New Powers for Immigration Officers to Shut Down Businesses

The new powers - known as Illegal Working Closure Notices and Compliance Orders - come from the Immigration Act 2016.

Closure of Premises

Under these new rules an Immigration Officer may issue an Illegal Working Closure Notice prohibiting paid or voluntary work to take place at a named premises and also prohibiting access to those premises for up to 48 hours. During that period an application must be made to a magistrates' court for an Illegal Working Compliance Order which can impose further restrictions on the business including extended closure for up to 12 months initially, extendable for up to two years in total.

The Closure Notice or Compliance Order must identify the premises affected, which could be any premises operated by a business which is found to have repeatedly employed illegal workers. In other words, the entire business may be closed where it is felt that such a measure is necessary to prevent the employer employing illegal workers.

Repeat Offenders

In parliamentary debates about these new powers, ministers described them as being available in cases where businesses repeatedly flout the law relating to illegal working. However, the legislation provides that a Notice can be issued in cases where an Immigration Officer finds that:

• the employer is employing someone who does not have permission to work in the UK
• the employer (or a director or manager of the business) has previously received a criminal conviction for employing an illegal worker, or received a civil penalty for employing an illegal worker within the previous three years.

So, a repeat offender could be an employer who is found to be employing an illegal worker for a second time in a three year period, inadvertently or not.

Protecting Your Business

Obviously the best protection for employers against Illegal Working Closure Notices and Compliance Orders is to not employ any illegal workers. However, even the most careful of employers could still inadvertently employ someone who does not have permission to work if they are presented with a forged or fraudulent document which purports to show that they have a right to work in the UK. In those cases, if the employer has checked the employee's right to work in the UK and obtained copies of documents which comply with the Home Office's rules on preventing illegal working, then an Illegal Working Closure Notice cannot be issued. If one has been issued, then it should be cancelled. That protection is in addition to the protection that such checks give an employer against liability for a civil penalty of up to £20,000 per illegal worker.

In the light of these new powers it is more important than ever that employers ensure they are conducting 'right to work' checks on their employees and prospective employees which fully comply with the Home Office's rules.

For more information on conducting right to work checks and how these changes might affect you or your organisation please contact Tom Brett Young on 0121 227 3759.