ASSOCIATION OF LABOUR PROVIDERS (ALP) – WRITTEN EVIDENCE (HSI0037)

 

The Association of Labour Providers (ALP)

ALP (www.labourproviders.org.uk) is a not-for-profit trade association promoting responsible recruitment and good practice for organisations that supply the workforce to the consumer goods supply chain across the food processing, horticultural and wider manufacturing, industrial, warehousing and distribution sectors.

ALP members supply all of the Seasonal Worker Visa workers and around 75% of the temporary contingent workforce into the food growing and manufacturing supply chain.  Many of these workers progress to form the permanent workforce.  All organisations that supply labour into these sectors are required to be licensed by the Gangmasters and Labour Abuse Authority (GLAA).

ALP Submission - Summary

ALP’s response relates to the Seasonal Worker Visa route.

In 2023, there are 45,000 seasonal worker 6 month visas available for edible and ornamental horticultural workers and 2,000 3 month visas for poultry.

There are 6 seasonal worker visa sponsors for horticulture and 2 for poultry.  The scheme rule state that the visa sponsors “are responsible for all of the workers you sponsor on this scheme” and that “If you do not maintain a high standard of welfare and control – we will take action against you…up to and including the revocation of your sponsor licence.”  One seasonal worker visa sponsor had its licence revoked in February 2023.

In 2022, seasonal workers of 62 nationalities were recruited with the highest numbers from Ukraine, Kyrgyzstan, Uzbekistan, Tajikistan, Nepal, Kazakhstan, Moldova, Indonesia, Romania, Bulgaria, Russia and Macedonia.  For all countries recruited from the sponsors must understand and adhere to the business, migration and recruitment laws and risk assess and adapt their processes to eradicate as best as possible the need and opportunity for workers to pay work finding and recruitment charges.

For certain countries such as Nepal, this has not proven possible and the seasonal worker visa sponsors have had to withdraw from recruiting from these countries.

There are many challenges in assuring a positive experience for all seasonal workers including:

            Scheme rules do not best afford worker protection

            Last-minute government decisions exacerbating risks

            Government has not yet engaged with industry and stakeholders

            Labour market enforcement is inadequate

            Third party exploitation is hidden and difficult to remedy

            Global events – Covid, the war in Ukraine and bird flu

            Agriculture – weather, crop unreliability

            Scheme Operators vary in ability to deliver

            Growers vary in ability to provide positive experience

            Industry has not effectively collaborated to drive due diligence and good practice

The most significant risks to workers occur where workers enter into debt against their land and property in their source countries in one of the following scenarios:

       Unconnected scammers placing fake adverts, mimicking websites and social media sites passing themselves off as the visa sponsors or to be acting on their behalf to fraudulently take money from individuals wanting to work on the scheme.  There is no connection with the visa sponsors. 

       Brokers and agents in the visa sponsors’ labour supply chain who charge unauthorsed and extortionate recruitment fees as reported by the media Indonesian workers on UK farm ‘at risk of debt bondage’.

       Workers can generally pay between £600 and £1,600 with £1,250 being average for a worker from Central Asia to cover legally allowed travel and visa costs.  Loan sharks and organised crime gangs can loan money with high interest rates and manage individuals and their family into debt.

Over 50 organisations including industry trade bodies, retailers, growers, recruiters and non-profits have come together to establish the Seasonal Workers Scheme Taskforce to safeguard workers’ rights within the UK Seasonal Workers Scheme. The Taskforce will focus on improving workers’ access to information and communication; monitoring and improving practices during recruitment as well as on-farm; and, addressing recruitment fees paid by workers and improving their overall earnings. The taskforce will also engage with Government departments and enforcement agencies on potential changes to Scheme rules, regulation, oversight and enforcement. 

