Proposed increased penalties for unlawful employment under the Immigration Ordinance

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.