FOCUS ON LABOUR EXPLOITATION (FLEX) – WRITTEN EVIDENCE (HSI0034)

The UK’s agricultural Seasonal Worker visa- challenges and opportunities

Evidence

1. Thank you for the opportunity to submit written evidence to the Lords Horticultural Sector Committee inquiry which will consider the challenges faced by the horticultural sector in England. FLEX’s evidence will focus on challenges in the context of the UK’s agricultural Seasonal Worker visa.

2. Focus on Labour Exploitation (FLEX) is a research and policy organisation working towards an end to labour exploitation. FLEX seeks to achieve this vision through the prevention of labour abuses, protection of the rights of those affected by or at risk of exploitation and by promoting best practice responses to labour exploitation through research and evidence-based advocacy.

3. This evidence has been prepared by FLEX’s Head of Policy, Kate Roberts.
    
4. FLEX’s work builds on the understanding that labour exploitation is situated at the extreme end of a spectrum ranging from labour compliance through to labour law violations, culminating at extreme exploitation in the form of offences such as forced labour and human trafficking for labour exploitation. These are at once serious crimes, human rights breaches, and violations of labour law.
    
5. In the UK, FLEX has conducted research on issues relevant to the call, specifically on challenges, risks, and opportunities facing the sector in the form of risks of exploitation to workers entering the UK on the agricultural Seasonal Worker visa to support the UK’s horticulture industry. This includes a 2017 report which examines the impact of migration status, labour market structures, and immigration control measures on vulnerability to exploitation,[1] a 2018 briefing highlighting the risks of temporary migration schemes for the agricultural and horticultural sectors,[2] and a 2021 Assessment of the risks of human trafficking for forced labour on the UK Seasonal Workers Pilot.[3] We published an analysis and statement following the delayed publication in December 2021 of the government's evaluation of the 2019 Seasonal Workers Pilot[4] and publish blogs on our website concerning developments within the scheme.[5] We are currently carrying out further research into the scheme.[6]

6. The Seasonal Workers Visa is a short-term visa scheme which restricts visa holders to work in a specific sector for a maximum duration of six months for horticulture and 3 months for poultry[7] and prohibits access to public funds. Workers on the visa can be recruited to the UK from potentially anywhere in the world by a Scheme Operator (sponsor)[8] to work in the UK’s agricultural sector. As well as paying migration costs workers have also reported paying recruitment and other fees and arriving in the UK thousands of pounds in debt.[9] There are no clear options for compensation for workers who have paid these fees which, although illegal in the UK, may not be illegal in the country workers were recruited from. 

Concerns regarding the agricultural Seasonal Worker Visa scheme
 

7. We note the public letter from the UK’s (then) Independent Anti Slavery Commissioner to the Minister dated 24th January 2022, welcoming the review of the 2019 pilot and setting out her concerns, the conclusions and recommendations of which are supported by our research.[10] We also note the Independent Chief Inspector for Borders and Immigration (ICIBI)’s inspection report into the scheme (May – August 2022)[11] which makes recommendations which cover compliance, communication and clarity of roles and responsibilities.  The Migration Advisory Committee (MAC)’s annual report 2022 also cites concerns regarding the risks of exploitation in the scheme.[12] The report flagged the agriculture sector as a sector where there is ‘severe’ risk of non-compliance and of exploitation[13] and the report cites issues which include risks of debt bondage due to migration costs and illegal recruitment fees, contracts often not being issued in workers’ languages, and penalties being imposed on workers for not meeting unrealistic work targets. The MAC have recently announced an inquiry into the scheme.[14]

8. Over three years after the UK piloted the Seasonal Worker Scheme in 2019, risks of worker exploitation remain unaddressed as the scheme has been rapidly expanded from 2,481 visas in 2019 to up to 57,000 visas in 2023. FLEX has been raising concerns about the scheme since it was first announced in 2018 and provided evidence of risk of exploitation on the pilot in our report published 2 years ago. Concerns have also been raised by independent investigators,[15] Government bodies, businesses and investors, with little action taken by Government to address them or enable workers on the scheme to access rights in practice.

Inadequate monitoring or enforcement of labour standards

9. The US’ Recommendation to the UK in the 2022 Universal Periodic Review is to “Take steps to ensure migrant workers are not left vulnerable to abuse and exploitation from employers and the UK visa system”.  This makes clear the risks of restricted visas yet to date steps taken with regard to the agricultural Seasonal Worker visa have consisted of only minor mitigations. There remains a lack clarity of around monitoring and enforcement or options workers have in practice to access rights.

