Immigration Bill Committee

Written evidence submitted by the Immigration Law Practitioners’ Association (ILPA) (IB 08)

IMMIGRATION BILL:

PART 1 LABOUR MARKET AND ILLEGAL WORKING

ILPA PROPOSED AMENDMENTS FOR HOUSE OF COMMONS COMMITTEE STAGE

The Immigration Law Practitioners’ Association (ILPA) is a registered charity and a professional membership association. The majority of members are barristers, solicitors and advocates practising in all areas of immigration, asylum and nationality law. Academics, non-governmental organisations and individuals with an interest in the law are also members. Founded in 1984, ILPA exists to promote and improve advice and representation in immigration, asylum and nationality law through an extensive programme of training and disseminating information and by providing evidence-based research and opinion. ILPA is represented on advisory and consultative groups convened by Government departments, public bodies and non-governmental organizations and has worked closely with all parties on all immigration bills since its inception.

Further briefing will be prepared to amendments tabled.

PART 1 LABOUR MARKET AND ILLEGAL WORKING

Labour Market and Illegal Working

Clause 1 Director of Labour Market Enforcement

PROPOSED AMENDMENT

Page 1, line 7, after subsection (1) insert

(1A) In the exercise of his functions the Director shall have regard to the need to enforce the rights of workers and to protect people from being exploited for their labour.

Purpose

To ensure that the functions of the Director of Labour Market Enforcement are exercised for the purpose of protecting those vulnerable to labour market exploitation and to make this explicit on the face of the Bill.

Briefing

In both its background briefing to the Queen’s Speech, Explanatory Notes to the Bill and fact sheet on this Part of the Bill, the Government has stated that the new labour market enforcement agency would be established to protect people against being exploited or coerced into work.

The Government’s background briefing to the Queen’s Speech states:

Work: We will create a new enforcement agency that cracks down on the worst cases of exploitation. Exploiting or coercing people into work is not acceptable. It is not right that unscrupulous employers can exploit workers in our country, luring them here with the promise of a better life, but delivering the exact opposite, and the full force of the State will be applied to them. A new single agency will have the scale and powers to do this [1] .

The Explanatory Notes to the Bill state:

Migrant workers are particularly vulnerable to labour market exploitation and may find themselves living and working in degrading conditions.

[...]

The government believes that labour market exploitation is an increasingly organised criminal activity and that government regulators that enforce workers’ rights need reform and better coordination. The Conservative Party Manifesto also committed to introduce tougher labour market regulation to tackle illegal working and exploitation. The Bill establishes a new statutory Director of Labour Market Enforcement, responsible for providing a central hub of intelligence and facilitating the flexible allocation of resources across the different regulators [2] .

The Government’s fact sheet on this part states:

The UK has a strong legal framework in place to ensure that minimum standards are met for workers. There are three main public bodies responsible for enforcing these requirements: a team in HMRC which enforces the National Minimum Wage; the Gangmasters Licensing Authority; and the Employment Agency Standards Inspectorate.

However because of an increase in organised criminal activity engaging in labour market exploitation, we believe that there is exploitation in the labour market that none of the enforcement bodies is designed to deal with. This kind of worker exploitation often appears to involve vulnerable migrant workers [3] .

Immigration Minister the Rt. Hon. James Brokenshire MP is cited in the fact sheet as stating:

"Exploiting or coercing people into work is not acceptable. It is not right that unscrupulous employers can force people to work or live in very poor conditions, withhold wages or mislead them into coming to the UK for work."

This amendment makes this protective function of the Director of Labour Market Enforcement explicit on the face of the Bill and support the co-ordination of his or her activities towards this aim.

Where those working or living in very poor conditions are deterred from accessing assistance because of their immigration status or because of their vulnerability to threats by unscrupulous employers in relation to their immigration status, agencies will be restricted in their ability to gather the intelligence needed to exercise their regulatory functions and protect against labour market exploitation. A lack of clarity over the protective function of the labour market enforcement agency may therefore undermine its aims.

