21. Memorandum submitted by
the North London Chinese Association
As Chairman of the North London Chinese Association
(covering Brent, Barnet and Harrow), Coordinator of the Immigration,
Asylum and Nationality Bill 2005 Campaign and representative of
the Chinese community, I am writing to set out below a brief account
of the main concerns from the specific angle of the Chinese Community
as a whole about the IAN Bill. I hope this will give you a clearer
idea of what issues we would like to discuss with you during our
meeting.
These concerns are gathered from a number of meetings
held around the country by the local community groups of the area.
David Ho and I have been involved in the briefing of the Chinese
communities in London, Manchester, Birmingham, Stirling, Glasgow
and Sheffield.
We have met with local Chinese community leaders
and members explaining the Bill and its aims and effects, in central
London (attended by the main China Town associations and from
those as far a field as Swansea, Devon and Cambridge), in Birmingham
(attended by all main associations in the West Midlands); in Manchester
(including Wirral and Merseyside); in Stirling (including community
members from Glasgow and Edinburgh); in Newcastle (for the North
East communities); Sheffield. David Tang briefed the Chinese community
in Northern Ireland.
OVERVIEW
It is a typical feature of the Chinese Community
that there had been very little political opinion expressed in
the past. It is fair to say that the Chinese traditional culture
is one of obedience and acceptance of the executive in general,
but only until it goes too far.
The numerous changes in Immigration rules in the
past five years have all been mainly concentrated on Asylum seekers
and Illegal persons. The one big impact of the last few changes
has been the sanctions against Employers, (Section 8 duties not
to employ illegal workers). The Chinese communities have largely
accepted that we have duties to assist the government in the control
of illegal persons. However despite our concerns and expressed
opinion to the government via the All Party Chinese in Britain
Forum, that the main business of the Chinese Community has found
it increasingly difficult to run their businesses, we have largely
been ignored. The Chinese Community soldiered on. But the current
Bill goes far and beyond tightening the Law to curb problems in
illegal persons in the UK. It completely changes the way that
people are allowed in the UK and has a dramatic effect on the
Chinese Community in the UK.
HISTORY
The Chinese Community in the UK mainly came because
of its colonial background. The majority came from Hong Kong when
it was a Colony of the Empire and it must be remembered that all
were Citizens of the United Kingdom and Colonies (now no longer
exists) and were ENTITLED to come to the UK. In fact many did.
Most have fought through prejudices and discriminations and established
their lives here and most have prospered through sheer hard work
providing a vital service to the UK communities and positively
contributed to the prosperity and economy of the UK. Most have
done so in the catering trade.
The first and second generations of the Chinese Community
are now retired or retiring and as a result of their success,
most third and forth generation ethnic Chinese populations are
now successful professionals and academic high achievers. Most
have been so well integrated into the British way of life that
they would not contemplate working in the catering trade of their
fathers or grandfathers. This means a new generation of workers
are needed to fill this up and coming void faced by all the Chinese
catering businesses. Continual efforts have been made to train
local people to take up these positions but there has been very
little success. One can see some chains of Noodle Bars have managed
to train local workers but that is achieved only by compromising
the range of menu that is provided in these outlets.
There are believed to be about 400,000 ethnic Chinese
in the UK. The main business of the Chinese Community is the catering
trade. There are about 10,000 takeaway food shops and 5,000 Chinese
restaurant together they make an annual contribution of £1
billion to Her Majesty's Treasury. There is at least one Chinese
food outlet in any village or town in the UK, although we are
very small group in terms of population but the effect is country
wide.
THE PROBLEMS
It is important to understand the root of the problem
in the Chinese catering trade. The problem is that all the skills
of a chef are trained by personal apprenticeship. There is essentially
no catering college or course to become a Chinese Chef. There
are a few short courses on Chinese cooking but mainly a chef can
only learn his skills by working in a well established kitchen
following the Head Chef. The management and supervising skills
and experience are of equal importance to just cooking skills.
This is essentially true for all kinds of cooking and not just
Chinese. The difficulty is finding the chefs and establishments
to provide the training. There are just not enough qualified chefs
in the UK to train chefs locally to meet the demands of the trade.
A fully qualified Head chef will need at least five
years to train. And then there are the various different disciplines
within the Chinese kitchen that needs further training, like banqueting.
The standard ones are Dim Sum, Roasting and Main Wok. Then there
is the Head/executive Chefs who would also be skilled in special
dishes and banqueting menus. In a typical average Chinese restaurant,
it will need at least a Dim Sum chef, a Roasting chef and a Main/Head
Chef to be able to provide the full Chinese Menu. It will further
depend on the level of skills of the Main Chef if it also wants
to provide a banqueting service.
