I want to address a fundamental question of deregulation, namely the exclusion of migrants without documents from employment rights. Martin Ruhs and Bridget Anderson, in their innovative work on compliance (Anderson and Ruhs 2010), show how workers fall into non- (or semi) compliance as a result of the operation of immigration rules and that it is the law, rather than the migrants themselves, that determines migration status. The consequences of this are particularly relevant in the application of employment law. Though the origins of the common law doctrine of illegality of contract are unclear, by the middle of the nineteenth century it was being used in the courts to declare contracts unenforceable where there was an issue of illegality, either in the construction of the contract or in its operation. Initially, it was not applied to employment cases, but by the middle of the 20th century this position had been reversed, particularly in cases where there was tax or national insurance avoidance. It was inevitable that it would be applied to undocumented migrants who generally are not able to pay taxes since they are not registered, and judges have denied some migrants employment protection simply because they are non- (or semi) compliant. This means for example, that migrants in these categories have no right to be protected during maternity, nor even the right not to be discriminated against. This is important because these rights are otherwise generally applicable to all workers and, in the case of maternity and discrimination, are also protected under European law.
The common law interpretation of contracts where there is status irregularity is exceptionally harsh in a period where tightening immigration controls have restricted lawful entry, particularly for those in low-skilled jobs. It is increasingly difficult for non EU workers to enter the country with permission and the law then privileges employers who are aware of the weak position of the undocumented. This not only makes the undocumented a ‘cheap’ workforce but it means that they have no legal redress, however poorly they may be treated. It cannot be right that the law should operate so as to encourage abusive treatment, as in the recent case of Zarkasi v Anindita and another UKEAT 0400/11 (2012) where the courts denied the right of any employment protection to a vulnerable young Indonesian woman who had been brought to the UK to work in her employer’s home. She had been promised generous terms and conditions, but the reality was very different, and she suffered abuse at the hands of the employer while being paid just £150 a month, well below the national minimum wage. The fact that it was her employer who had brought her to the UK knowing that she would not have a legal right to work was deemed irrelevant.
While both the current coalition and the previous Labour governments have asserted the need to eliminate what they describe as ‘illegal work’, the truth is that their policies have served to make the vulnerable even more so. The government points to the use of sanctions against those employing undocumented migrants (and in 2013 proposed to increase them from £10,000 to £20,000 per worker) but immigration authorities appear to focus on ‘easy’ targets such as employers in ethnic enclaves, identifying them as the main offenders. Undocumented workers are present in most low paid sectors, but outside of the ethnic enclave employers know that they are very unlikely to face immigration raids or to be prosecuted.
It cannot be right or just that employers can get away with exploiting vulnerable workers in this way. Effectively the common law doctrine encourages the exploitation of those without documents and, as our research on undocumented migrants has demonstrated (see Bloch et al., 2013), the employment conditions of those who are undocumented worsen when the only option is no work at all.
Is there an alternative? I would argue that the first duty of the state is to ensure the enforcement of minimum employment standards, regardless of immigration status. This protects not just those who are undocumented, but benefits all workers who do not face being undercut or having their terms and conditions reduced to ‘match’ those offered to the undocumented. Indeed, governments could go further. If their policy aim was to eliminate exploitative working conditions (a legitimate public interest) they could legislate such that those undocumented migrants who blew the whistle on their employers’ exploitative conditions would be given additional protection, in particular the option of regularisation. If this is considered a step too far in the current political climate, then surely as a bare minimum we should be arguing for the regulation of all employment relationships and the guarantee of at least the minimum statutory employment protection, in keeping with EU and international standards. We urgently need an alternative model which guarantees the separation of immigration and labour law, to validate labour law as a fundamental guarantor of rights in the workplace.
Bloch, A. et al. (2013) Undocumented Migrants, Ethnic Enclaves and Networks: Opportunities, Traps or Class-based Constructs, ESRC project, http://www.undocnet.org.
Ruhs, M. and Anderson, B. (2010) ‘Semi-compliance and Illegality in Migrant Labour Markets: An Analysis of Migrants, Employers and the State in the UK’, Population, Space and Place 16(3): 195-21.