Legislation establishing other statutory bodies and guidance about them has similarly identified their statutory purpose in its text. For example, the Health and Safety at Work etc. Act 1974 establishing the Health and Safety Executive includes the clause:

1. Preliminary

(1) The provisions of this Part shall have effect with a view to –

(a) Securing the health and safety of persons at work;

(b) Protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work; [...]

The Employment Agencies Act 1973 s 5(1) provides:

5 General regulations E+W+S

(1) The Secretary of State may make regulations to secure the proper conduct of employment agencies and employment businesses and to protect the interests of persons availing themselves of the services of such agencies and businesses, and such regulations may in particular make provision-

(a) requiring persons carrying on such agencies and businesses to keep records;

(b) prescribing the form of such records and the entries to be made in them;

(c) prescribing qualifications appropriate for persons carrying on such agencies and businesses;

(d) regulating advertising by persons carrying on such agencies and businesses;

(e) safeguarding clients’ money deposited with or otherwise received by persons carrying on such agencies and businesses;

(ea)restricting the services which may be provided by persons carrying on such agencies and businesses;

(eb)regulating the way in which and the terms on which services may be provided by persons carrying on such agencies and businesses;

(ec)restricting or regulating the charging of fees by persons carrying on such agencies and businesses.

The Mission Statement of the Gangmasters’ Licensing Authority is

Our aim will be achieved by:

· Preventing worker exploitation

· Protecting vulnerable people

· Tackling unlicensed/criminal activity and ensuring those licensed operate within the law.

The 6 strategic objectives which will ensure we meet our aim and priorities are:

· Target, dismantle and disrupt serious and organised crime/early identification of human trafficking 

· Provide effective, meaningful engagement with stakeholders thereby enhancing reputation

· Work with industry to recognise and address non-compliance without formal GLA intervention

· Tackle tax evasion, health and safety negligence, fraud, breaches of employment and other law/regulations

· Maintain credible licensing scheme creating level playing field and promoting growth

· Identify and tackle forced/bonded labour by licensed and unlicensed gangmasters

The Low Pay Commission’s website [1] states that

We are responsible for:

· carrying out extensive research and consultation, and commissioning research projects

· analysing relevant data and actively encouraging the Office of National Statistics to establish better estimates of the incidence of low pay

· carrying out surveys of firms in low-paying sectors

· consulting with employers, workers and their representatives and taking written and oral evidence from a wide range of organisations

· making fact-finding visits throughout the UK to meet employers, employees and representative organisations

Clause 1

Clause 3 Non-compliance in the labour market etc: interpretation

PROPOSED AMENDMENT

Page 3 line 6, after "Act)," insert

(*) any function of the Health and Safety Executive and the Health and Safety Executive for Northern Ireland;

(**) any function of local authorities in relation to the "relevant statutory provisions" as defined in Part 1 of the Health and Safety at work act 1973;

(***) Any function of local authorities under the Children and Young Persons Act 1933 and byelaws made under it ;the Management of Health and Safety at Work Regulations 1999; the Children (Protection at Work ) ( Scotland ) Regulations 2006

CONSEQUENTIAL AMENDMENT

Page 3 line 12, after "2004," insert

(*) Part 1 and The Health and Safety at Work Act 1973 and the offences mentioned in the third column of Schedule 1 to that Act;

(**) Sections 3 Allowing persons under sixteen to be in brothels and 4 Causing or allowing persons under sixteen to be used for begging and Part 2 Employment of the Children and Young Persons Act 1933

Purpose

To extend the remit of the Director of Labour Market Enforcement to cover functions relating to health and safety at work and child labour, functions carried out for the most part by local authorities.

Briefing

In 2007, the Trades Union Congress’ Commission on Vulnerable Employment produced a report Hard work; hidden lives [2] which proposed a "Fair Employment Commission" with "an advisory role at the highest level of government" which would have "permanent responsibility for promoting cross-government awareness of the problem of vulnerable employment, and taking strategic action to ensure a coordinated and comprehensive response."

The Bill proposes not a commission but a Director of Labour Market Enforcement,. The Director does not have a protective function as wide as that envisaged by the Trades Union Congress’ commission. Contrary to the recommendations of that commission It does not cover the Health and Safety Executive or local authorities with their statutory responsibilities for the enforcement of health and safety legislation (mainly in the distribution, retail, office, leisure and catering sectors) and for the rights of children at work. ILPA understands that earlier drafts of this part of the Act did make such provision and this amendment is designed to probe why it is not included in the Bill as presented to parliament.