Each chef will also need to have assistants and employers
are finding it difficult to even recruit assistants locally. Assistants
are in fact apprentice who have a little experience and will learn
the skills of the chefs on the job. He is expected to stay for
four to five years to learn the skills. There are virtually no
new blood coming into the trade willing to do this.
We have heard from a client that he has closed down
his Country Hotel restaurant during November last year because
he has no chef to work for him and he is not prepared to employ
illegal staff because of criminal sanction imposed on him. He
wanted to recruit from overseas, but we informed him it takes
three to six months and even if he managed to get a UK work permit,
Entry Clearance from overseas is unlikely to be successful as
ECO refusal rate is high. So if his application is refused, we
would have to appeal against this decision that means it would
take another six months. He has now decided to sell his business.
The suggestion by the Government that Eastern Europeans
of the new European member states can fulfil this role is just
unrealistic. I have heard from a member that he tried to train
four Polish workers in his kitchen but because of the language
barrier and the lack of understanding of the even most basic knowledge
of Chinese food and utensils it was not workable. The Polish workers
do not even know what Chinese food is, what it looks like, how
it should taste. There are a lot of Chinese ingredients that they
could not even have dreamt of let alone trying to use it or to
be able to distinguish one from another; what it should taste
like, whether savoury or sweet. In many cases, there are just
no words to describe the process. Even trying to explain things
proved impossible. It is simply not workable unless someone has
been exposed to Chinese food and cooking and have at least had
sufficient experience in eating Chinese food before they can start
to be trained.
But the shortage in chefs has meant that some assistants
of two to three years experience will be taken on as chefs by
desperate employers and thus creating a vicious circle of not
having enough properly skilled chefs to train others and no assistants
to be trained either. The situation has become so bad that our
members are becoming so guarded about their staff being poached
by other employers that it creates invisible barriers and dividing
the community.
The Chinese catering business is a victim of its
own success. The massive expansion of outlets in a very short
time means that it is just not possible to train enough skilled
chefs in enough numbers. This problem is compounded by the lack
of new blood wanting to join the trade. After all it is a business
that demands real physical hard work and long hours (as can be
seen in all the reality TV shows hosted by Gordon Ramsay), a life
style that not many in the younger generations will choose nowadays.
The Chinese Catering business therefore relies 100%
on imported chefs and assistants.
THE IMPACT
OF THE
FIVE YEAR
PLAN TO
OUR EMPLOYERS
Currently successful businesses employing local residents
can apply for a work permit based on the business actual needs.
This is immensely sensible because successive governments have
always maintained that local businesses will be looked after.
The 5 year plan proposed the 5 tiers system grading
all applicants by points. It is extremely worrying that chefs
without formal qualifications will not have enough points for
the new tier 2 points system. And if chefs are tier 3, then they
would not want to come, see below. Rather then looking after the
local business needs, the Government is concentrating on selecting
immigrants according to wealth and qualifications. In the Chinese
Community, the migrant workers needed tend to be less well educated.
The emphasis should remain with the needs of the UK business and
not the qualifications of the workers.
Chefs that are considered by the government to be
lower skilled, (the new tier 3), will not want to come to the
UK because they cannot come with their wife and children and then
they cannot qualify for settlement ever. If a worker comes to
the UK, it means he will have to give up his job at home and have
to be separated from his family. At the end they will have to
go back to his home country and try to find a job again. There
is no incentive for these workers to come to the UK and that means
our employers will not be able to recruit them.
The government plans will dramatically affect the
Chinese Catering business, and also the whole of the catering
business in general.
THE IMPACT
OF THE
IAN BILL
The right of appeal
The removal of appeal rights, variation, entry clearance
and on-entry means that the government has carte blanche in
its decision who can stay and who can enter without effective
checks and balances. The ILPA has extensive briefing on this and
I do not repeat them except to state that we totally support ILPA's
briefings and amendments. In particular I would add that
Variation appeals
The Chinese Community is very concerned that those
already in the UK and as an example a work permit holder, will
on the refusal of an extension application becomes instantly without
leave and rendered the employer in an impossible situation. The
worker will have a right of appeal against removal exercisable
from abroad. The employer is faced with the immediate difficulties
of being short of staff without notice and the dilemma of whether
to keep the job open for the worker and for how long? There is
no reason why the Government should take this stance against someone
who has been legally in this country.