10.                     It is not clear who is responsible for different elements of the scheme which sits under both DEFRA and the Home Office. This results in gaps in accountability and decision making. Delivery of the scheme is through Scheme Operators who recruit and place workers and who are required to be licenced by both the Gangmasters and Labour Abuse Authority (GLAA) and the Home Office. A parliamentary answer states that GLAA checks are ‘intelligence led’ rather than regular or proactive.[16] Another explains that the GLAA does not routinely inspect farms employing people with Seasonal Workers Scheme visas, as the workers are employed directly by the farms or growers.[17]

11.                     There is an urgent need for increased transparency and data on the scheme with regular monitoring of conditions for workers on the scheme and enforcement of standards with options available for redress for workers. Concerningly issues with the scheme have not primarily been raised through internal processes. This has been left to NGOs, academics and investigators. For example, Government’s review of the 2019 Pilot scheme[18] states that:

Data from the quarterly reporting by the operators shows a complaint rate from all workers of 1% was recorded by operators across the first year of the Pilot, with a follow-up rate of 80% by the operators to address any issues formally.

Given that 2,481 workers were recruited during the scheme pilot a complaint rate of 1% for a new scheme where workers have travelled far to work in an unfamiliar context seems concerningly low. However, there is no indication that this low reporting figure indicated the need to improve reporting systems or address issues which might be preventing workers from reporting issues. Nor is there any indication why 20% of the small number of complaints made were not followed up or what would now be done about this.

12.                     The lack of any analysis or follow up to understand the low complaint rate is even more surprising given that the evaluation also explains that Defra’s survey of Pilot workers identified several areas for improvement;

A number of respondents to the survey of Pilot workers reported issues with the quality of accommodation (15% said their accommodation was neither safe, comfortable, hygienic nor warm and 10% said their accommodation had no bathroom, no running water, and no kitchen). 

The worker survey also identified that 22% of respondents alleged they were not treated fairly by farm managers.

13.                     Similarly, the Government’s evaluation interpreted worryingly low take up of access to health services as an indication that the pilot was good value in terms of not drawing too much on local services;

Pilot workers made limited use of local healthcare services, with 3 GP and 1 hospital visit per 100 workers. 

This low number of workers accessing health services, particularly in a sector with a risk of physical injury, should have resulted in scrutiny to ensure that low take up was genuinely only as a result of low need rather than a lack of access.

14.                     Alarmingly, monitoring, nor even follow up on complaints, does not appear to have improved in subsequent years. The ICIBI’s 2022 inspection report[19] found that while the Home Office undertook 25 farm visits between February 2021 and February 2022 only 19 reports were drafted and shared with the Home Office’s wider compliance unit. Eight of these identified “significant [welfare] issues” yet according to the inspection report follow up was inadequate:

At best, reports were fed back to scheme operators months later. At worst, they were not fed back at all. The Home Office stated that no further action could be taken because it did not seek evidence to corroborate the allegations made, and that all allegations had to be investigated thoroughly before action could be taken. No allegations were investigated by the Home Office, by scheme operators, or by other government organisations. Often, by the time the scheme operators received the reports, the workers who had raised the allegations had already left the UK, meaning it was difficult for scheme operators to investigate, or give farms or growers the opportunity to respond. [20]

15.                     It is important to note that welfare issues are likely to be underreported during visits by the Home Office who are not necessarily experienced in Labour Market Enforcement or identifying labour exploitation. Migrant workers, particularly those on a restricted short-term visa, are likely to be hesitant to disclose to immigration enforcement, particularly when their employment is so closely linked to their immigration status. Nor would workers be likely to see any positive outcome in reporting given the lack of redress or compensation options which are accessible to them given the short timeframe for and restrictions of their visas.

16.                     There is an urgent need for increased transparency regarding the operation of the scheme in practice and the experience of workers on the scheme to inform decision making, including planning the number of visas. However, even the information which is collected is delayed; Defra’s worker surveys for 2020, 2021 and 2022 are unpublished. 