The phrase "relevant statutory provisions" which appears in the amendment is defined in section 53 of the Health and Safety at Work Act to mean the provisions of Part 1 of the Health and Safety at Work Act 1972 and the provisions mentioned in the third column of Schedule 1 to that Act as well as related regulations, orders or other legislative instruments. These include duties of employers to their employees, duties of employers and the self-employed to third parties and duties of persons concerned with premises to third parties.

These are simplified amendments, designed to raise the question of a wider remit rather than to set out a fully worked out scheme.

Clause 3 Non-compliance in the labour market etc: interpretation

PROPOSED AMENDMENT

Page 3, line 31, leave out subclause (6) and replace with

(6)In this section "worker" means a person working

(a) under a contract of employment,

(b) under a contract of apprenticeship,

(c) under a contract personally to do work,

(d) under or for the purposes of a contract for services,

(e) for a purpose related to a contract to sell goodS,

(f) as a constable,

(g) in the course of Crown employment,

(h) as a relevant member of the House of Commons staff, or

(i) as a relevant member of the House of Lords staff.

Purpose

This is a probing amendment, designed to test what are the implications of using the definition of worker set out in the Employment Rights Act 1996 at section 23 in this section. The relevance of the definition of a worker in this clause is that it forms part of the definition of a "labour market offence" in subclause 3(4)(e) which describes a labour market offence as an offence, under section 2 Human Trafficking or section 4 Committing offence with intent to commit offence under section 2 of the Modern Slavery Act 2014, committed in relation to a "worker"

The proposed subclause (6) which would be substituted by the amendment is taken from Clause 9 of the Bill, the new s 24B(9) of the Immigration Act 1971 which would create an offence of illegal working.

Briefing

Two different definitions of worker/working are used in Part 1 of the Bill, in clause 3 and in clause 9.

The definition used in Clause 3 is that set out in Section 230 of the Employment Rights Act 1996. This, so far as material, states

230 (3) In this Act "worker"(except in the phrases "shop worker" and "betting worker") means an individual who has entered into or works under (or, where the employment has ceased, worked under)-

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

and any reference to a worker's contract shall be construed accordingly.

What are the implications of this? Does it cover a person who is not working legally, or whose contract of employment would be held to be unlawful as is the case for many exploited workers and those held in slavery?

A different definition again is provided in section 25 of the Immigration, Asylum and Nationality Act 2006, which is concerned with the civil penalty for employers.

25 Interpretation

In sections 15 to 24-

… (b) a reference to employment is to employment under a contract of service or apprenticeship, whether express or implied and whether oral or written,

Does the Compensation clause include compensation for workers who are working legally but who are then locked out of their workplace for 48 hours or more and don't get paid for the time? Is there any way to compensate legal workers when there were illegal workers there, when the legal workers did not know, were not doing anything wrong, but have lost their job, or their pay for some time?

Offences

Clause 8 Offence of illegal working

PROPOSED AMENDMENT/STAND PART DEBATE

Page 4 line 39, leave out clause 8

Purpose

To remove from the Bill the offence of working illegally and thus maintain the status quo.

Briefing

The Bill would create a new criminal offence of working without leave. Earnings can be seized. This is not, as has been suggested [3] a new departure. Criminal offences were created for Romanian, Bulgarian and Croatian workers working without authorization. [4] ILPA has asked the Home Office for statistics on the numbers of prosecutions for those offences, and also whether, when the employee was prosecuted, the employers were prosecuted or made subject to a civil penalty. This information has not been provided. It would assist in understanding whether offences have resulted in a displacement of enforcement activity, away from employers to workers.

As was raised by a number of speakers at second reading, the fear is that making it a specific crime to work without leave will drive the exploited and enslaved further underground. It is already a criminal offence, under section 24 of the Immigration Act 1971, to enter the UK without leave when leave is required, to overstay or to breach a condition of leave (such as working when work is prohibited) so why make working without leave a specific offence?