From real experience, the Home Office would refuse
an application simply if the supporting documents submitted were
not completely satisfactory. A typical scenario would be that
the Bank Statement submitted shows an overdrawn account. Or if
the worker submitted the application one day late due not to his
fault, the reluctance of any Home Office officer willing to use
their discretion (if such power still exists) will mean the application
refused and automatically the worker has to stop working and leave
the country. An in-country right of appeal against a variation
decision is to allow the evaluation of the whole circumstances
including any compassionate circumstances by an independent source
and not to leave the worker and the employer in an impossible
situation immediately.
Entry appeals
As explained before, the Chinese Community relies
heavily on workers from overseas. The overseas workers will need
to apply for entry clearance and actually gain entry. The Entry
Clearance Officer's decision will not be challengeable if there
is no right of appeal. The Government has repeatedly reassured
us that the ECO's training will be improved to give better decisions.
The anecdotal evidence currently suggests that ECO's
decision is not based on objective evidence but subjective views.
A recent example in my office is that a Chinese Chef (who is female)
granted a work permit but was refused an entry clearance because
partly she had long painted fingernails. The ECO withdrew his
decision once we submitted an appeal to the AIT. Another recent
example was supplied to me by a colleague who successfully appealed
in the AIT against an ECO decision because the refusal relied
on the accuracy of a document but that document was never submitted
as part of that application. There are a lot more equally ridiculous
decisions which points to the fact that the ECO simply wants to
refuse applications without looking into the substance of the
case. No amount of training will change this without the changing
of the mindset of the ECOs. Imagine without the threat of an appeal,
the decisions mentioned may go unnoticed, or there will be a lot
more Judicial Review (the only remedy) which costs more and potentially
be counter productive in the governments' wish to cut costs on
the DCA front.
THE EMPLOYER'S
LIABILITY
This difficult situation is reinforced by the Government
in the creation of a civil penalties and much stronger criminal
penalties if the employer knowingly employs someone without the
permission to work.
As mentioned above, a worker working legitimately
might suddenly one day became an "illegal" worker because
his extension application has been refused on a technicality or
even a mistake. The employer may not even know about it immediately
and potentially open to a penalty ticket of £2,000. This
is simply unfair on the worker and the employer.
This also means the employer has to check on his
staff constantly to see if a decision has been made by the Home
Office, or if the status of his worker has changed for whatever
reason. This is strongly protested by the Employers met in our
meetings around the country. They all condemn this in the strongest
terms. What it means is that the employers will carry these extra
duties which essentially are the Immigration Services job.
The employers will first have to equip themselves
with the understanding of the immigration application and processes
(which in itself is complicated); then check on his staff at the
correct and regular intervals and potentially discriminating against
his staff and certainly will not help with employer/employee relationship;
and finally if the worker lost his permission to work the employer
is faced with the dilemma (as sponsor of the worker under the
new 5 tier system) to report the worker to the Immigration Service
if he does not leave the UK; to stop employing him rendering his
business short staffed; and whether to keep the position open
for the worker if he wants to appeal abroad; and to find a replacement
staff and if from abroad, go through the same process and potential
hassle again.
The employers are already subject to Section 8 sanctions
and it was commented by the employers at our meetings that although
the Immigration Services regularly uses Section 8 as a threat
to employers and as an excuse to check on business premises (in
"fishing" expeditions), there has been very few prosecutions
made in relation to the number of checks made and even when workers
are found without current valid permissions to work there. There
are even fewer successful convictions under Section 8.
The employers greatest concerns is that when they
employ the worker, they have permission to work, but this permission
can so easily been terminated or breached (for example a breach
of some other condition) or extension not approved, rendering
the employer committing an offence without even knowing it. This
liability also extends to all partners and directors of the company.
This increase in penalties and liabilities on the
employer will only affect the legitimate and good employers who
are already complying with Section 8. Those crooked exploitive
employers who would willingly employ illegal workers will take
no notice of the new regulations or penalties anyway. We just
do not see what these new law is about apart from reducing the
Immigration Service workload. The employers paid the taxes to
keep the Immigration Service and yet they now have to do the job
of the Immigration Service. It is truly a double whammy.
The effect on the Chinese Community
With the ever decreasing pool of new blood the Chinese
Community can draw on for the next generation of catering worker.
The points system, the loss of right of appeal, the liability
placed on the UK sponsor and ultimately the Governments' much
published slogan of "selective immigration" and "admission
is a privilege and not a right", all goes to give a signal
to the outside world that the UK does not want anyone unless he
is wealthy or highly qualified. The Chinese Community as a whole
believes that this will have the dramatic effects that worker
will not want to come to the UK. Employers will not be able find
the necessary workers. There is no incentive for them to come
when the government is so blatantly unwelcoming.