Changes to the scheme

17.                     To date, changes to the scheme have tinkered around the edges. Attempts to address exploitation have not been based sufficiently on lived experience of the scheme, or consultation with workers around what would have helped them.  For example, following the pilot, zero hours contracts were banned on the scheme. However workers reported only a few hours work a week due to lack of work, or work being withheld as a punishment. In February 2023 the UK’s farming minister announced that from 1 April 2023, workers on the scheme would be guaranteed a minimum of 32 hours a week paid work at the National Living Wage.[21] However there is no specification around duration of contracts or options for redress if work ends after only a short period in the UK, before workers have earned enough to repay the money they borrowed to migrate.[22]
     
18.                     Workers on the scheme can change jobs within the sector but can only work where they are placed by the same Scheme Operator who sponsors their visa. Rules around job transfers are unclear, stating that they should be arranged ‘where possible’. It is not explained what, if any, effective complaints mechanisms are in place if workers are denied a transfer, or left without work, or sufficient work. Workers who often incur high debt to migrate to the UK on the scheme need to know that they will be able to access decent work at expected pay for the duration of their visa and to be able to report issues and access compensation if things go wrong.
     
19.                     Investors have called on retailers and firms in and directly sourcing from the UK agricultural supply chain to address issues within the scheme, citing concerns about:
    
    the ability of our investments to comply with increasing Business and Human Rights and Modern Slavery regulation around the world as well as the growing expectations that businesses adopt responsible purchasing practices and enable Access to Remedy. Moreover, we have concerns about business models that rely on or benefit from modern slavery and/or precarious working conditions. These models are ultimately unsustainable, and risk destroying value in the long term.[23]

20.                     In a statement[24] the CCLA called on retailers and firms in and directly sourcing from the UK agricultural supply chain to:

• Undertake an independent investigation on the scale of recruitment fees and related costs that have been made by workers recruited through the Seasonal Worker Scheme.
• Implement the Employer Pays Principle and ensure ethical or responsible recruitment in their own businesses and supply chains.
• Work with suppliers and all businesses in the UK agricultural supply chain to agree and implement a fair process to repay Seasonal Worker Scheme workers’ recruitment fees and related costs.
• Encourage the government to bring the Seasonal Worker Scheme in line with international commitments such as Principles for Tackling Modern Slavery in Supply Chains and the Global Compact for Safe, Orderly and Regular Migration so as to reduce risks of exploitation and forced labour.

21.                     Supermarkets have funded a multi stakeholder Taskforce to explore possible improvements to the scheme and have committed funding audits into the recruitment process for workers to the scheme.[25] FLEX is a member of the Taskforce and is keen to progress worker welfare within the scheme while being clear that structural changes to the visa are also needed.

What are workers’ options on the Seasonal Worker visa and how can these be accessed?

22.                     There is a lack of clearly set out, accessible information on the scheme. For example at the time of writing (2 April 2023) a key DEFRA webpage, the Seasonal Worker visa route request for information (RFI),[26] is more than 9 months out of date, having not been updated since 27 June 2022 and contains inaccurate information including listing Scheme Operators who at the time of writing are not licenced.

23.                     This leaves room for uncertainty and for confusion about what workers can expect and what their options are once in the UK. This is in part because there is not one authorities, accessible and trusted source of information. It is also because many practical aspects of the scheme are managed by scheme operators and may vary, or are not standardised. This means that workers may not be clear on practical aspects of the scheme such as transportation charges within the UK, how to access healthcare and how long they may have without work within jobs and what they will be charged in accommodation overheads during this time.

24.                     The restrictive and short term nature of the visa, with no recourse to public funds, means it is unclear what, if any, options are open in practice to workers if they are exploited or believe they are owed wages. The short duration of workers’ time in the UK, and lack of permission to work anywhere other than in the horticultural or poultry sector in jobs they are placed in by their scheme operator gives workers little incentive to challenge poor conditions of work for fear work will be withdrawn completely and processes to reclaim wages will in any case not conclude within their time in the UK. For workers who have high migration costs to repay, this is not a risk worth taking.
     
25.                     There has not been clarity on processes, in the event of their scheme operator losing their licence.[27] The Home Office guidance states that the visas sponsored will normally be shortened to 60 calendar days.[28]  This could be devastating for workers who have recently arrived in the UK expecting to work for 6 months and who will be left with huge debt from migration costs which they are unable to repay. The Home Office’s response to a recent written parliamentary question by Tony Lloyd MP asking what provision has been made for agricultural seasonal worker visa holders to remain working in the UK for the duration of their visa if the scheme operator who recruited them becomes unlicensed for any reason refers to ‘welfare’ being of ‘paramount importance’. It also states that ‘the Home Office will consider each case on its own merits and tailor our response accordingly’.[29] The lack of certainty for workers on the scheme risks becoming a ‘freezing effect’ if workers believe their making complaints could result in their scheme operator or sponsor losing their licence and their and their colleagues’ visas being curtailed.