Clause 9 Offence of employing illegal worker

PROPOSED AMENDMENT

Page 7 line 8, leave out "or having reasonable cause to believe" and replace with "recklessly"

Purpose

The Bill proposes to broaden the criminal offence (as opposed to civil penalty) for employing an illegal worker from "knowingly" so doing to negligently so doing ("having reasonable cause to believe" that the person does not have permission to work). The amendment would adopt a test of recklessness rather than negligence.

Briefing

The Explanatory Notes to the Bill give as the reason for broadening the offence that some employers deliberately do not check their employees’ documents so that they cannot have the specific intent required to commit the offence of "knowingly" employing a person without permission to work. The difficulty is that the change proposed will catch not only such persons but other employers who are considered to have been negligent. The fear is that employers will be so afraid of being accused of negligence in this regard that they will be reluctant to employ anyone who does not hold a British passport or whom they regard as not looking, or sounding "British" or having a "British" name.

We suggest that this risk can be reduced but the persons whom the clause is intended to target encompassed by it by changing the test from one of negligence to one of recklessness.

Clause 10 Licensing Act 2003: amendments relating to illegal working

PROPOSED AMENDMENT/STAND PART DEBATE

Page 7 line 25 leave out Illegal working in licensed premises Clause 10 and Schedule 1

Purpose

To omit the new licensing/illegal working scheme for the Bill and maintain the status quo.

The most striking thing about this Schedule is the new power where an immigration officer "has reasonable grounds to believe that any premises are being used for a licensable activity" to enter the premises "with a view to seeing whether an offence under any of the Immigration Acts is being committed in connection with the carrying on of the activity." This is a very wide power to search any licensed premises, with no need for a suspicion. It is extremely striking, when one consults the Home Office lists of illegal working penalties given out, how many pertain to small businesses that appear likely, given that they serve ethnic cuisines, to be run by ethnic minority owners. [5] Is this because these are the gravest offenders, or because they are searched most frequently, and will the same be true of licensed premises?

The Secretary of State is added to the list of persons who must be notified when an application for a licence is made. She can object to the grant of the licence and this is to be taken into account by the licensing authority. She can appeal against a grant of a licence/refusal to cancel a licence despite her objection. All running licensed premises are affected by the additional bureaucracy.

Government statements describe a high incidence of illegal working in licensed premises and this amendment is a chance to ask government for evidence of this. It is the case that restaurants and bars, especially those serving different ethnic cuisines feature heavily on the list of those given civil penalties for employing illegal workers (see https://www.gov.uk/government/collections/employers-illegal-working-penalties#penalties ) but is this because they employ illegal workers more frequently than other employers or because they are targeted more frequently for enforcement activity? If the latter, why?

Clause 10 Licensing Act 2003: amendments relating to illegal working

PROPOSED AMENDMENT

Page 7 leave out from line 28 to Line 2 on page 8

Purpose

This is a probing amendment. To prevent the Secretary of State from extending the scheme by secondary legislation to Scotland and Northern Ireland.

Briefing

If it is decided that the scheme should extend to Scotland and Northern Ireland there would be seem to be no good reason why any scheme cannot be placed on the face of primary legislation (subject to a legislative consent motion) rather than left to regulations.

There are arguments both ways. Regulations made under Clause 10(2) are subject to the affirmative procedure in parliament so it would be open to parliamentarians to vote against them. If the scheme is enacted in secondary legislation then if found to be incompatible with human rights (e.g. to peaceful enjoyment of possessions under Article 1 of the first protocol) it could be struck down, whereas if it is primary legislation it can only be declared incompatible.

Illegal working notices and orders

Clause 11 illegal working closure notices and illegal working compliance orders and Schedule 2

PROPOSED AMENDMENT/STAND PART

Page 8 line 3, leave out from line 3 to line 6 and Schedule 2

Purpose

To remove from the Bill provisions as to illegal working closure notices and illegal working orders

Briefing

The Bill would give immigration officers powers to close an employer’s premises where "satisfied on reasonable grounds" that the employer is employing an "illegal worker" as defined, where the employer has been required to pay a civil penalty in the last three years, or has an outstanding civil penalty or has been convicted of the offence of knowingly employing an "illegal worker" or (under the amendments to be effected by this Bill) employing a person whom they have reasonable cause to believe is not entitled to work. The initial closure could be for up to 48 hours. The immigration officer can then apply to the court for an illegal working compliance order which can prohibit or restrict access to the premises for up to two years.

