The right to work is a restricted privilege to which migrants are granted unequal access in relation to citizens and in relation to each other. Some migrants are able to obtain visas to work in the UK relatively easily, while for others working is prohibited (Mayblin 2016). The next section will outline the different legal statuses and the rights to work in the UK depending on the legal status of migration.
12.3.1 Non-EU Arrivals
The Non-EU migrants (excepted asylum seekers and refugees) can apply to various visas to access the labour market in the UK. Three different visa tiers have been established and are currently operating: Tier 1, Tier 2 and Tier 5. Non-EU migrants can apply before arriving to the UK for Tier 1 visas if they are willing to open a business activity (with investment of at least £50,000), they represent an exceptional talent or promise in the field of science, humanities, engineering, medicine, digital technology or the arts (endorsement has to be granted by the Home Office), they aim to invest at least £2 million in the UK or if they are graduate entrepreneurs with an endorsed idea from the Department of International Trade or from a UK Higher Education institution. Until 2015, high skilled migrants achieving a high score in the points-based systemFootnote 8 were also entitled to apply to Tier 1. However, the programme has since been closed and only extensions are considered. A Tier 2 visa can be requested if a non-EU migrant has received a skilled job offer by one of the recognised and licenced sponsors. Sponsors must offer a salary higher than £30,000 or a job that is included in the shortage occupation list.Footnote 9 The Tier 2 visa also includes migrants who are involved in intra-company mobility, are ministers of religion or are an elite sportsperson. Non-EU migrants can apply for the Tier 5 visa if they are willing to volunteer in a charity, they have been sponsored to work as a sportsperson or creative worker, they are aiming to participate in a work exchange programme for a short time, they are employed under international law (e.g. working for a foreign government) or they are working for a religious order. The Tier 5 visa also offers the possibility for young people between 18 and 30 years of age from specific countriesFootnote 10 to spend a period up to 2 years in the UK (Youth Mobility Scheme).
Although eligibility rules are very different across the different schemes, all non-EU migrants must have a valid clearance for entry under these routes. The majority of the visas request a specific endorsement from a public sector organisation (e.g. the Home Office) or a sponsorship from a list of licensed companies. When an endorsement or the sponsorship is not requested, a high level of skills is necessary, an amount of investment is requested (such as for Tier 1) or there are restrictions concerning the eligible countries (such as for the Youth Mobility Scheme). These regulations clearly increase the barriers to access the UK labour market for non-EU migrants. Most non-EU migrants who are subject to immigration control are also unable to access “public funds” (such as jobseekers’ allowance or tax credits), although they can use public services like the NHS and education. Finally, through the Immigration Act 2014 and 2016, an NHS surcharge (Immigration Health Surcharge) to cover the entire period of the visa has been introduced in the immigration application for all non-EU migrants.
12.3.2 Asylum Seekers
A completely different system and right to work has been established concerning asylum seekers. Asylum policy has been identified as institutionally exclusionist, given that the restriction of rights demarcates asylum seekers as “other” and undeserving (Bakker et al. 2016). According to the Immigration Act of 1999, asylum seekers are explicitly excluded from the labour market. Up until 2002, asylum seekers could request permission to work after 5 months of awaiting their application, but in 2002 this period was extended to 12 months. Moreover, the pending period should not be a consequence of mistakes made by the asylum seeker in the application (“fault of the claimant”) (Home Office 2017a). This is in contradiction with the Reception Conditions Directive (COM 320 final) published in 2011 which only allows a labour market restriction for 6 months (Bales 2013). However, the UK government, as explored in the case law section, rejected the 2011 Reception Conditions Directive. After the 12-month period lapses, asylum seekers can only apply for jobs specified under Tier 2 of the Shortage Occupation list. The Tier 2 restriction was justified by the UK Government due to the legislation on labour market access for Non-EU migrants (explored above). It is therefore very difficult for asylum applicants to comply with the Tier 2 shortage occupation lists and this clearly affects their opportunities for integration, and consequently has an impact on their health and connectedness (particularly of women) (Mayblin 2016; Mulvey 2015). In addition, asylum seekers are also precluded from self-employment and starting a business according to Immigration Rules part 11B (Reception Conditions for Non-EU Asylum Applicants).
Exclusion from employment makes the asylum seekers fully dependent on the state for their means of their existence (Bales 2013). In addition, they are also immediately excluded from the provision of mainstream benefits (such as for example Child Benefit, Disability Living Allowance). Only in those cases where the asylum applicant is considered to be destitute or is likely to become destitute with the next 14 days (section 95 of Asylum Act 1999), do they receive support from the Home Office. Payments to meet essential living needs (equivalent to £37.75 per week) and/or accommodation on a no-choice basis are provided. There is a somewhat different situation for refused asylum seekers: they are generally not entitled to any help, and their accommodation and public welfare support is removed. However, if they demonstrate that they are taking action to leave the country or they can demonstrate that they cannot return to their home due to the situation in their country of origin they could receive basic shelter and a lower level of support.
