An introduction to employing migrant workers
Migrant workers play an important role in the UK's economy, helping employers to fill vacancies where skills are in short supply or applicants are scarce. Hiring them lawfully means balancing employers' duty to combat illegal immigration with their obligation to avoid unfair race discrimination.
On this page:
The numbers of migrant
workers
The business case for
hiring migrants
The
justifications for employment protection
Who requires a work permit or visa?
Recruiting migrant workers
within the law
Avoiding
discrimination against migrant workers
Resources
|
Key points
|
The issue of migrant workers in the UK is highly charged, but the business rationale for employing them is sound. Indeed, employers have a legal obligation to consider all applicants who can lawfully work in the UK, provided that they have the required skills and experience for the post.
We look at the business case for hiring migrants and the way in which employers can recruit them lawfully.
The numbers of migrant workers
More than half a million (565,000) migrants arrived in 2005 to live in the UK for at least a year, according to Office for National Statistics (ONS) estimates (on the ONS website). This is the second-highest figure since the present method of estimating immigration began in 1991.
The net migration figure – the difference between immigration and emigration – stood at 185,000 in 2005.
According to the ONS, among migrants coming to the UK in 2005 were 80,000 citizens from the A8. This is the term used for the eight central and eastern European countries that joined the EU on 1 May 2004. More than 70% of A8 migrants were Polish citizens.
Nearly half of all citizens migrating to the UK in 2005 gave work-related reasons for their move. However, the figure for A8 migrants was almost 85%.
A8 migrants are not necessarily the stereotypical “Polish plumber”. According to the Home Office (PDF format, 244.2K) (on the Home Office website), they are employed in roles as diverse as entertainers – there are 345 in such work in the UK – and HR and training managers, where 145 are employed.
The business case for hiring migrants
Most employers will have had a migrant worker apply for a job in their organisation. Many organisations actively seek migrant workers. They often have the skills, experience and motivation that are required to fill problematic vacancies. The business case for employing migrant workers is stronger than ever, with skills shortages in some sectors reaching critical levels.
Research from the Chartered Institute of Personnel and Development (CIPD) confirms that many employers are keen to hire migrant workers.
In the CIPD's autumn 2005 Labour Market Outlook (PDF format, 183.4K) (on the CIPD website), its survey of 1,005 employers found that one in four (25%) were intending to recruit migrants, rising to more than one-third (35%) in London.
The CIPD also found that: “In the case of skilled workers, employers are, not surprisingly, hiring migrants primarily for their skills and qualifications. For less-skilled or unskilled migrants, the key attributes sought are work experience, commitment and willingness to work.”
Figures show that migrant workers are vital to the delivery of public services in the UK. According to the TUC (on the TUC website), almost 3,000 workers in care homes come from A8 states. Alongside this, one in three doctors, one in six dentists and one in 10 nurses were trained overseas.
The justifications for employment protection
Workers move to the UK for many different reasons. Once they are legally able to work in the UK, employers are obliged to treat migrant workers as they would any other individual. This means fair and equal treatment, free from exploitation and abuse.
However, not all employers follow this practice. There is the story of the 20 Chinese cockle pickers (on the House of Commons website) who drowned in Morecambe bay. They were being paid just 11p an hour.
The TUC also cites a number of examples (on the TUC website) where migrants have faced exploitation and mistreatment. These include two Filipino women who were paid £75 for an 80-hour week at a Norfolk care home. The TUC also mentions the case of a Portuguese man and his pregnant wife working on a farm in Lancashire. They shared a house with 17 others and, after deductions, were left with just £6 a week to live on.
Those who have entered the UK to take up highly skilled, highly paid jobs will be able to report a far more positive experience.
Who requires a work permit or visa?
There are several categories of people who do not require a work permit to work in the UK. They include:
- citizens of the European Economic Area (EEA);
- Commonwealth citizens with UK grandparents;
- working holidaymakers from the Commonwealth between the ages of 17 and 30;
- overseas nationals having settled status;
- citizens of Switzerland;
- people who hold Highly Skilled Migrant Programme permits;
- anyone with indefinite leave to remain in the UK; and
- people born in Gibraltar.
The EEA consists of the following countries: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and UK.