Why are these measures required when criminal sanctions are available and what will ensure that they are not used in an oppressive manner?

PROPOSED NEW CLAUSE

Page 7 line 28, after line 11, insert the following new clause

(*) Compensation

(1) Where an illegal working closure notice is issued and

(a) is subsequently cancelled in accordance with paragraph 3 of Schedule 3 to this Act, or

(b) no illegal working compliance order is made (whether or not an application is made for such an order)

the Secretary of State shall pay compensation to

(a) the person to whom the notice was issued or, if he is dead, to his personal representatives;

(b) a person who lives on the premises (whether habitually or not);

(c) any person who has an interest in the premises

(2) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State before the end of the period of two years beginning with the date on which the notice is issued.

(3) But the Secretary of State may direct that an application for compensation made after the end of that period is to be treated as if it had been made within that period if the Secretary of State considers that there are exceptional circumstances which justify doing so.

(4) The question whether there is a right to compensation under this section shall be determined by the Secretary of State.

(5) If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State.

(6) In assessing so much of any compensation payable as is attributable to suffering, harm to reputation or similar damage, the assessor must have regard in particular to-

(a) the conduct of the person to whom the notice was given

(b) the conduct of the immigration officer

(4 )If, having had regard to any matters falling within subsection (5)(a) or (b), the assessor considers that there are exceptional circumstances which justify doing so, the assessor may determine that the amount of compensation payable is to be a nominal amount only.

(5) The total amount of compensation payable must not exceed the overall compensation limit. That limit is-

(a) £10,000 in a case in which there is no element for loss of earnings

(b) £50,000 in any other case.

(6) The Secretary of State may by order made by statutory instrument amend subsection (5) so as to raise any amount for the time being specified as the overall compensation limit.

(7)No order may be made under subsection (6) unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.

Purpose

To provide for statutory compensation to the person to whom the notice is issued and anyone living on the premises or with an interest in the premises (see paragraph 10 of Schedule 2 to the Bill) on the premises in the event that the order is cancelled or that no application is subsequently made to a court for a closure notice, or such an application is made but the court refuses to grant it.

Briefing

The provisions are modelled on the statutory compensation scheme for miscarriages of justice under the Criminal Justice Act 1988.,

Provision for statutory compensation is designed to ensure that notices are not issued in an oppressive manner by immigration officers.

October 2015


[1] Cabinet Office and Prime Minister’s Office, Queens Speech 2015: Background Briefing Notes, 27 May 2015, at: https://www.gov.uk/government/publications/queens-speech-2015-background-briefing-notes

[2] Immigration Bill Explanatory Notes, Bill 74-EN, p.4 paras 3 and 4.

[3] UK Visas and Immigration, Immigration Bill 2015-16 Factsheet- Labour Market Enforcement (clauses 1-7), https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/461712/Immigration_Bill_Factsheet_-_labour_market.pdfhttps://www.gov.uk/government/uploads/system/uploads/attachment_data/file/461712/Immigration_Bill_Factsheet_-_labour_market.pdf

[3]

[1] https://www.gov.uk/government/organisations/low-pay-commission

[1]

[2] Available at http://www.vulnerableworkers.org.uk/files/CoVE_full_report.pdf (accessed 20 September 2015)

[3] Prime Minister’s speech of 21 May 2015 available at https://www.gov.uk/government/speeches/pm-speech-on-immigration (accessed 20 September 2015)

[4] Accession (Immigration and Worker Authorisation) Regulations 2006 SI 2006/3317 regulation 13 http://www.legislation.gov.uk/uksi/2006/3317/pdfs/uksi_20063317_en.pdf and the Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013SI 2014/1460 (accessed 20 September 2015)

[5] See https://www.gov.uk/government/collections/employers-illegal-working-penalties (accessed 1 October 2015). The latest penalty lists date from 29 September 2015.

Prepared 21st October 2015