Migrants granted refugee or humanitarian protection statuses (including refugees who are resettled as part of the VPRS) are entitled to work without any restrictions (both as an employee or self-employed) and thus have the same right to work as British citizens. However, the definite leave to remain for 5 years has been identified as a barrier to labour-market access due to the uncertainty surrounding the long-term future of a refugee in employment (Bloch 2008; Stewart and Mulvey 2014). Refugees are eligible for mainstream benefits such as the most recent Universal Credit reform.Footnote 11 However, new refugees could face a period without any income due to the specific timeframe of the welfare benefit and the gap with the transition period of 28 days (APPG 2017). Newly recognised refugees are able to apply for an interest-free integration loan to negotiate this period where there is a risk of destitution. The Home Office is responsible for accepting the request while the Department for Work and Pensions is responsible for the payment and the recovery of the loan. Different experiences in terms of welfare entitlement are faced by refugees that are part of the Vulnerable Persons Resettlement Scheme. They, in fact, receive a pre-departure cultural orientation and they are immediately provided with accommodation, a welcome pack, an allowance and support for health and education services.
Table 12.1 summarises the rights to residence, work and welfare access that the different migrants are entitled to.
12.3.4 Constitutional Milestones Case-Law on MRA Access to Labour and Labour Markets
Constitutional milestones in case-law on MRA access to labour markets have been particularly significant in the field of asylum because of the differences in their right to work in comparison with refugees, migrants and citizens (Bales 2013).
Asylum seekers are explicitly excluded from the UK labour market until their claim has been pending for 12 months or until they have been granted refugee status. This restriction contradicts Article 15 (1) of the amended EU Reception Conditions Directive published in June 2011 in which asylum seekers can access labour markets after 6 months. The UK Government, in fact, decided to opt out from the EU Directive amendment. Moreover, after a 12-month period, asylum seekers are limited to applying for jobs specified under Tier 2 of the Shortage Occupation List. This decision was introduced in September 2010 following the case of ZO (Somalia) and others: (Respondents) v Secretary of State for the Home Department (2010) UKSC 36.Footnote 12 The Supreme Court decided that restricting employment to refused asylum seekers, who had made further applications on their claim, was against the Reception Conditions Directive. This decision would have allowed asylum seekers access to the UK labour market after 12 months from their application or appeals. Therefore, the Coalition Government decided to impose the Tier 2 restriction Shortage Occupation List as the only employment possibilities available to asylum seekers. The list includes only very specific high skilled occupations such as for example classical ballet dancers who meet the standard required by internationally recognised United Kingdom ballet companies, physical scientists, engineers or doctors. It is thus evidently challenging for asylum seekers to access the UK labour market once the 12 month period lapses (Mayblin 2016).
According to Section 95 of the Immigration and Asylum Act 1999, asylum seekers are not only excluded from the labour market, but they are also unable to access national welfare benefits. They are provided with cash/vouchers support and/or accommodation if they are considered destitute. According to Randall (2015) destitution has been defined in two different ways. The Home Office under Section 95 of Immigration and Asylum Act 1999 defines destitution as lacking access to adequate accommodation or the inability to meet essential living needs (ELN). Other research instead has defined destitution as lacking shelter, food, heating, lighting, clothing and basic toiletries or having an income level so low that it is not possible to access minimum material necessities. Until R (Refugee Action) v Secretary of State for the Home Department  EWHC 1033 the definition of essential living needs was not clear (Bales 2015). Consequent to the decision of the Secretary of State in 2013 of freezing the income support to asylum seekers (equivalent at that time to £36.62 per week for a single person), Refugee Action – a charity organisation in England and Wales – sought judicial review of the decision. The judge responded that the rate was not enough to guarantee an adequate standard of living as stipulated by the European Reception Conditions Directive and it did not include items such as household goods, nappies and non-prescription medical goods considered to be essential (Bales 2015). However, after reconsideration by the Secretary of State, the decision was to maintain the same cash support (the rate was increased at the beginning of 2018 from £36.95 to £37.75 according to the Asylum Support Amendment Regulations 2018 No.30). Although the judgement of this case is limited to the confines of this decision, the restrictions on which the asylum support system is built were questioned. The lack of an adequate rate of support for essential living needs affects the integration of asylum seekers, often inducing them to live in poverty and can often increase their risk of exposure to forced and irregular employment.
