UK Immigration Law and Vulnerable Workers: Joined-up Thinking Needed

About the Author
Samantha Love read Law at Merton College, Oxford, and is currently following the BCL course. 

Most of us are used to thinking that travel is easy, and that travel for work can be easy too – secondment, moving within the European Economic Area for EU citizens, working holidays in certain countries and the well-known Australian points system.

And yet migration for work is incredibly complex; there are so many reasons for such migration, so many different types of visa you can apply to with their own particular restrictions, and so many problems for working migrants when they do arrive in a host state. UK immigration law is notoriously complicated, the UK’s response to illegal immigrants is less than sympathetic, and yet for certain categories of workers the borders are very much open. There’s a mix of public policy, European obligations and even the colonial past at work here, which affects the day-to-day lives of not only those who come to the UK looking for work, but also those who live in the community with them.

Migrating for work – the whys and wherefores

It is crucial to understand that every migrant worker is different. Even if there are stereotypes the world over such as the English holiday-worker student on a gap year, Filipino domestic worker (1), Polish plumber and consulting IT engineer, there are so many reasons why somebody would move abroad to work and so many circumstances that they may end up in that it would be easy to miss the variety of types of migration for work. Musicians or artists who travel the world are migrant workers, even if they only stay for a few days (or hours!) in each country on their tour. So it is important not to focus on a few key stereotypes when thinking about migrant work.
From the public policy side of things, however, it’s important to understand trends that do need to be addressed. The phenomenon of ‘brain drain’ – skilled workers from poorer countries in order to get higher wages, which will help their families – is a very well-known one. Whilst the idea that there are more Malawian nationals practising as doctors in Manchester than there are in the whole of Malawi might well be a myth (2), there is certainly a problem of African-trained doctors moving abroad and leaving their countries without enough trained medical professionals (3). We should think carefully about how easily we ought to attract these professionals after a developing country has invested money into training them; this is arguably an investment it cannot afford to lose.
Another phenomenon to worry about is the vulnerability of particular groups of migrant workers, particularly domestic workers. Some live-in workers will live with a single family at all times, working for long hours, without adequate support to make any complaints about under- (or no) pay, abuse, withholding of the worker’s passport or poor living conditions. The fact that they live in one household in such a close relationship can serve to make them practically invisible to anyone else, and going to the police can result in deportation rather than proper help (4). We also need to bear in mind wider themes that will affect many migrant workers such as which state resources migrants are likely to need/want to use and what access they should get to them and at what cost, such as healthcare or jobseeker’s allowance. These decisions will affect state finances, but also public opinion of migrant labour and possibly also the likelihood of more migrants moving to a country. Even if every worker is different, together they might make a large impact on a community such as if a school suddenly needs to deal with a large number of students whose first language is not English – translators cost money.

And of course the largest concern in the UK is that migrant workers take ‘British jobs’, which Gordon Brown famously and almost certainly foolishly promised to ‘British workers’ during his time as Prime Minister. Nobody could realistically work out how many jobs are being ‘taken’ by migrant workers, since some jobs simply would not exist without them – where no unemployed UK citizen is adequately qualified to do the job, for example, or a migrant begins a company and starts employing UK citizens. And in any case, we are obliged to open those ‘British’ jobs to those who live within the European Economic Area. These points aside, people worry about both higher ‘native’ unemployment and reduced wages because British workers have to compete with the foreign nationals who are willing to work for less. As a policy this sort of attitude could be criticised as trying to protect British workers from the realities of a global world, and doomed to fail because companies will simply move abroad when they can. It can also be seen as an argument about decent living and working standards for migrant workers, however; ensuring that they receive equal treatment with ‘native’ workers rather than being exploited.

The basics of the law on migrant work

If you are planning to work in the UK and you are a citizen of a country within the European Economic Area or Switzerland then you do not need a visa. If you are a Commonwealth citizen and one of your grandparents was born in the UK, you can get a visa for up to 5 years. If you are outside these categories, you need a visa under the tier system. These essentially split into high value migrants, skilled workers, students, domestic workers and temporary workers (5). You’ll notice that low- or un-skilled workers from outside the EEC are not able to get a visa; the need for low skilled workers has been fulfilled by EEC nationals or until recently through the Seasonal Agricultural Workers System, which has ended now that the Romanians and Bulgarians who used it have the right to work in the UK without a visa (6).

Skilled workers and students need ‘sponsorship’; a job or a place at an educational institution. This is important since you are dependent on maintaining that support for your visa. Students can only work 20 hours a week during term and full time during the holidays, and this is a condition of their visa – break it and you can be deported.

It is illegal to employ an illegal immigrant, or a student beyond their permitted hours; the penalty is up to £10,000 per worker. Knowingly employing an illegal immigrant can lead to a jail sentence of up to two years (7).

Once you have a valid visa however, you are (theoretically) entitled to the same employment rights and protections as ‘national’ workers. Almost every worker in the UK is entitled to the National Minimum Wage, and every worker is entitled not to be discriminated against on the basis of nationality. Health and safety regulations equally apply to migrant workers. So migrant workers ought to be working in similar conditions to domestic workers, meaning no extra costs to businesses and so no advantage in hiring foreign workers (especially since the visa process can be long and expensive). Is this true though? We will mostly look at workers whose visa is dependent on an employer sponsor and illegal migrants, though some of the problems discussed will also affect some European workers. At the risk of making the generalisations I just warned about, their problems will be in marked contrast to the situations of those entering the country on Tier 1 or 2 visas – the skilled or ‘high value’ workers. Interestingly, an EEA entrant could fall into any wage bracket and it will not be relevant to their ability to enter the country, so we cannot generalise about the status of EEA migrants in quite the same way. Some will encounter these problems, however.

