Written Evidence by the Joint Council for the Welfare of Immigrants (HRW0038)
The Joint Council for the Welfare of Immigrants (JCWI) is a national independent charity established in 1967. Working across the UK, we promote justice, fairness and equality in the UK’s immigration and asylum systems through empowering migrant communities. This is done via a combination of advocacy and communications, legal casework and strategic litigation relating to all areas of migrants’ rights.
One of our main areas of work is migrant workers’ rights. We seek to advance rights for migrant workers through workable policy recommendations, research into the impact of the UK’s immigration system on workers, campaigning alongside migrant workers and providing legal advice and support, particularly through our helpline for UNISON members. As such, we strongly welcome this Inquiry and its focus on workplace exploitation. Our submission will focus on migrant workers and respond to questions pertaining to the right to strike and labour market enforcement.
Migrant workers face multiple barriers to accessing union support, making it much harder to engage in industrial action to protect their workplace rights. Migrants are overrepresented in precarious, informal sectors where unions have less reach, such as care, agriculture and cleaning. There are other practical barriers, such as the rule which prevents unions from supporting workers who have been members for less than three months. This often means that migrant workers on short-term temporary visas, such as the Seasonal Workers Scheme, are unable to access union support. Arguably, though, the biggest barrier to migrant workers taking industrial action is the fear that this will affect their right to stay in the UK.
The Strikes Bill currently making its way through Parliament is an attack on the fundamental right to strike, and will allow ministers to impose minimum service levels on six sectors. The right to strike is a vital tool that allows workers to push for better pay and conditions, yet this Bill would undermine that right for all workers, particularly migrant workers and people of colour, who are overrepresented in sectors like health and transport.
The UK Government’s ‘Compliant Environment’, more commonly known as the Hostile Environment, is a set of policies designed to make life in the UK extremely difficult for people with no formal immigration status. This system operates in large part through increased surveillance of migrant communities, making it easier for public services to share people’s personal information, including their immigration status, with the Home Office. Employers are legally required to carry out immigration checks on prospective employees via ‘right to work’ checks.
These policies increase the risk of discrimination. For example, employers have to check potential workers’ status, as they risk up to 5 years in prison if they employ someone without the right to work. Many employers use passport-checking software to do this. However, we have heard reports of employers using the third-party software designed to check British passports for non-British workers. These non-British workers therefore get a negative response, and many have had their employment wrongly terminated, or job offers rescinded. In addition, many migrant workers in the gig economy have been subject to discriminatory facial recognition software used by Uber, which is five times more likely to cause the termination of darker skinned workers.
The Home Office states that data is only shared with migrants’ consent. However, in a context in which migrants must consent to data being shared in order to access essential services and employment, this consent is not freely given. Further, the Home Office has a proven track record of issues with managing people’s sensitive, personal information. The Public Accounts Committee has described the Home Office’s digital services as a ‘litany of failure’.
The UK Government is currently overseeing a ‘digitisation’ of the immigration system and Compliant Environment. This digitisation will also make it easier for the government to increase surveillance – and subsequently criminalise and punish – migrants, who have to prove their right to access essential public services on a daily basis. This raises concerns under Article 14, since migrants, particularly those who are Black or Brown, are subject to greater levels of surveillance.
The UK Government’s Compliant Environment policies - including the Illegal Working Offence and associated ‘right to work’ checks – significantly increase the risks of abuse and exploitation for migrant workers. The Compliant Environment is by its very nature discriminatory, and its implementation encourages racial discrimination. People of colour and visibly ‘non-British’ people are more likely to be asked for proof of the entitlement to services than white British people. The risk of discrimination caused by this policy is acknowledged to be so high that the Government has created guidance for employers on how to avoid discrimination when carrying out right to work checks.
It has been an offence to employ a person who is not entitled to work in the UK since 2006. Since 2012, all workers have been subject to workplace checks to prove right to work. The Immigration Act 2016 further increased penalties on employers who fail to check the immigration status of their employees, making it a criminal offence to knowingly employ anyone without the right to work. Employers can be subject to a 5-year prison sentence or an unlimited fine, and workers can be subject to a six-month custodial sentence.
There is no evidence that these policies have any impact on controlling immigration or encouraging compliance with immigration rules. There were no prosecutions of migrants under the illegal working offence between 2016 and 2018. In 2019 and 2020 there were just three convictions, despite thousands of raids carried out every year. There is, however, strong evidence that they enable employers to use workers’ immigration status – or lack thereof – to threaten, control or coerce workers into remaining in inadequate or exploitative working conditions. They make it harder for migrants to challenge exploitation, change employers, take time off for sickness and demand fair wages.
