Critical Analysis of British Immigration Law and Policy

In 2009, announcement that the nearly one year old global economic crisis had resulted in downturn cuts of foreign worker jobs, the United Kingdom braced itself for a recession that would significantly reduce the number of UK jobs being offered to workers immigrating from outside the EU (BBC 2009). Reported number of reductions to the universal sector skills shortage list was 200,000 more jobs, from 700,000 to approximately 500,000 new open jobs offered to workers (Migration Advisory Council 2009).

Recommendations to limitations according to segment in some areas typically sought after by foreign workers such as construction and engineering, resulted in a ‘zero’ open announcement protocol. Those precepts also inform the application and enforcement of immigration policy in the UK. In accordance with the new restrictions, rules on advertised jobs stated that vacancy notices must be posted to UK nationals exclusively for two weeks prior to notice abroad; with increase to one month shortly post this period (BBC 2009). 

The UK has a points-based immigration system where a quota of vacancies may be posted to recruit foreign nationals. Stipulations to the system include compliance with recruitment of ‘skilled’ labour, and extension of those contracts to non-EU member workers only where an EU citizen is unavailable to fill the post. Where the job is classified as ‘shortage occupation’ skilled foreign workers may still be recruited as priority if required.

Instigated by the worldwide recession, this transformation in British labour policy, and particularly in regions and sectors hardest hit by contractions to capital has had serious impacts on migrants residing in the UK. Even agricultural, domestic labour and fishing employment slots traditionally filled by some or almost exclusively immigrant workers are now part of new competitive focus within legislative assessments of foreign labour and its future in country. The relationship between migrant labour, the development of legislative policy and current resolutions within UK employment laws source query in the entrance of human rights legislation into the discussion, where EU policies on migrants with special status as workers are exposed to a number of violations regarding contract, compensation and treatment. 

According to the National Minimum Wages Act 1998, all workers in the UK are to be paid at least the national minimum wage. Qualification of worker status under British law articulates quite simply that the party is: (a) is a worker; (b) is working, or ordinarily works, in the United Kingdom under his contract; and(c) has ceased to be of compulsory school age (OPSI 1998). To this end, laws put forth by the Secretary of State, and extra-government bodies such as the Migration Advisory Council affect interpretation of policy on ‘Special classes of persons’ as in home workers which constitute a significant sector of domestic workers in the UK, and also where those parties might be exempt to standard rules on enumeration; and even labour law protections as stipulated elsewhere (i.e. agriculture). This includes review of The Employment Act 2008 (Commencement No. 2, Transitional Provisions and Savings) Order 2009 (OPSI 2009).

Where preemptive legislation such as the Employment Act 1996 and other relevant policy affecting Migrant domestic workers rights in the UK is pertinent to the proposed project is in the area of labour complaints. According to Section 34 of the Act, complaints by employees that an employer has failed to pay the whole or any part of the guarantee to which the worker is entitled, must be presented in the employment tribunal: ‘(a)before the end of the period of three months beginning with that day, or (b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months’ (OPSI 2009).

In cases where complaint is found to be justified under this section, remedy ordered in compensation for damages sustained in regard to the amount of guaranteed payment may be sustained where ‘wages’ are considered. Wages according to UK employment law are defined by a number of compensatory mechanisms which include: ‘(a)any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise, (b)statutory sick pay under Part XI of the Social Security Contributions and Benefits Act 1992, (c)statutory maternity pay under Part XII of that Act, (ca)statutory paternity pay under Part 12ZA of that Act, (cb)statutory adoption pay under Part 12ZB of that Act, and (d)a guarantee payment ( section 28)’ (OPSI 1996).

Other conditions support any payment for time off, which may be related to medical grounds or trade union participation. Ambiguity leaves a number of other rule elements open to interpretation by the tribunal, yet the existence of stipulations such as ‘gross amount’ and ‘advance under agreement for a loan’ may put a migrant worker at a detriment where rights and responsibilities to contractual agreements where there is not a legal writing, and especially where the administration of loan payments and taxes on ‘behalf of the worker’ complicates access to said monies.

Discriminatory issues where migrant workers are subject to breach of contract or uneven distribution in promised wages, are covered in the Immigration, Asylum and Nationality Act 2006 (OPSI 2006). Section 23, the Discrimination: code of practice states that the ‘(1)The Secretary of State shall issue a code of practice specifying what an employer should or should not do.’ Relevant to this discussion is the grey area in British law consistent with the UK’s national constitution, where ‘unwritten rules’ are defined by the order of the day, and this includes instances where an employer may avoid liability to a penalty under section 15; and in the process avoiding contravening, or commission of an offence (section 21).

Framework to judicial decision on immigration policy where discrimination has taken place on the job or otherwise, under Section 23 the UK’s race relation acts are considered: (a) the Race Relations Act 1976 (c. 74), (b) the Race Relations (Northern Ireland) Order 1997 (S.I. 869 (N.I. 6); with consultation to the (i) the Commission for Equality and Human Rights, and (ii) the Equality Commission for Northern Ireland (OPSI 2006). Damages in this case are paid in monies to the court respective to the Act’s rules on restitution.

Penalties under the 2006 Act are proposed where such discrimination has taken place, but more often where violation of UK law pertaining to the employment of foreign nationals have not been granted leave to enter or remain in the United Kingdom. In related protections clauses mentioned in regard to the full rights of migrant residents is expressed in The Human Rights Act of 1998 which came into effect on October 2, 2000 in the UK; incorporating the European Convention on Human Rights (ECHR) in advancement of standing national legislation of over fifty years. In accordance with existing UK derogations and reservations to the Act (section 2) the nation’s courts and tribunals take into account judgments, decisions, opinions and declarations ex appropriate to the ECHR. Restrictions to application of the ECHR Convention (Article 13) in international legislation remain discretionary in the UK, where special derogation to ‘an effective remedy for breaches’ evolves by way of judicial decision.