Safe Harbour: Dismantling the Legal Fiction of the Transit Loophole – by Angeli Romero

Image by Detmold from Pixabay

1. Introduction

Over the last three decades, the UK fishing industry has faced a steady decline in full-time, domestic fishers – a trend largely attributed to the difficulty of attracting local workers to replace an ageing workforce (Seafish, 2025). This recruitment crisis stems from the demanding physical conditions of commercial fishing, a pervasive perception that the industry offers dangerous work with limited future prospects, and increased competition from alternative sectors in the domestic labour market (Sparks and Zhou, 2025).

In response, vessel owners began hiring migrant workers as early as the 2000s, with the largest group recruited from the Philippines due to their maritime skills and English proficiency. However, while these workers were brought in to ensure the continued functioning of the industry, there was no tailored legal or immigration framework designed to govern their employment; instead, employers relied on existing statutory loopholes to keep fleets running.

In 2023, the UK government extended the Skilled Worker Visa route to include fishing roles by placing them on the Immigration Salary List (ISL). The ISL is a list of occupations where employers only need to pay 80% of the usual minimum rate that applies to qualify for a Skilled Worker Visa. While this change technically provides a legal visa pathway for international fishers, the visa is rarely used due to prohibitive application costs, administrative burdens and unfeasible salary and English language requirements. Even so, this limited option is closing soon, as the government plans to abolish the ISL in December 2026.

Consequently, the UK fishing industry continues to rely on what has been referred to as the “transit loophole” to staff its fleets, a system that hinges on a legal fiction: treating fishers as if they are merely “in transit” through the UK, despite their continuous employment on British vessels (Focus on Labour Exploitation, 2026; International Transport Workers’ Federation, 2022). As a result of this legal fiction, these workers are not considered to be legally present in the UK, meaning they possess no immigration status and lack formal legal standing within the state. Ultimately, this creates structural vulnerability, effectively locking fishers out of domestic labour rights protections and state enforcement mechanisms (Focus on Labour Exploitation, 2025).

2. The Transit Loophole

For almost two decades, a substantial proportion of non-EEA migrant fishers have been employed on UK-flagged vessels via  section 8(1) of the Immigration Act 1971, which forms the legislative basis of this loophole. This clause provides a statutory exemption from the requirement of leave to enter the UK for seafaring crew. Because the definitions of a “ship” and “crew” under the 1971 Act are sufficiently broad, the commercial fishing industry has heavily utilised this loophole to staff its fleets.

In practice, crew entering the UK to join a vessel are granted Contract Seaman Leave, which is administratively recorded by the Home Office as “Code 7” and widely referred to within the industry as a “transit visa”. The existence of so many different terms obscures the legal reality of the loophole. The label “transit visa” is a misnomer; it is not a formal visa, but strictly a temporary entry permission. Under Home Office policy guidance, border officials grant this leave based on the condition that the individual intends to depart the UK on a ship within a “reasonable period,” typically defined as seven days.

The Contract Seaman Leave never formally permitted employers to hire workers to fish within UK waters. However, a legal grey area existed because the policy guidance allowed fishers to work on fishing vessels operating “wholly or largely” outside the UK’s 12-nautical-mile boundary, even though these vessels routinely returned to UK ports to land catch, refuel, and rest. This flexibility in wording resulted in Contract Seaman Leave becoming a “loophole” with crew performing some work within UK waters. Unsurprisingly, this led to reports of employers abusing the system to hire migrant fishers and circumvent domestic labour laws (Sparks and Zhou, 2025).

However, any perceived leeway in the rules ceased when then-Home Secretary Suella Braverman clarified that fishing within UK waters on the “transit visa” is illegal. This position was codified into law when section 43 of the Nationality and Borders Act 2022 came into force in April 2023, explicitly defining that any foreign national working in UK waters is legally “entering” the UK for employment. Consequently, the Home Office updated its policy guidance to strike out the “wholly or largely” wording. The new rules dictate that Contract Seaman Leave can only be granted to crew joining vessels “not intending to operate in UK waters”. If any work is undertaken within UK waters, fishers require formal work permission under the Points-Based System.

