Made 2nd November 2016
Laid before Parliament 4th November 2016
Coming into force 1st December 2016
EXTRACTS FROM THE EXPLANATORY MEMORANDUM TO THE ILLEGAL WORKING COMPLIANCE ORDERS REGULATIONS 2016
(2016 No. 1058)
2. Purpose of the instrument
2.1 The purpose of the instrument is to enable courts to impose easily right to work
checks or to require the production of right to work documentation as part of an
illegal working compliance order. Rather than set out the detail of the checks or
documents in the court order itself, courts will be able to impose the checks and
require the production of documentation simply by referring to the instrument.
4. Legislative Context
4.1 The instrument is being made as part of the implementation of the measures in the
Immigration Act 2016, specifically, illegal working compliance orders. This is the
first time that the enabling powers for the instrument have been exercised.
What is being done and why
7.1 The regime for illegal working closure notices and compliance orders is set out in
Schedule 6 to the Immigration Act 2016. It provides new powers to deal with
businesses that repeatedly flout the law by employing illegal workers. The intention is
to use these powers in the most serious cases, where previous civil or criminal
sanctions have failed to change employer behaviour.
7.2 These provisions create a new power for immigration officers to close premises for up
to 48 hours in certain cases where the employer, or a connected person in relation to
the employer, has previously faced sanctions for employing illegal workers. Once a
closure notice has been issued, an application will be made to the court for an illegal
working compliance order, unless the closure notice is cancelled.
7.3 The compliance order may extend the period of prohibited or restricted access to the
premises or make any order the court considers appropriate to prevent an employer
operating at the premises from employing an illegal worker. This might include
ordering the business to perform right to work checks to ensure that illegal workers
are not employed, requiring the employer to produce evidence of right to work
documentation to immigration officers at such places and times as may be specified,
or permitting immigration officers to enter the premises to ensure the employer is
complying with illegal working rules.
7.4 Paragraph 5(6) of Schedule 6 to the Immigration Act 2016 enables the Secretary of
State to prescribe the right to work checks which must be conducted and the
documents which must be produced to an immigration officer where this is ordered by
the court. Although it would be possible for such checks and documents to be set out
on the face of a compliance order, this would be an onerous task for magistrates and
sheriffs. By listing the right to work checks and documents in secondary legislation, it
should save valuable court time by allowing compliance orders to be drafted more
quickly; ensure a consistent approach to compliance orders between courts; and
enable the checks and documents specified to be aligned with those which would give
employers a statutory excuse from paying a civil penalty if they are found to have
employed illegal workers. (These checks and documents are set out in the
Immigration (Restrictions on Employment) Order 2007, as amended by the
Immigration (Restrictions on Employment) (Codes of Practice and Amendment)
Order 2014. The alignment of the checks and documents with that of the 2007 Order
means that existing detailed guidance to employers on right to work checks should
assist an employer to comply with the terms of a compliance order).
