Making a rights-based migration system work

TUC response to the Home Office consultation document 'Selective admission: Making migration work for Britain'

1.1 Summary

1.1 The TUC believes that a managed migration system, as well as meeting economic and labour market needs, should ensure equal rights for people at work whether they are indigenous or migrant workers. We therefore argue in this submission for a right-based approach that separates the right of residence and the right to work from a specific employment contract. We believe that migrant workers make a major contribution to the economic and cultural life of Great Britain, but that those contributions are not the only valid reason for migration. We understand the need for an objective system such as a points system for determining whether people are allowed to enter Britain to work, in the interests both of the migrant workers and the host community, and we believe that unions and employers have roles to play in policy formulation which need to be formally recognised. Britain needs to meet its international obligations to migrant workers, and its moral obligations to people vulnerable to exploitation and developing countries whose need for skilled labour is greater even than Britain's.

2.1 Introduction

2.1 The Trades Union Congress (TUC) represents people at work in Great Britain. This response has been drawn up in consultation with our 67 affiliated unions who between them have 6.4 million members. The TUC affiliates range greatly in size and cover a wide variety of industries and occupations.

2.2 The TUC is affiliated to the European Trade Union Confederation (ETUC) and the International Confederation of Free Trade Union (ICFTU), and the Trade Union Advisory Committee of the OECD. These international organisations have been giving considerable attention of late to the issue of migration, with the ETUC in particular having responded to the European Commission's Green Paper on managed migration in 2005. The ICFTU was also involved in the UN Global Commission on International Migration which has just published 'Migration in an interconnected world: new directions for action'.

2.3 The TUC has had a long history of opposition to racism and xenophobia, and has consistently highlighted and campaigned against discrimination against black and minority ethnic workers in the British labour market. The TUC was consulted in the review of Work Permit arrangements, made a submission to the House of Lords enquiry on Mobility within European Labour Markets, and is currently engaged in joint projects with sister confederations the CGT-Portugal and NSZZ-Solidarnosc in Poland aimed at assisting and recruiting Portuguese and Polish migrant workers in Britain. We recently agreed a statement on the benefits of migration with the CBI and the Government, 'Managed migration: working for Britain' [1] .

2.4 The TUC welcomes the opportunity to contribute to a discussion on the proposals to reform the current work schemes that lack objectivity and in some instances have resulted in the exploitation of migrant workers. We also welcome the intent to construct a single interface and application process, which should make it easier for applicants to have confidence in the rules of entry for work.

2.5 The TUC is concerned about the position of some migrant workers in the UK labour market and the problems that the current system cause for both workers and employers. The acknowledgement that migrants make a positive economic and cultural contribution to Britain is welcome, and contrasts with the frequently xenophobic coverage of some sectors of the media.

2.6 We believe that the main problems currently facing many, though not all, migrant workers are the exploitation which they face at the hands of unscrupulous employers, and their vulnerability to effectively criminal behaviour due to uncertainty about their rights to work in the UK. We also believe that a rights-based approach to migration would mean that illegal activity such as trafficking and forced labour, and other forms of exploitation, would be tackled by treating the affected migrant workers as victims rather than perpetrators. These issues could be addressed by a points-based system as the Government is proposing, but we believe that the current proposals need to be amended in the direction of a rights-based approach before they can receive wholehearted support.

3.1 General comments

3.1 Whilst the consultation document acknowledges the imbalances in the UK labour market that result in labour shortages in specific sectors and regions, the proposals for dealing with both the imbalances and shortages seem to be focussed on restricting access to the labour market and increasing the provisions for enforcement. The problems of supply of skilled and unskilled labour in the UK labour market cannot, of course, be solved solely by labour migration, as the Government recognises. A whole raft of measures including training, family friendly policies designed to increase women's participation, measures to prevent early exit from the labour market due to injury, illness or age and so on are needed - and these apply just as much to migrant workers as to the domestic population.

