enforcing immigration laws and removing illegal migrants.

There are three key aims of the new legislation, namely:

  1. To prevent undocumented migrants creating a settled lifestyle in the UK, by preventing access to vital resources and employment opportunities.
  2. To introduce further powers to identify and remove more efficiently, migrants who have managed to enter the UK illegally.
  3. To strengthen enforcement measures and increase penalties against illegal workers and unscrupulous employers, in cases where an illegal immigrant has been exploited.

Following the bill being passed into UK law in May, some of its provisions have already come into force. On 12 July 2016 eleven sections of the act were implemented:

  • Sections one to nine have created a new post titled Director of Labour Market Enforcement. The occupant of this position will be responsible for the enforcement of worker exploitation legislation. This will require working with three main bodies: the Gangmasters and Labour Abuse Authority (formerly known as the Gangmasters Licensing Authority), the Employment Standards Inspectorate and HMRC.
  • Section 34 of the Act introduces new powers through which the earnings of illegal workers can be seized. This will be a new offence under the Proceeds of Crime Act 2002. Migrants found guilty of working illegally also face up to 51 weeks’ imprisonment in England and Wales and/or a fine. Elsewhere in the UK this would be a six months’ sentence and/or a fine.
  • Section 35 introduces a new criminal offence regarding an employer having reasonable cause to believe a person is an illegal worker. Employers found guilty of this offence could now face a custodial sentence of five years, increased from two.

Some provisions of the 2016 Act have yet to be implemented and there is currently no date for when these will commence. These involve further measures such as the Secretary of State charging employers who sponsor skilled workers from outside the European Economic Area. This will be known as an immigration skills charge. Furthermore, a requirement for public authorities to ensure that public workers in customer-facing roles can speak fluent English, is also to be implemented. In the bill, ‘fluent English’ is defined as “the person has a command of spoken English which is sufficient to enable the effective performance of the person’s role.”

Yunus Lunat, Head of Employment at Ison Harrison, commented:

The Act places even greater responsibility upon employers to ensure robust and diligent vetting of new recruits. Employers should already be undertaking these checks but the implications for falling foul will be much more severe and draconian, with the potential for a custodial sentence of up to 5 years now. At the same time, it is important however that employers do not use the Act as a means of discriminating against non UK individuals in their recruitment processes.

There has been some criticism of the new Act, particularly in the wake of the Brexit vote in June 2016, with opponents citing a fear of prejudice and racial profiling, and also expressing concern that the promised “hostile environment” could make living in the UK unappealing and inhospitable to current legal migrants. Employers are also concerned that hiring individuals with a specific skill set could become difficult and costly.

For more information on the Immigration Act, visit legislation.gov.uk or for advice on employment law please get in touch with our legal team today.