An Independent Chief Inspector of Borders and Immigration (ICIBI) report on the Home Office operation of the Seasonal Worker visa route concluded that: “In a supply chain in which workers are vulnerable to exploitation, the Home Office needs to do more to assure itself, the sector and the general public that it is not perpetuating unacceptable employment conditions for seasonal workers.” and “…with regard to compliance, the Home Office should significantly raise its game to assure itself that scheme operators of the Seasonal Worker route are meeting compliance requirements.”

The Home Office accepted all the ICIBI’s recommendations but as yet no improvement has been seen and the Home Office refuses to engage with industry.

The Home Office should address the shortcomings in the Seasonal Workers visa scheme ad detailed in the following pages which have been sent on 3rd March 2023 to the Rt. Hon. Robert Jenrick MP, Minister of State for Immigration, copied to The Rt Hon Mark Spencer MP, Minister of State for Food, Farming and Fisheries.


UK Seasonal Workers’ Visa Scheme – Policy Asks of Government

Four years on from the introduction of the Seasonal Worker visa, ALP maintains its ongoing offer to work collaboratively to improve operational effectiveness and worker welfare within the route. The Home Office has committed to produce a communications and engagement roadmap by April 2023.  With one month to go, there has as yet been no engagement by the Home Office.

The following is the current list of areas identified by ALP that need to be addressed or should be considered by the Home Office and other government departments and public bodies.

Scheme

  1. Scheme certainty – The UK Seasonal Workers’ Scheme should be guaranteed for a minimum five-year rolling programme so that the horticultural and poultry industry has midterm certainty and the confidence to invest.
  2. Scheme Design - The Migration Advisory Committee (MAC) should be commissioned to conduct a review of the Scheme design and publish a recommendations report incorporating internationally accepted good principles for temporary migration programmes including the Montreal Recommendations on Recruitment: A Road Map towards Better Regulation and the UN Global Compact for Safe, Orderly and Regular Migration - Objective 6. Facilitate fair and ethical recruitment.
  3. ICIBI Scheme Review - The Independent Chief Inspector of Borders and Immigration should conduct a follow up in July 2023 on their report and whether the Home Office’s implementation of the ICIBI recommendations has made adequate progress in addressing the issues identified.
  4. Scheme Annual Review - MAC should be commissioned to publish an annual report examining Scheme operational and worker welfare issues, with recommendations to enable continuous improvement.

Certificates of Sponsorship / Visa

  1. Annual visa numbers - MAC should be commissioned on an annual ongoing basis to taking evidence and producing a public report advising government on visa numbers for the following year. A decision on total numbers and allocation to each operator confirmed by government by end September.
  2. Earned Recognition – Scheme Operator performance and worker welfare KPIs should be defined and a proportion of visas allocated the following season according to achievement, to promote and recognise good performance. New operators should start on a smaller visa allocation and demonstrate compliant performance before being issued with higher numbers.
  3. Visa Length - MAC should be commissioned to examine the length of the visa and cooling off period.
  4. Visa description - Seasonal worker visas/share codes should contain the words ‘Can only work in horticulture/poultry (as appropriate) through an approved seasonal workers’ scheme’ or similar to limit illegal working.

Scheme Operational Rules

  1. S1.24 and S1.25 Working on a Contract Basis - is not compatible with the SWS as the farm always has direction and control, for all operators, at all times, and the operator is always the sponsor. Can a formal exemption with appropriate wording be applied.  S1.26, S1.27 and S1.28 also appear to be incompatible.
  2. Accommodation is the only service which can be provided as a benefit in kind under NMW legislation  Many growers provide accommodation for free and apply this as an offset (hence the name) against the worker’s wage – see as per Example 1 on www.gov.uk/national-minimum-wage-accommodation/effect-on-the-minimum-wage.  This reduces the amount of National Insurance that both the farm and the worker pays, so the worker is better off.  Can it be confirmed whether the Scheme Rules prevent workers from benefiting from this saving or whether there is a dispensation in this particular case.

