IMPACT – MEDIUM

What is the change? Authorities have arrested and incarcerated at least six employers and dozens of foreign workers in October, a sign of how serious Hong Kong is about illegal work.

What does the change mean? Employers should note that they are required to take all practicable steps to determine whether workers can lawfully be employed. This includes inspecting ID cards and, where applicable, travel documents. Employers also have the explicit duty to ask questions about job applicants’ status and to ensure that the answers do not reasonably suggest that the person might not be able to legally work in Hong Kong. Those who fail to do so risk significant fines and jail time.

  • Implementation time frame: Ongoing.
  • Who is affected: Employers and foreign nationals working in Hong Kong.
  • Business impact: The maximum penalty for employing workers who are not lawfully employable is three years of jail time and a fine of 350,000 Hong Kong dollars (about US$44,875).
  • Next steps: Employers should review hiring policies and procedures to make sure they are in compliance with requirements about hiring foreign nationals. Employers who fail to ask for the right documents or properly ask about a foreign worker’s immigration status will be precluded from presenting a defense that they did not know the worker was working illegally in Hong Kong.

Background: Hong Kong’s Immigration Department continues to crack down on illegal work. In October alone, authorities have arrested and incarcerated at least six resident employers and dozens of foreign workers. In one case, the Immigration Department launched a series of territory-wide enforcement efforts over a three-day period beginning Oct. 10. A total of 15 people, including 10 workers and five employers, were arrested on suspicion of violating immigration laws related to illegal employment. In other cases, authorities have announced that employers or employees have been sentenced to jail time for illegal work at restaurants, markets and construction sites.

BAL Analysis: Employers should take note of Hong Kong’s continued strict enforcement of laws on illegal work. It is especially important to note that Hong Kong requires employers to take affirmative steps to ensure that they have no reasonable reason to conclude that workers they employ cannot legally work in Hong Kong. Penalties are stiff for those who violate immigration laws. Those who wish to review their immigration compliance practices should contact BAL.

This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.

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