Labour migration in hard times: Reforming labour market regulation? edited by Bernard Ryan yK byK
This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the authors. The responsibility of the Institute is limited to approving its publications as worthy of consideration within the labour movement. This publication was made possible by a kind financial contribution from The Barry Amiel and Norman Melburn Trust. Information about the Trust’s work is available at http://www.amielandmelburn
ISBN 978-1-906703-22-6 November 2013 Published by the Institute of Employment Rights 4th Floor, Jack Jones House, 1 Islington, Liverpool, L3 8EG e-mail office@ier.org.uk www.ier.org.uk Design and layout by Upstream (TU) www.upstream.coop Printed by The Russell Press (www.russellpress.com) £10 for trade unions and students £30 others
Contents
CHAPTER ONE
Introduction: labour migration and regulation today
1
Bernard Ryan CHAPTER TWO
Migrant workers in hard times
5
Sonia McKay CHAPTER THREE
The politics of immigration in hard times
23
Don Flynn CHAPTER FOUR
Trade unions and migration in the UK: equality and migrant worker engagement without collective rights
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CHAPTER FIVE
From labour migration to labour law reform Bernard Ryan
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Heather Connolly, Miguel Martinez Lucio and Stefania Marino
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CHAPTER SIX
Enforcement in the workplace
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Nick Clark CHAPTER SEVEN
Workers without footprints: the legal fiction of migrant workers as posted workers
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Lydia Hayes and Tonia Novitz, University of Bristol CHAPTER EIGHT
The immoral trap: migrant workers and the doctrine of illegality
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Alan Bogg CHAPTER NINE
What is to be done for migrant domestic workers?
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Labour migration in hard times
Virginia Mantouvalou
Endnotes
157
List of contributors
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CHAPTER ONE
Introduction: labour migration and regulation today Bernard Ryan
In contrast to that optimism, the intervening eight-year period has seen a decidedly negative turn in the debate over labour migration in the United Kingdom. Since the mid-1990s, there has been a historically high level of net migration to the United Kingdom, with the average more than doubling between the 1990s and the 2000s, to nearly 200,000 a year.1 Those levels of migration had various causes, including greater ease of international travel and communication, coupled with the benign economic conditions which obtained for most of the period from the mid-1990s to 2008. It was also the result of the broadly favourable view of labour migration taken by Labour Governments from 2000 onwards.2 Within the period, a key moment was the opening of the United Kingdom labour market to nationals of eight Central and Eastern European states (‘the ‘A8’) when those states joined the EU on 1 May 2004. That led to an unexpectedly large influx of workers from those states, with more than 1.1 million A8 nationals registering an employment by the end of the transitional period on 30 April 2011.3
Labour migration in hard times
This publication is a successor to the September 2005 Institute of Employment Rights report entitled Labour Migration and Employment Rights. That report sought to move away from the two main perspectives which then dominated policy debate over labour migration – an instrumentalist cost-benefit approach, then typical of New Labour, and a restrictionist one, then starting to be evident within the Conservative Party. The report argued for a rights-oriented model, which would recognise that labour was not a commodity like any other, and which would aim to ensure equal treatment in the labour market. Underlying the report was a sense of optimism as to the achievability of a policy framework which was both accepting of new labour migration and sought to protect the legitimate interests of all workers to employment opportunities, to fair wages, and to decent treatment in the labour market.