Recommendations

1. Data should be available on a timely basis: the official review of the first year of the SWP (2019) was published at the end of its third year of operation, when the scheme had already gone through a significant expansion in workers numbers, sourcing countries, labour sectors and pilot operators. There are currently no published surveys or reviews for 2020 and 2021, yet the scheme has continued to expand. In order to provide useful and timely data to effectively monitor this scheme, the monitoring and evaluation should be more effective.

2. Gaps in data must be addressed: Recruitment practices, illegal charging and incidence and level of debt should be actively monitored closely, as well as availability of work and evidence to support assertions of a labour shortage, particularly in light of recent expansions of this route. In the UK there should be active monitoring of average hours of work and wages received by workers. The UK government should clarify arrangements around payment for time between jobs and transfer costs.  It should also be made clear what avenues are available for workers to report concerns, particularly if they do not want to report to their sponsor or scheme operator, what actions are taken in response to any structural issues identified, what mechanisms there are for reporting issues, or whistle blowing, and how individual workers have been supported to access redress.

3. Establish a clear employer transfer pathway, including transparent criteria for making a transfer request and a process for considering such requests. This should be communicated to workers at point of recruitment. Workers should not be responsible for paying the costs of a transfer (eg transport costs).

4. Short term work visas should be less restrictive. Workers should have options to work more widely within or outside of the sector if there is no work available via their Scheme Operator. If an Operator loses their license for any reason workers who they have sponsored should be transferred to a different Scheme Operator.

5. The visa should be renewable subject to ongoing employment. There should be a route to settlement.

6. Existing risks should be assessed prior to expansions being introduced: data should be used for the purpose of informing the future of the scheme, with particular consideration given to any additional sector-specific risks prior to the route being expanded to greater numbers of workers, and new, more distant sourcing countries.

7. Ensuring that terms and conditions of employment contracts are shared with SWV workers in their country of origin, translated into workers’ native languages, with relevant information provided (e.g. employers’ details, working hours, remuneration, accommodation costs and other deductions, etc.) and signed by employers and workers prior to travel.

8. Run mandatory information sessions in the UK for workers prior to them starting their employment. These sessions should be run independently of Scheme Operators or sponsors and focus on the rights available to workers in the UK, what support is available, and practical steps workers can take when their rights are not being upheld.

9. Provide an independently managed emergency fund for workers who have not received adequate work, or for whom the work has not been as described, who need to be able to return home and repay expenses. This should be costed into the scheme. 

10.                     Set minimum standards for accommodation with a monitoring mechanism for seasonal agricultural workers and prohibit employers from charging workers for accommodation or utilities/other associated costs if for any reason their wages drop below the real living wage.

11.                     Ensure monitoring of compliance with the National Living Wage and the provision of a minimum of 32 paid hours a week with compensation mechanisms in place if work is not available at any point during the 6 months of the visa.

12.                     Increase the resources for labour market enforcement to ensure there is capacity to conduct regular proactive inspections of SWV participating workplaces with a focus on compliance with standards and UK laws, rather than only on breaches which reach the threshold of Modern Slavery.

13.                     Strengthen the GLAA licensing scheme by actively monitoring overseas labour providers and help prevent and address non-compliance by having clear and accessible enforcement processes.

14.                     Establish clear independently run complaints mechanisms which are informed by the needs of workers to make sure they are accessible and enforceable in practice.

15.                     Ensure secure reporting mechanisms and a separation between the enforcement and monitoring of working conditions and immigration enforcement, recognising that people on insecure and temporary immigration statuses are often reluctant to report abuse due to fear of facing immigration consequences.

16.                     Remove the visa fee (currently £259) to reflect the limited timeframe and wages available on the SWV.

17.                     Introduce a scheme specific tax code so workers are not charged income tax, which they might later struggle to reclaim, on earnings below the income threshold.

18.                     Consider who should pay for a migrant worker’s journey to participate in UK agriculture. The ILO General principles and operational guidelines for fair recruitment state that ‘[n]o recruitment fees or related costs should be charged to, or otherwise borne by, workers or jobseekers’. UK Seasonal Worker Visa should personally not face any up-front costs. In the UK context, with profit margins squeezed in certain parts of the agriculture supply chain, it may be necessary to establish a wider definition of who should cover these costs. For example, the highly price-competitive supermarket sector may need to cooperate with farms and Labour Providers to meet the cost of bringing in workers.

6 April 2023