Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Migration for Employment Convention (Revised), 1949 (No. 97) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1951)

Article 1 of the Convention. Information on legislative and policy developments. The Committee notes the adoption of new legislation concerning asylum and immigration, including the nationality, Immigration and Asylum Act 2002 (NIAA 2002), the Asylum and Immigration Act 2004 (AIA 2004), the Immigration, Asylum and Nationality Act 2006 (IANA 2006), the Accession (Immigration and Worker Registration) Regulations 2004, the Immigration (European Economic Area) Regulations 2006, and the Gangmasters (Licensing) Act, 2004. The Committee notes that the new legislation introduced significant changes in the United Kingdom immigration system, particularly with respect to work permits. The Committee also notes that a new draft Immigration and Citizenship Bill, 2008, is currently being drafted which will consolidate, simplify or repeal the provisions of some of the above as well as Acts concerning immigration to the United Kingdom. The Committee further notes that a number of new social security orders came into operation during the reporting period, and that the Government has launched or revised a number migrant workers schemes such as the Seasonal Agricultural Workers Scheme, the Sectors Based Scheme, the Workers Registration Scheme and the Highly Skilled Migrant Programme. The Committee asks the Government to keep it informed of the status Immigration and Citizenship Bill, and to ensure that its provisions are in conformity with the Convention. The Committee also asks the Government to provide statistical data, disaggregated by sex and nationality, of the number of workers covered by the different migrant workers schemes, as well as the specific rights and obligations of migrant workers under these schemes.

Articles 2 and 7. Measures of information, assistance and cooperation. The Committee notes that the Border and Immigration Agency (BIA) is the new executive agency of the Home Office with responsibility for managing migration control and providing guidance on all aspects of working in the United Kingdom for migrant workers. The Committee also notes the information in the Government’s report concerning Jobcentre Plus, which is an active participant in the European Employment Services Network. The Committee asks the Government to continue to provide information on how Jobcentre Plus is cooperating with corresponding agencies in other countries, as well as to provide information on the specific activities of Jobcentre Plus to assist migrant workers for employment in the United Kingdom. The Committee further refers to Paragraph 5 of the Migration for Employment Recommendation (Revised), 1949 (No. 86), and asks the Government to continue to provide information on the specific activities carried out by the BIA to assist migrants for employment.

Article 5(b). Medical testing. The Committee notes that section 37 of the Immigration Rules provides that “where the Medical Inspector advises that a person seeking entry is suffering from a specified disease or condition which may interfere with his ability to support himself or his dependants, the Immigration Officer should take account of this, in conjunction with other factors, in deciding whether to admit that person”. The Committee recalls that refusal of entry or repatriation on the grounds that the worker concerned is suffering from an infection or illness of any kind which has no effect on the task for which the worker has been recruited, constitutes an unacceptable form of discrimination (paragraph 266 of its General Survey of 1999 on migrant workers). In order to be able to fully assess the impact of section 37 of the Immigration Rules on the rights of migrant workers to enjoy adequate medical attention on the arrival in the country of destination, the Committee requests the Government to provide further information the criteria applied by the Immigration Officer to determine whether a person suffering from a specified disease or a condition interfering with the possibility to support himself or herself of his or her dependants should be admitted to the United Kingdom. Please also indicate the number of persons that have been refused by the Immigration Officers to enter the United Kingdom, and the reasons for these refusals.

Article 6. Equality of treatment. The Committee notes with interest the legislative developments in the field of discrimination during the period of reporting, in particular the adoption of the Equality Act 2006, establishing a new Commission for Equality and Human Rights (CEHR) and the adoption of the Employment Equality (Religion or Belief) Regulations 2003 which protects all workers against discrimination on the basis of religion. The Committee also notes that the Race Relations Act, 1976, as amended, prohibits discrimination on the basis of nationality. The Committee further notes that a discrimination law review (DLR) has been undertaken, involving employers’ and workers’ representatives to address concerns and inconsistencies in the current anti-discrimination legislative framework. It is anticipated that this review will lead to the drafting of a single equality bill. The Committee also notes the Anti-Discrimination Code of Practice, 2008, aimed at providing guidance to employers on how to avoid unlawful acts of discrimination in seeking to comply with United Kingdom legislation prohibiting the employment of illegal workers. The Committee asks the Government to provide information, including any judicial and administrative decisions, on the application in practice of the equality legislation to migrant workers, and especially women migrant workers, with respect to the matters enumerated in Article 6(1)(a) to (d) of the Convention. Please also provide information on the status of the adoption of a single equality bill and its impact on migrant workers, as well as on the use in practice of the Anti-Discrimination Code of Practice, and its impact on the employment of migrant workers lawfully in the country.

