It’s time to challenge the checks
Confusion over ‘right to work’ pushing migrants and migratised people into exploitation
By Migrants’ Rights Network, Migrants at Work and the Open Rights Group
Friday 2 December 2022
To say the hostile environment has had a profound effect on the lives of migrants would be an understatement. Everyone is being forced to become immigration officials as the hostile environment seeps into everyday lives, and is embedded in the workplace.
In September 2022, the Migrants’ Rights Network, Migrants at Work and the Open Rights Group launched the Challenge the Checks campaign. While the organisations had concerns about Government responses to so-called ‘illegal’ working practices for a number of years, Home Office changes to right to work checks in April 2022 compelled them to start the campaign. In addition, there have been a worrying number of cases where employers’ confusion over immigration statuses and ‘right to work’ checks are pushing migrants and migratised people into exploitation.
Aké Achi, founder and Director of Migrants’ at Work, has been leading the way in campaigning for change since 2009. As a Black African and EU citizen with lived experience of navigating the complex intersections of employment and immigration law in the UK, he can demonstrate this has become even more complex in post-Brexit Britain.
He is well trusted within many communities and as a result, has heard many stories from people having similar struggles.
Struggles like that of Hielen, an EU citizen whose pre-settled status was refused by the Home Office and experienced delays to a subsequent administrative review. Barriers of this nature cause overwhelming stress and detriment to the lives of migrants.
Action on this area is well overdue and thousands of people have suffered. It affects many people, including British and Irish citizens. We have begun to identify people who have struggled with their right to work status because of errors in Irish birth certificates and identity documents not being accepted. People who have the legal right to work have no real and acceptable alternatives, and many are unaware of their rights. They become vulnerable to race and immigration discrimination which leads to risks of exploitation and destitution. That is why the Challenge the Checks campaign is so important.
The combination of employment and immigration law is complex and confusing. It incorporates aspects from employment, immigration, data rights and Home Office applications. Evidence gathered over the years by Migrants at Work has uncovered the widespread and detrimental effects of hostile or misinterpreted legislation on migrants’ lives. This includes companies forcing them to pay for the ‘right to work’ checks to be conducted or encourage them to accept loans, which is deducted from their pay, to apply for new documents they do not need; employers wrongly dismissing workers; The Home Office staff mealing employers and workers, and digital checking services either not working or producing false negatives.
What is wrong with right to work
The most important thing to remember is that right to work checks do not and cannot check a workers’ legal right to work. Under UK law, when the employer carries out a right to work check, it is to establish a ‘statutory defence’ against an illegal employment offence.
At a time where the UK is facing a chronic labour shortage, many migrant communities have been unfairly dismissed, discriminated against, on the verge of destitution, or experiencing labour, criminal exploitation, unlawful arrest and detention.
Going digital
Rules which state employers must carry out right to work checks online mean that migrants are effectively living in fear as their futures depend on error-prone digital services along with employers who don’t understand the rules.
On the surface, it might seem like the digitisation of these checks could be a good thing. Advocates of the move say it will make the process easier and faster. However, dig a little deeper and the reality indicates something more worrying is going on. Hardly a surprise from a government deploying increasingly anti-migrant rhetoric.
There is a real risk of harm for migratised people at the hands of these digital checks. It ultimately signifies a normalisation of technological solutions to issues without fully considering the risks, particularly towards the most vulnerable and marginalised in society.
We have a number of concerns about the security and data risks. These include technical issues with platforms such as share code errors, data sharing and data protection breaches discrimination from facial recognition software and workers being illegally asked to pay to verify their own information.
Why are Section 3C Leave and Part 3 important to understand for right to work checks?
Both Section 3C Leave, for non-EU Citizens and PART 3, for EU citizens, are to prevent a person who makes an in-time application to extend their leave from becoming an overstayer while they are awaiting a decision on that application and while any appeal or administrative review they are entitled to is pending.
However, it is clear that this is not working as many employers don’t understand what it means. We have heard many stories of people facing destitution because of this confusion including the case of Rohie, a refugee mum and her daughter. Despite completing her limited leave to remain application renewal in time and being protected by Section 3C Leave, her employer of seven years incorrectly dismissed her.
We hope that this campaign is just the beginning. The ultimate goal is to end right to work checks and stop the effective criminalisation of migrant workers who are complying with the law and their immigration conditions.
Note: Homegrown slavery:
Modern slavery offences perpetrated by Non-state or State actors through State policies,laws and practices or through the actions or omissions of a State organ or official that engage the State’s responsibility under international and domestic law. For example, the Home Office grants a sponsorship licence to employers to recruit workers from overseas, who then get trapped in working conditions similar to slavery. The State become an unwilling accomplice of homegrown slavery.