Illegal Work, Breach of Work Conditions and Immigration
All immigration categories come with conditions of stay or entry – some categories permit employment, some self-employment, some any type of work, and some no work. What constitutes ‘work’ often surprises applicants as it is very broadly defined.
Definition of Work in the Immigration Rules
“Employment” is defined in the Immigration Rules as: 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.
“Work” is defined in the Immigration Rules as: has the same meaning as “Employment”, except that work does not include being party to an employment contract but not working.
As such, even volunteering can be work, so it is not simply receiving remuneration which determines whether someone is working or not. Accordingly, it is much more broadly defined which means that migrants should be very clear about the activities they wish to undertake in the UK, and whether they are indeed permissible.
Working without permission and where you know, or there is reasonable cause to believe that you know that you do not have permission to work, is a criminal offence pursuant to Section 34 of the Immigration Act 2016 (which amends the Immigration Act 1971).
Permitted Activities as a Visitor
Business activities are permitted whilst here as a visitor, though they are limited in scope. Non-visa nationals (those from countries where nationals are not required to make an application before coming to the UK as a visitor) should be particularly conscious of the need to ensure that their purpose of entry is in accordance with what is permitted under the Immigration Rules, as the Home Office will not have pre-assessed their reason(s) for entry.
Visit visas permit: attending meetings, conferences, seminars, interviews; giving a one-off or short series of not for profit talks or speeches; negotiating deals and signing contracts; attending trade fairs for promotional work (though not selling); carrying out inspections; gathering information for overseas employers and being briefed on requirements of UK based customers. Activities beyond this may fall under prohibited activities, as below.
Even where migrants wish to undertake permitted activities, they must ensure that these activities do not amount to undertaking employment, or doing work which amounts to them filling a role or providing short-term cover for a role within a UK based organisation. Migrants who are already paid and employed outside of the UK must remain so.
The Visit Guidance states, ‘Visitors are permitted to undertake activities relating to their employment overseas remotely whilst they are in the UK, such as responding to emails or answering phone calls. However, you should check that the applicant’s main purpose of coming to the UK is to undertake a permitted activity, rather than to specifically work remotely from the UK. Where the applicant indicates that they intend to spend a large proportion of their time in the UK and will be doing some remote working, you should ensure that they are genuinely employed overseas and are not seeking to work in the UK. You must be satisfied that the applicant will not live in the UK for extended periods through frequent or successive visits.’
Volunteering is also permitted for migrants here as a visitor, provided that it lasts no more than 30 days and is for a charity that is registered with either the Charity Commission for England and Wales; the Charity Commission for Northern Ireland; or the Office of the Scottish Charity Regulator.
Prohibited Activities as a Visitor
There are a number of activities which are prohibited for visitors. These are set out in the Immigration Rules. Applicants must not intend to work in the UK, which includes:
- taking employment in the UK; and
- doing work for an organisation or business in the UK; and
- establishing or running a business as a self-employed person; and
- doing a work placement or internship; and
- direct selling to the public; and
- providing goods and services, unless expressly allowed by the permitted activities in Appendix Visitor.
Visitors are also not permitted to receive payment from a UK source for any activities undertaken in the UK, except for the following:
- reasonable expenses to cover the cost of their travel and subsistence, including fees for directors attending board-level meetings; or
- international drivers undertaking activities permitted under permitted activities; or
- prize money; or
- billing a UK client for their time in the UK, where the Visitor’s overseas employer is contracted to provide services to a UK company, and the majority of the contract work is carried out overseas (payment must be lower than the amount of the Visitor’s salary); or
- multinational companies who, for administrative reasons, handle payment of their employees’ salaries from the UK; or
- paid performances at a permit free festival as listed in Appendix Visitor: Permit Free Festival List, where the Visitor is an artist, entertainer or musician; or
- Permitted Paid Engagements, where they have permission as a Permitted Paid Engagement Visitor (as addressed below).
If a migrant undertakes any of these activities, or receives payment from a UK source which is not permitted, they will have breached the conditions of their leave.
Consequences of Illegal Working for Future Immigration Applications – General Grounds for Refusal
If you have worked illegally, this could have an impact on future applications under the Immigration Rules. The General Grounds for refusal apply to the vast majority of applications and are set out in Part 9 of the Immigration Rules. Paragraph 9.8.1 of the Immigration Rules states:
“An application for entry clearance or permission to enter must be refused if:
(a) the applicant has previously breached immigration laws; and
(b) the application is for entry clearance or permission to enter and it was made within the relevant time period in paragraph 9.8.7.”
The relevant period, where an applicant has left the UK voluntarily and at their own expense, is 12 months. Accordingly, an application must be refused if made within 12 months of voluntary departure from the UK following a breach of immigration rules.
This ground for refusal would not apply later than 12 months after a voluntary departure.
Whilst, later than 12 months after departure, an application would no longer be refused under paragraph 9.8.1. migrants should also note that future applications may be refused under paragraph 9.8.2, if
“the applicant has previously contrived in a significant way to frustrate the intention of the rules, or there are other aggravating circumstances (in addition to the immigration breach), such as a failure to cooperate with the redocumentation process, such as using a false identity, or a failure to comply with enforcement processes, such as failing to report, or absconding.”
In the General Grounds for refusal guidance, the Home Office consider the following to be ‘aggravating circumstances’:
“previous working in breach on visitor conditions within short time of arrival in UK (indicating a deliberate intention to work)”
Accordingly, previous illegal working could fall under 9.8.2. as a breach of conditions and if the illegal work was in breach of visitor conditions, and within a short time of your entry to the UK, this could be considered to be an aggravating factor.
However, this is a discretionary ground for refusal, rather than a mandatory ground for refusal (like paragraph 9.8.1). Therefore, if making an entry clearance application, applicants should ask for discretion to be exercised in their favour and for the application to be granted. The Home Office guidance states that the following factors must be taken into account when deciding whether to refuse the application:
- why and how did the breach happen;
- if a condition was breached, the period between the condition being imposed and the breach;
- the period since the breach;
- any other circumstances, such as the impact of a refusal on the individual or their family living in the UK;
Therefore, applicants would need to address why any breach took place, explain when they ceased working, and explain any mitigating circumstances of the breach, and the impact of a refusal.
Anyone this affects would be advised to seek legal advice so as to be able to fully understand the ramifications of illegal work and to plan future applications accordingly.
Other Options for Short Term Work in the UK
Migrants who wish to work in the UK on a short-term basis can consider other options.
- The Permitted Paid Engagement visa allows artists, entertainers, sporting professionals and some other professionals to undertake work in their area of expertise for up to one month so long as they can provide the appropriate evidence that they have been invited by a UK based client or organisation.
- The Temporary Work routes have sectoral focus and include Creative Worker; UK Charity Worker; Temporary Religious Worker and Seasonal Worker.
Contact our Immigration Barristers
For expert advice and assistance in relation to obtaining a short-term work visa, or how the general grounds for refusal could affect your visa application, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.
This article was co-written by Dr Catherine Taroni and Georgina Griggs.