The Chinese Community has also done a lot of good
work encouraging Chinese Students and Investors to come to the
UK. These two groups are particularly beneficial to the UK's economy.
But the same message will also be projected to students and investors
who want to come to the UK. The 5 tier system will cover students
(tier 4) and investors. They all will have to apply for entry
visa and then apply for extension at some stage in their stay
in the UK. They are also subjected to the lost of any rights of
appeal, either at the entry stage or subsequent extension.
The effects on students are the same as workers.
Students in the middle of their course, if refused an extension
will not be able to complete the course. Students pay typically
£20,000 a year to study and live in the UK, we just do not
think of any reason whatsoever why they are not allowed a right
of appeal? Every single day they stay in the UK is of benefit
to the UK economy. To appeal from abroad and the time it will
take means almost the course will be delayed or abandoned. We
believe the Universities UK group has made forceful submissions
in the Commons and the Lords but we would like to add our voice
to it from the many Chinese students that we have met. We have
over 200 signatures on a petition just from Birmingham and Stirling's
Chinese students alone, objecting to the lost of right of appeals
and the ever increasing Visa fees. We are expecting more from
other student groups.
The effects on investors are even more dramatic.
All investors would have invested or pledged to invest at least
£200,000 to start a business or £1,000,000 invested
in the UK. If for whatever reason their entry or extension applications
are refused, again what is the reason why they are not allowed
to appeal? These are persons who are willing to invest or have
already invested substantial sums of money in the UK. An investor
will think long and hard before applying when he knows that once
invested in the UK, there is a potential for his extension to
be refused and he will have to leave the UK immediately without
remedy. ILPA's figures obtained from the Home Office is that less
than 500 investment applications are made in a year. It is difficult
enough to encourage investors to make application to come to the
UK from personal experience without this message being sent out
by the government. We should positively encourage foreign investments
but the message given out by this Bill and the proposed 5 year
plan is totally negative and we feel it is an affront to the FCO's
work in encouraging investment in the UK. It is totally contradictory
and not joined up government.
BRIEFING
I have prepared a briefing to the House of Lords
and House of Commons in which the following are the main areas
of concern which we would like addressed.
Tier 2 Points System
We require confirmation on what requirements are
needed from Restaurant Managers and Chef to be able to fall within
Tier 2.
Having read the Command Paper I am a little concerned
in relation to how chefs will be able to obtain points according
to the Chart. I would be grateful if you could confirm whether
or not chefs will be categorised as a shortage occupation (50
points) as I am worried about the lack of points which may be
obtained by an applicant from another column in the chart.
I have noticed that Chefs with three years experience
have been allocated 5 points only. Since it is rare for chefs
to have any other qualifications mentioned in the chart, this
will be the likely maximum number of points they will be able
to obtain in this column.
The next column is Prospective Earnings. As mentioned
previously at our meetings, chefs who come over more often than
not have their accommodation and food provided for by their employers
which usually means that their salaries are relatively low. Therefore
they are likely to fall under £15-£18k column, which
allows them to obtain a mere 5 points only.
With only 10 points, applicants will be expected
to get another 40 points in order to pass obtain the 50 point
pass mark. Therefore as you can see, it will be a major problem
if chefs are not categorised as a "shortage occupation".
We have argued that chefs are a shortage occupation for the past
few months and would like some confirmation on this to address
our concerns. Can you please enlighten me on this issue?
Failing this, can you please inform me as to whether
or not more points can be allocated for chefs with 3 years experience
or in terms of salary, whether or not yearly accommodation, food
and travel costs can be included in the salary figure?
Having written to Lady Anelay in relation to this
point she has emailed me with a response expressing that she too
is a little concerned for all the reasons I have stated above.
Therefore we would like confirmation that Chefs are
classified as jobs which have a shortage of occupation.
Consultation
Problems with consultation with ethnic minorities
have been apparent since the beginning of the bill. A revised
system is needed which will enable ethnic minorities a chance
to be involved in the law making process on legislation which
they have a legitimate interest.
Change of Rules on Settlement Criteria
A working example of the lack of consultation is
illustrated by yesterday's announcement of the change of rules
to the Settlement Criteria to come into effect on 3 April 2006
1. I believe it is now common grounds that the
Chinese Community was not consulted at all on the five year plan
announced in February 2005. The Government had yesterday announced
the increase of the qualifying period for Settlement for work
related visas to five years, an increase of one year from the
current four years. The rule change also applies retrospectively
to all those already came to the UK on a work related visa.
