• New Criminal Penalties for Foreign Nationals Working Illegally and Their Employers
  • August 3, 2016
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • In an effort to further prevent illegal work in the United Kingdom, new provisions were introduced by the Immigration Act 2016 stating that foreign nationals found to be undertaking employment in the United Kingdom after disqualification from employment for immigration-related reasons are subject to a criminal offence. Employers are also subject to new penalties if they know or have reasonable cause to believe that a foreign worker has no right to work in the United Kingdom. Both offences can lead to imprisonment or a fine.

    The new provision will apply to any offence committed on or after July 12, and will not apply retroactively.

    Applicability to Migrant Workers

    A migrant worker who knows or has reasonable cause to believe that he or she has been disqualified from working by reason of their immigration status is now considered to have committed an immigration offence.

    The law defines a person disqualified from undertaking employment in the United Kingdom by reason of immigration status where:
    • Leave to enter or remain in the United Kingdom has not been granted;
    • Leave to enter or remain in the United Kingdom has ceased to be effective (whether by reason of curtailment, revocation, cancellation, passage of time, or otherwise); or
    • The individual is subject to a condition preventing him or her from undertaking the work (for example a Tier 4 Student.)
    The offence carries a maximum penalty of six months imprisonment and/or an unlimited fine in England. In Scotland and Northern Ireland, the offence carries a maximum penalty of six months’ imprisonment and/or a fine of the statutory maximum.

    Where illegal working is identified, individual wages can be seized as the proceeds of crime.

    Applicability to Employers

    Employers who knowingly employed an illegal worker were already subject to fines of up to GBP 20,000 or two years imprisonment. Now, employers with reasonable cause to believe that an employee has no right to work in the United Kingdom or to do the work in question are also subject to the same penalties. In practice, this means employers can still face prosecution even where it cannot be proven that the employer knew that the employee had no permission to work in the United Kingdom, if a court finds they could reasonably have known.

    Moreover, the maximum sentence for this offence has now been increased from two to five years' imprisonment.

    What This Means for Employers and Foreign Nationals

    Foreign workers and employers should work with their immigration professional to ensure compliance with immigration laws.