What is Illegal Working?
This article by our immigration solicitors looks at why is it important for UK employers and visa holders to understand the meaning of illegal working and the impact of breaching visa conditions on visa holders.
UK Online and London-Based Immigration Solicitors
What is illegal working?
Under UK law on illegal working, it is illegal for an employer to employ a member of staff who:
- Does not have the right to work in the UK
- Would be in breach of their visa conditions if they were employed by the employer to do the work
The definition of illegal working is sufficiently wide that it is not confined to it being against the law to employ those who are defined in the immigration rules as ‘illegal immigrants’ or those who have entered the UK and exercised their right to claim asylum but who are prevented, under the UK immigration rules, from working whilst their UK asylum claim is processed by the Home Office. Illegal working also covers:
- Employing a person on a student visa and allowing them to work full-time rather than restricting their hours of work to the work conditions on their student visa
- Asking an employee who is sponsored on a skilled worker visa to do a job that is outside their job description and does not meet the skill or salary eligibility criteria for the skilled worker visa. For example, offering overtime for non-skilled work over a seasonal period or because of problems recruiting staff to fill manual jobs or offering a skilled worker a new role at the company because the overseas worker is at risk of redundancy but the new role does not have a standard occupational classification code as the job is not capable of sponsorship. The skilled overseas worker may just be trying to be helpful when volunteering for extra hours or taking on a new job role but the overseas worker may risk their visa and a business may risk the loss of their sponsor licence as well as other penalties
What amounts to working and employment is defined in the immigration rules. If a worker is working but does not have a contract of employment with a business or is paid in cash then they still fall within the definition of a worker. In addition, self-employment or voluntary work can count as employment.
The criminal offence of illegal working
Under Section 34 of the Immigration Act 2016, it is an offence to work without permission if a person knows or has a reasonable cause to believe that they do not have permission to work. Penalties for workers found to be working illegally include:
- Imprisonment of up to 51 weeks and/or
- A fine and/or
- Seizure of earnings under the Proceeds of Crime Act
Employers who employ a person who does not have the right to work in the UK, or who are working in breach of their work visa conditions, face potential criminal and civil proceedings. The criminal penalties for employers are:
- Imprisonment of up to 5 years and/or
- An unlimited fine
Civil penalties for employers can amount to up to £20,000 per illegal worker so a civil fine can mount up when a business has employed several workers who do not have the right to work in the UK. A penalty can be imposed if a company has either:
- Failed to carry out right-to-work checks
- Not carried out repeat right-to-work checks in circumstances where the worker only has limited leave to remain
- Not carried out right-to-work checks correctly
Associated consequences of illegal working
In addition to potential criminal and civil proceedings, there are associated consequences of illegal working for both employer and worker:
- Businesses with sponsor licences to sponsor overseas workers may receive a compliance visit by Home Office officials and any audit or investigation could result in the suspension or the revocation of the firm’s sponsor licence. The company may find it harder to successfully renew its sponsor licence. If the business does not have a sponsor licence, it may find it a lot harder to secure one
- Individuals subject to immigration controls may have their visa curtailed or they may not be able to successfully apply for a new visa. That is because, under Part 9 of the immigration rules, applications for entry clearance must be refused if a visa applicant has previously breached immigration laws and is making a visa application within 12 months of voluntary departure from the UK after a breach of immigration rules. If 12 months have passed then a Home Office official can exercise discretion to refuse entry clearance because of the earlier breach of immigration rules. For those looking to get the Home Office to exercise discretion, immigration solicitors say it is best to get your immigration lawyer to carefully address why the Home Office should exercise discretion when making your visa application
Visitors on UK visitor visas and illegal working
If a person is in the UK on a short-term basis on a visitor visa and breaches the illegal working laws then this will impact future visa applications. That is why immigration lawyers say it is best to fully understand what work a visitor to the UK can do as a ‘permissible activity’ and the type of work that is vetoed.
Permitted work activities include signing contracts, attending meetings or interviews, attending trade fairs, and promotional work but not selling.
If you have questions as a visa applicant or visa holder about illegal working and the impact on your next visa application, or if you are a business with a sponsor licence that is concerned about how to conduct right-to-work checks about or a forthcoming sponsor licence audit, then OTS Solicitors can help you.
UK Online and London-Based Immigration Solicitors