The third case, and the most recent, dealt with what has become known as the ‘deport first, appeal later’ provision, an amendment to the 2002 Nationality, Immigration and Asylum Act, which came into force as part of the Immigration Act 2014. The power to remove a person from the UK pending his/her deportation appeal, where such removal would not be unlawful, was thus established. The provision specifies that the grounds upon which such power may be exercised is that removing the person to the country or territory to which the Home Office proposes to remove them would not cause them to face ‘serious irreversible harm.’ In the case of R (on the application of Kiarie) (Appellant) v Secretary of State for the Home Department (Respondent)  UKSC 42, the Supreme Court in March 2018 found this section unlawful. The Court’s principal concerns highlighted the barriers for deportees to secure, fund, and instruct legal representatives from abroad, the ability to obtain expert evidence where relevant, and, crucially, the ability of the individual to give effective oral evidence. Therefore “deport first, appeal later” was considered to be a breach of the procedural requirements of Article 8 of the European Convention on Human Rights, that is, the right to an appeal against a decision affecting an individual’s right to respect for their private and family life. Thus, asylum seekers as well as refugees and migrants who are awaiting the response of the Home Office concerning their appeals, are allowed to stay in the country whilst their appeal is being processed.
12.3.5 Anti-discriminatory Legislation
Another piece of legislation which deals with the integration of migrants, refugees and asylum seekers into the labour market concerns anti-discriminatory and anti-exploitation laws (explored in the next paragraph). The UK race relations model has historically been influenced by managing diversity through racial equality, non-discrimination acts and limiting numbers (Scholten et al. 2017). The first attempts to deal with the potential for racial conflict and to tackle racial discrimination can be traced back to the 1960s and 1970s. Three Race Relations Acts (1965, 1968, 1976) were enacted, aiming at banning discrimination on the basis of race, colour or ethnic origin through legal sanctions. Regulatory agencies were also established to promote greater equality of opportunity and access to employment, education and public facilities. However, according to several studies, these goals remained unfilled (Schuster and Solomos 2004).
Only after the election of the Labour government in 1997, were race relations modified, through the 2000 Race Relations (Amendment Act) which enforced on public authorities a new duty to promote racial equality. However, officials from the Home Office that make decisions on immigration cases were excluded. The persistent underemployment of minority ethnic groups resulted in the formation of the Ethnic Minority Employment Task Force in 2003. In 2007 the Equality and Human Rights Commission (EHRC) had taken on the responsibilities of the Commission for Racial Equality and the 2010 Equality Act superseded the four Race Relations Acts, combining everything into a broader framework (Geddes and Scholten 2016). The Equality Act 2010 sets out nine protected characteristics which are: age; disability; gender reassignment; marriage or civil partnership (in employment only); pregnancy and maternity; race; religion or belief; sex; and sexual orientation. The 2010 Act encompasses the protections previously provided by legislation including the Equal Pay Act 1970, the Race Relations Act 1976 and the Disability Discrimination Act 1995. Finally, included in the 2010 Act was a “public sector equality duty” which harmonised some of the existing duties not to discriminate based upon race, disability and gender in public sector organisation. However, criticisms of the Equality Act highlighted that including race alongside other categories has watered down the protection of minorities in terms of discrimination in the labour market.
12.3.6 Anti-exploitation Legislation
Irregular migrants and asylum seekers that face a limited access to benefits and a restriction to the rights to work are often involved in irregular and informal sectors of employment (Dwyer et al. 2016). However, also refugees and regular migrants could be exposed to severe exploitative labour because of the high barriers they face in finding employment (Dwyer et al. 2016). Since 1996, it has been possible to prosecute UK employers for hiring irregular immigrants. Sanctions were further strengthened in 2004 and 2008, up to the arrival of the Immigration Act of 2016 which again increased penalties. Today, those employers who have “reasonable cause to believe” that an employee has no right to work as a consequence of their immigration status can face up to 5 years in prison and an unlimited fine. Although some of the measures are directed at employers, they are likely to affect workers who may become more exploited through employers seeking to manage risks by lowering wages and/or increasing working hours (Dwyer et al. 2016). Unauthorised workers themselves, who became criminalised for the new offence of “illegal working” would also face deportation without appeal if they did not have the right to remain in the UK. The UK, then, is characterised by a strong degree of state intervention to maintain formal labour markets. This legislation, more than tackling informal employment, seems to increase the barriers to access labour markets and indirectly affect the conditions of employment. This also confirms that a major focus, in fact, has been placed on border enforcement and the reduction of irregular migrants instead of improving working conditions. Trade unions and community organisations have thus asserted some role in campaigning and promoting better working conditions for migrants and ethnic minorities. For example, the Living Wage campaign in London is a key case example of unions and community organisations working together to improve working conditions for a mainly migrant group of workers.