Article 6(1)(a)(iii). Equality of treatment with respect to accommodation. The Committee notes that pursuant to the Immigration Rules, as amended, one of the requirements to be met by certain categories of migrant workers, such as, for example, work permit holders (sections 128(v) and 131(iii)), Sectors-Based Scheme workers (sections 135I(v) and 135L(iii)), private servants in diplomatic households (sections 152(v) and 155(iv)) and domestic workers in private households (sections 159A (v) and 159(D(iv)) seeking extension of their work have to be able to maintain and accommodate themselves and any dependents adequately without recourse to public funds. The Committee recalls that Article 6(1)(a)(iii) of the Convention provides for equality of treatment between migrant workers and nationals with respect to accommodation. This includes the occupation of a dwelling to which migrant workers must have access under the same conditions as nationals. The Committee requests the Government to provide information on the measures taken to ensure that in law and in practice work permit holders, sectors-based scheme workers and domestic workers, are not being treated less favourably than nationals and with other categories of migrant workers with respect to accommodation.

Article 8. Maintenance of residence rights of permanent workers in the case of incapacity of work. The Committee notes that in the event of their incapacity to work, the vast majority of workers employed in the United Kingdom, including regular migrant workers, would fall under the Statutory Sick Pay (SSP) scheme under which it is a mandatory requirement for employers to pay their workers SSP for the first 28 weeks of incapacity. Once entitlement to SSP has been exhausted employees can transfer on to the State Incapacity Benefit (IB). Employees who do not qualify for SSP are able to claim IB from the onset of their incapacity for work, if they meet the qualifying conditions (two tax years ending before the benefit year). Migrant workers who have not worked a sufficient length of time in the United Kingdom to build up the necessary contribution record to meet these qualifying conditions, can have periods of insurance under their home scheme taken into account if they come from an EU/EEA or Switzerland or a country with which the United Kingdom has a reciprocal social security agreement covering IB. The Committee also notes, however, that under the Immigration Rules, one of the requirements for work permit holders (sections 128(v) and 134(ii)), highly skilled workers (sections 135G(ii), private servants in diplomatic households (sections 152(v) and 159) and domestic workers in private households (sections 159A(v) and 159D(iv)), to be granted indefinite leave to remain in the United Kingdom is to have had the ability to maintain and accommodate themselves and any dependents adequately without recourse to public funds. The Committee further notes that nationals from the European Economic Area and their family members who have acquired the right to permanent residence cannot be removed as the automatic consequence of having recourse to the social assistance system of the United Kingdom (section 19(4) of the 2006 Regulations). The Committee recalls that Article 8(1) of the Convention provides for the maintenance of the right to residence in case of incapacity of all migrant workers admitted on a permanent basis. This also means that permanent or indefinite residency permits should not be revoked if the individual becomes a burden on public funds or if it appears that the holder is not able to maintain himself or herself or his or her dependents (paragraph 604 of the General Survey of 1999 on migrant workers). The Committee asks the Government to indicate how the right of residency of work permit holders, highly skilled workers, private servants in diplomatic households and domestic workers who have been granted indefinite leave to remain in the United Kingdom is maintained in the event of incapacity for work, when these workers find or risk finding themselves in a situation in which they become a burden to public funds.

Annex II and Article 3. Licensing of private recruitment agencies. The Committee notes that the Gangmasters Licensing Authority (GLA) was established under the provisions of the Gangmasters (Licensing) Act, 2004 to set up and operate a licensing scheme for gangmasters operating in agriculture, processing and packaging of fish, shellfish and agricultural produce and gathering of shellfish. The Committee asks the Government to continue to provide information on the activities of the GLA, including whether any measures have been taken or envisaged to prevent gangmasters operating in these sectors from using misleading propaganda in accordance with Article 3 of the Convention.