Review: Migration and work in post-Brexit UK

Manoj Dias-Abey and Katie Bales [Institute of Employment Rights, 2023]

Commentary icon22 Mar 2024|Comment

Rebecca Zahn

Professor of Law at Strathclyde University

Manoj Dias-Abey and Katie Bales, Migration and work in post-Brexit UK, [Institute of Employment Rights, 2023, 52pp]

Brexit led to major changes in UK immigration law. In the run up to the referendum in 2016 and during the subsequent negotiations over a withdrawal agreement, migration from low-wage labour from EU member states and its perceived negative effects on the wages of British workers took centre-stage. Ending the continued free movement for EU citizens and their families became a priority for the UK government during the negotiations. In the end, the rights to live and work of EU citizens resident in the UK pre-Brexit were maintained by the UK-EU withdrawal agreement (subject to them registering under the EU Settlement Scheme), but new arrivals were to be limited and accommodated by the existing immigration system, prompting a review and overhaul of that system. After a lengthy journey through Parliament, the Immigration Act 2020 was signed into law on 11 November 2020. The Act made several significant changes to the UK’s immigration system. It ended the right to free movement of EU citizens into the UK; and it introduced a points-based immigration system. The result is a complex system of rules with special routes for different worker categories (e.g. there are special routes for students, highly skilled workers, healthcare workers, and temporary visas for seasonal agricultural workers). In all cases, visas need to be applied for in advance of arrival in the UK and applications incur a substantial fee (a skilled worker visa for up to 3 years costs (in 2024) an eye-watering £719 plus an annual health surcharge of £1,035; this does not include costs for the worker’s spouse or children).

Although the regulation of immigration is inherently inter-connected with the regulation of work, they are often treated as separate fields of study and practice. There are a limited number of publications which explore the relationship between migration phenomena and employment law, and the implications of immigration rules on the work relationship. Given the recent legislative changes in this area, Manoj Dias-Abey and Katie Bales’ booklet on Migration and work in post-Brexit UK is a timely and valuable addition to the literature and a useful resource for anyone seeking to gain a better understanding of the different routes for workers coming to the UK. It builds on two excellent earlier publications by the IER (Ryan (ed), Labour Migration and Employment Rights, 2005 and Ryan (ed), Labour Migration in Hard Times: Reforming Labour Market Regulation, 2013). Dias-Abey and Bales have managed to provide an impressive whistle-stop tour of UK immigration law and its intersection with work written in a clear and accessible manner.

The booklet contains eight chapters. Chapter 2 places the current immigration law and policy rules in their broader historical context to highlight the path dependencies underpinning the new system. The chapter concludes by debunking the claim, made by the government when introducing the new points-based migration system in 2020, of similarities between the UK and Australian immigration systems. Rather than being a transplant of the Australian points-based system which encourages permanent migration, the UK’s new migration system is a “successor to previous migration routes in operation” (p. 12) in that it continues to focus on temporary migration to plug labour market gaps.

Subsequent chapters cover the regulation of high skill labour migration (chapter 3), low skill labour migration (chapter 4), and other migrants who work (chapter 5) such as EU citizens who retained a right to remain in the UK following Brexit under the EU Settlement Scheme, dependents, students on a graduate visa, asylum seekers and refugees. These chapters paint a picture of a highly complex immigration system which is difficult and costly to navigate for both workers and employers and carries with it disproportionate (civil and criminal) penalties for failures to adhere to the rules.

Chapters 6 and 7 focus on the labour market experiences of and difficulties encountered by irregular and regular migrant workers in different contexts. These chapters illustrate how the interplay of a generally hostile migration system focussed on attracting high-skilled workers and the UK’s weak employment rights and enforcement system combine to create vulnerabilities to exploitation amongst low-skilled and/or low-paid workers as well as amongst groups such as asylum seekers. This can be seen in the way in which workers are tied to their sponsoring employer to maintain their visa (thereby creating a dependency making workers vulnerable to exploitation). Another example is the doctrine of illegality which prevents those migrants who work without proper authorisation from enforcing their employment rights. Application of the doctrine increases the likelihood of exploitation of those migrant workers who are already in a highly vulnerable situation.

Concluding the book, chapters 7 and 8 propose several specific legal reforms to address the precarious status of migrant workers and improve enforcement to ensure compliance with employment rules by employers, and call for a general overhaul of the system by a future Labour government in consultation with employers and trade unions to design a system that reduces migrant worker precarity while considering the interests of local workers and employers.

Overall, the booklet serves both an informative and political function. It paints a picture of an immigration system which is restrictive, confusing and expensive, and which adds an extra layer of vulnerability to those workers already engaged in low wage and often precarious work. Those seeking to navigate the immigration system successfully require time, patience and financial, social and cultural capital, even in those sectors where there is a labour shortage and an apparent desire to recruit migrant workers. Published against the prospect of a forthcoming general election, the booklet is a wake-up call to reconsider the shape and purpose of labour migration regulation in the UK.

You can download the Migration and work in post-Brexit UK publication here

“Seismic shift” needed in migrant workers’ rights: view the press release here.

Rebecca Zahn

Rebecca Zahn is a Professor in Law at the University of Strathclyde who specialises in European, national and comparative labour... Read more »