Are your volunteers at risk of arrest and removal from the UK?
The judgement in R (on the application of Kuruwitage) v Secretary of State for the Home Department was recently published and serves as an important reminder for organisations that have volunteers.
This case concerned a student who had a Tier 4 (General) student visa which prohibited employment. The student was arrested and admitted to working 20 hours a week un-paid for a company in breach of his visa conditions. He was therefore removed from the UK and his only option was to make an out-of-country appeal.
If an individual is subject to immigration control then he/she must be permitted to be employed in order to do ‘voluntary work’ in the UK. If an individual does ‘voluntary work’ in breach of their visa conditions then the Secretary of State is entitled to seek to remove that individual from the UK without the opportunity for an in-country appeal. Tier 4 policy guidance, which seeks to explain the student immigration rules, distinguishes between ‘voluntary work’ and ‘volunteering’:
- Voluntary workers will usually have contractual obligations to perform the work (e.g. to attend at particular times and carry out specific tasks) with the employer being contractually required to provide the work – the contract does not have to be written. The worker is usually remunerated in kind. For example, where a student takes up an unpaid position as a charity’s events organiser and the student has agreed by a contract to organise certain events for the charity and attend on particular days and times. The charity is able to impose sanctions on the student if he/she fails to attend on those particular days and time. Although the work is unpaid, this student would be considered a voluntary worker.
- Students who are volunteering do not have a contract, they must not be a substitute for an employee and they must not be doing unpaid work i.e. receiving payment in kind (although they are sometimes reimbursed for reasonable travel and subsistence expenses). Volunteers usually help a charity or voluntary or public sector organisation. For example, a student volunteers at a museum. He has no contract with the museum but does have a regular pattern of working on Tuesdays and Thursdays 9.00am to 6.00pm. He is not obliged to turn up for work, but is asked to let the museum’s manager know if he is unable to come on his usual days. His role usually involves administrative tasks, but can change from day to day, with details set out by a manager each morning. He is unpaid but receives travel and lunch expenses for the days he works. This student would be considered a volunteer.
The decision in R (on the application of Kuruwitage) v Secretary of State for the Home Department to remove the student from the UK before he had an opportunity to appeal seems harsh but in a climate where the government is determined to reduce net migration, tackle immigration abuse and boost removals it is a decision which is only likely to become more common.
What should organisations do?
As volunteers can be part of any organisations ‘workforce’, organisations should ensure they are conducting right to work checks on all potential employees including any unpaid-workers who could be a ‘voluntary worker’.
As a starting point, if an organisation fails to carry out right to work checks correctly, or at all, and it is found to be employing someone illegally then the organisation could face a civil penalty of £20,000 for each illegal worker. Knowingly employing an illegal worker carries a maximum penalty of 2 years’ imprisonment and/or an unlimited fine.
How does this fit with an organisation’s employment considerations?
Understanding the employment status of your staff is crucial, not least because it determines the extent of your legal obligations. A lot of recent media attention has focused on the increasing use of unpaid interns and volunteers. These arrangements have sparked considerable debate and focused the gaze of the public (and HMRC) towards employers who are perceived to be exploiting their workforce through sham categorisation.
There is no single statutory definition of volunteer, and similarly there is no universal definition of internships. In fact, an “intern” is not a legally defined term.
As many organisations will be aware, from an employment law perspective, there are broadly three categories of protected individual: employees, workers and a wider class that are protected from discrimination under the Equality Act (which would comprise of certain types of self-employed individuals).
Predictably, this status issue is not particularly clear-cut. Please see our recent “Employment Insight – Volunteers: status anxiety” for further commentary on this.
The distinction set out in the Tier 4 guidance between “voluntary workers” and “volunteering” does not directly reflect the categorisation from an employment law perspective (although some of the factors may be relevant to an individual’s employment status).
Moreover, there is scope for confusion between the “voluntary workers”/“volunteering” distinction for immigration purposes, and specific provisions of the National Minimum Wage (“NMW”) legislation which apply to “voluntary workers”. The NMW provision provides for a narrow exemption to the NMW. But importantly, this NMW concept is entirely distinct from the immigration distinction discussed in this article.
In light of the recent media focus on the status of volunteers, organisations would be well advised to keep their practices under review. R (on the application of Kuruwitage) v Secretary of State for the Home Department serves as a timely reminder that the remit of any status review should cover categorisation from both an employment perspective, and an immigration perspective.
Posted on 22/09/2015 in Legal UpdatesBack to Knowledge