To provide for a defence against the offence of illegal working.
We have reached an area in the Bill on which there is greater disagreement. We welcome the provisions that bear down on employers who exploit employees. That is in keeping with our welcoming of the director of labour market enforcement. However, we have considerable difficulty with the notion of creating an offence that can be committed by employees, which is strict and without any defences.
I begin by drawing the Committee’s attention to the baseline evidence from the Migration Advisory Committee 2014 report, which makes a number of comments pertinent to clause 8. It says:
“The combination of non-compliance and insufficient enforcement can lead to instances of severe exploitation, particularly of vulnerable groups such as migrants.”
That same 2014 report records the Committee’s research on labour market exploitation of migrant workers in particular:
“We were struck on our visits around the country by the amount of concern that was expressed by virtually everyone we spoke to about the exploitation of migrants in low-skilled jobs…The TUC told us that migrants, particularly from lower income EU accession countries, are often likely to take up low-skilled work, partly due to the nature of the labour market but also due to the labour market profile of such migrants.”
A little later the report says:
“During our visits to places which had experienced relatively high levels of migrants the point that migrant workers are more likely to be exploited than resident workers as they are not aware of their rights and are afraid they may be sacked/evicted/deported if they complain was raised on a number of occasions.”
The Committee cites its meeting with the Equality and Human Rights Commission, which
“expressed the view that migrant workers, and especially agency workers, were more likely than resident workers to put up with poor working conditions and bad treatment by employers because they were not aware of their rights, they do not know who to complain to and are scared that if they do complain they could lose their job. The EHRC said it is often better for a migrant to be in the UK with a job, albeit a low-paid one, than in their home country without a job.”
The background is a general recognition that migrants and vulnerable employees are extremely vulnerable under all current conditions and often feel that they simply cannot come forward, even under current circumstances, to explain to anyone what is happening to them for fear, as that committee set out, of being sacked or deported. Here, for the first time in the Bill, the offence of illegal working applies to employees rather than employers. The great fear is that that will simply mean that those who are the most exploited and vulnerable will become more exploited and vulnerable as they are pushed further and further away from any legal protection.
The offence is one, pretty much, of strict liability, in the sense that it is triggered by not having the right immigration status. There is no mental element in any way; nor is any defence set out in clause 8. Amendment 68 would resolve that issue by inserting a defence of “reasonable excuse”. Obviously, that is a fall-back position; the in-principle position is that there should not be an offence for employees. It makes them more exploited and vulnerable, and less likely to come forward. As a general proposition, outside of the immigration context, it has been the thinking for some time that to criminalise those who are employees or victims is usually a mistake if we want effective enforcement action. The further they are pushed away from law enforcement, the less likely we are to get to the truth. They will not come forward to protect themselves.