UK: Illegal Working, Overstaying And Points Based System Applications From An Employee's Perspective

In cases where an employee has overstayed his permission to remain in the UK, what is the legal position?

First of all, by overstaying the employee is committing a continuing criminal offence under section 24 (1)(b)(i) Immigration Act 1971. If convicted, he may be liable to a fine or imprisonment of up to six months.

However, since conditions prohibiting or restricting employment will have lapsed when his leave expired, he will not be committing any other offence under immigration legislation by continuing to work.

When he applies for permission to remain in the UK under the points based system, the UK Border Agency will be aware from its information and from the employee's passport that he is committing this criminal offence. In our opinion, it is more likely than not that the Agency will choose to take no action against the employee providing overstaying is the sole offence committed and providing the period of overstay is less than six months. Indeed, it is even possible for the employee to file his application by way of the same day service at the Public Enquiry Office. It is not guaranteed that the Agency will continue to take such a relaxed attitude to those who overstay and the Government is continuously tightening UK immigration control.

Under paragraph 322 (1A) Immigration Rules HC 395, it is a mandatory requirement that the Agency must refuse applications if material facts are not disclosed. It is in our opinion strongly arguable that a person's UK employment status at the time the application is filed will be regarded as a material fact which requires disclosure. If the fact of the employment is not disclosed on the PBS application form and it is discovered either as part of the application process (the Agency checks HMRC records for instance) or in the future, then the Agency will be able to take action to remove the employee from the UK. If they consider that the employee has intentionally deceived them in failing to disclose this information, he will face a mandatory ban of up to ten years from returning to the UK.

If, however, the employee ceases to be employed when his application is filed, then it is our opinion that he would not be obliged to inform the Agency that he has previously been employed when he was an overstayer because it is unlikely that previous employment would be considered to be a material fact to this application. There is, however, currently no case law on this point.

Potential consequences for the employer

If the employee who is overstaying continues to be employed and discloses this fact to the Agency in his PBS application, as he must, then there is an increased likelihood that the Agency may take action against his employer under section 15 of the Immigration Asylum and Nationality Act 2006. (Again, information as to the identity of the employer would be available to the Agency through HMRC checks). If this action is taken against the employer, then this may lead to the Agency issuing a civil penalty of up to £10,000 and it could also downgrade or withdraw the employer's sponsor licence.

In addition, in relation to those employed on or after 29 February 2008, if the employer has on its files confirmation that the employee's leave has expired (for instance a copy which shows the expiry date was taken and retained on file) and it does not have evidence that the employee's leave has been extended, then, in our opinion, there is also a risk that the employer (and relevant persons) risk criminal prosecution under section 21 of the same Act for knowingly employing a person whose 'leave has ceased to have effect'.

Of course, employers can also dismiss the employee if such a scenario arose, but should take care to ensure that its procedures are compliant with employment legislation to avoid unfair dismissal or discrimination claims.

Employees who are overstayers are always best advised therefore to terminate their employment prior to the filing of an application in order to avoid the above risks to themselves and their employer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.