Memorandum submitted by Unite
This submission represents the views of Unite.
Unite is the UK's largest trade union with 2 million members working
in a range of sectors including manufacturing, building services,
hospitality, construction, local government, IT, financial services
and transport.
Unite welcomes this opportunity to contribute written
evidence and would welcome further opportunities to provide oral
evidence and/or additional written submissions to the Committee.
INTRODUCTION
The new points based system embodies dramatic
changes in the UK's political and social attitudes to immigration.
A number of new barriers, demands and responsibilities are in
the process of being placed on migrant workers through the workings
of the new system.
Unite believes that the Home Affairs Committee should
examine closely the implications of the PBS for the welfare, employment
and human rights of workers who depend on opportunities to work
abroad to increase their life chances.
Unite further believes that the Committee should
carefully consider whether the PBS will help or hinder the development
of skills, a robust employment rights framework and social and
racial cohesion in the UK.
1. EXECUTIVE
SUMMARY
1.1 The current regime of employment rights
enforcement is insufficient and will not be able to deal with
the challenges involved with the increased powers and duties given
to employers through the operation of the PBS. A more robust framework
of employment rights for all vulnerable workers, including migrant
workers, as recommended by the report of the Commission on Vulnerable
Employment, is urgently needed.
1.2 The PBS should not impede the training of
resident workers but should complement the existing and anticipated
supply of skills and demand for training locally and nationally.
There is a need to strike the right balance between enabling employers
to recruit or transfer skilled people from abroad and protecting
job opportunities for resident workers
1.3 Proposals for bonds and fees payable
by "at risk groups" and for a separate migration fund
to alleviate pressures on public services should be abandoned
as there is no compelling evidence or research to demonstrate
that there is any need for these measures.
1.4 Proper consideration ought to be given
to a scheme of regularisation of undocumented workers currently
living in the UK through the new Citizenship, Immigration and
Borders Act.
1.5 The UK PBS mirrors points based migration
systems introduced in Australia, New Zealand and Canada. Unite
is concerned that the UK has not paid due attention to the inadequacies
and instances of exploitation in these systems. The Committee
should examine closely the affect of points based migration in
these countries.
1.6 The use and operation of intra company
transfers is of particular concern to the Electronics, Electrical
Engineering and IT sector of Unite. Arrangements for Migrant Domestic
workers also merit special consideration.
1.7 Encouraging migrant workers to learn
and improve spoken and written English is welcomed, especially
when health and safety at work is an issue. However, Unite has
concerns about linking entry to ability to speak English rather
than ability to learn.
1.8 The timescale for the introduction of
the PBS, which runs concurrently with the Committee Inquiry, is
unrealistic and does not provide enough time for proper scrutiny
of the tiers and their operation. The phasing in of the PBS should
be suspended until proper scrutiny has taken place. The operation
of Tier 2 should be delayed until relevant issues have been resolved.
2. SPONSORSHIP
2.1 Unite has a number of concerns about
the new roles and powers which will be given to employers by the
PBS, particularly through the arrangements for Tier 2 which is
due to begin at the end of 2008. Workers entering the UK through
this tier will have a job offer from a sponsoring employer.
2.2 Sponsoring employers will have a number of
new powers and responsibilities, including duties to conduct document
checks and to report to the Home Office if a worker fails to turn
up for work. Tier 2 workers will be unable to switch employers
and their ability to remain in the UK is contingent on continuing
work with their sponsoring employer.
2.3 Unite believes that giving employers
responsibilities that have been traditionally carried out by the
immigration authorities is an unwise move as migrant workers coming
to the UK under Tier 2 arrangements are less likely to have or
accrue employment rights such as protection against unfair dismissal.
2.4 Sponsorship arrangements have the potential
to unbalance employment relationships further in favour of employers
who may make unreasonable demands on workers under threat of losing
their jobs and therefore their ability to remain in the UK.
2.5 The proposed grading system for employers,
which denotes employers who have a good record of compliance with
immigration controls (Group A) and those who have limited experience
in this area or have incurred infractions (Group B) does not take
into account if an employer has failed to comply with employment
rights or national minimum wage legislation in the past or if
they have been subject to an investigation by the GLA or HMRC.
2.6 It is also unclear who will be able
to apply to become a sponsor and if sponsorship implies an employment
relationship will exist between the worker and their sponsor.
In particular, clarification is needed as to whether employment
agencies can apply to become sponsors.
