The Immigration Act 2016 is now in force and its substantive
provisions seek to reflect the Home Office's aim of making the
immigration system more robust in the face of illegal working. The
key terms include two new penalties for employers.
1. Illegal Working Closure Notices and Compliance
Where an employer repeatedly employs illegal workers, or fails to
pay a civil penalty notice, a Chief Immigration Officer may issue
an Illegal Working Closure Notice to close the employer's
premises for up to 48 hours. The notice will restrict paid or
voluntary work or access to those premises during the 48-hour
Once the officer issues the notice, he or she can then make an
application to the court for an Illegal Working Compliance Order.
This will impose specific requirements on the employer to ensure it
does not commit further offences, and the provisions of the
Compliance Order can be extended for up to two years in total. The
court has wide discretion and can:
restrict or prohibit access to the premises;
require the employer to perform right to work checks; and
produce right to work check documents.
Where an individual contravenes an Illegal Working Compliance
Order, they will commit an offence punishable by up to 51
weeks' imprisonment and/or a fine.
Employers should be live to the risk that they might be repeat
offenders even if they unintentionally employ someone who does not
have permission to work in the UK. An example of this would be
where the worker has forged a document proving their eligibility to
work in the UK.
2. Right to rent provisions
It is now also a criminal offence to rent a property to someone who
is not lawfully living in the UK and the landlord knows, or has
reasonable cause to believe, the premises are occupied
illegally. Therefore, employers who provide housing as part
of the terms of their workers' employment (in particular,
employers with a cross-border workforce) might be at risk if they
rent to a person without the right to live in the UK. This may
result in an unlimited fine and/or a custodial sentence of up to
five years. Where this offence is committed by an employer, it is
possible that the directors will be personally liable to serve the
Employers should note that this is a continuing obligation.
Therefore, when carrying out the usual periodic right to work
checks, employers should also consider whether an individual's
right to rent has expired during tenancy. It is particularly
important that employers keep up-to-date records of their tenants
(including visa expiry dates) and make sure that terms are in place
to end the tenancy where it is discovered that an individual is
disqualified from renting. However, employers might be able to
avoid these duties, and any resulting criminal penalties, by
appointing agents who will have responsibility for any immigration
checks in the employer's place.
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