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© Pathfynder Limited 2017. Pathfynder Solicitors is a trading name of Pathfynder Limited, a company registered in England and Wales with company registration number 10170947. The registered address is King House, 5-11 Westbourne Grove, London, W2 4UA. Authorised and regulated by the Solicitors Regulation Authority, SRA No. 629672.




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Key changes from the Immigration Act 2016 - 6 July 2016

immigration lawThe Immigration Act 2016 (‘the Act’) was enacted on 12 May 2016 and introduced a series of new measures to tackle illegal working and protect the labour market.

Director of Labour Market Enforcement

Section 1 of the Act establishes the office of the Director of Labour Market Enforcement. The role of the Director is to analyse the scale and nature of non-compliance in the labour market and to prepare a strategy to deal with issues concerning non-compliance. The sections creating the role of the Director are due to come into force on 12 July 2016, following the commencement Order No. 1.

The Centre for Public Appointments at the Cabinet Office has already started advertising for the vacancy of Director of Labour Market Enforcement. Although the advert is no longer visible, there are some interesting points to note. Aside from the fact that the role offers a salary of up to £130,000 per annum. The closing date for the advert is 18 July 2016 with interviews being held in August. This could presumably result in a person taking the role in August, September or even as late as October. What this means is that from 12 July 2016 until the date that the Director is appointed, the office will be vacant and we may not receive any additional guidance during this period as to how this role will work in practice.

Section 24B of the Immigration Act 1971 – Illegal working offence

The Act inserts a new section into the Immigration Act 1971 creating a new criminal offence of illegal working. Previously, the legal framework emphasised the role of the employer in preventing illegal working but this new offence targets the individual. Under section 24B, a person commits an offence if they work at a time when they are disqualified from working and they either knew or had reasonable cause to believe that they were disqualified from working.

This offence is due to come into force on 12 July 2016.

Section 21 of the Immigration, Asylum and Nationality Act 2006 – employing an illegal worker

This section is amended to increase the maximum sentence for knowingly employing an illegal worker from two years to five years. According to a Freedom of Information Act request, the number of employers charged under section 21 for the last two years were:

1 April 2015 to 31 March 2016: 19 employers charged

1 April 2014 to 31 March 2015: 18 employers charged

As there have not been many convictions under this section, it appears the increase is to act more as a deterrent. However, with the new office of the Director of Labour Market Enforcement there is the possibility of an increase in the number of employers being charged under this section.

This offence is due to come into force on 12 July 2016.

Schedule 2 of the Immigration Act 1971 – power to search for driving licence

The Act provides powers to search a person or a property for a driving licence if there are reasonable grounds for believing that a person has a driving licence and the person is not lawfully resident in the UK. There appear to be safeguards built in to the legislation in order to protect a person’s rights (including the prohibition on carrying out an intimate search). However, we will need to wait and see how these powers are exercised in practice and subsequently their interpretation by the Courts.

This section is not yet in force and there is currently no Commencement Order indicating when it will come into force.

Section 24C of the Immigration Act 1971 – driving when unlawfully in the UK

A new offence of driving when unlawfully in the UK is inserted into section 24C of the Immigration Act 1971. This makes it an offence for a person to drive whilst unlawfully in the UK, provided the person knows or has reasonable cause to believe that they are not lawfully resident in the UK. If a person is arrested under this section, the Act provides powers for the vehicle to be detained.

This section is not yet in force and there is currently no Commencement Order indicating when it will come into force.

Language requirements for public sector workers

Section 77 of the Act requires public sector workers who work in customer facing roles to speak English fluently. Public authority is given a wide definition and includes people with functions of a public nature but there are some limitations to what constitutes a public authority set out in the Act. For example, a person will not be caught by this section if they merely exercise functions on behalf of another public authority. However, it is important to note that a power is given to expand the meaning of public authority to include contractors.

This section is not yet in force and there is currently no Commencement Order indicating when it will come into force.

What next?

The first Commencement Order was made on 23 May 2016, before the UK voted to leave the EU, and as such the timetable for bringing the remaining provisions into force could well be reconsidered in the light of the referendum result.


Written by Shahjahan Ali

Please note that this article is for information only and should not be taken as legal and/or financial advice. Immigration law changes regularly and it may be the case that this page has not been updated to take into account the latest changes. If you would like advice on your personal circumstances, please feel free to contact us.