“Seismic shift” needed in migrant workers’ rights

A seismic shift in the UK’s labour-migration system is needed to protect both migrant and local workers from super-exploitation and abuse, according to a new study by the Institute of Employment Rights (IER).

The model of visa-based temporary migration with employer-sponsorship serves neither migrant nor local workers, nor the economy itself, says the report, Migration and Work in Post-Brexit UK, published today.

University of Bristol law specialists Dr Manoj Dias-Abey and Dr Katie Bales pick apart the shortcomings of the current system of visas and sponsorship, which they say undermine, devalue and dehumanise those who have to navigate through it.

The current system leaves migrant workers open to abuse from employers, and the precarity it engenders leaves them unable to access even the few rights they have under employment laws that effectively exclude those who need protection most.

In its place should be built a rights-based regime to place all workers on a secure and equal footing, with access to employment protection for all under a single enforcement body.

The long-term aim should be a shift away from short-term visas and towards a regime of permanent migration, but meanwhile the regime should operate under rules to be determined by a tripartite set-up of employers, unions and ministers.

Making migrant-worker status a protected characteristic under the 2010 Equality Act is among recommendations aimed at an incoming progressive government.

Other immediate reforms aimed at reducing precarity include lengthening the terms of seasonal and domestic-work visas, with the right to renew annually and to apply for indefinite leave to remain after five years, and allowing those on them to change employer.

Visa charges should be made affordable, and the Immigration Health Surcharge scrapped, as migrant workers already pay into the NHS through their tax and national insurance payments.

Action also needs to be taken to end the charging of recruitment fees by agencies that often leave migrant workers in a debt spiral and at the mercy of unscrupulous agencies.

Section 24B of the Immigration Act, which criminalises “illegal working” creates a haven for exploitative bosses who know that workers will be reluctant to report unlawful employment practices, and must be repealed, the authors say.

Labour’s New Deal for Workers, which sets out a plan for more general employment-law reform, would also help deliver justice for those most at risk, including allowing access to full employment rights from Day One

Dr Manoj Dias-Abey said:

“Labour migration is not just necessary but a positive benefit to the economy, and we need a regulatory regime that reflects that reality and respects the humanity and contribution of workers who come to our shores, as well as those already here.”

Dr Katie Bales said:

“Too many migrant workers find themselves in highly exploitative work and abusive employment relationships.  Urgent change is needed right now, but the ultimate aim must be a rights-based regime that takes its place within a framework of labour law that delivers equal rights and prosperity for all workers.”

IER Director Ben Sellers said:

“This report is incredibly timely, with an increasingly hostile political environment being generated in the UK, both by the media and politicians themselves. The recommendations in the report are incredibly important, as they add a solid, regulatory framework to the moral arguments for a more humane migration system.”

Notes for editors:

A PDF preview of the report with preface and contents can be downloaded here.

Dr Manoj Dias-Abey is a Senior Lecturer in Law at the University of Bristol. His research is in the areas of labour law, labour migration and political economy.

Dr Katie Bales is a Senior Lecturer in Law at the University of Bristol with research interests in the fields of irregular migration, labour law and the welfare state.

The Institute of Employment Rights exists to inform the debate around trade-union rights and labour law by providing information, critical analysis and policy ideas through our network of academics, researchers and lawyers. Established in 1989, it became a registered charity in 1994.

Chapter 8 – Recommendations

The British Labour Party has so far been discreet about its labour-migration policy other than indicating support for the continuation of a ‘points-based system’ but without the provision for employers to pay 20% below the ‘going rate’ in circumstances where the occupation is on the SOL. In our view, in order to ensure that labour migration works in the interests of both local workers and those migrating, there is a need to reorient the migration system away from temporary labour migration with employer sponsorship toward a regime of permanent migration as is the case with Australia’s recent direction of travel. In the interim period, where temporary labour migration continues to be a feature of migration system, it should operate in accordance with rules determined through a tripartite process involving employers, unions and government.

We acknowledge that such a reorientation will require careful consideration. Whilst such a process is underway, we propose the following recommendations to immediately reduce migrant precarity and steps to ensure that workers can claim their employment rights.

Proposed reforms to reduce precarious migration status:

• Increase the length of the Seasonal Worker visa and Overseas Domestic Work visa to one year, provide the opportunity to renew the visa, and apply for indefinite leave to remain after five consecutive years or seasons in the UK
• Ensure that these routes allow workers to change employers both as a matter of law and in practice
• Review all visa charges and ensure that they reflect the true cost of processing a visa
• Abolish the IHS since migrant workers pay taxes in the UK to subsidise the NHS
• Impose accessorial liability on employers and UK-based recruiters for illegal recruitment fees charged from workers
• Explore the possibility of a regularisation programme to provide legal status for those unlawfully resident in the UK for longer than five years
• Provide asylum seekers with the right to work after six months of lodging their claims for refugee protection, and this permission to work to include the ability to be self-employed
• End the Hostile/Compliant Environment policies
• Amend the Equality Act 2010 to make ‘migration status’ a protected characteristic

Proposed reforms to ensure that migrant workers can claim their employment rights:

• Repeal s24B of the Immigration Act 1971 to abolish the offence of ‘illegal working’ and clarify in statute that the illegality doctrine does not apply in employment-related claims
• Enact a ‘bridging visa’ to allow migrant workers to remain in the country to pursue any outstanding legal claims
• Establish the Single Enforcement Body and create a specialist division to address the situation of migrant workers in the labour market. Ensure such division receives adequate resources to tackle the scale of non-compliance in the labour market
• Create a ‘firewall’ between the Single Enforcement Body and the Home Office to ensure that information about a worker’s status is not shared through the course of labour enforcement proceedings