Immigration: battening down the hatches
June 4, 2015 — Comment
Written by Frances Webber
The second of a post-election three-part series on civil liberties in the UK observes how the Queen’s Speech immigration proposals contain more of the same old deterrence policies, creating more desperation, in the face of the biggest refugee crisis since World War II.
According to an investigation by the International Consortium of Investigative Journalists, in just the ten years to 2013, 3.4 million people were displaced by World Bank-funded projects around the globe: land grabs, dam projects, mines, power plants which leave a trail of broken livelihoods and broken promises of resettlement. These refugees of globalisation, along with refugees from war and persecution, make up the hundreds of thousands who, denied visas, denied boarding on any safe or legal means of transport, are risking their lives on the migrant boats in the Mediterranean in search of security and dignity in Europe. Verified deaths in the Mediterranean went from 600 in 2013 to 3,419 in 2014 and over 1,800 so far this year.
European leaders need imagination and compassion to deal with the worst crisis of forced displacement the continent has faced for seventy years. Those who have made epic journeys in flight from persecution, war, oppression or destitution deserve no less. But our government is in the forefront of efforts to block such a response. After a month of shipwrecks which claimed hundreds of lives, home secretary Theresa May called for the immediate return of survivors who were ‘economic migrants from Eritrea, Somalia and Nigeria’. Her characterisation of Eritreans fleeing dictatorship as ‘economic migrants’, when the Home Office itself recognises over three-quarters of Eritreans as refugees from persecution, should disqualify her from leading that department. She showed a similar casual disregard for Somalis leaving a state marked by two decades of civil war aggravated by famine, and neglected to mention the Syrian refugees who make a large proportion of the smugglers’ passengers. At the same time, she rejected as ‘inconceivable’ the proposal to create legal, safe routes for migrants to get to Europe in the longer term.
The British government was shamed into sending warships to the Mediterranean to help the Italian coastguard’s search and rescue operations after its callous response to the end of Italy’s Mare Nostrum rescue programme, and the resultant surge in migrant deaths, caused outrage. But our government has rejected participation in the European Commission’s emergency resettlement programme, which would require the UK to take fewer than 6,000 people in over two years. Its proposal to destroy smugglers’ boats by military action, adopted by the EU and presented as a noble blow against traffickers and modern slavers, was denounced by 300 leading migration experts as a continuation of the centuries-old ‘use of violence to prevent certain groups of human beings from moving freely’.
This blinkered, inhumane response to migrants at Europe’s borders is matched by its response to those who, inevitably undocumented, make it to the UK. The Queen’s Speech proposals promise another ‘crackdown on illegal immigration’, purportedly to push undocumented migrants into going home, and put would-be migrants off. This time, we are promised a specific offence of illegal working to enable confiscation of wages, deemed ‘proceeds of crime’; faster eviction of undocumented tenants; and an extension of ‘deport first, appeal later’. Satellite tracking tags for bailed foreign criminals awaiting deportation and the criminalisation of bosses who hire foreign workers abroad without advertising the jobs at home, complete the package.
Combatting ‘illegal working’
We know from experience that policies of enforcement to ‘root out illegal immigrants’ and ‘boost removals and deportations’ have been remarkably unsuccessful in terms of their stated objective of deterring undocumented migration, but highly successful in putting the blame for diminishing wages and workplace rights on migrants, and deflecting attention from the neoliberal policies which are the real culprit. It is common sense that people who have braved the Sahara and/or the Mediterranean are not easily deterred; but as anyone who has read Hsiao-Hung Pai’s Chinese Whispers or seen Stephen Frears’ film Dirty Pretty Things knows, more enforcement just means more desperation, more exploitation.
Even on its own terms, the creation of a new offence of illegal working makes no sense. The claim that undocumented migrants are currently ‘beyond the reach of the law’ is simply wrong. Thousands of undocumented workers are picked up in workplace raids every year, and the threat and fear of such raids is what drives them into ever deeper exploitation. Prosecutions already take place (although not routinely, as it is cheaper and quicker simply to send people home). Since employers must, on pain of fines of up to £20,000 per worker, retain copies of workers’ passports or other documents evidencing rights to work, undocumented workers tend to use false passports. This means they can be – and are – prosecuted for ‘obtaining pecuniary advantage (ie, wages through work) by deception’.
The government’s stated aim is to have a firm legal foundation for the seizure of undocumented workers’ wages as ‘proceeds of crime’. But quite apart from the sheer immorality of seizing hard-earned wages, the legal difficulties in the way of confiscation of workers’ wages make the creation of a new offence for the purpose a fruitless and futile exercise, whose costs are likely to outweigh any income recovered. The right to peaceful enjoyment of property – probably the only part of the Human Rights Act wholeheartedly approved of by the current government – is what stands in the way. Although the right is qualified by the State’s right to impose penalties, interference with property rights (including wages) must be proportionate. The seizure of proceeds of serious organised crime, ‘to reduce the profits available to fund further criminal enterprise’, is uncontroversial, but confiscation of the usually pitiful wages of undocumented workers potentially offends DPP guidance against ‘disproportionate’ seizure, and the European Court of Human Rights recently rebuked the UK authorities for failing to consider whether the confiscation of an undocumented worker’s entire savings was disproportionate.
The government’s background briefing explains that the purpose of the proposals is to ‘put hard working British families first’, ‘to support working people, clamp down on illegal immigration and protect our public services’. There must be easier ways to put hard-working British families first – banning zero-hours contracts, living wage legislation, enforcement of decent working conditions and job security spring to mind. On the government’s own figures, in the seventeen months from October 2013 to February 2015, only 162 employers were penalised for failure to pay their workers the minimum wage. They paid a total of £181,000 in civil penalties. This contrasts with figures showing that in just three months, July – September 2014, a total of 539 employers faced penalties of over £8 million for hiring undocumented workers.
