New Immigration Act 2016 and illegal working
On 12 May 2016, the Immigration Bill received Royal Assent and became the Immigration Act 2016.
The facts
The Act will give effect to a number of government commitments that are intended to support the growth of enterprise in the UK. The Act will be brought into force in stages on dates to be announced.
What does this mean for employers?
The new act:
Extends the existing criminal offence of knowingly employing an illegal migrant to apply where an employer has a reasonable cause to believe that a person is an illegal worker. Conviction on indictment for this offence will increase from two to five years.
Creates a new offence of illegal working which will enable the earnings of illegal workers to be seized under the Proceeds of Crime Act 2002.
Creates a new post of Director of Labour Market Enforcement who will be tasked with over-seeing and co-ordinating enforcement of worker exploitation legislation by the three main bodies responsible.
Gives the Secretary of State the power to introduce an immigration skills charge on certain employers who sponsor skilled workers from outside of the European Economic Area.
Requires public authorities to ensure that public sector workers in customer-facing roles speak fluent English.
The Enterprise Act 2016
On 4 May 2016, the Enterprise Bill received Royal Assent and became the Enterprise Act 2016.
The facts
The Act will give effect to a number of government commitments that are intended to curb illegal working and prevent the exploitation of migrant workers. Some of the Act (the first 3 bullet points below) will be brought into force on 12 July 2016, with the rest in stages on dates to be announced. The immigration skills charge is expected to be introduced in April 2017.
What does this mean for employers?
Provisions of particular interest to employers include:
Capping exit payments in the public sector.
Measures concerning apprenticeships such as regulating the use of the word “apprenticeship” to cover only government-accredited schemes, increasing the number of public sector apprenticeships on offer and establishing a new Institute for Apprenticeships.
Strengthening retail workers’ rights in relation to Sunday working (although initial proposals to allow local authorities to extend Sunday trading hours were dropped during the progress of the Bill).
The Trade Union Act
On 4 May 2016, the Trade Union Bill received Royal Assent and became the Trade Union Act 2016.
The facts
The Trade Union Act will amend the Trade Union and Labour Relations (Consolidation) Act 1992.
What does this mean for employers?
The amendments will increase ballot thresholds, introduce new information and timing requirements in relation to industrial action and impose legal requirements on unions for the supervision of picketing. In relation to the public sector, the Act will introduce regulation-making powers in relation to the abolition of check-off.
New Immigration Act 2016
Then UK immigration regulations are in constant change. This time theses changes are taking place more frequently and I dare to say more radically.
This time the Act regulates more strictly then before criminal offence of employing an illegal migrant.Conviction on indictment for this offence will increase from two to five years
The Immigration Bill has received On 12 May 2016 the Royal Assent and became the Immigration Act 2016 (the Act). The Act is intended to introduce further measures to curb illegal working and prevent the exploitation of migrant workers including the following measures:
The Act extends the existing criminal offence of knowingly employing an illegal migrant to apply where an employer has reasonable cause to believe that a person is an illegal worker. Conviction on indictment for this offence will increase from two to five years. This is part of the Government’s plan to prosecute employers who ‘turn a blind eye’ to employing illegal migrants.
This provision reduces the threshold for conviction from ‘knowing’ that a person is an illegal worker to ‘having reasonable cause to believe’ someone is an illegal worker and could result in a higher number of criminal prosecutions because the burden of proof is much lower. We often encounter circumstances where an employee’s immigration status is not clear and needs to be investigated further. With the introduction of the Act, managers and HR professionals will need to be aware as to when during that investigation they could be said have to have reasonable cause to believe someone is an illegal worker and take the appropriate steps. We anticipate that this could lead to an increase in claims for unfair dismissal, if it subsequently transpires that an employee dismissed because there is reasonable cause to believe they are an illegal worker does actually have the right to work in the UK.
The Act also creates a new offence of illegal working, which will enable the earnings of illegal workers to be seized under the Proceeds of Crime Act 2002.
For employers who are also Tier 2 Licenced Sponsors, the Act will give the Secretary of State the power to introduce an immigration skills charge on certain employers who sponsor skilled workers from outside of the European Economic Area. The charge, due to be introduced in April 2017, will be set at £1,000 per employee per Certificate of Sponsorship per year, and a reduced rate of £364 for small or charitable organisations. It is designed to cut down on the number of businesses taking on migrant workers and incentivise training British staff to fill those jobs.
The Act will also require public authorities to ensure that public sector workers in customer-facing roles speak fluent English. There will be a code of practice published (this is awaited), which will provide guidance to organisations on how to test for fluency.
Changes to Tier 4 guidance
United Kingdom April 22 2016
UK Visas and Immigration announced several changes to the Tier 4 Policy Guidance on 6th April. This encompasses the main Guidance document and that relating specifically to sponsor duties and compliance. Whilst there is nothing unexpected within the guidance, several items are important and should be noted.
The information within the Guidance as it most directly impacts sponsors is as follows:
Students entering under the short term student route must be coming to the UK to study and must therefore be genuine. Sponsors should take steps to ensure that all its students have a genuine intention and ability to study.
Students sponsored under Tier 4 were previously prevented from being self-employed. The Guidance takes this restriction one step further by preventing students from setting up a business which includes a prevention on holding the majority of shares of any business.
The maximum time limit on study of 2 years for those studying below degree level and 5 years for those studying at or above degree level applies only to those students who have reached 18. As such calculations will be based on the leave granted for any particular course once the student has reached 18. It is unclear how calculations will be made if students complete or leave their course early as the Guidance only allows for a reduction in the calculation where leave has been curtailed.
Academic progression rules provide that students must be academically progressing from their previous course of study. Study at a lower level is not allowed. In most cases progression will be obvious i.e. A levels to degree, or degree to masters. However where it is not obvious or the student wants to study a course at the same level the student will in most cases be required to return home to make the application. Publicly funded HEI or recognised body sponsors are able to exceptionally allow study at the same level for courses at degree level or above if it confirms:
the new course is related to the previous course the student was given Tier 4 leave by being connected to the previous course, part of the same subject group or involves deeper specialisation; or
the students previous and new course combined, supports the students genuine career aspirations.
Institutions must ensure that they properly consider whether either exemption applies and justify the decision by stating their rationale on the CAS. Evidence of the decision should also be retained for scrutiny on inspection as the Guidance states that abuse of the exception will be regarded as immigration abuse.
Students wishing to change course are only able to do so where: the sponsor is a publicly funded HEI or recognised body; the course is at degree level or above; the course is not at a lower level to students current course; the student is able to complete the course within the time allowed on their visa; and the sponsor is able to demonstrate that the change meets a or b as stated above. In all other cases the student will be required to return home or make a fresh Tier 4 application.
Timeframe
These changes took effect from 6 April 2016.
There are a number of other clarifications and changes to the Guidance and institutions should ensure that they have fully considered the changes and the impact on their institution. It is not clear what steps sponsors will be required to take in circumstances where their students have changed course prior to 6 April and will need to extend their studies to complete that course and we are seeking clarification on that point. Academic Progression continues to be a challenge for sponsors and we are advising a number of sponsors on their obligations in that regard. In the interim, institutions who are not confident that they are meeting the academic progression requirements or who require further clarification on the change of course rules or any of the changes within the Guidance, should contact us for advice.