3.2 The TUC believes that some elements of the scheme may be an adequate response to the short-term economic needs of employers, but are not appropriate in the long-term to the interests of the British economy. In some cases, for instance, the labour shortages which exist are due to the low levels of pay and conditions on offer. In areas such as harvesting, packing, cleaning or catering the problems of labour shortage may be brought about by the reluctance of some enterprises to pay an economically realistic price for services. Where these to be improved or policies such as Fair Wages Resolutions introduced, it is possible that more domestic and EU workers would take the jobs concerned, without the need for labour migration from outside the EU.

3.3 The TUC does not believe that the objectives of a managed migration system should be focused exclusively on the economic benefit to the UK. Any managed migration system should take account of the social and welfare needs of economic migrants, and the rights that those individuals should expect, given their contribution to the economy. The TUC supports the ratification of the UN Convention on the Rights of Migrant Workers and their families and UK ratification of ILO Convention 143. The rights of refugees and asylum seekers, and the rights of families to be reunited also need to be taken into account.

3.4 In addition, the TUC believes that migrant workers need to be assisted to understand the system they face, both before they enter the country and afterwards, better - in this context the Home Office's agreement to distribute the TUC's Know Your Rights leaflet to migrants from the A8 countries since 1 May 2004 is welcome and should be extended to other categories of migrant workers, and the use by certain British embassies of TUC translated leaflets should be expanded.

3.5 We also believe that a managed migration system needs to take account of the needs of the countries from which workers migrate. The TUC accepts that there is a need to support the efforts of developing countries to promote economic growth and social development. Globalisation in its current form has brought poverty and instability to millions in developing countries, driving them to seek a living in the industrialised countries, which are the main beneficiaries of the process. Emphasis needs to be given in these countries (and in UK relationships with developing countries) to the promotion of human (including workers') rights, which are central to building democracy and poverty, eliminating the prevention of exploitation, and respect for a right to family life.

3.6 The TUC is concerned at the effect on developing countries of the UK cherry-picking skilled workers, especially in education and health, on whom those countries depend. Unions have worked to ensure that this brain-drain is reduced and the Government itself, through aid policies designed to increase the number of education and health workers trained in these countries, has taken steps to ameliorate the impact. While this is recognised in the consultation document we believe that the emphasis on high skilled permanent migration and low skill temporary migration assumes that the UK will continue to fill large numbers of higher skilled vacancies from overseas, whilst at the same time discriminating against the lower skilled migrant workers seeking to enter the UK labour market.

3.7 The strategy outlined in the consultation document seems to be aimed at improving public confidence in the immigration system by strengthening the controls on immigration. The TUC believes that an alternative approach is needed, based on a twin-track approach of on the one hand delivering the same rights at work to migrant workers as to the domestic population (and thereby reducing the scope for undercutting existing terms and conditions) and on the other, as the consultation document rightly does, acknowledging that migrants make a positive economic and cultural contribution to Britain.

3.8 The TUC believes that the ability of migrant workers to enforce basic employment rights will have a significant effect on reducing the level of illegal working. Currently, only those employed on a legal contract can only enforce employment rights. The Government needs to separate workers resident status from the question of the their employment rights to enable those suffering exploitation as a result of finding themselves undocumented to pursue claims through the employment tribunals. We believe that this would discourage the belief of unscrupulous employers that they can gain short-term economic advantage by exploiting undocumented migrants.

4.1 Proposals for a new five-tier system

Tiers 1 and 2

4.1 The proposals to establish a system where in tiers one and two, highly skilled individuals and skilled individuals with a job offer where there is a labour market shortage can enter with a route to settlement are in stark contrast to the proposals for tier 3 for less skilled workers. There is a basic unfairness in Tier 1's acceptance that being rich should be a qualification for residence, although this is commonplace in immigration systems and it is unlikely that opposition to such a condition would be successful.

