The Institute of Employment Rights’ (IER)’s recent publication Labour Migration and Employment Rights examines present immigration and employment law and policy affecting migrant labour and concludes they are failing to protect the most vulnerable workers in the UK.
The report asserts an employment rights approach to the examination of immigration law and policy on the admission and treatment of migrants and re-examines the effectiveness of employment law in protecting and enforcing the rights of migrant labour.
It begins with a historical overview of how the relationship between immigration and employment has been expressed at different points in time. It assesses the impact of successive governments’ legislative controls over not only the rate of admission of migrants but also the conditions governing their integration into domestic labour markets. New Labour’s policy of ‘managed migration’ is set in the context of yet another attempt to achieve comprehensive control and discipline over the labour market – this time by relying on new technologies of control and surveillance, including ID cards and making third parties, such as employers, increasingly responsible for immigration control.
Present and proposed immigration law and the policy laid out in the ‘five year strategy’ for asylum and immigration policy published in February 2005 is comprehensively reviewed. The government’s rhetoric about ‘managed migration’ having potential benefits for the country is exposed as perpetuating both ‘restrictionist’ (‘numbers game’) and ‘instrumentalist’ (skill-shortage focused) policies towards migrant labour, as low-skilled worker schemes are curtailed and further ‘quota’ systems are mooted. It also exposes the effects of government policy in further demonising migrants and fuelling racist perceptions of migrants as ‘taking British jobs’ or undercutting ‘native’ workers’ wages.
There is a useful overview of who is entitled to work in the U.K. and the immigration conditions placed on migrants, including prohibitions on access to the wider labour market. The report also examines the experience of both authorised and unauthorised migrant workers, particularly in the context of increasing immigration control in the workplace, and describes a profound and pervasive culture of discrimination by ‘risk averse’ employers and blatant harassment and rights abuses, with incidents of employers threatening to call in the Immigration Service to avoid paying wages or to prevent workers from organising.
The argument that stricter immigration controls in the workplace and strengthening penalties for employers of unauthorised workers, including gangmasters, will compound this exploitation and drive vulnerable unauthorised workers further underground is convincingly logical. So too the reasoned analysis that if law and policy were to be aimed at effecting and enforcing the employment rights of workers irrespective of immigration status, the conditions for all workers, migrant and domestic, would be better ensured.
Existing employment and race discrimination law, the report argues, frustrate the enforcement of employment rights by migrant workers. The doctrine of illegality of contract bars any unauthorised worker from enforcing any employment or discrimination rights and the entrenched distinction between ‘workers’ and ’employees’ in employment law has created a powerless class of agency and temporary workers who cannot claim for unfair dismissal and are therefore subjected to insecurity, low pay and unsociable hours. Discrimination law is also exposed as failing migrants. For employers, on the front line of immigration control, are deemed not to have unlawfully discriminated on the basis of ‘immigration status’ though they are increasingly unwilling to recruit migrants because of ever-tightening restrictions on their length of stay in the UK.
Finally, the report documents the principal international instruments, which relate to the position of migrant workers and embody a rights based approach to labour migration. It recommends a formal review of UK policy to ensure further ratification, compliance and the adoption of a rights based approach to ensure that principles such as the right to work, the recognition of the right to change employer and the rights of family reunion are recognised as basic rights for all workers in the UK.
Here is a succinct and convincing case (with focused and reasoned recommendations) for the robust reform of immigration law and policy on labour migration and also of employment law. Present law and policy proposals entrench the exploitation and abuse of the rights of migrant workers. On the other hand effective enforcement of migrants rights would inevitably lead to a respect of rights for all workers.