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The Immigration (Amendment) Ordinance 2021 – Increased Penalties for Employing Overstayers

  • Hong Kong
  • Employment law

23-08-2021

The Immigration (Amendment) Ordinance 2021 (“IAO 2021”) was passed by the Legislative Council on 28 April 2021 came into force on 1 August 2021.

One of the major amendments under the IAO 2021 concerns combating unlawful employment in three main areas:

(i) expansion of the coverage of unlawful employment to cover overstayers;

(ii) increasing the maximum penalty for employers who employ illegal workers; and

(iii) imposition of liability on officers of body corporate employers.

The Amendments

(i) Expansion of Scope

In IAO 2021, section 38AA of the Immigration Ordinance (Cap. 115) (the “Ordinance”) is extended to cover also overstayers taking up employment as unlawful employment.

Before the amendments in IAO 2021, only persons who entered Hong Kong illegally or are subject to a removal or deportation order may be prosecuted for unlawful employment under section 38AA of the Ordinance, if they take any employment or establish or join in any business. The previous section 38AA therefore does not cover overstayers for unlawful employment if they have not yet been issued any removal or deportation order, nor prosecute them if they have not breached their conditions of stay.

(ii) Increased Penalty to Employers

In IAO 2021, the maximum fine to an offending employer is increased to a maximum of HK$500,000 and 10 years’ imprisonment.

Currently, employers of illegal workers are liable on conviction to a maximum fine of HK$50,000 and up to three years’ imprisonment only.

(iii) Liability extended to Officers for Body Corporate

Under sections 17I of IAO 2021, where the employers of illegal workers (including overstayers) are body corporates, any director, manager, secretary or other similar officers of such body corporate (or any other partners in a partnership), will also be liable for the same offence if it is proved that such offence was committed with the consent or connivance of, or was attribute to any neglect on the party of any such person. Thus, similar to the Employment Ordinance (Cap. 57), officers of body corporates may attract personal liability for employing illegal workers.

Key Takeaways for Employers

Employers are advised to review their internal employment policies to ensure that their employees have the right to work for them in Hong Kong. Employers should also track the visa status and expiry dates of their employees. Employees without a current employment visa or other documents entitling them to work for the employer in Hog Kong must be suspended from work until the renewal of employment visa is granted to avoid criminal liability.