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Brexit and immigration – the current position

Following the UK's vote to leave the EU, much has been written about the potential implications in respect of immigration.

Where does the UK stand now?

As a current member of the EU, the UK participates selectively in EU immigration law and has chosen not to adopt most directives.

However, citizens of the European Economic Area (EU members, Norway, Liechtenstein and Iceland) and Switzerland have the right to work freely in the UK as a result of the free movement of workers.

In the short term, it is unlikely that this position will change.

What changes are definitely coming in?

The provisions of the Immigration Act 2016 (“the Act”) will come into force on 12 July 2016 imposing a number of obligations for employers and landlords alike.

Crucially, the Act creates a number of new offences of illegal working and renting accommodation to illegal workers, and extends the existing criminal offence of knowingly employing an illegal worker.

The main changes are:

  • Increasing conviction on indictment of knowingly employing an illegal worker from 2 to 5 years, including where an employer would “have reasonable cause to believe” that an individual is an illegal worker.
  • Creating a new offence of illegal working which will enable the earnings of illegal workers to be seized.
  • Creating a new offence of renting accommodation to an illegal worker.
  • Creating a new closure order to combat serial employers of illegal workers – there will be an associated criminal offence of breaching such an order.
  • Giving new powers to immigration officers to search and seize evidence of illegal working (e.g. payslips or timesheets) or of illegal renting (e.g. tenancy agreements or letting paperwork).

Changes included in the act but do not yet have a date for commencement are:

  • An immigration skills charge on certain employers who sponsor skilled workers from outside the EEA. This is expected to be introduced around April 2017.
  • A requirement that public authorities ensure that public workers in customer-facing roles speak fluent English.

Why have these been introduced?

The Government says that it is too easy for employers to deny work to UK citizens and legal migrants, by exploiting illegal workers. This drives down wages and competition in the local workforce. The Act aims to deter this. Furthermore, the Act aims to encourage businesses to employ UK workers by using the funds raised through the immigration skills charge to improve the skills of UK workers.

The Government is clear that illegal workers should not be able to access private rented accommodation, preventing lawful residents from finding a home. The Act aims to make it easier for landlords to evict illegal immigrants, and to punish those landlords and agents who purposely exploit migrants and fail to remove illegal migrants from their properties.

What are my obligations?

As an employer, your obligation to ensure that any potential employee has the right to work in the UK remains the same. You must carry out checks on potential employees before they start work with you, keep records of these checks and carry out repeat checks where necessary. Repeated failure to do so means that under the new provisions, your business could be closed whilst investigations are carried out.

As a landlord, you also need to carry out identity checks in relation to prospective tenants to be sure that the individuals have the right to be in the UK otherwise you could face a penalty of £3,000 per illegal migrant tenant.

What will happen next?

Until the UK Government sets out what, if any, steps are to be taken to leave the EU, employers are left with a great deal of uncertainty as to what may happen to any employees from the EU countries, Norway, Liechtenstein, Iceland or Switzerland.

If you have a large number of skilled employees from those countries, it may be prudent to consider applying for a sponsorship licence to ensure that they are able to continue to work for your business in the event their eligibility requirements change.

In terms of unskilled workers, employers should be mindful of the possibility that employees from EU countries, Norway, Liechtenstein, Iceland or Switzerland may need to be replaced and should consider the practicalities of doing so.

How can Ward Hadaway help?

Our specialist immigration team cuts through the complexity and keeps you up to speed with advice and assistance on all aspects of UK immigration law and any queries you may have in light of Brexit.

We provide commercially-focused, timely legal support to employers of all sizes across a wide range of industries and sectors.

For further details on how we can help you to negotiate the minefield of immigration legislation, please get in touch.