2. This affects all work permit holders, business
investors, innovators, self-employed persons etc. currently in
the UK. Without any prior consultation, the Chinese Community,
whose constituents are mainly in the UK on work related reasons
are hardest hit by this sudden announcement of change of rules
with three weeks notice. Most of the Chinese workers and
entrepreneurs who have come in on a work related visa would have
expected to qualify for settlement in four years and would have
planned and structured their move to the UK and uprooting their
own homes on this expectation. Only now to be told (one, two,
three years down the line) to have to extend their visas for another
year before qualifying for settlement.
3. This is extremely unfair to those who have
for all intent and purpose made UK their home. Most of them would
have come with their family. They would have planned for a four
year period to settlement which will give them the security and
comfort of settling in this country knowing they will not be asked
to leave. An extension of a year will only prolong the agony of
uncertainty of their future. Those who are already here certainly
did not plan to have to get a visa for five years, and it is unfair
on them to be sprung this surprise by the Government. And what
message does this send to the hard working workers and entrepreneurs
who have already contributed so much? That they are somehow no
good and have to work harder? To say the Government simply wants
to exploit these people is not an exaggeration.
4. The importance to a migrant worker of the
status of Permanent Settlement or Indefinite Leave to Remain cannot
be emphasised enough. It gives a migrant a true feeling of acceptance
and of course real freedom. The status also grants the all important
social status of being "one of us". One cannot get a
mortgage without it and making real integration that much more
difficult. The children of these workers also suffer differential
treatments when applying for University if they are not "settled"
in Immigration Law terms and treated as foreign students. The
migrant populations in the work related category all came to be
integrated in the UK society. This rule change is a serious put
down of all the hard working migrants who have contributed so
much to the UK economy, without whom the UK will not be enjoying
the economic boom of recent years. Our heart sank when we see
that this rule change applies retrospectively to all those workers
and entrepreneurs that the Government has been constantly saying
how much they are valued. It is bad enough for new comers but
at least they have a choice when planning to come to the UK. Those
who are here already have no such choice. Give up everything they
have worked for or plough on waiting for the next rule change?
5. The message sent out by this rule change is
also not good to potential new comers. We are already competing
for inward investment (particularly from the new money in China)
with Mainland Europe, North America and Australia. This extension
of the qualifying period can only be seen as making coming to
the UK (to settle) more difficult and unwelcoming. It is unlikely
that migrants would want to come to the UK for a substantial period
of time uprooting their whole family and lifestyle if they cannot
settle permanently. It will be noted that those who had done so
before have now been told the goal post has been changed. This
is not good for Chinese businesses as amply spelt out to Peers,
Ministers and MPs. This will be seen by potential investors and
workers as an unwelcome sign from the UK Government. We have repeatedly
stated (and by the Late Lord Chan) that the UK Chinese businesses
crucially need new blood from overseas to work and to take over
the thriving Chinese businesses that contributed so much to the
UK economy.
6. The Government's retrospective rule change
does not make sense. We fail to see any benefit from it apart
from making the migrant population work more or deterring more
migrant workers coming. The explanation given about synchronizing
with new EU Directives is a red herring. The EU Directives does
not stop settlement after 4 years. It simply gives a right for
EU nationals to settle after five years. There is no good reason
to impose this rule change and certainly should not be applied
retrospectively.
Dr John May, Vice Chair of the North London Chinese
Association (NLCA) has written a briefing in relation to Monitoring
the ethnicity of respondents to government consultations.
Why is a briefing necessary?
Because the government appears to be quite unconcerned
about excluding ethnic minorities from law making processes in
which they have a legitimate interest.
We want this situation changed to give all Britain's
communities the same chance to exercise their democratic right
to influence upcoming legislation.
This briefing makes three recommendations which
address this issue and will help to improve relationships between
the host community and the ethnic minorities in this country.
Background
Currently government, and in particular the
Home Office, does not collect any information on the ethnicity
of the people who respond to their invitations to comment on Green
or White Papers, or other discussion documents. This means that
government has no idea which ethnic minorities have responded
and, more to the point, which ones have not. Consequently they
have no way of knowing how inclusive their consultation processes
are, they have no information on which parts of society they are
failing to reach, and they have no incentive to do anything about
it.
The story so far . . .
As part of its campaign on the Immigration,
Asylum and Nationality Bill the NLCA asked the Home Office for
an ethnicity breakdown of respondents to consultation on the bill,
because we had not heard of any Chinese community or business
association that had been consulted on a measure that would affect
them profoundly. The Home Office replied that they did not hold
the information in the format requested (letter dated 19 December
2005). They added that "consultations are published on the
IND website . . . and are open to everyone to reply."
