Unauthorised Workers
People who are restricted or prohibited from working under the immigration conditions of their stay do sometimes work. If they do so while their leave to remain is still current, they are committing an offence under section 24(1)(b)(ii) of the Immigration Act 1971. They can be charged to appear in a magistrates' court or the Home Office can make a decision to deport them, on the grounds of a breach of their conditions of stay. They are therefore in a dangerous position and are liable to pressure and blackmail from employers. Unauthorised workers may be working in very bad conditions or for very low pay, but dare not take action to force improvements because they are vulnerable to the employers informing the Home Office of their work or sacking them summarily.
Although unauthorised workers have the same legal rights to contest unfair dismissal etc. they are unlikely to do so as this will draw attention to their presence in the UK.
People may also be working illegally without being aware of this. Students often believe, erroneously, that they are free to work during their holidays, or that the fact that they have been able to obtain national insurance numbers gives them permission to work. This is not the case. Some students are completely prohibited from working and need to apply to the Home Office for this prohibition to be removed before they can work. Other students' passports state that they can only work with the consent of the DfEE. This means that before the student is legally free to work the employer needs to obtain permission from the local JobCentre or under the DfEE's arranged internship or sandwich course placement scheme to employ the student.
Overstayers who are working are not working illegally because any restrictions on working placed on their stay came to an end when the leave to remain finished. If they are caught, they can be prosecuted or deported for overstaying, but not for working in breach of conditions.
From 27 January 1997, the Asylum and Immigration Act 1996 created a new offence for an employer knowingly to employ a person who is not in a group listed in a Home Office Order. These groups are people 'permitted to work under the immigration rules', asylum-seekers who have written permission from the Home Office to work, and people appealing against a Home Office refusal who had permission to work before the refusal.
The Home Office does not normally restrict people on appeal from working, so this creates situations when people are able to work legally but employers would be committing an offence by employing them. The Order also lists the documents which employers may check to establish whether any new employees are permitted to work. Employers must keep a copy of a document, such as a P45 or P60, or a passport or a SAL, to show that they carried out this check, as a defence against possible prosecution. If the employers carried out this check, they are not liable to prosecution even if it is later established that the person was not allowed to work.
The Home Office has stated that this provision was intended for use against particular rogue employers, such as some organisers of agricultural work gangs, and proprietors of bogus colleges. However its ambit is much wider and there are fears that it will result in more discrimination against black and 'foreign-sounding' people in recruitment.
Michael Reason LLM, April 2000.
http://www.michael-reason.com
References
JCWI Immigration nationality & refugee handbook 1999 edition
Butterworths Immigration Law Handbook |