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Labour migration in hard times
The rise in net migration largely explains why, from 2000 onwards, opinion polling found immigration appearing more prominently among the issues facing the United Kingdom classed as ‘important’ by respondents.4 In response to the electoral pressure generated by recent immigration, the main political parties have come to argue for less migration, both generally and within the labour market. From 2005 onwards, the Labour Government re-packaged its labour migration policy into a ‘points-based system’, introduced ‘civil penalties’ for the employers of persons without permission to work, and declined to open the labour market access to Bulgarian and Romanian nationals when those states joined the European Union on 1 January 2007. After the onset of the economic crisis in 2008, it tightened the eligibility criteria for skilled non-EU migrants. Since the 2010 election, the Labour leadership has gone further and sought to distance itself from aspects of earlier policy. In June 2012, Ed Miliband argued that the previous Labour government ‘went wrong’ on migration and that ‘the public were ahead of us in seeing some of the problems caused by the rapid pace of migration, especially from the expanded EU.’ 5 Subsequently, in a speech on immigration policy in March 2013, shadow Home Secretary Yvette Cooper stated explicitly that the then Labour Government ‘should have kept transitional controls for Eastern Europe’.6 In the case of the Conservative Party, a new policy direction emerged in its 2006 publication Controlling Economic Migration, which raised the possibility of ‘a limit on immigration numbers which is not arbitrary’.7 The 2010 Conservative election manifesto made three promises of relevance to labour migration: a reduction in net migration to ‘tens of thousands a year’, a cap on non-EU economic migrants, and transitional limits on labour migration from future EU accession states. All three of these commitments would subsequently become Coalition policy.8 Notwithstanding a fall in net migration since 2010, the credibility of the Conservative/ Coalition’s net migration policy is in doubt.9 One major reason is that it includes EEA net migration, though lacking a policy for limiting it, while the governing parties remain committed to a highly flexible labour market regime. Another reason is that the policy leads inexorably to limits on migration by skilled workers and international students from outside the EEA, which risks economic damage to the United Kingdom.10 It is therefore highly significant that recent Labour Party statements have broken new ground in arguing that a policy on labour migration ought to include provision for labour standards. In his June 2012
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speech, Ed Miliband advanced the general proposition that To have an effective immigration policy, we must also reform how our economy works so that it works for all working people in Britain, whoever they are and wherever they come from. That means tougher labour standards to do more to protect working people from their wages and conditions being undermined.
The chapters in this book are all concerned with the challenges posed by current labour migration to the United Kingdom. A first group of contributions focus primarily on the labour market position of migrant workers. The chapter by Sonia McKay highlights the difficult labour market experience of many migrant workers in the recent past, with pressure on both their employment and their terms and conditions. That is complemented by the chapter by Don Flynn, whose analysis is that migrants are thought to offer the kind of workforce – high on effort and relatively quiescent – that employers aim for in a service-led economy with high levels of competition. The depth of the challenge posed by migration for traditional labour market arrangements also emerges from the chapter on trade unions by Heather Connolly, Miguel Martinez Lucio and Stefania Marino: while celebrating the successes of trade unions in representing migrant workers over the
Labour migration in hard times
Three reasons may be suggested why Labour’s new perspective on migration and public policy is potentially of great importance. Firstly, to the extent that the goal of reducing net migration is accepted, Labour’s proposal to reform labour law has the merit that it applies to both EEA and non-EEA migrants.11 If such a policy were successful, it would probably have an impact on the level of low-skilled migration from within the EEA, and would correspondingly reduce the felt need for restrictions on non-EEA skilled migrants and international students. Secondly, Labour’s policy could prove advantageous in the socio-political sphere. Put simply, the promotion of fair and equal treatment of all categories of worker is more likely to ensure acceptance of immigration by other workers than the alternative of a flexible labour market, coupled with a policy focus on reduced net migration. Thirdly, if taken seriously, Labour’s stated ambition to ‘protect working people from their wages and conditions being undermined’ is capable of justifying far-reaching reforms to strengthen labour law. That is especially significant, given the absence of other clear imperatives to reform, and the favouring of further deregulation in some current government circles.12
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past decade or so, they show the difficulty of sustaining such strategies of inclusion in an unfavourable policy environment.