Vulnerability and its interaction with immigration law

Bridget Anderson (8) is not alone in pointing out the vulnerable position that migrant workers can be in. Those who are dependent on a sponsor have a reason to avoid arguments with their employer, in order to continue living in the UK. There is a limited period for finding a new sponsor/employer in the case of unemployment, after which deportation is a very real possibility. Dependence on the employer for their stay in the UK is therefore very real.
Migrant workers are also more likely to find themselves in less secure work, such as agency work or temporary work, even if they do not need a visa to work in the UK. These are also less well-paid types of work; Ed Miliband has talked about a ‘loophole’ in the Agency Workers’ Directive that means that migrant workers are paid less than directly employed colleagues (9). What he doesn’t discuss is that this is a loophole affecting all agency workers and that also disproportionately affects women. This is a general problem with ‘atypical’ working arrangements such as agency or part-time work, which employers can use to employ migrant or female workers on a lower wage and avoid them being comparable to full-time employees for discrimination/ equal pay claims. Of course, with part-time or agency contracts can come uncertain or reduced hours, meaning less money to spend on important things like rent.
This leads to another type of vulnerability, which is some migrant workers’ dependence on cheap and therefore often substandard housing. ‘Beds in sheds‘ have become a particular concern in recent years, with outhouses being used as sleeping areas in breach of health and safety laws on letting properties. A government crackdown was announced in 2012 (10) and efforts continue, but as some of these migrants will be illegal and therefore have no interest in coming forward, detection will often rely on reports by neighbours or even thermal imaging cameras mounted on light aircraft! (11)

This is perhaps the most obvious type of vulnerability; that illegal immigrants are in no position to complain about their living or working conditions because it will lead to deportation. It is because the law creates an ‘illegal’ status that the migrant is in such a precarious position in the first place (12) and it is crucial to recognise that this is not the only possible response to illegal immigrants. Directive EC 2009/52 of the European Union (13) requires employers to pay any back pay due to illegal immigrants if they complain to the authorities or are discovered, to put employers off employing illegal migrants. This contrasts with many Member States’ historic view that work contracts with illegal migrants are themselves illegal, so that no claim for payment due can be brought in a court. Obviously the Directive still leaves an illegal migrant better off staying ‘invisible’, but employers may think twice about employing an illegal migrant where such penalties are possible.
It is these sorts of problems that lead to calls for ‘amnesties’ on illegal migrants. An amnesty would allow the government to collect taxes from a working migrant, and ensure that exploitative working conditions are not suffered in silence – conditions that make ‘foreign’ labour cheaper than ‘British’ labour. Yet public policy intervenes again – do we want to give the impression that once you’re in the UK and working that you will eventually get the legal right to stay?

The UK government has been consulting on how to deal with illegal migrants in non-licensed properties (14), which is going on against a background of increased regulation of Homes of Multiple Occupation in any case. And yet this sort of activity doesn’t change the incentive for illegal migrants, or migrants who cannot afford to stay anywhere more expensive – without support to move into a better property, and possibly with the risk of deportation, there is no reason to report a defective property that the state may never find. This incentive to avoid the authorities duplicates across into illegal jobs, or exploitative conditions where a worker’s visa is dependent on employment, or domestic work where a migrant may be in too vulnerable a position to claim her employment rights. So not only does the state need to think about all the different elements of vulnerability that immigration laws can create; it also needs to think about how to help migrants face these problems rather than wanting to shy away from the authorities. There is some serious joined-up thinking required just to get a visa system to work, let alone to make it fit with the country’s labour demands – another area that requires close work. Is the UK applying this joined-up approach, though? Is any country?

 

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References

(1) See this discussion from the UN, which notes that around 150,000 domestic workers move abroad from the Philippines for work each year. Available at https://www.ilo.int/global/about-the-ilo/newsroom/features/WCMS_189173/lang-… (accessed 13/04/2014)
(2) Lizi, Lwanda and Matiti, “Modern medical myth: ‘More doctors in Manchester than Malawi’: A Preliminary Communication” Malawi Med J. Mar 2013; 25(1): 20–21, accessible at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3653194/v(accessed 13/04/2014)
(3) For example, see Tankwanchi, Ozden, Vermund, “Physician Emigration from Sub-Saharan Africa to the United States: Analysis of the 2011 AMA Physician Masterfile” 2013, PLOS, available at https://www.plosmedicine.org/article/info%3Adoi%2F10.1371%2Fjournal.pmed.100…
(4) To see an example of this sort of abuse, read the facts of Siliadin v France application number 73316/01, a case of domestic slavery. Available at https://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-1412014-1…
(5) See the full list here https://www.gov.uk/browse/visas-immigration/work-visas . A good summary is available here https://www.workpermit.com/uk/uk.htm .
(6) https://www.gov.uk/government/speeches/seasonal-agricultural-workers-scheme…
(7) https://www.gov.uk/penalties-for-employing-illegal-workers
(8) Anderson, ‘Migration, immigration and the fashioning of precarious workers’,Work Employment Society 2010 24: 300
(9) ‘Ed Miliband Says Migrants Will Make Life Harder for British Workers’, The Huffington Post, 01/04/2014. Available at https://www.huffingtonpost.co.uk/2014/01/04/miliband-migrants_n_4542360.html (accessed 13/04/2014)
(10) https://www.gov.uk/government/news/major-clampdown-launched-on-beds-in-shed…
(11) ‘Slough spy plane uncovers 210 suspected ‘sheds with beds”, BBC, 24/06/2013. Available at https://www.bbc.co.uk/news/uk-england-berkshire-23028425 (accessed 13/04/2013)
(12) Anderson, ibid.
(13) Available at https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:168:0024:00…
(14) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/2…
Image credits: banner; classroom; UKIP; barista; Miliband; fruit picking; shed.