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Background                                          

The COVID-19 pandemic has shown how much we depend on one another. It has also shown how closely our health as a society is tied up with workers’ access to sick pay and safe working conditions.

Migrants are disproportionately represented among the front-line workers who have kept us going throughout the pandemic, as NHS workers, carers, cleaners, delivery drivers and farm workers. Despite this, the government’s Hostile Environment policies have meant migrant workers are at particular risk, and have fewer rights.

There is no evidence that Hostile Environment policies have any impact on controlling immigration or encouraging compliance with the immigration rules. The policies do, however, create huge exploitation risks for migrants in the workplace. Migrants subject to immigration control are less able to challenge exploitation, change employer, take time off for sickness, or even demand fair wages than colleagues who have British citizenship.

For undocumented migrants, there is little to no protection at work. Many undocumented migrants are long-term residents of the UK who are highly integrated and have strong family and other ties. Barred from accessing public funds and other protections, it is essential for most to work, even without the right to do so. This makes undocumented people extremely vulnerable to unscrupulous employers, as they are forced to take whatever work they can find, even if it is unsafe. Undocumented workers also have no power to challenge employers who pay them unfairly or not at all, or who otherwise exploit them.

Migrants who do have a visa and the right to work often end up in similarly coercive situations, because they depend on their employer for their right to stay in the UK. Many others are unaware of their rights and afraid of coming to the attention of immigration enforcement if they challenge their employer or join a union.

All workers deserve safe conditions and decent pay, and protection if employers seek to take advantage of them. This briefing explores how restrictions on migrants’ rights in four areas – restrictions on the right to work, lack of access to the social safety net, lack of safe reporting mechanisms for labour rights violations and lack of routes to regular status – undermine the safety of all workers.

To achieve a safer system for all, the Government must:

1. Never criminalise someone for working to support themselves – support NC13 of the Nationality and Borders Bill
2. Prioritise decent conditions over immigration enforcement – establish a firewall between labour inspectors and immigration enforcement and enforce minimum working standards more rigorously
3. Ensure everyone can rely on a state safety net in times of difficulty – end No Recourse to Public Funds by supporting NC12 of the Nationality and Borders Bill
4. End the cycle that puts workers at the mercy of exploitative employers – ensure all visas include pathways to permanent settlement within a reasonable timeframe, and introduce simpler routes to regularisation 

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Restrictions on the Right to Work

Migrant entitlement to work is complex and restrictive

The limitations on migrants’ right to work are many and varied. Those on visitor visas are not allowed to work except in extremely limited circumstances. Seasonal and domestic workers are entitled to stay and work for just six months and must leave afterwards regardless of their situation – they cannot, for example, move to work in another sector. Foreign students are only allowed to work for a limited number of hours per month. Migrant workers in other visa categories may have to ensure they earn above a minimum threshold. Others may be entitled to work freely, but must still renew their visa every 2.5 years on a ten-year path to settlement or lose their status. Asylum-seekers are usually not allowed to work while awaiting a decision on their claim, which takes one to three years on average. Undocumented migrants are not entitled to work at all, under any circumstances.

The illegal working offence creates opportunities for exploitation

It has been an offence to employ a person who is not entitled to work in the UK since 2006. Since 2012, all workers have been subject to workplace checks, and migrants who are unable to prove their eligibility to work have faced increased obstacles to obtaining decent employment. The Immigration Act 2016 further increased penalties on employers who fail to check the immigration status of their employees, making it a criminal offence to knowingly employ anyone without the right to work.

The Home Office has to date gathered no evidence that these changes have meant more undocumented migrants leaving the UK, the purported aim of the checking system and the illegal working offence. There is, however, evidence that the checks have forced migrants to take on work that is more exploitative and less safe. Undocumented migrants surveyed by JCWI in 2021 said that right to work checks were the Hostile Environment policy that had most affected them.

The migrant workers’ organisation Kalayaan found in 2019 that people had been wrongly dismissed, or intimidated by their employers into accepting poorer conditions, because of right to work checks. JCWI frequently encounters cases where, because of Home Office delays in making decisions or providing documentation, people who have the right to work cannot prove it, and therefore lose their jobs or job opportunities.

Criminalising migrants’ work serves no purpose

Working in breach of visa conditions, or as an undocumented migrant, was made a criminal offence in the Immigration Act 2016. Workers can be subject to a six-month custodial sentence, and can have their wages seized as the proceeds of crime. Despite these harsh penalties, the offence has not proven an effective tool. There were no prosecutions of migrants under the illegal working offence between 2016 and 2018. In 2019 and 2020 respectively there were just three convictions, despite thousands of raids carried out every year.