Labour migration in hard times
A second group of contributions addresses the adequacy of the system of labour law, in so far as it relates to migrant workers. The chapter by Bernard Ryan charts the ways in which migration my lead to the reform of labour law. In the same vein, the chapter by Nick Clark documents the inadequacy of the mechanisms for the enforcement of labour standards in Britain, something which affects all workers in a weak labour market position, including many migrant workers. The chapter by Lydia Hayes and Tonia Novitz identifies the dangers of legal assumptions to the effect that ‘posted’ and seasonal workers, are not in reality part of the labour market in which they work. A different kind of inclusion is argued for in the contribution of Alan Bogg, who highlights the inadequacy of the doctrinal justifications put forward in the United Kingdom for the exclusion of irregular migrant workers from the protection of labour law. The exploitation of especially vulnerable classes of migrant worker is also addressed in the chapter by Virginia Mantouvalou, who calls attention to the dangers for migrant domestic workers of their weak position within both labour law and the immigrant visa system. The future direction of policy concerning labour migration must on the whole be thought uncertain. On the one hand, substantial labour migration to the United Kingdom is likely to continue. It is telling that, in the past five years of economic crisis, there has been an increase of 576,000 in the number of non-United Kingdom born workers in employment in Britain, while the number of United Kingdom-born workers has fallen by 403,000.13 Skilled migration is likely to remain attractive both to employers and to a state interested in limiting education and training expenditure; and, lower-skilled migration is likely to continue, at least on the assumption that the United Kingdom remains a member of the European Union. At the same time, public opinion appears resolutely sceptical as to the desirability of recent migration patterns, and the effectiveness of immigration policy. The result is something of a policy impasse, with policy-makers struggling to find solutions which are credible in both economic and political terms. If there is a reason for optimism today for those who wish simultaneously to accept migration and to have effective labour standards, it is that the revitalisation of political concern for the latter offers a coherent path out of that policy impasse. Our hope is that the contributions in this book will assist in finding that path.
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list of contributors
Alan Bogg is Professor of Labour Law, University of Oxford. Nick Clark is Senior Research Fellow at the Working Lives Research Institute, London Metropolitan University.
Heather Connolly is a Senior Lecturer in Leicester Business School, De Montfort University.
Don Flynn is Director of the Migrants’ Rights Network. Lydia Hayes is Law and Society Research Fellow at Cardiff University Law School.
Miguel Martinez Lucio is Professor of International Human Resources Management, University of Manchester.
Sonia McKay is Professor of European Socio-Legal Studies, Working Lives Research Institute, London Metropolitan University.
Virginia Mantouvalou is Reader in Human Rights and Labour Law/Co-Director of the Institute for Human Rights, University College London.
Stefania Marino is a Research Fellow at Manchester Business School, Tonia Novitz is Professor of Labour Law, University of Bristol. Bernard Ryan is Professor of Migration Law, University of Leicester.
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University of Manchester.
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Labour migration in hard times
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About the Institute The Institute of Employment Rights seeks to develop an alternative approach to labour law and industrial relations and makes a constructive contribution to the debate on the future of trade union freedoms. We provide the research, ideas and detailed legal arguments to support working people and their unions by calling upon the wealth of experience and knowledge of our unique network of academics, lawyers and trade unionists. The Institute is not a campaigning organisation, nor do we simply respond to the policies of the government. Our aim is to provide and promote ideas. We seek not to produce a ‘consensus’ view but to develop new thoughts, new ideas and a new approach to meet the demands of our times.
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Skilled migration is likely to remain attractive both to employers and to a state interested in limiting education and training expenditure. Lower-skilled migration is likely to continue while the UK remains a member of the European Union and while employers are able to exploit migrant workers who they see as high on effort, usually unorganised and relatively quiescent. But public opinion appears sceptical as to the desirability of recent migration patterns and the effectiveness of immigration policy. The result is something of a policy impasse, with policy-makers struggling to find solutions which they see as credible in both economic and political terms. Ed Miliband has recently argued that any policy on labour migration ought to include provision for labour standards. This book takes up that argument. Calling for a rights-oriented model aimed at ensuring that the legitimate interests of all workers to employment opportunities, to fair wages, and to decent treatment at work are protected, this book offers a welcome route out of the current policy impasse.
ÂŁ10 for trade unions and students ÂŁ30 others