4.2 Tier 2, which requires a job offer, also maintains the link with an existing employer which causes so many problems for migrant workers at the moment. The TUC understands the desire to make provision for migration to address skill shortages, but we would prefer that the link with a specific job be broken, either by simply allowing people in areas of skill shortage to join the labour market without qualification, or by retaining the requirement to have a job offer on entry but allowing such workers rights to remain even if that job is lost through no fault of their own or if they move jobs.

4.3 The proposal to construct the points system using attributes such as age, English language skills, previous salary, and skills/qualifications are potentially discriminatory on grounds of race, gender and age, and the Government needs to be sensitive to that problem. These factors will almost certainly favour young male applicants from established (mostly majority white) industrialised countries where salaries are easily comparable and educational qualifications more readily accepted.

4.4 In some sectors, particularly high tech areas such as IT and telecoms, the existing arrangements are used to facilitate offshore outsourcing of resident jobs, often through the Intra Company Transfer provision. Typically the non-resident worker comes to the UK for a number of months to gain knowledge from or be trained by the resident worker, and then takes this knowledge back to their home country. The existing arrangements were not designed to be used in this way, and we are concerned that the consultation document does not address this area in any detail. We believe that further consultation should be undertaken in the relevant sectors to determine the best way forward in this area, particularly given the need to demonstrate that arrangements which are designed to manage migration of workers to the UK are not instead being used to make it easier to export jobs from the UK.

Residential labour market test

4.5 The TUC is not convinced that there is a need to set a residential labour market test for jobs where employers face shortages that are not identified by the proposed Skills Advisory Board. Even if labour shortage areas were identified and workers were admitted on tiers 1 and 2 it seems unlikely that workers can be kept to a nominated job or sector once admitted, and it is hard to see why such a restriction of their freedom would be desirable. Its most likely consequence would be that some workers would continue to move into sectors in which they were left without legal protection.

4.6 We are not convinced that the existing residential labour market test is applied consistently or adequately and hence would welcome a clearer process in this area, and in particular one which can be easily understood by resident workers themselves. In this context, we would welcome a single well understood mechanism (in addition to local advertising, etc) for notifying the resident workforce of the existence of hard to fill vacancies. The Government's own Jobcentre Plus web portal seems to be well placed to fulfil this role. A requirement to demonstrate that a vacancy could not be filled via Jobcentre Plus would greatly increase the resident labour force's confidence in the integrity of the system, whilst placing only a minimal extra overhead on employers. This requirement would also increase transparency in the area of terms and conditions, in particular by making it easier to identify cases where vacancies are not being filled because, for example, the employer is offering less than the rate for the job.

Skills Advisory Body

4.7 There is no direct replacement for the Sector Advisory Panels under the proposed system. Unions have played an active and important role in the Sector Advisory Panels and, whilst our experience has been mixed, the more successful panels have allowed the various stakeholders to have an effective route into ongoing policy development, provide the Home Office with expert advice on developments in the sector and assist in operational issues such as definition of caseworker guidance. The TUC is concerned that the proposed Skills Advisory Body will operate at such a high level that it will be unable to fulfil these roles. Also, the current proposal appears to be that stakeholders feed issues into their relevant Sector Skills Council. This is, in our view, by no means satisfactory, particularly due to the implication that stakeholders' input to the process will be diluted but also because the need for stakeholder input goes well beyond pure skills requirements issues. We regard the proposed removal of the ability of expert stakeholders to provide input on the broad range of issues affecting the migration system, at the sector-specific level, as a retrograde step and hence would welcome the continuation of the Sector Advisory Panels.

4.8 We agree with the proposal for a Skills Advisory Body if it is based on the existing Sector Skills Councils and if new and specific arrangements are put in place within the SAB to provide for input from and consultation with stakeholders specifically including relevant trade unions at an operational as well as executive board level.

4.9 Such arrangements should be capable in appropriate circumstances of being rapidly and effectively applied to particular situations (eg work permit applictions for a specific project) rather than relying on broad-brush labour market information. There should be strong, direct and continuing links between the decision-making process in British Embassies abroad and all relevant bodies in the UK (including relevant Home Office agencies, the SAB, and stakeholders) with the ability to have direct case-by-case input where appropriate on problematic decisions. We are concerned that by shifting the focus of decision making to embassies abroad, access to UK-based information and input may be lost.