SAW 4.1. (g) the applicant will: (i) be paid at least £10.10 for each hour worked; SAW 4.1B. The hourly rate only includes guaranteed basic gross pay (before income tax and including employee pension and national insurance contributions) and does not include other pay and benefits (such as those listed in SW14.2). SW 14.2. Salary does not include other pay and benefits, such as any of the following: (a) pay which cannot be guaranteed because the nature of the job means that hours fluctuate; or (b) additional pay such as shift, overtime or bonus pay, (whether or not it is guaranteed); or (c) employer pension and employer national insurance contributions; or (d) any allowances, such as accommodation or cost of living allowances; (e) in-kind benefits, such as equity shares, health insurance, school or university fees, company cars or food; or (f) one-off payments, such as ‘golden hellos’; or (g) any payments relating to immigration costs, such as the fee or Immigration Health Charge; or (h) payments to cover business expenses, including (but not limited to) travel to and from the applicant’s country of residence, equipment, clothing, travel or subsistence.

  1. SAW 4.1. (g) the applicant will: (i) be paid at least £10.10 for each hour worked – is this to be interpreted the same as for the National Minimum Wage – i.e. at least £10.10 for each hour worked as averaged over the pay reference period or must it be for each hour?
  2. Type of jobs that seasonal workers can do -  Certificate of Sponsorship requirement for a Seasonal Worker says “SAW 4.1. The applicant must have a Certificate of Sponsorship for the job they are planning to do, which must: (f) confirm that they are employed in either the horticulture or the poultry production sector. Work in in the horticulture sector means those growing etc.”. So the employer must be a grower. Activities seasonal workers can do includes “packing and processing of crops on employer’s premises”.  Operators can only use the visa route to recruit workers for certain activities in specific sectors. Seasonal workers must only be employed for seasonal roles. For this visa route, seasonal work is defined as ‘employment which fluctuates or is restricted according to the season or time of the year.’ Can packing and processing of imported or bought in crops on employer’s premises who is a grower be conducted by seasonal workers?
  3. Certificate of Sponsorship – may the £21 cost be met by workers or must this be met by the Operator as per SE3.9. You must not place any additional charges on participating workers, beyond the costs of administrating the scheme and SE5.6. “You must pay a fee for each CoS you assign”.
  4. For how long are Scheme Operators awarded the contract? Is it 3 years? Is there an open tender after this period?

Limiting absconding and asylum seeking

  1. Scheme Operators advise that commercial law firms and immigration advisers are advertising their services in making asylum claims amongst Seasonal Worker Visa workers,

The legal position regarding asylum seekers right to work at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1114501/Permission_to_work_and_volunteer.pdf states that “Those who claim asylum in the UK are not normally allowed to work whilst their claim is being considered. They are instead provided with accommodation and support to meet their essential living needs if they would otherwise be destitute. The policy outlining when permission to work will be granted to those who claim asylum is set out in the Immigration Rules. This makes clear that the Home Office may grant permission to work to asylum seekers whose claim has been outstanding for more than 12 months through no fault of their own. Under this policy, those who are allowed to work are restricted to jobs on the shortage occupation list published by the Home Office. Any permission to work granted will come to an end if their claim is refused and any appeals rights are exhausted because at that point, they are expected to leave the UK. Those who are granted leave have unrestricted access to the labour market.”

However, some Seasonal Worker visa workers are being granted leave to remain by the Home Office with a right to work whilst their claim is assessed, this is effectively a visa extension which can also lift the migrant out of the restriction of horticulture.  Their claim may later be rejected but they will have benefit, in some cases up to 3 years, whilst their claim is assessed.  In cases seen, the logic for granting this is not understood.  This is acting as an enticement for other workers to apply.

As sponsors, Scheme Operators are obliged under SE3.16 to ensure that over 97% of sponsored workers leave the UK at the end of their permitted stay but the ability to apply for asylum is a matter over which they have no control and is negatively impacting upon their ability to meet this requirement.

