Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Migration for Employment Convention (Revised), 1949 (No. 97) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1951)

Other comments on C097

Observation

Direct Request

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The Committee notes the observations of the Trade Union Congress (TUC) received on 26 October 2017.

Statistics on migration flows. In its previous comment, the Committee asked the Government to continue taking steps to collect and make available statistics on labour migration that are disaggregated by sex, and possibly other factors such as origin and age as well as sector of employment and occupation, and to indicate how these statistics reflect any changes in policies and legislation regarding the employment of migrant workers. The Committee notes the Government’s reference to the users’ consultation carried out in November–December 2016 jointly by the Office for National Statistics (ONS), the Home Office, the Department for Work and Pensions (DWP) and Her Majesty’s Revenue and Customs (HMRC) on international migration statistics outputs. It notes from the summary of responses to the consultation that recurring themes across the different outputs included requests for occupation or employment breakdowns. Concerning the labour market data, there were suggestions to provide better explanation of these estimates to alleviate misreporting and that more detailed country of birth breakdowns and more information on the characteristics of international migrants in the labour market would be considered useful. The Committee welcomes the information provided and asks the Government to provide information on any follow-up given to the suggestions emanating from the consultation carried out by the Office for National Statistics, the Home Office, the Department for Work and Pensions and Her Majesty’s Revenue and Customs; and on the latest statistics on labour migration disaggregated by sex and detailed as regards country of origin and age as well as sector of employment and occupation. Please also indicate how these statistics reflect any changes in policies and legislation regarding the employment of migrant workers.

Articles 2 and 7 of the Convention. Services and information to migrant workers. The Committee notes that, in reply to its previous comments on the Government’s cooperation with other States regarding services and assistance provided to migrant workers, including the provision of accurate information on the migration process and rights and obligations of migrant workers, the Government indicates that it secured funding, under the European Union’s Undeclared Work Platform project, for two Bulgarian labour inspectors to work with the Gangmasters and Labour Abuse Authority (GLAA), in addition to a three-month secondment of a Romanian labour inspector to the GLAA to support operations in relation to exploited Romanian workers. The Government adds that it also works and exchanges information with other EU labour inspectorates. The Government also indicates that there is a lot of guidance available to migrants with regard to the processing of applications, including visas, asylum and settlement requests, as well as employment-related information. The Committee also notes the concerns of the TUC as regards the low number of advisers of the European Employment Services Network (EURES) to support EU migrant workers to find work, the lack of engagement of the Government with trade unions as regards information of migrant workers on the labour market and their rights at work, resulting in a majority of EU migrants working below their qualification level and, in some cases, exploitation. The Committee requests the Government to provide its comments in this respect. Further, the Committee asks the Government to continue to provide information on its cooperation with other States regarding services rendered to migrant workers, including information on their rights at work.

Article 3. Misleading propaganda. Stressing the importance of anti-racism and anti-xenophobic measures in order to combat misleading propaganda against both immigration and emigration, the Committee requested the Government, in its previous comment, to provide information on the measures taken to prevent and combat prejudices and stereotyping regarding immigrants in an effective manner. The Government, while recognizing that there is room for improvement, indicates that it is committed to combatting hate crimes and that its legislation contains specific offences for racially and religiously aggravated activity and offences of the stirring up of hatred on the grounds of race, religion and sexual orientation. The Committee notes the Government’s statement that it funds the True Vision web-based hate crime reporting portal, which includes provisions for specific faith and migrant communities. It also supports local third-party reporting centers in migrant communities, such as the Polish Social and Cultural Association (POSK), to encourage reporting and provide support to victims. The Committee notes also the observations of the TUC reiterating its concerns that the Government’s policies and rhetoric around immigration continue to encourage xenophobic sentiments that are stocking social tensions, including in the context of the EU referendum and its aftermath. According to the TUC, the Immigration Act (2016) contains provisions that are likely to increase discrimination against migrant and black and minority ethnic (BME) workers, such as the requirement, for workers facing customers in the public service, to speak an ‘adequate’ level of English which is not defined objectively. The TUC condemns the sharp increase in xenophobic attacks since June 2016 and regrets that the Government did not engage with trade unions to address these issues. In this regard, the Committee wishes to refer to its comments under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), mentioning the TUC’s concerns that the Immigration Act 2016 made undocumented working a criminal offence, thus classifying the wages of undocumented workers as the proceed of crime, and prohibiting undocumented workers to claim rights at work by fear of being arrested and deported. The Committee requests the Government to provide its comments in this respect as well as any information on the measures adopted, in cooperation with the social partners, to prevent and combat prejudice and stereotyping regarding migrant workers and to provide detailed information on the results obtained.