The offence of illegal working therefore has little impact from a law enforcement perspective. However, it does give exploitative employers a tool of control to threaten workers who are undocumented, or who do have status but are unsure of their rights. Undocumented migrant workers apprehended by immigration enforcement are usually detained and subject to removal; there is no interest in additionally prosecuting them for the crime of having worked to support themselves and their families.

Right to work checks undermine the rights of all workers

An Independent Chief Inspector of Borders report in 2019 expressed concern that employers were reporting migrant workers to the Home Office if they proved “troublesome” by seeking to unionise other workers. In at least one case highlighted in the report, the skipper of a fishing vessel was alleged to have exploited migrant workers for several months, before simply turning them over to the Home Office to be removed rather than paying them. The report lists several occasions when indicators of exploitation and labour abuses were identified in cases of illegal working. In these cases, no action was taken to address the labour rights abuses that had been identified – the only action taken was to remove the affected workers from the UK.

In one case, where migrants had been paid just £3.50 per hour, the Home Office responded by saying: “Where a worker is an illegal migrant, they do not have protection under the Minimum Wage Act.” This undermines minimum pay protections for all workers by creating a group that can be exploited without fear of consequence.

Right to work checks mean that migrant workers have no means to challenge discrimination, and undermine labour rights protections for all workers.

Recommendations:

• Repeal the offence of ‘illegal working’ by supporting NC13 of the Nationality and Borders Bill
• Remove the requirement for employers to conduct ‘right to work’ checks

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Lack of safe reporting for labour rights violations

Roles that should protect migrants and others have become part of the Hostile Environment

The Hostile Environment operates by introducing immigration checks into all parts of our society, to ensure the complete exclusion of undocumented migrants. As part of this, not only employers but also the police and labour inspectorates are expected to identify people who do not have status. This clearly interferes with their primary purpose of preventing crime or exploitation in the workplace.

Data is routinely shared between labour inspectors and immigration enforcement, and in some cases joint inspections are carried out by immigration enforcement and labour inspectorate staff. This makes it almost impossible for migrant workers, especially those who are undocumented, to cooperate with labour inspectors, as this entails the risk of coming to the attention of the Home Office.

Labour inspectorates are inadequately resourced to protect workers’ rights

The vulnerability of UK-based workers to exploitation – due to the lack of safe reporting mechanisms outlined above – is exacerbated by the lack of rigorous enforcement for minimum conditions. The ILO recommends that Governments employ at least one inspector for every 10,000 workers in the country, to safeguard workers’ rights. In the UK, the number of labour inspectors has fallen by a third since 2010, with many fewer than the recommended minimum number of labour inspectors and inspections to robustly safeguard workers’ rights.

The post of Director of Labour Market Enforcement was vacant from January until late November 2021. A new Director of Labour Market Enforcement could carry out the vital work of rebuilding labour standards following the COVID pandemic, including addressing lack of compliance with sick pay legislation. A new Director was finally appointed in November 2021, but it remains to be seen whether the ambitious programme of reforms that are necessary to stamp out exploitative working practices nationwide can be achieved in the one to two days a week for which the role was advertised.

International evidence on separating labour inspections from immigration enforcement

There is a strong international evidentiary basis for establishing a firewall between labour inspectorates and immigration enforcement, in order to build trust among migrant communities and tackle labour exploitation. The International Labour Organisation (ILO), the EU Fundamental Rights Agency (FRA), the UN, and academics at the COMPAS Centre on Migration Research at the University of Oxford, as well as the expert UK organisation Focus on Labour Exploitation, have all recommended this approach in recent years.

In Sao Paolo, Brazil, labour inspectors found that separating their work from immigration enforcement improved conditions, and was essential to preventing severe abuses. A similar approach was successfully introduced by the police force in the Netherlands in 2015. Meanwhile, in the United States, all migrant workers are protected by labour standards, regardless of whether they work with or without a permit. Even undocumented migrant workers in the United States are entitled to challenge exploitative employers and recover withheld pay, with a memorandum of understanding in place stating that immigration enforcement officials will not interfere in labour rights enforcement.

Recommendations for firewalls in other sectors

It is understood that the lack of firewalls between immigration enforcement and other authorities makes people less able to report violations. The National Police Chief’s Council published guidance in 2020 acknowledging that migrant victims of crime are deterred from reporting to the police because of fear their details will be passed to the Home Office. In October 2021, the Domestic Abuse Commissioner published a landmark report recommending that a firewall be introduced between police and immigration enforcement to ensure victims can come forward safely.

