Immigration restrictions on employment in the UK and consequences of breach

How is employment defined for UK immigration purposes?

An important key to ensuring compliance with employment conditions is to understand that ‘employment’ is very broadly defined under the Immigration Rules as follows:

“Employment” includes paid and unpaid employment, paid and unpaid work placements undertaken as part of a course or period of study, self-employment and engaging in business or any professional activity. Standing for or filling an elected post in local or devolved government is not considered to be employment for the purposes of the immigration rules, and conditions restricting employment do not affect the ability to undertake such activities.

This definition then needs to be imported into the wording of employment restrictions or prohibitions in each immigration route. Attention also must be paid to any intention requirements in the route relating to work activities (e.g. to only work for the employer authorised by the Home Office), because the Home Office has the power to cancel a person’s existing immigration permission where it is clear they do not meet its requirements.

How does the Home Office pick up on a breach of employment conditions?

The Home Office can detect breach of employment conditions in a range of ways and some methods are more common for particular immigration routes. Examples include:

• When a person is examined at the border – this can be a particular risk for visitors but can also affect workers with employment restrictions;

• If the Home Office receives intelligence from an employer or member of the public;

• When the Home Office makes out Companies House directorship searches or HMRC PAYE or self-assessment checks as part of an application for further permission or settlement – these checks may not necessarily prove illegal working but can lead to explanations being requested or to a refusal; and

• When the Home Office checks HR records or speaks with HR or workers as part of a right to work or sponsor licence audit – these audits are currently high priority for the Government and can pick up irregularities relating to any individual at the business’s premises, including visitors and contractors.

What are some of the consequences of breach of employment conditions?

For individuals, impacts may include:

• Cancellation of immigration permission;

• Refusal of an outstanding or future immigration application;

• Re-entry ban to the UK;

• Criminal liability, including being fined and/or sent to jail for up to six months; and

• Having earnings confiscated.

For businesses, impacts may include:

• Business disruption, especially if the individual’s presence is key, such as in the case of a Sole Representative, UK Expansion Worker or senior or specialist worker under the Skilled Worker or Senior or Specialist Worker routes;

• Liability to a civil penalty of up to £20,000 per illegal worker;

• Sponsor licence suspension, downgrade or revocation;

• Cancellation of sponsored workers’ immigration permission in the case of sponsor licence revocation;

• Criminal liability for the business and its managers where the business knew, or had reasonable cause to believe that an employee was working in breach of their immigration conditions (or without any immigration permission).

What actions can be taken to address risk in this area?

A breach of employment conditions can happen unknowingly, so awareness of the scope of activities a person with limited immigration permission may undertake is key. For some examples of situations that may result in breach of employment conditions in the current challenging economic climate, see our earlier article here.

Risks may be minimised by taking actions such as:

• Ensuring that any visitors a business invites to the UK understand what activities are and are not allowed under this route, and that they and the personnel inviting them are advised to limit their activities accordingly;

• Ensuring that Sole Representatives, Sponsored Workers and Students are aware that the Home Office can run directorship and HMRC checks on their activities, and that they should seek advice before taking on additional directorship or employment-related activities, whether paid or unpaid;

• Understanding the scope of supplementary employment and having policies in place for monitoring this both for sponsored workers and unsponsored workers who are carrying out supplementary employment;

• Understanding what work activities and hours Students are allowed to carry out under their immigration permission, including knowing when their term and vacation times are, monitoring how many hours they are working for all employers during term-time and ensuring they do not carry out a full-time permanent position unless authorised to do so; and

• Seeking advice swiftly where a breach of immigration conditions comes to light.

Although prevention is better than cure, the Home Office is able to consider exercising discretion around whether to impose particular sanctions, especially where the breach can be shown to be inadvertent, action has been taken to prevent future breaches and there are substantial reasons why leniency may be appropriate.

We will be covering the topic of illegal working in our upcoming webinar, What’s happening in immigration law, on 3 May 2023. For further information and to sign up, click here. If you require advice on avoiding or dealing with breach of employment conditions, please get in touch with a member of our Immigration Team.