Article 6. Equality of treatment. Foreign domestic workers. In its previous comment, the Committee requested the Government to continue to monitor the effective enforcement of the legislation concerning the employment rights of foreign domestic workers, including any difficulties to effectively assert their rights before the employment tribunals and in other complaints procedures; and to provide information on the number and nature of complaints brought by foreign domestic workers regarding non-respect of rights relating to the matters set out in Article 6(1)(a)–(d) of the Convention, and their outcome. The Committee notes the Government’s indication that, recognizing that migrant workers can be particularly vulnerable to labour exploitation, the Immigration Act 2016 established the position of Director of Labour Market Enforcement (LME), who was appointed on 1 January 2017, in order to make a coherent assessment of the extent of labour market exploitation, identify routes to tackle exploitation and harness the strength of the three main enforcement bodies in this field, i.e. the GLAA, the HMRC’s National Minimum Wage/Living Wage team, and the Employment Agency Standards Inspectorate which monitors employment agencies. The Committee notes the information contained in the executive summary of the Labour Market Enforcement Strategy 2018/19 published in May 2018 which recognizes that the lack of awareness of employment rights and the fear of reprisal by employers inevitably act to inhibit full reporting by workers and indicates that there is an estimated 10,000 to 13,000 potential victims of modern slavery in the United Kingdom (covering sexual exploitation and domestic servitude in addition to labour exploitation). The Director of LME also indicates that the numbers might even be higher and that there was an increase in the volume of identified victims from 2017 to 2018. In its report, the Government adds that, under the Modern Slavery Act 2015, domestic workers found to be the victims of modern slavery can be granted an extension of stay and those suspected of being such victims are protected against enforcement action. From April 2016, the Government has removed the conditions which tied a worker to a specific employer, allowing them to change employer within the six month validity of their visa, a provision also extended to domestic workers employed in diplomatic households; and increased the period of leave which can be granted to an overseas domestic worker victim of slavery or trafficking from six months to two years (in addition to the discretionary leave available to all victims of human trafficking or modern slavery). While indicating that it does not monitor the nationality of Employment Tribunal claimants and cannot therefore provide information on their numbers and the nature and outcome of complaints, it underlines that migrant workers, including foreign domestic workers, are entitled to the same employment rights and redress available to all workers. The Committee also notes the TUC’s observations that foreign domestic workers who have been in the country more than six months are only able to leave their employer if they have a positive result from the National Referral Mechanism (NRM) that they are the victims of trafficking. Workers whose abuse is not deemed to constitute trafficking by the NRM are forced to stay with abusive employers or lose their immigration status. The Committee asks the Government to provide detailed information on the strategy adopted by the Director of Labour Market Enforcement in order to prevent and combat migrant workers’ exploitation and its results. It also asks the Government to indicate the specific conditions under which migrant domestic workers can change employer and the difficulties encountered by the NRM to identify migrant workers victims of abusive conditions of work.

Article 6(1)(b). Equality of treatment. Social security. In its previous comment, the Committee requested the Government to provide information on the practical application of the relevant provisions of the Immigration Act 2014 and the National Health Service Act 2006, including any regulations adopted setting out which temporary migrant workers will be required to pay a health surcharge (to use secondary health services, including hospital care), the level of the surcharge and the health services to which they apply. It also requested the Government to indicate the measures taken to address discrimination against migrant workers on the basis of gender, race or ethnicity in practice with respect to access to health services. The Committee notes the Government’s indication that, following the adoption of the Immigration Act of 2014, the Home Office introduced, on 6 April 2015, a requirement that most temporary, non-European Economic Area (EEA) migrants who make an application to come to the country for more than six months, or extend their stay, pay an immigration health surcharge towards the National Health Service (NHS). According to information provided on the Government’s website, the surcharge is now set at £300 per year for a student or Tier 5 (Youth Mobility Scheme) visa and £400 per year for all other visa and immigration applications. The NHS (Charges to Overseas Visitors) Regulations 2015, amended in 2017, provide for exemptions for certain types of treatment as well as for certain categories of persons among which victims and suspected victims of slavery or human trafficking (including domestic workers). The Government explains that the surcharge aims to ensure that all temporary migrants make a contribution to the cost of healthcare in the country but that the amount of the surcharge is significantly below the average per capita cost to the NHS of treating temporary migrants. It adds that urgent or immediately necessary care – which includes all maternity care – will always be provided without delay even if the surcharge payment has not yet been made. It also emphasizes that guidance on how to assess if patients are eligible for an exemption (i.e. free NHS care) stresses the need to avoid any kind of discrimination. The Committee also notes the TUC’s observations that the health surcharge is not justified financially and has a significant social cost. According to the TUC, its imposition constitutes a discriminatory barrier to healthcare for non-EEA citizens and impacts on those with protected characteristics under the Equality Act (2010), with compounded effect on BME groups. It expresses serious concerns that document checks required for healthcare turn health professionals into immigration officials. The Committee asks the Government to continue: (i) to provide information on the practical application of the relevant provisions regarding access to health services by migrant workers and the measures taken to evaluate their impact on such access in practice; and (ii) to indicate the specific measures taken to prevent and combat, in practice, discrimination against migrant workers on the basis of gender, race or ethnicity with respect to access to health services.

Enforcement. In its previous comment, the Committee highlighted that high fees to file discrimination claims may constitute an obstacle to the effective enforcement of the equal treatment principle embedded in the Convention and requested the Government to provide information on the measures taken to ensure that migrant workers can effectively assert their rights before the courts in practice, as well as statistics. The Committee notes the Government’s indication that the Supreme Court found employment tribunals fees unlawful and quashed the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013. The Committee asks the Government to provide statistics on the nature and number of complaints regarding discrimination filed by migrant workers before the employment tribunals and the Equality and Human Rights Commission, with respect to the matters covered in Article 6(1)(a)–(d) of the Convention.