In December 2020, in response to a Super Complaint brought by Liberty and Southall Black Sisters, HMICFRS, the IOPC and the College of Policing recommended the establishment of safe reporting pathways for migrant victims of crime. Following this, the government committed to reviewing how victims of crime are encouraged to come forward, including considering a firewall approach. The review will be published in December 2021.

Recommendations:

• Establish a firewall between labour inspectors and immigration enforcement
• Adequately resource the work of labour inspectorates
• Lay out an ambitious programme of work to be headed up by the Directorof Labour Market Enforcement

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Lack of access to the social safety net

Complex and restrictive entitlement to benefits for migrants

Migrants are usually not entitled to access public funds until they have obtained permanent status, regardless of need. This is called having No Recourse to Public Funds (NRPF). Having NRPF means that migrant workers in almost all visa categories, and their families, are excluded from the social safety net for five years, ten years, or longer, until they obtain permanent status.

People with NRPF are barred from accessing Child Benefit, Housing Benefit, Universal Credit, Working Tax Credit, Income-based Jobseekers Allowance, or Income Support, among others. They are entitled to very limited support, including most COVID-19 support and Statutory Sick Pay, but are often unaware of this entitlement. Asylum-seekers are not entitled to claim mainstream benefits and instead must claim Asylum Support. Undocumented migrant workers have no access to a safety net of any kind, and are completely excluded from support.

Poverty wages in migrant-led industries

Low pay in the UK job market has historically been a significant problem, exacerbated recently by the pandemic and a failure to enforce minimum standards and conditions. A significant proportion of low-paid jobs in the UK are therefore effectively subsidised by the welfare state, with record levels of in-work poverty.

Migrant workers are disproportionately employed in low-wage sectors, in which British citizen counterparts are supported to make ends meet through benefits including Universal Credit, Working Tax Credit.

As above, migrant workers are barred from accessing these benefits, creating an additional level of in-work poverty among migrant communities and a real risk of destitution. The Children’s Society has investigated how NRPF impacts on migrant families and found thousands face deep, long-term poverty because of it. JCWI’s research has also highlighted how having NRPF has heightened risks faced by migrants throughout the pandemic, making them feel less able to complain about a lack of PPE in the workplace for fear of losing their job, or feel confident that they would have space to adequately self-isolate in their homes.

Insufficient Statutory Sick Pay

Migrant workers who have NRPF are still entitled to claim Statutory Sick Pay, but this is insufficient to allow them to bridge the gap, especially for those who are already struggling and have no cushion at all to rely on. Statutory Sick Pay in the UK is only paid from the fourth day of illness and is set at under £100 per week. On top of this, up to two million workers do not even earn enough to qualify to receive SSP, leaving them completely without support if they are unwell. This is also the case for undocumented workers. The TUC has called for sick pay to be increased to the equivalent of full pay on a real living wage.

Migrant workers put at risk during the pandemic

The restrictions described above have meant that, during the pandemic, many migrant workers have been forced to choose between protecting themselves and their colleagues from infection during the pandemic, and being able to feed their families. This has inevitably led to COVID outbreaks.

One such outbreak at a Bakkavor salad factory in December 2020 resulted in the avoidable deaths of two migrant workers. The outbreak continued until GMB successfully challenged the company’s failure to provide adequate sick pay. Once adequate sick pay was provided, workers were able to isolate when needed, to prevent the spread of infection.

Similar issues were blamed for a COVID-19 outbreak at garment factories in Leicester in August 2020. Workers at these factories, predominantly migrants with limited knowledge of their rights and in many cases No Recourse to Public Funds, were subjected to extremely poor conditions with no protections against the spread of infection. The factories in Leicester’s garment district, it was revealed, had not been subject to adequate inspections or enforcement action for labour abuses for many years. In an investigation into the disaster, researchers at Labour Behind the Label recommended that the government immediately suspend NRPF conditions and introduce a firewall between labour inspections and immigration enforcement.

Recommendations:

• Scrap No Recourse to Public Funds – support NC12 of the Nationality and Borders Bill
• Raise the rate of Statutory Sick Pay

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Lack of routes to regularisation

Increasing numbers of migrants with insecure status for long periods

Since 2012, the proportion of migrants on a ten-year route to permanent settlement has increased significantly. This means living with insecure migration status that must be repeatedly renewed over a long period.