In a subsequent exchange of emails with NLCA
the Home Office confirmed that they do not at present invite those
responding to consultations to indicate their ethic origin and
that they leave it to the discretion of the policy team who are
issuing the consultation document. "If ethnic origin is relevant
to the consultation then I would anticipate that a request for
individuals to disclose their ethnic origin might be made."
(Email dated 18 January 2006).
NLCA contacted Baroness Anelay of St Johns about
this and she raised the question of ethnic monitoring of responses
to Home Office consultations in a House of Lords debate on the
Identity Cards Bill. (Lords Hansard 30 January 2006 columns
69 and 70.)
In reply Lord Bassam of Brighton accepted that
the government had "not yet undertaken specific ethnic monitoring
of those who have responded . . . but we shall look again to ensure
that we are getting a representative response form ethnic minority
groups." (Lords Hansard 30 January 2006 col 71) He
added that "it is our intention to reach out to those groups
who would otherwise ordinarily feel excluded from consultation."
Lady Anelay subsequently expressed "cautious
optimism" about this response, in the course of debate on
the Immigration, Asylum and Nationality Bill, but added that "if
the government does not know who these groups are and how to contact
them, outreach will not work, however good the government's intentions
are." (Lords Hansard 7 February 2006 col 557.)
In the same debate Baroness Ashton of Upholland
committed to "taking [the ethnic monitoring issue] away to
discuss with my colleagues in the Home Office". (Lords Hansard
7 February 2006 col 562.)
Consultation practitioners' views
Meanwhile, away from the House of Lords, John
May, Vice Chair of the NLCA and an experienced public consultation
practitioner, has conducted a straw poll of public sector (mainly
local government) consultation practitioners working in London,
and two North American members of the International Association
for Public Participation. The question was whether it was generally
good consultation practice to:
— include a non-compulsory invitation
to disclose the respondent's ethnic group when an individual or
organisation responds to a consultation exercise; and
— publish the ethnic breakdown of
respondents to consultations?
The result was 30 votes in favour of both propositions,
no votes against either of them and no abstentions. Clearly the
professional consensus is that ethnic monitoring of responses
should generally be regarded as an integral part of the consultation
process. Indeed, several people expressed surprise that what is
standard practice in many local authorities should not also be
the rule in central government, especially in the light of the
General Duty imposed by the Race Relations Amendment Act 2000
on all public authorities to promote race equality.
Consulting ethnic minorities
As experienced consultation practitioners know,
the obvious barrier to consultations with ethnic minorities is
language, and there are standard ways to deal with this, whether
the consultation be written or oral. The obvious cultural barriers
are also quite easy to overcome, by such expedients as matching
the language and sex of interviewer and interviewee, or not arranging
focus groups on Saturdays, and of course these tend not to be
an issue with written consultations anyway.
However, NLCA's experience has demonstrated
that there is an additional major barrier to consultation with
ethnic minorities, whether written or oral. (We are using the
example of the Chinese community, because that is the one we know
best, but we believe the points are valid for other minorities
as well.)
Many Chinese people, particularly Chinese elders,
have no understanding of the way British society works. They are
in any event suspicious of government, and the concept of public
consultation in a mature democracy is quite alien to them. Consequently
they are about as likely to visit government websites in search
of consultation documents as they are to start writing Anglo Saxon
poetry!
In principle the solution to this problem is
relatively straightforward, and involves compiling and maintaining
a list of Chinese (and of course other ethnic minority) community
and business associations, and engaging with them directly, not
at one remove via a website. However, the Home Office "does
not have a standard list of stakeholders for consultations."
(Letter dated 19 December 2005). The onus is on the government
to make the first approach, since it is unrealistic to expect
the community groups themselves to do so.
RECOMMENDATIONS
We recommend that the Home Office (and government
more widely) should have regard to these general principles of
good consultation practice:
— include a non-compulsory invitation
to disclose the respondent's ethnic group when an individual or
organisation responds to a consultation exercise (when an organisation
responds the invitation should be in respect of the dominant ethnicity
of its members);
— publish the ethnic breakdown of
respondents to consultations; and
— seek out ethnic minority community
and business organisations for inclusion in standard lists of
consultation stakeholders.
Potential dangers
It has been suggested by some consultation practitioner
colleagues that there are two possible dangers to these recommendations.
One is that identification of respondents could be used to dismiss
a consultative process because a particular interest group appears
to have mobilised and manipulated the process. This is the perennial
consultation problem of the "usual suspects", and can
be overcome by separating ethnicity from response before the latter
is considered.