Higher fees/Auctions

4.10 The TUC believes that there may be merit in charging employers for applying for permits for non-shortage applications. A sliding scale depending on the imminence of commencement of the contract could be used to deter and penalise late applications. In some sectors late applications appear to be made deliberately late in order to enhance the probability of their approval.

4.11 Non-profit making enterprises (particularly those in the public sector) should be exempted, since this would be a pointless re-circulation of funds that are already in short supply. It may be useful to consider the use of such charges for improving training in the UK.

4.12 The TUC does not believe that a system for auctioning work permits is an objective way of establishing labour market need and believes that it is likely to result in increased pressure downward pressure on the wages and working conditions of migrant workers who were employed as a result of this process to pay for the inflated costs of work permits that would result.

Tier 3

4.13 The TUC believes that the employment of low skilled low paid migrant workers is related to short term economic benefit for employers. At present the ability of some employers to get away with paying less than the minimum wage has led to the gross exploitation of some migrant workers. As long as some migrant workers remain desperate and vulnerable, this and other injurstices will continue. Enforceable rights for migrant workers would reduce these workers' vulnerability more effectively than any enforcement measures directed against them.

4.14 The TUC has concerns over any managed migration scheme that restricts workers to a particular employer or sector as it may leave them more vulnerable than indigenous workers who have no such restriction. Our experience shows that unscrupulous employers attempt to prevent their workers from leaving by a variety of means. This can mean identity document retention, tying accommodation in with employment, and keeping workers ignorant of their rights and of English language skills.

4.15 There is no evidence that the current schemes for seasonal agricultural workers and Sector Based Schemes meet stated needs of the industries. The current working practices of the industries, which often deter recruitment and retention, are not addressed. The current proposal like the current programmes will, by its core focus on short-term admission of workers without dependants, deter integration and contribute to a two-tier workforce.

4.16 The condition that tier 3 workers should have no dependants is offensive - this is a 'guest-workers' scheme - and contradicts concepts of family reunification.

4.17 The proposal in tier 3 suggesting accredited operators to recruit migrant workers runs the danger of institutionalising practices that currently lead to the exploitation of migrant workers. The TUC has had to deal with many instances where workers have been subject to extortionate charges for the costs of travel and accommodation, had their documents removed from them, thereby making them wholly dependant on employers, and been forced to accept contracts that require long working hours and low wages. The checks that have been instituted to ensure that agencies are bona fide, for example in the health service, have been inadequate and failed to stop migrant workers being exploited.

4.18 The TUC believes that the Home Office should carry out administration arrangements so that the control over medical checks and character checks remains in the UK and with the Government. Outsourcing these arrangements to operators would place them outside the control of the scheme and make it difficult to check that such checks were being carried out in a proper and fair manner. We do not see that a scheme for compulsory remittances could fit with current UK employment legislation as what is being proposed could be seen as an illegal deduction of wages. Nor do we believe that it would be practicable to pay remittances into a bank account overseas (presuming that the migrant worker has one) in such a way as only to allow access to that money in the migrant's home country.

Tier 4

4.19 The TUC is concerned about the suggestion that educational institutions should be required to help maintain the integrity of the immigration control in order to be able to issue certificates of sponsorship. It is feared that this proposal will encourage a climate of suspicion among admission education authorities that could lead to discrimination against those pupils from black and minority ethnic groups.

4.20 We do not believe that a student's ability to enter or remain in the UK should be linked to a specific course at a specific institution. We believe that students should be able to apply for tier 1 and 2 status, if they secure jobs at the end of their period of study.

4.21 The proposal should take into account that although there are tests to establish whether overseas students are able to finance their courses, many overseas students have to work to support themselves during their period of study.