Migrants from eight of the 10 accession states that joined the EU in May 2004 – the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia – are required to register with the Home Office’s Accession State Worker Registration Scheme.
Since 1 January 2007, Romanians and Bulgarians have the right to travel throughout the EU, but most of them still need a work permit to work in the UK.
Non-EEA nationals may also be able to work in the UK without a work permit if their employment is time limited. Teachers under approved exchange schemes, some entertainers and sports people, au pairs and domestic workers fall into this category. These people will face restrictions in terms of the type of employment they can take up and the length of time they can work in the UK.
Almost all other individuals require a work permit to work in the UK.
Recruiting migrant workers within the law
There are two main pieces of legislation that cover the recruitment of immigrant workers:
- the Asylum and Immigration Act 1996; and
- the Race Relations Act 1976.
It is good practice for an employer to ensure that all migrant workers are aware of their rights at work. Such knowledge helps to ensure that migrant workers and their families and friends are less likely to be exploited.
The Asylum and Immigration Act 1996, s.8, makes it a criminal offence to employ someone who is subject to immigration control and who either has not been granted leave to enter or remain in the UK, or does not have permission to work in the UK.
However, an employer is protected against prosecution if it checks the applicant's documentation. The documents must be originals, not photocopies or printouts, and the employer must genuinely believe that the person concerned has the right to work here before hiring them.
Copies of the documents should be kept for the duration of the individual’s employment and for six months after termination of employment.
The Home Office has set up a website that provides advice to employers wishing to hire migrant workers. It includes an interactive step-by-step guide that takes an employer through the stages involved in ensuring compliance with the law. The guide also helps employers collate the evidence they need to mount a defence against prosecution in the event that they unknowingly hire an illegal immigrant.
Avoiding discrimination against migrant workers
Under the Race Relations Act 1976, employers cannot discriminate on the grounds of nationality. For example, they cannot treat foreign workers less favourably than indigenous jobseekers by refusing to accept their job applications, or by declining to interview or hire them, purely on the basis of their nationality or ethnicity.
However, as we saw in the previous section, the Asylum and Immigration Act 1996 also requires employers to ensure that they do not hire foreign nationals who do not have the legal right to work in the UK.
Dovetailing the requirements of these two Acts is not easy. It requires constant vigilance on the part of employers and, particularly, their staff who are involved in the selection of recruits.
The Home Office has produced a code of practice (on the Home Office website) to help employers comply with both sets of legislation.
The code is not legally binding, and failing to adhere to it will not constitute a breach of the law. However, the fact that an employer has failed to take heed of its contents will be admissible in evidence in any legal proceedings.
In summary, the code’s principles are:
- the surest way to avoid discrimination is to treat all applicants in the same way in every stage of the recruitment process;
- clear written procedures for recruitment based on fair and equal treatment of all applicants should be produced and made available to all relevant staff;
- no assumptions should be made about a person’s right to work in the UK, or their immigration status, on the basis of their colour, race, nationality or ethnic or national origins;
- hiring decisions should be based solely on suitability for the post;
- applicants do not need to be asked directly about their immigration status – they should simply be asked if they require permission to work in the UK;
- if documents are required to prove an individual’s working status, then they can be requested at any stage before the applicant starts work. All applicants should be asked to produce documentation. However, if documents are not requested until the final selection decision has been made, then only the person chosen to fill the vacancy needs to be asked;
- there are two lists of acceptable documents – these have equal status, and this means that an applicant who is unable to produce a document with a National Insurance number should not be treated less favourably if they are able to supply another acceptable document; and
- monitoring the outcomes of recruitment by the ethnicity of applicants represents good practice as it will help to identify any problem areas and can be used when reviewing recruitment procedures.
This article was written by Noelle Murphy, researcher/writer, Employment Review.
1. External resources
Official advice from the Home Office for employers on the legal aspects of employing migrant workers.
The Border and Immigration Agency of the Home Office provides further information on the law on employing migrant workers .
The Border and Immigration Agency also provides information for employers and jobseekers about obtaining work permits.
2. Internal resources
XpertHR Employment Law Reference Manual: Employing Foreign Nationals.
“Employing migrant workers”, Employment Review 844.