2.7 Unite is also concerned that sponsorship
arrangements under Tier 2 will leave workers open to the sort
of exploitation that has been experienced in other countries which
operate similar systems. The Australian 457 visa, which mirrors
the UK's Tier 2, has led to cases of visa smugglers charging huge
bonds to prospective migrant workers wishing to come to Australia,
mainly from China.[16]
2.8 The proposed Tier 2 Statement of Intent
states that migrants will need to show that they have £800
available to them over a 3 month period. This could lead to an
unacceptable level of employer intrusion into the private financial
affairs of migrant workers. Furthermore given that there will
be a requirement for sponsorship from an employer there would
not be any fallback on public funds as the migrant worker continues
to be employed by the sponsoring employer.
2.9 The "rate for the job" is
crucial to ensure that migrant workers are neither exploited nor
used as a means of undercutting pay and employment prospects of
resident workers. For example, Paragraph 37 of the Tier 2 Statement
of Intent indicates that the minimum rate for the job will be
determined from the Annual Survey on Hours and Earnings (ASHE)
data, supplemented by minimum salary figures from Jobs4U.
2.10 Unite believes that this is completely
inadequate for certain sectors, and that this would lead to a
significant decrease in the level of protection of the resident
labour market. Evidence from Australia suggests that employers
have been taking advantage of the points based system to suppress
wage claims from organised resident workers. This has led to an
erosion of skill levels in certain sectors.[17]
RECOMMENDATIONS
2.11 Migrant workers should have access
to temporary support services, akin to those available to victims
of trafficking, in situations where employer malpractice is suspected
or being investigated.
2.12 Changes to the law are required so that
issues of employment rights and residency are treated separately.
All workers, regardless of residency status, should have the same
minimum level of employment rights.
2.13 The UK should, at the earliest possible
time, ratify the UN Convention on the Protection of the Right
of Migrant Workers and Members of their Families.
2.14 Sponsoring employers should be subject
to periodic monitoring to prevent and identify employment rights
abuses. Employers who have failed to comply with employment legislation
and the requirements of the Points Based System should be barred
from obtaining a licence to sponsor migrant workers.
2.15 The mechanism for ascertaining the
"rate for the job" should be urgently reviewed as soon
as possible and should take into account current existing arrangements
in specific sectors.
2.16 A regulatory regime is required to
ensure that market wages are not being undermined that equal pay
for equal work is respected.
2.17 After entering the UK, Tier 2 workers
should be able to switch employer during their period of residence
without having to reapply through the PBS.
2.18 The proposed requirement for a migrant
worker to provide bank statements showing that they have had £800
available to them for at least three months should be dropped.
2.19 Employers in shortage occupations must
demonstrate a commitment to upskilling resident workers, for example,
through apprenticeship schemes.
3. THE ENGLISH
TEST
3.1 The English test which applies to most
applicants for Tiers 1 and 2 at the point of entry presents particular
problems. The ability to learn languages is discounted in the
PBS and means that the system is, broadly speaking, biased in
favour of migrants from English speaking countries and against
those from the developing world.
3.2 In recent years there have also been significant
reductions in funding for ESOL/ELT. If speaking and learning English
is to be a cornerstone of future immigration policy, cuts to the
funding of language teaching are an additional barrier to migrant
workers who demonstrate an ability to learn.
3.3 The Australian government has recognised
that additional resources are required to help migrant workers
to improve their English and has committed AUS$50 million over
the next four years to English language programs.
RECOMMENDATIONS
3.4 The requirement to understand and speak
English at the point of entry is unreasonable and should be reviewed.
3.5 The government should restore funding to
ESOL and ELT courses and increase access to these courses.
4. MIGRANT DOMESTIC
WORKERS
4.1 Unite (formerly T&G) has organised,
represented and campaigned with and for migrant domestic workers
for more than 20 years. The new rights introduced in 1998 after
sustained campaigning by the union together with Kalayaan, Anti-Slavery
International and others ended the bonded labour status of these
mainly women workers.
4.2 More recently the new points based system
proposals threatened to re-introduce bonded labour and to undermine
these important achievements. However, we strongly welcome the
government's announcement on the 25th June 2008 that the rights
and protection contained in the overseas domestic worker visa
are to be preserved. This commitment has followed further sustained
campaigning by Unite, Kalayaan, Anti-Slavery International and
others, together with recommendations from the TUC Commission
on vulnerable workers and the Oxfam/Kalayaan report "The
New Bonded Labour?"
RECOMMENDATIONS
5.3 The government continues to work with
Unite, Kalayaan and others to ensure that the important rights
and protections introduced in 1998 are preserved.
5.4 The wider group of migrant domestic workers
beyond those covered by the overseas domestic worker visa are
potentially highly vulnerable to abusive practices and trafficking
and their specific situation needs to be recognised within all
measures addressing this.