This has had the most severe impact on people in the UK because of their family or private life connections. The proportion of migrant families able to access permanent status in the UK after 5 years’ residence has fallen drastically over recent years. In 2012, 76% of migrant families granted an initial visa had achieved stable status after 5 years’ residence. By 2020, that figure had dropped to just 32%.

Migrants on this long path to settlement must usually renew their status every 2.5 years, each time paying around £2,500 per person to apply. Migrants, especially those with No Recourse to Public Funds, may struggle to save this amount every 30 months.

JCWI’s research has found that this long route to settlement, with extortionate visa fees along the way, causes migrants to fall out of status and become undocumented.

Restrictive, short-term visas

In other cases, migrant workers come to the UK on short-term non-extendable visas. Regardless of how their circumstances may change, their visa conditions mean they must leave when their visa runs out. Overseas domestic workers and seasonal agricultural workers are two of these visa types. Workers on these visa routes are subject to similar restrictions: six months’ leave on a non-extendable basis, limited to working in one specific industry. Workers on these visas are in theory entitled to change employer in cases of exploitation or dissatisfaction. In practice, given that workers on farms or in domestic settings are often isolated, accommodated by their employers, and unaware of their rights, changing employer is challenging. This leaves workers trapped, with concerning potential for exploitation.

High rates of exploitation on short-term seasonal and domestic worker visas

In a detailed investigation of conditions on the seasonal agricultural workers scheme in March 2021, Focus on Labour Exploitation found multiple indicators of forced labour and modern slavery. The Voice in October 2021 spoke to migrant workers from Barbados who had been subjected to modern slavery on farms in Scotland and Norwich.

The visa these workers were on, the Seasonal Worker visa, was initially introduced in 2019 as a pilot. This ‘pilot’ has since been extended several more times. However, no evaluation of the pilot has to date been published, nor is there any indication of a time-frame for its publication.

With regard to the domestic worker visas, the Voice of Domestic Workers and Kalayaan have similarly found high rates of exploitation and abuses. The research found that such abuses have increased since visa conditions were changed in 2012, making the visa shorter-term and non-extendable. This is a strong indication that exploitation suffered by domestic workers is directly linked to the restrictive visa terms.

Workers on these inflexible visas are also at risk of exploitation after their visa term ends. Many risk falling under the control of their employer and being subject to trafficking if they remain in the UK for more than six months. After this point it becomes a criminal offence for them to work – this exacerbates their employer’s control over them.

No route back to status for undocumented migrants

Routes back into status for migrants who become undocumented are extremely limited. Most adults must demonstrate 20 years’ residence in the UK in order to regularise their status. Undocumented migrants are not entitled to Legal Aid to complete this complex application, meaning applying is financially impossible due to the costs of instructing a lawyer. Even where an undocumented migrant does manage to regularise their status again, they will only obtain temporary status, for 2.5 years. This status must be renewed again for a further ten years before they can finally apply for permanent residence.

Work as a pathway to regularisation in other countries

While the UK criminalises work and makes regularisation a complex process, other countries take a far more flexible approach. In Spain, Portugal and France, employment is a key pathway to regular status, and is seen as evidence of integration. In all of these countries, a migrant who can demonstrate employment can apply for a residence permit on that basis, enabling them also to demand a formal contract of employment and better labour rights enforcement.

There is no evidence that these policies have acted as a “pull factor” for people arriving irregularly to work. It has instead served as a pragmatic way to bring people who have fallen out of the system back into regulated employment, subject to minimum employment standards and taxation.

Instead of taking this pragmatic approach, the UK has instead pursued punitive policies, based on no evidence.

Recommendations:

• Scrap short-term visas that restrict residence to six months with no possibility of extension
• Introduce pathways to regularisation based on employment
• Shorten the standard route to regularisation to five years

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Conclusion

The existing immigration system traps migrant workers in a cycle of precarity, poverty and exploitation. Migrant workers are particularly vulnerable within a wider landscape of low-paid work in which all workers, regardless of where they are from, lack adequate protection and labour rights enforcement.

The pandemic has highlighted the risks inherent in a system that bars huge numbers of workers from accessing the public safety net in times of difficulty. The Government must engage in serious, common-sense reform to increase safeguards for workers and strengthen enforcement of labour protections for all workers. Alongside this, Government should ensure that no-one is criminalised for working to survive, and that everyone has access to adequate support when needed.

Parliamentarians can achieve this by supporting NC12 and NC13 of the Nationality and Borders Bill.