ALP requests collaborative discussions with the Home Office on this matter.

Sponsor licence suspension and revocation

  1. The Sponsor licence suspension and revocation process is not properly defined nor is it a fair process.  Some of the grounds given are wrong and some disproportionate.  There should be a warning process – a “Notification of Potential Grounds for Suspension of Licence”.  This would give the Sponsor the opportunity to provide their evidence and state their case.  The Home Office could then review this and accept the evidence provided or move to Suspension.
  2. SE3.16 requires Scheme Operators to ensure that over 97% of sponsored workers leave the UK at the end of their permitted stay.  Those granted asylum should not be included in this calculation.
  3. Revocation - Section SE3.16 of the ‘Sponsor a Seasonal Worker’ guidance states: “We will revoke your licence if, within any 12-month period, any of the following occur: fewer than 95 percent of your sponsored workers are granted entry clearance (a visa); 3 percent or more of your sponsored workers who obtain entry clearance (a visa) fail to arrive at their place of employment; fewer than 97 percent of your sponsored workers who obtain entry clearance (a visa) leave the UK at the end of their permitted stay”. This shows no scope for contextual review. ICIBI report 8.46-8.51 highlights challenges around data collection and validity with 8.49 “The Home Office stated it would consider suspension and the ‘formal path’ if metrics are still not met following receipt of the 2022 interview records.” 8.51 “To state in guidance that revocation action will be taken against scheme operators who fail to meet stated criteria but then not to implement reliable and consistent mechanisms to accurately capture the specified data undermines this aspect of the Home Office’s compliance duties.” How will this process and language be reviewed?
  4. Evidencing departure - ICIBI report 8.50 “Home Office compliance staff articulated…difficulties in evidencing the number of workers who leave the UK at the end of their permitted stay.” Scheme operators send copies of travel tickets as evidence of departure, but this is where their responsibility ends, as the Home Office accepts that scheme operators “can’t walk them on the plane”. What is acceptable evidence? Is there a need for workers to buy a return flight? This can create extra costs for the worker where they need to return earlier than the date for the ticket they have purchased.
  5. Impact of revocation on workers - 8.49 “the Home Office accepts that immediate revocation would remove a large volume of labour from the agricultural sector.” Workers and Temporary Workers: guidance for sponsors Part 3: Sponsor duties and compliance states the consequences of sponsor licence revocation are: C10.2 If the licence is revoked then the permission for all workers of the revoked business is cancelled. C10.12 If your licence is revoked, then any Certificates of Sponsorship (CoS) you have assigned automatically become invalid.  This means any application for entry clearance made on the basis of that CoS will automatically be refused. C10.13 Where a worker has already been granted entry clearance into the UK when we revoke your licence and they have not yet travelled to the UK, their entry clearance will be cancelled. https://www.gov.uk/government/publications/workers-and-temporary-workers-guidance-for-sponsors-part-3-sponsor-duties-and-compliance/workers-and-temporary-workers-guidance-for-sponsors-part-3-sponsor-duties-and-compliance-accessible-version#C10 C10.10 adds more detail: “The worker was not actively or knowingly involved (complicit) in the reasons for revocation - We will normally shorten their remaining permission to 60 calendar days. We will not normally shorten the worker’s permission if, at the time we consider cancellation action, they have no more than 60 calendar days’ permission remaining. In either case, the worker will have to leave the UK or face enforced removal if, at the end of the 60 calendar days (or by the time their permission expires if it was not shortened), they have not made an application for permission to stay on a route for which they qualify.” This is not appropriate to the Scheme – both in terms of impact on workers and farms. How will it be reviewed?
  6. Impact of revocation on other operators – what are the operational and financial arrangements for other operators to take on the workers of a revoked sponsor licence holder? What would be the liability on the new sponsor for breaches of the sponsor duties prior to the transfer and liability/risk of workers not leaving at the end of their visa.

