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Equality, discrimination and the marginalised: The Immigration Bill 2015-16 and employment rights for migrants
The Immigration Bill 2015-16 was introduced on 17 September 2015 by a press release declaring that the Government’s intention is to make it “tougher than ever before” for illegal migrants to live in the UK. The press release is unambiguous in its message that tough action will be taken to crack down on those they deem to threaten the security of our “hard working families”.
This invidious piece of proposed legislation will inevitably have effects beyond its intended targets. Its provisions on employment, housing, health, benefits, access to justice and even the right to drive appear destined to further erode the rights of already marginalised groups, not least asylum seekers, migrant workers and victims of modern slavery and trafficking. This article will consider some of the consequences for the employment rights of those vulnerable groups.
Criminalising illegal workers
Currently, criminal and/or civil sanctions may be applied to employers who use workers who do not have a legal right to work in the UK. Penalties for illegal working do not apply to the workers themselves. Whilst various criminal charges may be brought against them for other offences, they usually face removal rather than prosecution once their status is known to the authorities.
The Immigration Bill seeks to introduce a criminal offence of illegal working. It will be an offence to work illegally whilst unlawfully resident, or to work in contravention of a requirement of leave which prohibits employment. The offence carries a maximum 51 week prison term and a fine. Upon a successful prosecution, the wages of the illegal worker may be seized as the proceeds of crime under the confiscation regime.
It is easy to see the potential in this measure for the intimidation of already exploited workers. Those employers who seek to coerce illegal workers into accepting poor conditions will now have a substantial threat to hold over them in addition to the possibility of deportation. So too will human traffickers and those who impose forced or compulsory labour upon others. This has the potential drastically to undermine the laudable aims of the Modern Slavery Act 2015, which criminalises slavery, servitude and forced labour.
The employer as gatekeeper
At the same time, the Immigration Bill introduces greater penalties on employers for using illegal workers. It is currently an offence to employ a person knowing that he or she is subject to immigration control. It is intended that this provision will be widened to encompass having “reasonable cause to believe” that the person is subject to such control. The maximum penalty for the offence will be increased from two to five years.
There are numerous different documents which can be relied on to demonstrate a right to work. It is already problematic that employers are required to verify these documents themselves. However, by increasing the penalty and changing the degree of knowledge to “reasonable cause to believe”, an employer faces more risk when employing workers. Therefore, employers may be less inclined to employ those who do not possess a UK passport, including UK nationals who do not have identity documentation.
This mirrors the difficulties presented by the housing provisions in the Immigration Bill. These extend the “right to rent” scheme which effectively forces landlords to act as immigration officials by checking multiple documents to ensure that a prospective tenant is not an illegal immigrant. An evaluation by the Joint Council for the Welfare of Immigrants on the effects of the pilot “right to rent” scheme showed that 42% of landlords said that the scheme had made them less likely to consider somebody who did not have a UK passport, 27% were reluctant to engage with those with foreign accents or names and that checks were being directed at those who “appeared foreign”.
In this way the campaign to create a “hostile environment” for illegal immigrants encourages the vilification and exclusion of others because of their race and/or nationality etc. The Home Secretary is required by the Bill to issue a code of practice to specify what landlords should do to avoid race discrimination but the practical effect of the Bill’s provisions makes it more likely that discrimination will occur.
A two-faced enforcer?
The Immigration Bill does provide that a ‘Director of Labour Market Enforcement’ be appointed to coordinate a strategy to tackle labour market exploitation. However, the scope of the role and the resources to be allocated to it are currently unclear, in part because the provisions have been subject to a large number of late Government amendments at committee stage in the House of Lords (ongoing at the time of writing).
There is particular concern that the Director will have immigration control powers which would conflict with the protection of exploited workers. If the Director is responsible for rooting out illegal workers, then it is far less likely that victims of trafficking will feel safe to report exploitation to him or her. The Government has been unwilling to take an unequivocal position as to the Director’s role. Its recent response to consultation on the Director’s remit says only that it intends “to make amendments to ensure the role is clearly defined in legislation”.
Perpetuating domestic enslavement
The position of migrant domestic workers also remains highly precarious despite the Modern Slavery Act and the Immigration Bill. These are workers who enter the UK to work (and live) in private households, typically as maids or nannies, and are granted entry under the overseas domestic worker visa. Even though their status is legal, these workers are frequently trafficked and often exist in abject conditions of abuse, imprisonment and enslavement and are wholly disenfranchised.
In April 2012, the Government removed the right of migrant domestic workers to change jobs, so that the visa is now tied to the specific employer. It is argued forcefully by charities working with migrant domestic workers that this has led to a predictable upsurge in exploitation. The Government disputes that there is evidence to that effect, but it is clear that tied visas mean that workers are unable to escape abuse without becoming illegal immigrants.
No steps were taken in the Modern Slavery Act to reverse the tied visa system, but a report was commissioned which was published on 16 December 2015. The Ewins report concludes that there is “no evidence that a tie to a single employer does anything other than increase the risk of abuse and therefore increases actual abuse” and recommends that the tie should be removed on the basis that it is “incompatible with the reasonable protection of overseas domestic workers while in the UK”.
Unfortunately, the Immigration Bill has also failed to reverse the tied visa system although an amendment has been tabled and was debated at second reading in the House of Lords on 22 December 2015, during which the Government was urged to state its intentions with regard to implementation of the Ewins report. It is to be hoped that a measure of protection will be reinstated for this most isolated group of disempowered workers.
 Immigration, Asylum and Nationality Act 2006
 See the Focus on Labour Exploitation briefing on the Immigration Bill part one, Jan 2016. See also The UK’s new immigration bill creates perfect conditions for slavery to thrive, The Guardian 28 Aug 2015
 See Hansard 18 Jan 2016 Column 534