Proposed increased penalties for unlawful employment under the Immigration Ordinance
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Partner
China
I am a partner leading the Greater China Employment team comprising lawyers in Hong Kong and China. I also co-lead the firm's CSR and D&I Committees in Hong Kong. I have over 26 years of experience handling the full range of employment matters, including contentious terminations, investigations, discrimination claims, restrictive covenants, employment litigation, executive contracts, data privacy, restructuring and APAC regional projects.
Partner
UK
Here at Bird & Bird, I am a partner in our International Employment Group. I am currently qualified to practise in Hong Kong, Australia and England. This reflects my recent history where I have been lucky enough to be based in San Francisco, Hong Kong, Sydney and London. Most recently, I was based in our San Francisco office which I co-led, before returning to London.
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Employers will soon face stiffer penalties for employing overstayers as a result of changes made under the Immigration (Amendment) Bill 2020 (“Immigration Bill”).
Expected to come into effect on 1 August 2021, the Immigration Bill was passed by the Legislative Council on 28 April 2021. Under the current Immigration Ordinance, a person who enters Hong Kong illegally or is subject to a removal or deportation order may be prosecuted under s.38AA of the Immigration Ordinance if he/she takes up employment in Hong Kong.
However, a person who has entered Hong Kong legally on a visa, but has overstayed and who takes up employment, can only be prosecuted for breaching his/her conditions of stay and will not be liable for the more serious offence of taking up unlawful employment.
The Immigration Bill seeks to impose harsher punishment for employers who employ such illegal workers (including overstayers). Currently, such employers are subject to a maximum fine of HK$350,000 and imprisonment for up to 3 years.
The Immigration Bill strengthens the existing provisions against unlawful employment by:
- expanding the offence of taking up of unlawful employment to cover overstayers;
- increasing the maximum penalty for employers who employ illegal workers to a maximum fine of HK$500,000 and imprisonment for up to 10 years; and
- imposing the same liability on a director, manager, secretary or other officer of an employer which is a body corporate if it can be proved that the unlawful employment was committed with his/her consent or connivance, or was attributable to his/her negligence.
In light of these important changes, employers should ensure they have robust processes in place that require their employees who are on work visas in Hong Kong to apply for extensions or renewals of their visas within the periods stipulated by the Immigration Department.