The other danger suggested is that ethnic identification
of an individual or a group could be used to penalise that group
if, for example, they receive government funding but are critical
of the government in what they say. (This has been known to happen,
according to one colleague of mine.) However, such victimisation
is unlikely to be triggered by the response to a consultation
alone, and would need to be addressed in a much wider context.
In short, we believe that the potential dangers,
while real, are also remote. They do not outweigh the benefits
of a more equitable society which will stem from proper ethic
monitoring of government consultation responses.
Tier 3 Points System
Confirmation is required in relation to whether
low skilled workers including waiters, waitresses, Kitchen porters,
catering assistants etc. will fall under Tier 3 of the points
system.
The Bangladeshi, Pakistani and Indian community are
most concerned with these workers and place a heavy reliance on
them. They have put forward the following arguments.
Background
Restaurants need a pool of unskilled staff to work
in a tight-knit small kitchen teams. Every restaurant is a pressurized
working environment where the performance of each person makes
a contribution to success or failure. Even the least skilled person
plays a crucial role in this picture and ignorance or mistakes
can lead to dissatisfied customers and badly damaged reputations.
The art of cooking to the high standards demanded
by customers, Hygiene Inspectors and Food Standards Officers,
requires experience and a passion which is missing from the children
of those specialists who have come to the UK to enter the "ethnic"
restaurant business. These children are likely to have been put-off
a career in this field by the long and unsociable hours worked
by their parents while they (or their parents), encouraged by
educational opportunity and attainment, have in mind careers with
much more status.
Unfortunately, of the celebrity chefs who act as
role models to aspiring chefs, none have made their names by glamorizing
the arts of Chinese or Indian cooking. There are still very few
academic routes into the ethnic restaurant kitchen for those who
would want to and many of those that might are discouraged by
the need to start at the bottom.
Thus it is a fact that the pool of labour from which
the vast majority of skilled kitchen team members are drawn are
likely to be relatively new immigrants, many of whom, provided
with living accommodation by their employers, can survive in the
UK without having to learn English and speak only their native
tongues. Although restaurateurs throughout the UK would employ
unskilled employees from the UK population, this kind of menial
work is unpopular, even with the unemployed and there are important
functional problems to overcome, not the least of which is the
need for new recruits to `hit the ground running' and function
effectively in the pressurized restaurant kitchen.
Problem areas
1. Communication—For the reasons outlined
above native languages (eg Cantonese or Bengali) are the "lingua
franca" of intensely pressurised restaurant kitchens.
Without the appropriate native language there would be a need
for any non-ethnic applicants to learn about exotic ingredients,
their names and uses and to respond, without hesitation, to the
demands of the moment.
2. Team cohesion—Cultural awareness or
commonality of background allows new people to fit easily into
a team to the point where anyone without it will damage the essential
cohesion of a kitchen team.
3. Training needs—On-the-job training in
an additional language as well as all the other duties and responsibilities
of a modern restaurant represents such a burden that it becomes
impractical under levels of pressure which are typical in this
field.
4. Deployment—The need to maintain cover
means that even a kitchen porter needs to be able to step up to
become a junior cook while standing in for other team members
on their days off.
5. Public perception—Customers prefer seeing
Indian waiters in Indian Restaurants, Chinese staff in Chinese
Restaurants etc rather than mixed origins. It goes with the restaurant
origin as they do not expect to be served a European dish in an
Indian restaurant.
6. Until April 2005 the Sectors Based Scheme
allowed the recruitment and short-term employment of foreign nationals
to fill these "menial" posts. In its last year, utilizing
this particular scheme cost the "Indian" restaurant
sector alone, five million pounds in application fees and legal
bills. The results were also unsatisfactory in that from a quota
of 6,000 applicants 4,000 were granted work permits by the Home
Office but only just over 1,900 obtained entry clearance. In this
respect it should be employers who judge the suitability of staff
for a particular role, NOT Entry Clearance Officers. By April
2006 every one of those unskilled workers will have returned to
their countries of origin and, with no scheme in place to replace
SBS gaps are causing major problems.
To sustain the requirements of the UK's ethnic food
sector restaurants the old SBS scheme needs to be replaced by
one which is characterised by the following features:
1. Two years minimum duration.
2. Applicants need to be able to transfer between
jobs.
3. Self policed by restaurant proprietors with
support from Work Permits UK.
BUSINESS INVESTORS
There are many business investors from China who
look to invest in businesses within the UK and we have yet to
receive confirmation on what category these people will fall under,
or if these people are going to be included in the point system
at all.
COMPILATION OF
POINTS
We know that the points will be compiled from the
Government in "consultation" with employers and universities
but how much say do the employers and institutions actually have?
