Following the UK’s vote to leave the EU, much has been written about the potential implications in respect of immigration.
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 and it is expected that the British government will honour existing residence rights whilst it reaches a decision on how to move forward.
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:
Changes included in the act but do not yet have a date for commencement:
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.
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.
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.
Charlotte Ashton, Solicitor
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This article has been drafted on ESP’s behalf by Ward Hadaway Law Firm. Ward Hadaway Law Firm are one of ESP’s strategic legal advisory partners and provide certain services to our customer through a range of different Legal and HR support services offered by ourselves to the Corporate market.
The content of this article does not constitute legal advice and it should not be relied upon. Specific legal advice may be required to address your specific circumstance.