Just my 2p here...
That excerpt is from the "Full Guide For Employers On Preventing Illegal Working in the UK" (May 2012 version, page 80 - though the PDF title suggests it was originally written 2008) You can search for the PDF on Google; I don't know how to link to the direct PDF document.
The full quote is as follows:
Q50. Can I be liable for payment of a civil penalty if I am found to be providing voluntary work to someone without the right to work in the UK?
A. As an employer, you place yourself at risk of getting a civil penalty if you employ a person aged 16 or over who is subject to immigration control and who has no permission to work in the UK, or who works for you in breach of their conditions of stay in the UK.
The Immigration Rules prevent certain categories of entrant from carrying out voluntary work or voluntary activity, such as visitors and au pairs. However, the legal distinction between an employee and a volunteer can be quite complex and there are huge differences between the types of voluntary work or voluntary activity that people can be involved in. We would not wish to give advice which might lay voluntary organisations open to prosecution for employing people illegally. Therefore, we strongly recommend that organisations seek independent legal advice for their specific volunteering activity.
Voluntary activity should not amount to either employment or job substitution. There is a fundamental difference in the nature of the activity itself and the specific exclusion of work (whether it is paid or unpaid) as defined in the individual passport, should not include voluntary activity where it is clearly carried as such. Our guidelines for volunteers are:
• there should be no payment, other than reasonable travel and meals expenditure actually incurred (not an allowance for the same);
• there should be no contractual obligations on the volunteer;
• the volunteer is providing a service for a registered voluntary or charitable organisation (or organisation that raises funds for either); the service is not a substitute for employment (i.e. fulfilling a role that a salaried worker would normally fulfil).
Volunteering is distinct from work – paid or unpaid, and therefore is no longer covered in this specific guidance in any further detail.
My thoughts in no particular order:
I would note the following from the guidance:
However, the legal distinction between an employee and a volunteer can be quite complex and there are huge differences between the types of voluntary work or voluntary activity that people can be involved in. We would not wish to give advice which might lay voluntary organisations open to prosecution for employing people illegally. Therefore, we strongly recommend that organisations seek independent legal advice for their specific volunteering activity. The UKBA appears to recognize that the difference between [unpaid] work and volunteering is complex, and urges charities that would take on volunteers to get professional advice before doing so to ensure that no laws are being broken. If you are not permitted to work and would like to volunteer with a charity, has that charity gotten qualified advice on being able to offer you that volunteer role? [personally, unfortunately, I doubt this is a widespread practice in organizations that utilize volunteers]
I've searched the forum for this, and it came up about a year ago. Garry/Transpondia mentioned that he believes that guidance to be fuzzy and misleading, and has wanted the UKBA to clarify it. As far as I'm aware, there hasn't been an official response as of yet, but from personal communication from a UKBA employee, it was agreed that guidance wasn't quite right. Weby's summary of it was:
Volunteering falls under two visa categories (depending on the nature of the volunteering): Tier 2 and Tier 5 Charity Workers. The guidance, that sah10406 referred to and that DrSuperL99 provided the citation from, has been considered so misleading and inaccurate that a high ranking UKBA Official has been recently making the rounds to charities in person and reminding them that they should not be having visitors or certain other visa categories that do not have permission to work in the UK as volunteers in their organization and are subject to having their commission as a charity revoked by continuing to have work restricted persons in their organisation. Also the volunteer in question will have major issues as well for working illegally.
The guidance that has been referred to is currently under review by UKBA and is set for revision in the coming months. So it stands that UKY's stance should be that visitors & fiance(e) visa holders are not allowed to work (paid or unpaid) or volunteer in any form or capacity.
http://talk.uk-yankee.com/index.php?topic=67046.15So, from that, I would err on the side of caution and for the time being, recommend that those on fiance(e) visas not volunteer until they have been granted FLR(M). There are the issues of the guidance possibly being misleading/inaccurate, and whether the charity has gotten a professional reading on the volunteer role they can offer to someone with work restrictions. IMO, it's not worth it to risk potential future visa complications.