JCWI runs a legal helpline for members of the union UNISON, and frequently supports clients who have been discriminated against due to right to work checks. Undocumented migrants surveyed by JCWI in 2021 told us that right to checks were the Hostile Environment policy that most affected them. Further, migrant workers’ charity Kalayaan found in 2019 that people had been wrongly dismissed or intimidated into accepting poorer conditions by their employers, because of right to work checks.
Section 3C of the Immigration Act 2971 extends a person’s leave to remain in the UK pending the outcome of an application to extend it if they apply before their original leave expires. In theory, 3C leave should allow a person to remain and work lawfully in the UK, and operate as protection against the Compliant Environment. However, many of the workers who call our helpline have lost their jobs or job opportunities because they have no way to prove their right to work while they wait for the outcome of an immigration application. This is exacerbated by severe delays currently experienced in Home Office decision-making and providing documentation once a decision is issued.
Section 3C is a long-standing part of the immigration rules, and affects hundreds of thousands of people, given that so many migrants are on a long route to settlement and must apply for 5 separate visas before they can permanently settle in the UK. A recent report by RAMFEL found that many employers, landlords and DWP workers have poor understanding of 3C leave, and wrongly deny people the right to work and rent accommodation. As a result, people are pushed into unemployment, destitution and homelessness.
Undocumented workers have little to no protection at work. Many undocumented people are long-term residents of the UK with strong family and community ties. Just like the rest of us, they must work to survive. However, Compliant Environment policies drive undocumented workers underground, criminalise them for working to support themselves and leave them unable to report labour rights violations for fear of being reported to immigration enforcement. This makes undocumented people extremely vulnerable to unscrupulous employers, as they are forced to take whatever work they can find, even if it is unsafe.
Because of the clandestine nature of irregular work, there is a lack of data on these workers’ employment patterns. Research by the Migration Observatory found in 2019 that migrants in general were overrepresented in hospitality (30%), transport and storage (28%) and health and social work (20%). In addition, LAWRS found that nearly a quarter of the UK’s cleaning workforce are migrants, rising to 68% in London. JCWI carried out qualitative research into undocumented people’s experiences of the COVID pandemic. All ten of the people we spoke to had experience of working in precarious, under-regulated sectors including domestic work, cleaning and care.
An ICIBI report in 2019 lists several occasions when indicators of exploitation were identified in cases of “illegal” working. In these cases, no action was taken to address the labour rights abuses that had been identified, and some employers justified underpayment with the assertion that undocumented migrants do not have protection under the Minimum Wage Act.
Due to the Compliant Environment, data is routinely shared between labour inspectorates and Immigration Enforcement, and in some cases joint inspections are carried out, despite the fact there is no legal obligation for this data-sharing. Data-sharing and joint raids by labour inspectors and Immigration Enforcement make it almost impossible for migrant workers, particularly those who are undocumented, to cooperate with inspectors, due to fear of being brought to the Home Office’s attention. It also makes it much harder for labour inspectors to do their jobs properly, as they do not have access to all the intelligence they need. This drives down conditions and pay for all workers.
We strongly oppose the Home Office’s assertion that data sharing is necessary to safeguard victims of exploitation. In fact, the lack of safe reporting mechanisms undermines efforts to identify and safeguard victims of work exploitation. Without the cooperation of workers, inspectors are less able to identify rogue employers or potential victims of modern slavery. Indeed, the Low Pay Commission has found that joint inspections prevent people from reporting underpayment of the minimum wage.
Migrant workers’ vulnerability to exploitation and unlawful pay is exacerbated by the lack of funding for rigorous enforcement of workplace standards. The ILO recommends that Governments employ at least one inspector for every 10,000 workers in the country, to safeguard workers’ rights. In the UK, the number of labour inspectors has fallen by a third since 2010, and there are now significantly fewer than the recommended minimum number of labour inspectors.
Most migrants with visas are subject to the ‘No Recourse to Public Funds’ (NRPF) condition, meaning they are barred from accessing essential state support, including Child Benefit, Housing Benefit and Universal Credit. Undocumented migrants have no access to a safety net of any kind. Migrant workers are disproportionately employed in low-wage, precarious sectors, in which their British counterparts are supported to make ends meet through access to state support. NRPF restrictions push people into in-work poverty, unsustainable debt, destitution, homelessness, and unsafe and overcrowded housing. Further, a report by the Unity Project found that the NRPF policy disproportionately impacts women, low-income families and Black and Brown communities.