Increasing seasonal workers’ retained earnings

  1. Visa cost - The administrative cost for processing the seasonal worker visa is £129, so the fee that is charged to individual workers is effectively double that.  Recognising the low earning potential on this route, the visa cost should reflect the processing cost.
  2. Visa processing costs - Accessibility of visa processing through TLSContact and VFS Global is structured such that there is no alternative but for seasonal worker to pay between £70 and £150 for an appointment.  The contracts between the Home Office and TLS/VFS should prohibit the charging of additional fees on the seasonal worker visa scheme.
  3. PAYE income tax code – there should be a dedicated seasonal workers’ tax code whereby no income tax is levied until the worker has reached the annual tax threshold.
  4. Pension auto-enrolment obligation – this should be removed.
  5. Employee National Insurance – as seasonal workers cannot access full NHS healthcare or other social benefits, the obligation to pay national insurance should be removed.
  6. Employer National Insurance – should be allocated to refund the costs of visa and travel for seasonal workers.
  7. Ethical loan scheme – there should be an ethical loan mechanism established within the visa route accessible to all seasonal workers to be repaid as the season progresses.
  8. Recruitment fee remediation - Scheme funding and/or bond arrangements for an independent and third-party body to develop and operate recruitment fee remediation (subject to agreement to a fair process) should be provided.

Worker Welfare

  1. Worker advice and support service – Visa fees should fund an independent body to provide a multi-language confidential helpline and support service for seasonal workers
    1. Precise role regarding support in grievance, disciplinary, transfer and recruitment fee remediation matters to be defined.
    2. Body provides intelligence to labour market enforcement authorities and to inform industry to drive improvements.
    3. Conducts mid and end season worker surveys which identify worker experience by farm and Operator.  Survey content developed in collaboration with Defra, Home Office and industry. Published swiftly to enable issues to be addressed and improve future practice.
  2. Worker welfare group - The newly established multi-stakeholder worker welfare group should be independently chaired by a body such as MAC, DLME or IASC.  The agenda should focus on the actions of government departments and other public bodies and particularly:
    1. Scheme Worker Welfare Rules – formal review to amend and better define of SE3
    2. Compliance and enforcement effectiveness of UKVI Sponsor Assurance and Investigations and GLAA
    3. Source country collaboration - FCDO should provide funding to IOM to develop model co-operation agreements with key source countries and industry to embed responsible recruitment pathways, intelligence sharing and enforcement and good practice
  3. Seasonal workers welfare surveys - Defra should release these for 2020, 2021 and 2022.  Future surveys should be issued within 3 months of completion.
  4. Health Screening – Workers are sourced from countries where tuberculosis (TB) tests are required for visas of more than 6 months.  The HSE should undertake a risk assessment to determine whether seasonal workers should be health screened and for what communicable and non-communicable diseases prior to the issue of the visa.
  5. Access to healthcare and health and medical insurance – there should be closer definition of minimum requirements and entitlement to primary healthcare.