From our past experience in relation to the consultation
process we are curious as to how this consultation will work and
would therefore like detailed information in relation to this.
CODE OF
PRACTICE
Factors to be considered when considering the Civil
Penalty must be explained clearly.
One of our recent cases demonstrates the importance
of this.
CASE SUMMARY
Mr Lim is a valid work permit holder who was following
orders of his employer to pick up miscellaneous items of stock
from a sister restaurant. He was made an illegal entrant when
the Immigration Service found him at the sister restaurant on
the basis that he was alleged to be working there.
Mrs Lim does not have any restrictions on her visa,
but they still classified her as an illegal entrant and sought
to remove her and detained her without regard to her physical
and mental state of mind even though she was five months pregnant
and had suffered a miscarriage before.
The employer genuinely believed that both Mr and
Mrs Lim were legal to do what they did.
But the UK Immigration Service (UKIS) disagreed and
therefore has the potential power to completely ruin a business
simply by certifying a worker as illegal on the basis of little
or no evidence, even though it is clear in this case that both
restaurants are owned by the same people.
The relevance is that the code of practice for employers
will have to explain clearly what is allowed and what is not.
But more importantly, the UKIS will have to be particularly aware
of it and also need to know what is allowed and what is not. Because
of this grey area, the UKIS have a certain discretion in how they
decide whether a person is illegal and at the moment, this discretion
is neither monitored or reviewed to see if it is being used properly.
The UKIS has a responsibility to the economic well
being of the country not to disrupt the businesses on which the
UK economy is built and if they continue to do so, then the consequence
is that many legitimate businesses may run afoul of the UKIS interpretation
of what is allowed or not and this will force them to apply for
judicial review as there is no right of appeal.
These cases show that if there is to be a future
code of practice, it will be for the UKIS to be signed up to it
RECOMMENDATIONS
It would be extremely helpful if this Code of Practice
states clearly in simple terms, unambiguously, what is allowed
and what is not. This would reduce misinterpretation by the UKIS
and would enable employers to have a clearer idea about what is
prohibited.
Clarifying the law would also reduce the number of
cases which go to judicial review.
Administrative Review
We have been informed that the points system will
be a more objective system since the employers and universities
will be involved in the process of deciding what points will be
required.
However, the ECO will still be verifying documents
and it is only human nature to be subjective in their views. What
happens when the ECO call a worker to verify the genuineness and
the wrong information is provided, will this information is consequently
used as basis of refusal? Many refusals in the past have been
based on this. Will the ECO still be able to do this? This area
needs to be clarified.
In the event of a refusal on the basis of a fact
by the ECO we have been informed that Administrative Review will
be available to applicants.
More detail is needed about Administrative Reviews.
If a document is alleged to be a forgery, what investigations
will take place to prove whether a document is real or not? Who
will be doing these reviews? There is no reason why this review
cannot be carried out by an independent body.
New Database for Points System
We have been informed that new software for the points
system will be created.
When will the new database for the points system
be in use?
It is recommended that more information be provided
on how the database will work.
ECO training
Currently, just three weeks of training is required
to become an ECO. Having expressed our concerns in relation to
this, how will these be dealt with?
Furthermore, how much training are ECOs required
to undergo for the new system?
We would like as much detail as possible in relation
to this and would recommend that ECOs endure longer, more intensive
training on the aims and objectives of the law, implementation
of this and knowledge of criteria in respect of considering an
application.
Penalties for poorly made decisions in order to reduce
the chances of abuse within the system could also be imposed.
Education
Recommendations are provided in Dr May's briefings.
In reference to these, Chinese literature in the form of leaflets/booklets
should be provided to enable them to better understand the law.
If employers are able to understand what they are
supposed to do, there is a better chance that they will do what
is required to prevent any non-compliance with the law.
Point of Contact for Enquiries
It would be helpful if regional offices are set up
to allow ethnic minorities to have a reliable point of contact
for enquiries. If there are officers who speak their language
who are available to assist them this will better effect the facilitation
of a partnership between the government and employers.
Generally, this will provide a better service for
those who have queries in relation to the law on immigration.
I have tried to be as brief as possible. No doubt
you will have heard of most if not all of the arguments above,
but I feel it is important to lend the voice of the Chinese Community
even though it is a small voice. Per capita, I think the
Chinese Community's earning power (hence the Inland Revenue contributions)
are amongst the highest in the various ethnic groups or even the
main population as a whole and we hope the government may pay
a little attention to this rare voice.
Christine Lee
Coordinator of the Immigration
Asylum and Nationality campaign
28 March 2006
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