Written evidence submitted by Professor Ryszard Piotrowicz, Aberystwyth University (LFS0002)

My name is Ryszard Piotrowicz. I am a Professor of Law at Aberystwyth University, Adjunct Professor of Law at the University of South Australia, and First Vice-President of GRETA, the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings. I am submitting this evidence in my personal capacity, under the headings:

• What impact will the Government’s proposed points-based immigration system have on labour in the food supply chain? Which sectors will be most affected by a reduced ability to recruit from abroad?
• What impact has the Seasonal Workers pilot scheme had on agriculture and horticulture? What should be the future of the scheme, including whether it should cover more, or different, agricultural and horticultural sectors?

The UK's points-based immigration system: policy statement, published on 19 February 2020, states in its Introduction: “Importantly we remain committed to protecting individuals from exploitation by criminal traffickers and unscrupulous employers.”

I did not see any further reference to this issue in the policy statement. My essential point is that, whatever changes are introduced to the immigration system, the UK will remain bound by its obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (Anti-Trafficking Convention, 2005), as well as other relevant international instruments, including the European Convention on Human Rights and the 2014 Protocol to the Forced Labour Convention.

The UK’s adherence to the Anti-Trafficking Convention has twice been assessed by GRETA, the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings, the body of which I am Vice-President.[1] A third monitoring visit is scheduled to take place in 2020.

The UK is obliged to have in place measures that enable the effective identification of persons who have been trafficked, or who are at risk of being trafficked, for exploitation.[2] Identification is the gateway to providing the necessary support and protection that trafficked people, and those at risk of being trafficked, need, and to which they are entitled by law. They need to be protected from their exploiters, and they need to be supported so that they can return, if possible, to an independent and safe existence.

Labour exploitation is a major challenge for the UK.[3] Currently, significant numbers of foreign nationals work in agriculture and horticulture in the UK, many if not most from EU countries. Many of them will continue to have the right to work in the UK after 2020. Whether it is these people, or others who come to the UK with some form of permit to work, or yet others who seek to work without a permit (and they are not going to stay away because UK law says they cannot work), they will remain vulnerable to exploitation by their traffickers/employers. This can take many forms, including:

• Failure to honour contracts, including not paying the agreed rate, requiring work without payment
• Failure to provide safe working conditions
• Failure to provide safe and decent living conditions (where appropriate)
• Physical abuse/violence, and the threat of such abuse.

The points-based immigration system will create risks for those who do not qualify. Some will enter into agreements to be smuggled to the UK, or brought to the UK under false pretexts, only to find themselves under the control of people traffickers who will exploit their vulnerability. Greater consideration needs to be given to these risks and threats.

The issue of non-punishment

The UK is obliged, under Article 26 of the Anti-Trafficking Convention, to provide for the possibility of not imposing penalties on trafficked person for offences they have been compelled to commit because of their trafficking situation. This duty has been reflected in domestic legislation,[4] and acknowledged in the case law of England and Wales.[5]

The imposition of tighter restrictions on who can lawfully, work in the UK raises the possibility that some employers will, directly or indirectly, resort to the use of labour that does not have the required permits. Such persons are particularly vulnerable to exploitation:

• by the employers; 
• by traffickers who supply the labour;
• by both employers and traffickers.

Their vulnerability arises because, by working irregularly, they know they are violating UK law. As such they are liable to penalties if apprehended. But if a person has been trafficked for labour exploitation, the question has to be asked to what extent that person has been acting independently, as a free agent, and to what extent they have been forced to do so. If they have been compelled to do this work, they should not be penalised. Even if the person knew that they were going to be working irregularly (ie, without a work permit) in the UK, they remain entitled to the protection of the law, and that includes not being penalised where they have been forced to break the law.

Ryszard Piotrowicz

Aberystwyth, 21 April 2020