Compliance and Enforcement

  1. GLAA licensing of overseas recruitment agents – GLAA to re-establish confidence with industry that it competently applies due diligence in the licensing of overseas labour recruiters in accordance with GLAA Brief 79 - How licensing applies to businesses outside of the UK.  Industry is not assured that GLAA has defined the legal requirements by country and inspects against these; ensures that there is a sustainable operational and commercial model in place does not involve charging recruitment fees to workers or further sub-contracting.
  2.                                                    GLAA compliance - GLAA to re-establish confidence with industry that it will undertake appropriate compliance activity to address unlicenced gangmasters and licenced businesses committing breaches of the licensing standards.
  3. UKVI Compliance investigations – The ICIBI concluded that “1.25 Overall, the Home Office has not demonstrated that it has the mechanisms or capabilities in place to assure itself that scheme operators are meeting compliance requirements.” Appendix 1 summarises the ICIBI findings.  ALP submitted the following list of questions on 7th February 2023:
  1. Is this the correct name of the responsible Home Office team - “Seasonal Agricultural Workers Scheme | Sponsor Assurance and Investigations | Visa, Status and Information Services | UK Visas & Immigration”. Does this mean that your work does not cover the poultry visas? The “Seasonal Agricultural Workers Scheme” was the name of the previous immigration route which was suspended in 2013, not the current scheme. I’ll refer to this as the “seasonal workers’ team”.  This has not been responded to.
  2. Please can you signpost us to the relevant legislation (if any) and sponsorship guidance that describes the seasonal workers’ team powers of entry, inspection, compliance and enforcement with regards to worker welfare issues.  This has not been responded to.
  3. To help our understanding, please can you share with us a document that describes the purpose, objectives, responsibility and powers of the seasonal workers team. Does the scope extend to all of the UK and to farms on which seasonal workers other than through the Seasonal Workers’ Scheme are used. This has not been responded to.
  4. Our understanding is that you have powers to suspend and revoke Sponsor licences, but no powers against farms and anything found, other than modern slavery, can only be referred on to the relevant organizations – HMRC, HSE, GLAA etc.  Is that correct and are government gateways in place for the referral of this information?  On 23rd February the UKVI SAWS Compliance Team lead confirmed that this was the case.
  5. Please can you share with us any relevant operating protocols. In asking for this, I refer as an example to those published by the GLAA such as, How we inspect and prosecute;  Inspection information sheet; Licence decision policy;  Code of practice on compliance, enforcement, labour market and modern slavery investigations; Enforcement policy statement. This has not been responded to.
  6. During your GLAA LU/LP presentation you said that there were 70 visiting compliance officers, in other words, one per thousand licensed sponsors.  In the seasonal worker’s team is it correct that there are 6 intelligence officers and 6 visiting officers based in Sheffield – with ability to deploy other officers from skilled worker routes? This has not been responded to.
  7. How should workers and others report on farm welfare concerns? Your current advice to report via Report an immigration or border crime - GOV.UK (www.gov.uk) is surely not appropriate. ALP is aware that GLAA is responsible for enforcing their own Licensing Standards as they apply to the Scheme Operators but has limited jurisdiction with regards to farm employment practices. Seasonal workers have particular vulnerabilities, limited access to the UK justice system and reporting labour market abuses is challenging to navigate even for those workers who can speak English and navigate the reporting routes: https://www.hse.gov.uk/contact/concerns.htm; https://www.gov.uk/pay-and-work-rights; https://www.gov.uk/government/publications/pay-and-work-rights-complaints; https://www.modernslavery.gov.uk/start.  On 23rd February the UKVI SAWS Compliance Team lead confirmed that there is only the immigration crime line which is not fit for purpose for this need.
  8. What on farm worker welfare concerns should Scheme Operators report to you?  On 23rd February the UKVI SAWS Compliance Team lead confirmed that they have no power against farms and so this is not relevant.
  9. Effective inspections require your officers to have a good understanding of the law relating to the Scheme rules across immigration, recruitment, employment, health & safety, accommodation, transport, insurance and tax as well as softer skills to enable effective interviewing, safeguarding of individuals and to recognise the signs of hidden exploitation and modern slavery.  Is there a developed competency framework; programme of training and competence assessment of inspectors.  On 23rd February the UKVI SAWS Compliance Team lead stated that “Compliance Teams undertake extensive training, including recognised safeguarding training.”  This was not the finding of the ICIBI and the experience is that Compliance Inspectors are not competent.
  10. Would an industry offer of expert compliance training for inspectors be of interest? Would collaboration to develop a ‘SWP Migrant Interview Record’ template which is aligned with that used by the Scheme Operators be of interest? This has not been responded to.
  11. How can we work together proactively to prevent non-compliance and worker welfare risks? A small team of industry experts working with you to ensure most effective use of resources?  This has not been responded to.

 

 

6 April 2023