Employing hospitality staff legally: What you need to know about the Immigration Act 2016

By Emma Eversham contact

- Last updated on GMT

Check for consistency across documents when taking on potential recruits to help avoid taking on illegal staff says The Change Group's Craig Allen. Photo: Thinkstock.
Check for consistency across documents when taking on potential recruits to help avoid taking on illegal staff says The Change Group's Craig Allen. Photo: Thinkstock.

Related tags: Immigration, Home office

Byron received unwanted media attention last month after it helped the Home Office organise an immigration raid on some of its staff who were found to be working illegally in the UK. 

While the burger restaurant chain had carried out the right checks, it emerged that documents were false, leading many hospitality employers to question what they can do to stay within the law. 

With the introduction of the 2016 Immigration Act​ on 12 July, which imposes tougher sanctions on employers hiring illegal staff, including heavy fines, closure of premises and custodial sentences, ensuring staff are working legally has never been more important. 

So, with illegal workers creating ever more sophisticated false papers and tougher laws being introduced what can hospitality employers do to stay legal? 

"In my opinion, there are a number of basic checks that employers can use to ensure that incidents similar to that of Byron Burger can be avoided," says Craig Allen of hospitality recruitment company The Change Group. 

Allen believes there are three main steps​ employers can take to ensure they are staying within the law when recruiting migrant workers: 

"Firstly, potential employees should provide acceptable documentation, and employers must only accept the original copy of these," he says. "Secondly, you must take all the reasonable steps to ensure that a document is genuine and the holder is the person named in said documents."

Allen says checking photographs and birth dates are consistent across all documents is essential and also that expiry dates have not passed and that the applicant has official UK immigration endorsements. 

"If there is any doubt whatsoever then clarification can be obtained by calling the Home Office to check and we would always advise employers to use this service as we do," he says. 

"Lastly, a copy of the document must be taken in a format, which cannot later be altered, for example, a photocopy in a PDF. To take further caution, some may want to consider a document scanner similar to those used at airports to ensure that all documents are not counterfeit.”

The Immigration Act 2016 (and how it affects hospitality) 

Antonia Torr, head of immigration law at Howard Kennedy, says awareness of the new Immigration Act and how it can impact hospitality, could help employers better understand the importance of taking all reasonable steps as there are changes 

"Ultimately, Bryon Burgers did not do anything wrong," she says. "Some of their staff had falsified documents to prove their right to work/live in the UK, the Home Office became aware of this information and an immigration raid was organised. Bryon Burgers had to comply or face severe penalties. What this story has done has caused some businesses to look at their own practices and ask whether this could this happen to them."

Changes to the law - Criminal Sanctions

Torr says: "The Immigration Act 2016 has made it a criminal offence for a person to engage in employment should that person not have the right permission to work in the UK."

Under the new legislation, the Government now has the option (while unlikely) to prosecute an illegal migrant and seize their earnings as a proceeds of crime, instead of only deporting them. Employers also face greater criminal liability under section 35 of the Act.

"Prior to 12 July 2016 an employer would only be guilty of an offence of employing an illegal migrant if they 'knowingly' employed the individual. This level of knowledge made it difficult for there to be criminal prosecutions as an employer could avoid liability by simply stating that they did not know the individual was illegal (as they never asked the question).  The only penalty was that of a Civil Penalty Notice (a fine)," she says. 

"The Immigration Act 2016 alters this position drastically by amending the existing criminal offence so as to include employers who would have 'reasonable cause to believe' that the individual is not permitted to work in the UK.

"This is a relative new development in this area and so it is yet to be seen how 'reasonable cause' would be interpreted. If an employer does not complete the correct 'right to work' checks would they be considered to have reasonable cause to believe that the employee was illegal (as they could not say that they were legal as checks had not performed properly)."

Illegal Working Closure Notices

This, says Torr is one of the most concerning aspects of the Immigration Act 2016 for hospitality businesses.    

"Effectively, this section of the Act allows the Home Office to close a business for up to 48 hours (and longer if a court order is obtained) if it is suspected that there is illegal working on the premises and the business has been liable to pay a Civil Penalty Notice in the last three years," she says. 

Torr says immigration officers could feasibly enter a restaurant at any time, including on a busy Friday night and issue an Illegal Working Closure Notice. This would close the business for 48 hours while they investigated staff.

"That means the restaurant misses out on Friday and Saturday trade and has the reputational damage of having been 'shut down' by Immigration Enforcement," she says. 

"Now some may accuse me of being overly dramatic, but that is not so. Immigration legislation is deliberately designed to make life as difficult as possible for illegal migrants. Right to work checks have been around for a while, but now they are not alone – banks, landlords and the DVLA are required to conduct checks on their customers or tenants. 

"Immigration raids have been occurring for many years – how many times have you picked up a local paper to read that the local takeaway or fast food chain was subject to a raid? Byron Burger, in making national headlines, sends a strong message to the electorate that the Secretary of State is focusing her keen eye on illegal immigration and that it is an important objective for the Government. 

"We are all turning into Immigration Officers, whether we like it or not."

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