TUC Response Home Office Consultation on Section 8 Of The Asylum And Immigration Act 1996

Issue date
23 Oct 2003

Proposed Changes To

Document List under Section 8 Of The Asylum And Immigration Act 1996

Introduction

The Trades Union Congress supports the Government in its efforts to reduce illegal working. Our primary concern in this area is to reduce the abuses perpetrated against the most vulnerable workers - and we also want to ensure that unscrupulous employers do not gain a competitive advantage at the expense of those who treat their workers fairly.

The TUC is also concerned to ensure that measures taken to tackle illegal working do not increase the pressure on ethnic or national minorities who are already disadvantaged in the labour market.

We understand that the current focus on Section 8 is part of a wider programme to deal with illegality, but we are not convinced that all aspects of the problem are receiving adequate attention. In the view of the TUC, any attempt to deal with the abuses of unauthorised workers should include both measures to minimise the potential economic advantage to unscrupulous employers of using undocumented workers and routes out of illegal working. Areas worth examining include:

  • Means for individuals to report suspected abuses of the income tax and National Insurance systems by employers who avoid payment. These would need to give those individuals some protection against victimisation.
  • Workers who have their documentation seized or withheld by employers having some effective means of redress.
  • The possibility for a wider group of workers to change their status while in country needs to be examined.
  • Establishing means by which all migrants (including those working without authorisation) can be protected from forced labour.
  • Granting protected, 'whistleblower' status to victims reporting abuses, perhaps when contributing to successful prosecutions.

We acknowledge that the current consultation document concentrates on changes to Section 8 and the practical issues raised for employers by the new proposals. It is primarily for employers and their organisations to respond to the specific questions, but we offer the following brief comments on some.

1. What impact will the proposed new documentation requirements have on recruitment practices?

When Section 8 was first introduced, the TUC was sceptical about its potential for reducing abuses by employers who knowingly and determinedly employed illegal workers. Since the introduction, as the consultation document recognises, there has been a low level of successful prosecutions, over a period when the incidence of both illegal working and the abuse of undocumented workers appears to have increased. This suggests to us that the new documentation requirements in themselves, unaccompanied by better enforcement, will have a limited impact on recruitment practices. Good employers who are already complying will go on doing so, while those who flout the existing requirements are unlikely to change their practice just because the range of documents to check has changed.

The TUC is concerned however that the new requirements could increase the scope for employers to discriminate unlawfully at point of recruitment against workers who appeared to be 'foreign'. Increasing the documentation requirements could encourage some employers to make assumptions based on a job applicant’s appearance or name - so that they avoid employing certain individuals or make more stringent checks on some prospective employees. So it is essential that information to employers about changes in immigration legislation reminds them of their legal obligations under the Race Relations Act.

3. Will everyone who is legally entitled to work in the UK be able demonstrate this to employers via the proposed document or combination of documents specified?

Persons entitled to work in the UK should be able to demonstrate their entitlement from the range of documentation. However, it should be recognised that being asked to present a birth certificate in addition to, say, a P45 or NI card, will cause resentment amongst some workers, who may not easily be able to find one. This raises again the question as to whether an employer will insist on this for all workers, or merely those who seem to present the greatest risk to full compliance - again, employers need to understand their duty not to discriminate.

There is some anecdotal evidence that some of those entitled to work find it difficult to obtain work in higher quality jobs when employers may be uncertain as to their continuing prospects for remaining entitled to work. It may be that an increased focus on combinations of document might intensify that uncertainty, particularly where documents might suggest limits to entitlement to remain and work. This suggests that employers will need clear and readily accessible information about any changes.

4. Will these proposed new requirements provide a greater degree of security in terms of demonstrating an individual’s entitlement to work in the UK?

An employer deceived by forged documents has in fact fulfilled their obligations under existing law to demand and copy documents. It is probably not possible to stop document fraud altogether, even if the more easily faked documents are phased out.

Increasing the number of documents an employer may have to ask for will only reduce the problem of identity fraud if employers become more expert in identifying false documents. It is open to question whether all employers will judge this a good use of their time and resources. Some may prefer to avoid employing those who seem likely to pose a problem - that is those who look our sound foreign. On the other hand, if an automatic defence is available to those who can demonstrate that they have copies of the listed documents (even if they subsequently turn out to be false), it is hard to see how the likelihood of successful prosecution is increased by demanding them.

6. If the enhanced legislation was to be introduced on a sector-specific basis (or voluntary codes of practice adopted), to which sectors should it apply?

The data on the extent of illegal working in Britain in general is very poor. It is far from clear that we know about all of the sectors where illegal working is a particular problem. We do not know, for example, how widespread the problem might be in banking or IT, where intra-company transfers and business visits are frequent, but might be used to provide workers who should be covered by work permits subject to a labour market test.

There is also a problem of clearly defining and limiting sectors, which could introduce a further complication into any enforcement measures.

Taking these points into account, it is hard to see how attempting to limit the new requirements to particular sectors could improve compliance. It is more likely to introduce confusion as to who might be covered, and to exclude sectors where there are, as yet, undetected abuses.