3. Systemic Flaws and Structural Vulnerability within the Transit Loophole

As the International Transport Workers’ Federation (ITF) highlighted in their report, A One Way Ticket to Labour Exploitation, the section 8(1) exemption was intended for seafarers in transit, not for fishers crewing domestic fleets. Yet, it has become the primary mechanism for staffing UK fishing fleets (Sparks, 2022). Because the transit loophole legally categorises migrant fishers as merely “passing through” the country, they possess no formal immigration status and are entirely unrecognised as UK workers, despite the fact that they live and work aboard UK-flagged vessels.

The transit loophole operates on the premise that fishers do not work within 12 nautical miles of the UK coastline but, in reality, workers report being required to perform extensive labour within UK waters and at UK ports. These shore-side tasks include unloading up to 1,000 40-kilogram boxes, cleaning the vessel, repairing nets, painting, resupplying, and general maintenance (Focus on Labour Exploitation, 2026). Because these duties do not constitute active fishing, employers may not consider them “work”; however, they are demanded while the vessel is in port during their supposed rest time, effectively rendering this labour both invisible and unpaid.

The enforcement implications of section 43 of the Nationality and Borders Act have left workers employed via the transit loophole in an especially precarious situation, reducing the likelihood that they will seek assistance from the authorities or report exploitation. If compelled by their employers to perform duties within the 12-nautical-mile limit, migrant workers who entered on Contract Seaman Leave (and therefore without a valid work visa) are in direct breach of immigration rules, subject to removal and confiscation of earnings.

Compounding this vulnerability is a lack of clarity regarding labour market enforcement. As FLEX interviews with migrant fishers show,despite working for British employers on UK-flagged vessels for as long as two decades, these fishers’ lack of immigration status means they are excluded in practice from accessing domestic labour protections such as the National Minimum Wage Act 1998 and the Employment Rights Act 1996 (Focus on Labour Exploitation, 2026).

While protections for fishers exist under domestic frameworks such as The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004, and the ILO Work in Fishing Convention, 2007 (implemented via The Merchant Shipping (Work in Fishing Convention) Regulations 2018), enforcement is problematic and faces serious limitations. According to Sparks and Zhou (2025), the Maritime and Coastguard Agency, responsible for monitoring compliance, lacks enforcement powers regarding wages and other key labour rights, and interprets working time provisions leniently. They also note that inspections focus primarily on vessel safety and documentation rather than detecting forced labour or human trafficking. Furthermore, the authors point out that marine surveyors are not required to interview fishers even when they speak English, and there is no access to interpreters.

This combination of unrecognised labour, a legal and regulatory void, and the constant threat of removal, places these workers at a heightened risk of exploitation, underscoring the need for the Fair Work Agency to prioritise the regulation and enforcement of labour standards on all UK vessels. Gaining the trust of workers to disclose abuse to the Fair Work Agency would be greatly assisted by the use of Secure Reporting pathways and options such as a UK Workplace Justice Visa, underpinned by a sector specific visa which recognises migrant fishers as workers. 

As documented in Focus on Labour Exploitation’s (FLEX) report, Voices from the Deck, the transit loophole facilitates a system of structural vulnerability characterised by:

• Discriminatory Pay Structures: The loophole enables a tiered remuneration system where migrant fishers are confined to flat salaries that fall below the UK National Living Wage (currently set at £12.71 per hour), regardless of the hours they work. For Filipino deckhands earning a fixed £1,145.50 per month, a rate reportedly unchanged for the last ten years, this equates to an hourly rate of £7.07 during a standard 37.5-hour work week. However, given that 72-hour work weeks are the reported norm for fishers, as confirmed by the ITF, this rate decreases to £3.67 per hour. This presents a stark contrast to the percentage sharing scheme enjoyed by domestic British crew who are paid an average of £2,500 to £4,500 per month depending upon landing prices (Sparks, 2022).
• Employer Dependency: Under the transit loophole, fishers are tied to specific vessels and strict geographical boundaries, linking them inextricably to their employers and placing them uniquely at risk of criminalisation or removal for their skippers’ operational infractions. Because workers lack control over where a boat sails or which vessel they board, they face the immediate, life-altering consequences of immigration enforcement if a skipper operates in the restricted 12-nautical-mile limit or executes an unauthorised crew transfer. This vulnerability results in immediate job and salary loss, compounded by a stain on their immigration record that may jeopardise future overseas employment.
• Job and Contractual Insecurity: Within the transit loophole system, fishers are kept in a state of permanent probation. They are contracted to work for 8 to 10 months before being sent home for a two-to-three-month rotation period, during which contract renewals rely entirely on the skipper’s discretion. Consequently, even those who have continuously worked on the same vessel for several years possess no right to renewal, enforcing a cycle of precarious employment. This precarity pressures workers to tolerate unsafe operations, poor conditions, or exploitative practices simply to secure a future contract.
• Long Working Hours and Health Risks: Migrant fishers face gruelling, continuous shifts with very limited rest; conditions driven by the volatile nature of fishing. During peak seasons, workers in FLEX interviews report operating for extended periods with little to no sleep for up to 60 hours, with fishers reporting that they land a full catch only to immediately go back out to sea again. While their British counterparts earning a percentage share of the catch have the option to rest for a trip, migrant fishers have no choice but to return to sea. This lack of enforced rest periods drives a systemic risk of over-fatigue, compromising operational safety and causing long-term health impacts. Ultimately, even designated periods of rest are compromised because fishers are confined 24/7 to vessels that are not designed for full-time habitation.
• Barriers to Redress for Workplace Accidents: The lack of formal immigration status severely limits access to healthcare and compensation following severe onboard injuries, such as amputations. Injured workers are often swiftly repatriated, abruptly severing their ability to pursue legitimate claims within the UK legal system.
• Exclusion from Enforcement Mechanisms: The lack of formal immigration status means that, for these workers, immigration enforcement is prioritised over labour market enforcement, effectively excluding them from the safeguards that protect the rest of the UK workforce. Without access to official UK labour market enforcement authorities, they have no formal grievance mechanisms to report exploitation.
• Legal Ambiguity: The transit loophole operates as a system that is not merely difficult to navigate but actively creates worker vulnerability. It is a complex system, effectively operating as a “non-route” for migrant fishers without any accessible guidance or information regarding their immigration status, labour rights, or available protections – or more accurately, the lack thereof. When the system fails to provide clear, official guidance, workers are forced to find them elsewhere, often leading to misinformation. This lack of reliable, accessible information, compounded by linguistic, legal, social and cultural barriers, leave workers trapped in a state of legal and practical uncertainty. This makes it extremely difficult for fishers to question or challenge poor or exploitative working conditions, as they lack the clarity and security needed to assert their rights.

4. A Sector-Specific Visa Solution

The UK fishing industry is now approaching a cliff edge. Recent policy changes under the 2025 Immigration White Paper have increased Skilled Worker Visa thresholds, further exacerbating significant barriers to entry and rendering the route virtually inaccessible for the fishing industry. While, at present, the route is technically accessible because certain fishing roles, including deckhands, are on the ISL, this window is closing. Employers can only hire workers on the ISL until the government abolishes the list at the end of 2026.

A new Temporary Shortage List will be introduced; however, eligibility for Regulated Qualifications Framework (RQF) 1–5 roles will be restricted to occupations essential to Industrial Strategy or critical infrastructure, a categorisation that currently excludes fishing roles. Unless this situation changes, there will be no formal visa route for roles below RQF Level 6 (degree level) into the fishing sector for work in UK waters.

Closing off access to the Skilled Worker Visa via the ISL will almost certainly mean that more workers will be pushed into the insecure transit loophole and/or may result in labour shortages. To prevent this, a fit-for-purpose visa route must be established. Central to the solution is a sector-wide sponsorship model that reduces employer dependency by granting workers the necessary right to switch within the sector and seek safer, fairer working conditions without jeopardising their immigration status. By establishing a genuinely accessible visa route that recognises migrant fishers as UK workers, the government can mitigate systemic risks of exploitation, overfatigue, and unethical practices that currently undermine the industry’s integrity.

Special thanks to Kate Roberts and the blog editors for their helpful comments on the draft.

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(Suggested citation: A Romero, Safe Harbour: Dismantling the Legal Fiction of the Transit Loophole, UK Labour Law Blog, 16 June 2026 available at https://uklabourlawblog.com/)