Ending labour exploitation?
Perhaps as a quid pro quo for snatching their wages, the government promises to set up a new enforcement agency to crack down on the worst cases of migrant workers’ exploitation, taking a leaf out of the Labour manifesto. But why set up a new body? This was the job of the Gangmasters Licensing Authority (GLA), set up in 2004 after twenty-three Chinese workers died cockle-picking in Morecambe Bay, with a brief to regulate labour suppliers in food harvesting and processing. The government was urged to increase the GLA’s funding and its remit, particularly into construction and the care sector, but instead, in April 2014, it was taken from the Department for Business Innovation & Skills (BIS) to the Home Office, and its focus shifted from labour exploitation to undocumented migration and organised crime – since when investigations and prosecutions of gangmasters have fallen dramatically. If the government was serious about tackling exploitation it would return the GLA to BIS. Not to mention signing up to the Migrant Workers Convention, and the ILO’s Domestic Workers Convention.
In March, the coalition faced a real test of its commitment to tackle serious exploitation, as its much-vaunted Modern Slavery Bill went through parliament. The Lords wanted to protect overseas domestic workers by ending the kafala system which ties these workers to the employer who brought them in. This system, which turns workers into virtual chattels, was imposed in 1979, ended by New Labour in 2002, and re-imposed by the coalition in 2012. But the government set its face against the reform, and under the final provision, only those domestic workers who can prove they have been treated as slaves are eligible to switch to a new employer – after the damage is done.
Evictions and bank accounts
More deterrent housing measures come hard on the heels of the landlord penalty system of last year’s Immigration Act, designed to stop landlords renting to undocumented migrants. Parliamentary opposition succeeded in forcing the scheme to be limited to a pilot, which started in the West Midlands in December 2014. A consultative panel of landlords’ representatives, local authority housing bosses, homelessness charity Crisis and the Equality and Human Rights Commission (EHRC) was concerned that the scheme risked driving undocumented migrants to ‘rogue landlords’ in the ‘last resort sector’, discriminating against British BAME communities and legal migrants, and damaging ‘community cohesion’. Early results of a survey by JCWI and other organisations bear out some of these concerns: landlords are proving unwilling to rent to anyone not producing a British passport, or anyone who can’t provide papers immediately, and tenants are being charged up to £100 in ‘administration costs’. But the Home Office does not seem prepared to wait for a proper evaluation before applying the scheme nationally (its own evaluation is not expected until the end of the year), and proposed to ‘built on the national roll-out’ to ‘make it easier to evict illegal migrants’. Meanwhile, banks will be required to ‘take action’ (it’s not clear what – closure? confiscation?) ‘against existing current accounts held by illegal immigrants’.
Deport first, appeal later
The 2014 Immigration Act slashed rights of appeal, so that only cases engaging human rights or asylum can now be appealed. That Act also introduced a ‘deport first, appeal later’ principle for foreign criminals, unless they could show that deportation would cause serious and irreparable harm – by exposure to a real risk of torture or the death penalty, for example. It is too early to know the effect of the changes, and it may be impossible to find out how many people have suffered irreparable harm after wrongful deportation, particularly as legal aid cuts mean few deportees have lawyers. But such is the government’s impatience to get rid of unwanted migrants that it now proposes to extend the principle to all immigration cases. Its final proposal is to require all foreign offenders released on bail to be tagged, to ‘prevent absconding and increase the number of criminals deported’. Measures like these aim to destroy not just livelihood but dignity.
Announcing the measures, the prime minister said his ambition is to make Britain ‘a less attractive place to come and work illegally’. He is likely to achieve more than that: when for children brought up in a climate of hostility, ‘migrant’ has become a word loaded with hatred and fear, proposals like these make Britain a less attractive place to live in for everyone.
Read the first article in this series, ‘One nation: but whose?’ here
IRR briefing paper: ‘Europe’s pariah state? The future of human rights in Britain‘
IRR News article: ‘Immigration Bill passes through commons‘
IRR News article ‘Foreign criminals, the press and the judges‘
IRR News article: ‘Human rights – at the government’s discretion‘
IRR News story: ‘Human rights: the assault continues‘
References:  See Jon Burnett and David Whyte, ‘The wages of fear: risk, safety and undocumented work’, Pafras, 2009; Hannah Lewis, Peter Dwyer, Stuart Hodkinson and Louise Waite Precarious lives: experiences of forced labour among refugees and asylum seekers in England, (University of Salford and University of Leeds, 2013).  R v Rezvi UKHL 1, R v Waya  UKSC 51.  Paulet v United Kingdom  ECHR 477. Two judges went further, condemning the confiscation of wages of work not criminal in itself but merely unauthorised.  Employer penalties have only recently been included in the government’s immigration enforcement statistics, but according to a legal website, between 2009 and 2013 over 8,500 employers were penalised for employing undocumented workers, paying a total of £79,300,000.  Minutes of Landlords Consultative Panel, 11 September 2014, FOI request 33187, Home Office to Refugee and Migrant Forum of Essex and London of 29 December 2014 (ILPA members’ website).  Including Movement Against Xenophobia (MAX), Shelter, National Union of Students (NUS) and Generation Rent.  ‘Children have negative views of immigration, survey shows’, Guardian 20 May 2015.
The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.
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