Tier 5

4.22 The TUC supports the proposal to allow entry for Youth mobility/Cultural exchange, visiting workers and Selected Development Schemes. We believe that there should be provision to allow workers from tier 5 to switch to tiers 1 and 2 without having to return to their countries of origin.

Bonds

4.23 The TUC is opposed to the proposal to introduce financial bonds for high-risk countries or visa categories. The introduction of state sponsored bonded labour will only increase the potential for vulnerable migrant workers to be exploited by unscrupulous employers. Defining countries as high risk in terms of the number of breaches of the rules or non-returns will in effect penalise an individual for the actions of others and increase the considerable costs already faced by migrants when seeking to work overseas. Using visa categories will apply almost exclusively to workers from Africa, Asian, the Far East and other areas from outside of western industrialised countries where the requirement for visas do not apply.

4.24 The proposal for the level of bonds to be set at a level that could not be written off in exchange for entry to the UK would result in setting bonds at a level where it would be prohibitive for migrant workers to come to the UK. The suggestion that bond applicants also pay an administration charge would add to the financial burden already faced by migrant workers. The TUC has had contact with migrant workers who under the present arrangements borrowed money from agencies or spent their life savings in order to facilitate their ability to work in the UK. Migrant workers have been forced to turn to undocumented working when they have not been able to generate sufficient earnings to cover their financial outlay. The suggested conditions described in the proposal for the repayment of the bond are onerous and subjective.

5.1 Other responses

5.1 One question asked in the consultation document is whether the existing system is too complex. As this response makes clear, our main concern is that the system is not objective enough, but we do not regard it as necessarily too complex. However, it is not joined up enough - there is in some cases a lack of clarity as to where responsibility lies as between WPUK, UK Visas, UK embassies abroad and so on.

5.2 A number of unions have submitted sector-specific comments to the consultation, such as in broadcasting and entertainment (BECTU), and merchant seafarers (RMT). The TUC believes that these should be taken into account, but we do not reproduce them here. The TUC also supports the submission to the Home Office of the Institute of Employment Rights.

5.3 The TUC understands that there is a limit to what one consultation document can cover - however, we would wish to see further work by the government in terms of:

measures to allow for the enforceability of the employment rights of migrant workers;

better measures to aid integration into the UK for migrant workers; and

the monitoring and regularisation of agencies that deal with migrant workers.

6.1 Countering illegal working

6.1 It is well known by the Government that illegal workers are vulnerable to extreme forms of exploitation, the avoidance of tax and National Insurance and undercutting of more scrupulous employers. However, while acknowledging that illegal workers are often victims, the emphasis in these proposals continues to be on enforcement against illegal workers. The provision of comprehensive information, guidance and support to individual coming to live and work in the UK continues to be absent from the Government's strategy.

6.2 The measures proposed in the consultation are unlikely to deter employers of illegal workers, but may well cause friction in workplaces between employers and workers as it is likely to mark out all migrant workers as different and in some way less legitimate. The potential damage to equal opportunities and race relations is of considerable concern as black and minority ethnic workers are likely to be the targets for document checks. The emphasis on document checks does not recognise the problems faced by migrant workers when agencies and employers hold onto documents and in some cases workers who believe that they have been employed on a legal basis find that employers or agencies have not secured the necessary documentation.

6.3 It is the view of the TUC that it makes little sense only to consider a few restricted legal routes into the labour market, when it is acknowledged that there is widespread illegal working in some sectors of the economy. We suggest that there should be further consultations involving government, unions, employers, advice services and representatives of migrant communities to consider the issue of regularising the status of at least some of these groups of workers. The TUC was a strong supporter of the recent EU enlargement, which effectively regularised the position o f thousands of unauthorised workers in the UK at the time. In this case, regularisation permitted many workers to leave abusive employer or attempt to enforce rights which they might not have had before 1 May 2004. This in itself is an improvement for all workers as it means that the potential for unscrupulous employers to drive down pay and conditions of employment is reduced.

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[1] http://www.tuc.org.uk/international/tuc-10485-f0.cfm