Select Committee on Home Affairs Additional Written Evidence


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





 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2006
Prepared 23 July 2006