6. INTRA COMPANY
TRANSFERS
6.1 The Intra-Company Transfer (ICT) scheme
will continue under the new Points-Based System. Some multinationals
use their UK operations to sponsor overseas nationals to build
up client-specific knowledge for export overseas. ("knowledge
transfer"), and this may have an adverse impact on the resident
UK labour force.
6.2 Under existing arrangements, all work permit
applications require the employer to sign a declaration stating
that:"The employer|knows of no suitable `resident worker'
who will be displaced or excluded as a result of them employing
the person who is the subject of this application" There
appears to be no corresponding requirement on employers under
the PBS. Furthermore, the existing requirement for Intra Company
Transfer work permits only to be granted to employees with "essential
company knowledge" has been removed.
6.3 In November 2006, Unite presented a
dossier of complaints to the Home Office which identified a number
of specific cases and companies where workplace representatives
reported that there was misuse or abuse of the work permits system.
6.4 The Home Office sampling study prepared
in November 2006 in response to Unite's report showed nearly 1
in 6 (15%) of work permits approved breached their own minimum
pay rules as set out in the Occupational Guidance for caseworkers.
RECOMMENDATIONS
6.5 The Home Office should carry out a review
of the Intra-Company Transfer (ICT) scheme, particularly as it
is operated for skilled professionals, to ensure that the ICT
scheme is being operated fairly and consistently and is not merely
a tool in the business model of companies to offshore knowledge,
skills and jobs from the UK.
6.6 There is a need for the current ITCE Sector
Panel to continue after the introduction of the Points Based Scheme
in order to provide the Border and Immigration Agency with access
to industry and to expert advice on sector issues, and to provide
industry representatives with access to relevant information on
policy and related immigration matters.
6.7 The UK Borders Agency should publish
on its website on a quarterly basis numbers of all work permits
applied for and all work permits approved, broken down by individual
employer, as is done in Ireland by the Department of Enterprise,
Trade and Employment.
7. TIER 3
7.1 If/when Tier 3 does become operational
it will be a very restrictive and potentially exploitative route.
Tier 3 workers will only be able to enter for a maximum of 12
months under schemes run by agencies and will not be able to switch
to an alternative operator. The power that is given to agencies
and operators under Tier 3 raises concerns about the capacity
of organisations such as the GLA to monitor working conditions
and enforce employment rights.
7.2 These workers will have no routes to settlement
and will not be able to reapply and switch to Tier 1 or 2. Furthermore,
a restricted stay of 12 months, tied to one employer is unlikely
to provide migrant workers with a sufficient incentive to remain
within the legal system of migration.
7.3 Remittances to developing countries
totalled over $167 billion in 2005, twice the level of development
aid given. For Tier 3 workers to obtain an adequate return for
their initial investment in migration, it is likely that, in the
absence of legal means of remaining in the UK, a large number
would turn to the informal economy. It is thought that there are
already nearly half a million undocumented workers in the UK working
in construction, hospitality, agriculture and social care. These
workers could be making tax and national insurance contributions
and benefit from protection under the law.
RECOMMENDATIONS
7.4 Workers entering under Tier 3 should
have the same rights as those entering under Tiers 1 and 2 such
as longer periods of leave to remain and defined routes to settlement.
7.5 More funding is needed for enforcement agencies
to monitor the activities of agents and operators supplying lower
skilled labour.
7.6 The Government should seriously consider
provisions to regularise undocumented workers already resident
in the UK.
8. THE MIGRATION
FUND
8.1 A number of studies and reports by organisations
such as the TUC, the Work Foundation and from government departments
such as DWP recognise the contribution that migration makes to
the public purse.
8.2 Research from the Home Office which examined
data from 1999-2000 found that migrant workers make a net contribution
of around £2.5 billion to the UK economy.[18]
IPPR has also found that immigrants consistently make higher net
annual fiscal contributions compared to British born residents.[19]
RECOMMENDATION
8.3 There is no compelling evidence to support
the contention that migration presents a burden to public services
that should not instead be tackled by planning and rebalancing
of regional budgets. Proposals for a migration fund paid for by
immigrants should be abandoned.
July 2008
16 See: http://www.workpermit.com/news/2006_09_11/australia/immigrant_abuse_457_visa_defense.htm
http://lifeinaustralia.wordpress.com/2007/09/29/457-visa-workers-left-penniless-homeless/ Back
17
See: http://backontrack.asn.au/files/skilled-migration-0706.pdf Back
18
The Migrant Population in the UK: Fiscal effects (2002) available
from http://www.homeoffice.gov.uk/rds/pdfs/occ77migrant.pdf Back
19
Paying their Way, IPPR 2005 available from: http://www.ippr.org.uk/members/download.asp?f=%2Fecomm
%2Ffiles%2FPaying+Their+Way%2Epdf Back
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