Since COVID, many workers subject to NRPF have been forced to choose between isolating without pay and continuing to work in dangerous conditions. JCWI’s research into the impact of the NRPF condition during the pandemic found it heightened risks faced by migrant workers, making them feel less able to complain about inadequate or dangerous working conditions for fear of losing their job.
High rates of exploitation on restrictive, short-term visas
Across the immigration system, the proportion of work visas that are restrictive and short-term has increased. This phenomenon has been particularly marked since the UK left the EU, as an attempt to plug skills gaps in certain sectors. In theory, workers on these visas are entitled to change employer in cases of exploitation or dissatisfaction. In reality, when someone’s right to stay in the country depends on their employment, it creates opportunities for employers to threaten workers into remaining in exploitative conditions. Workers on farms or in domestic settings are often isolated, accommodated by their employers, and unaware of their rights, making changing employer extremely challenging.
There is strong evidence that the seasonal agricultural work scheme (SAWS) – which only allows for six months’ leave on a non-extendable basis - increases the risks of exploitation and trafficking for migrant workers. The SAWS was introduced in 2019 as a pilot, and has been extended several times, despite the Government’s own review into the pilot highlighting significant concerns around welfare and mistreatment, and clear risk factors for more severe exploitation, including modern slavery. Further, in a March 2021 investigation of conditions on the SAWS, FLEX found multiple indicators of forced labour and modern slavery.
Similarly, there is clear evidence of high rates of exploitation and abuse linked to the Domestic Worker Visa, another restrictive, sector-specific visa. Research by Kalayaan and the Voice of Domestic Workers found that such abuses have increased since visa conditions were changed in 2012, making the visa shorter and non-extendable. Workers on these inflexible visas are also at risk of exploitation after their visa term ends, at which point it becomes a criminal offence to work, which exacerbates their employer’s control over them. All these abuses raise serious human rights concerns.
JCWI’s recommendations for improving safety and conditions for migrant workers and tackling workplace exploitation
All workers need safe conditions, decent pay, and protection if employers seek to take advantage of them. To achieve this, the Government should:
While the UK criminalises work and makes regularisation a complex process, other countries take a far more flexible approach. In Spain, Portugal and France, employment is a key pathway to regular status, enabling them to also demand a formal contract of employment and better labour rights enforcement. There is no evidence that these policies have acted as a “pull factor” for people arriving irregularly to work. They have instead served as a pragmatic way to bring people who have fallen out of the system back into regulated employment, subject to minimum employment standards and taxation. The UK should pursue this approach instead of the current, unevidenced, punitive one.
Safe reporting, or a ‘firewall’, prevents the sharing of data between public bodies – who individuals might approach for support or assistance – and Immigration Enforcement. A firewall separating the police and labour inspectorates from Immigration Enforcement would prevent the former from sharing workers’ personal information – including their immigration status – with the Home Office. A firewall would enable all workers to safely report mistreatment or abusive employers. This, in turn, would help labour inspectors do their jobs effectively, and therefore improve safety and conditions for all workers. For these measures to be effective, the Government must also properly resource the work of labour inspectorates and enforce minimum working standards across the whole labour market more rigorously.
There is strong and increasing international support for firewalls to protect migrant workers and tackle labour exploitation. The EU Fundamental Rights Agency (FRA), the International Labour Organisation (ILO), PICUM (the Platform for Undocumented Migrants), the UK’s specialist labour exploitation organisation FLEX and human rights organisation Liberty, have all recommended this approach in recent years. The TUC, the national federation of UK trade unions, has also called for a firewall, including no joint investigations, as a safeguard for migrant workers. In 2021, the UK’s previous Director of Labour Market Enforcement joined calls for a firewall, recommending the Government ‘review the interaction between labour market and Immigration Enforcement to ensure sufficient protections for migrant workers’, through establishing safe reporting structures.
The Government must scrap NRPF and raise the rate of statutory sick pay for all, to ensure everyone has access to a safety net which enables them to take time off work when sick, or to leave exploitative employment.
Temporary and sector-specific visas trap migrant workers at the mercy of employers, often in isolated conditions and with no recourse to labour standards enforcement. The UK must scrap sector-specific and short-term visas that have no possibility of extension. All work visas should offer holders a pathway to settlement, and the ability to change job easily without losing the right to live here. Further, the standard route to regularisation should be reduced to five years, to support people to stay documented and therefore less vulnerable to workplace exploitation.
JCWI endorses the submission made by LEAG and FLEX in relation to workplace exploitation, and its recommendation for a ‘continuum of exploitation’ approach to workplace exploitation.
31/03/2023