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

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Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the Trade Union Congress (TUC) received on 26 October 2017.

Statistics on migration flows. In its previous comment, the Committee asked the Government to continue taking steps to collect and make available statistics on labour migration that are disaggregated by sex, and possibly other factors such as origin and age as well as sector of employment and occupation, and to indicate how these statistics reflect any changes in policies and legislation regarding the employment of migrant workers. The Committee notes the Government’s reference to the users’ consultation carried out in November–December 2016 jointly by the Office for National Statistics (ONS), the Home Office, the Department for Work and Pensions (DWP) and Her Majesty’s Revenue and Customs (HMRC) on international migration statistics outputs. It notes from the summary of responses to the consultation that recurring themes across the different outputs included requests for occupation or employment breakdowns. Concerning the labour market data, there were suggestions to provide better explanation of these estimates to alleviate misreporting and that more detailed country of birth breakdowns and more information on the characteristics of international migrants in the labour market would be considered useful. The Committee welcomes the information provided and asks the Government to provide information on any follow-up given to the suggestions emanating from the consultation carried out by the Office for National Statistics, the Home Office, the Department for Work and Pensions and Her Majesty’s Revenue and Customs; and on the latest statistics on labour migration disaggregated by sex and detailed as regards country of origin and age as well as sector of employment and occupation. Please also indicate how these statistics reflect any changes in policies and legislation regarding the employment of migrant workers.

Articles 2 and 7 of the Convention. Services and information to migrant workers. The Committee notes that, in reply to its previous comments on the Government’s cooperation with other States regarding services and assistance provided to migrant workers, including the provision of accurate information on the migration process and rights and obligations of migrant workers, the Government indicates that it secured funding, under the European Union’s Undeclared Work Platform project, for two Bulgarian labour inspectors to work with the Gangmasters and Labour Abuse Authority (GLAA), in addition to a three-month secondment of a Romanian labour inspector to the GLAA to support operations in relation to exploited Romanian workers. The Government adds that it also works and exchanges information with other EU labour inspectorates. The Government also indicates that there is a lot of guidance available to migrants with regard to the processing of applications, including visas, asylum and settlement requests, as well as employment-related information. The Committee also notes the concerns of the TUC as regards the low number of advisers of the European Employment Services Network (EURES) to support EU migrant workers to find work, the lack of engagement of the Government with trade unions as regards information of migrant workers on the labour market and their rights at work, resulting in a majority of EU migrants working below their qualification level and, in some cases, exploitation. The Committee requests the Government to provide its comments in this respect. Further, the Committee asks the Government to continue to provide information on its cooperation with other States regarding services rendered to migrant workers, including information on their rights at work.

Article 3. Misleading propaganda. Stressing the importance of anti-racism and anti-xenophobic measures in order to combat misleading propaganda against both immigration and emigration, the Committee requested the Government, in its previous comment, to provide information on the measures taken to prevent and combat prejudices and stereotyping regarding immigrants in an effective manner. The Government, while recognizing that there is room for improvement, indicates that it is committed to combatting hate crimes and that its legislation contains specific offences for racially and religiously aggravated activity and offences of the stirring up of hatred on the grounds of race, religion and sexual orientation. The Committee notes the Government’s statement that it funds the True Vision web-based hate crime reporting portal, which includes provisions for specific faith and migrant communities. It also supports local third-party reporting centers in migrant communities, such as the Polish Social and Cultural Association (POSK), to encourage reporting and provide support to victims. The Committee notes also the observations of the TUC reiterating its concerns that the Government’s policies and rhetoric around immigration continue to encourage xenophobic sentiments that are stocking social tensions, including in the context of the EU referendum and its aftermath. According to the TUC, the Immigration Act (2016) contains provisions that are likely to increase discrimination against migrant and black and minority ethnic (BME) workers, such as the requirement, for workers facing customers in the public service, to speak an ‘adequate’ level of English which is not defined objectively. The TUC condemns the sharp increase in xenophobic attacks since June 2016 and regrets that the Government did not engage with trade unions to address these issues. In this regard, the Committee wishes to refer to its comments under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), mentioning the TUC’s concerns that the Immigration Act 2016 made undocumented working a criminal offence, thus classifying the wages of undocumented workers as the proceed of crime, and prohibiting undocumented workers to claim rights at work by fear of being arrested and deported. The Committee requests the Government to provide its comments in this respect as well as any information on the measures adopted, in cooperation with the social partners, to prevent and combat prejudice and stereotyping regarding migrant workers and to provide detailed information on the results obtained.

Article 6. Equality of treatment. Foreign domestic workers. In its previous comment, the Committee requested the Government to continue to monitor the effective enforcement of the legislation concerning the employment rights of foreign domestic workers, including any difficulties to effectively assert their rights before the employment tribunals and in other complaints procedures; and to provide information on the number and nature of complaints brought by foreign domestic workers regarding non-respect of rights relating to the matters set out in Article 6(1)(a)–(d) of the Convention, and their outcome. The Committee notes the Government’s indication that, recognizing that migrant workers can be particularly vulnerable to labour exploitation, the Immigration Act 2016 established the position of Director of Labour Market Enforcement (LME), who was appointed on 1 January 2017, in order to make a coherent assessment of the extent of labour market exploitation, identify routes to tackle exploitation and harness the strength of the three main enforcement bodies in this field, i.e. the GLAA, the HMRC’s National Minimum Wage/Living Wage team, and the Employment Agency Standards Inspectorate which monitors employment agencies. The Committee notes the information contained in the executive summary of the Labour Market Enforcement Strategy 2018/19 published in May 2018 which recognizes that the lack of awareness of employment rights and the fear of reprisal by employers inevitably act to inhibit full reporting by workers and indicates that there is an estimated 10,000 to 13,000 potential victims of modern slavery in the United Kingdom (covering sexual exploitation and domestic servitude in addition to labour exploitation). The Director of LME also indicates that the numbers might even be higher and that there was an increase in the volume of identified victims from 2017 to 2018. In its report, the Government adds that, under the Modern Slavery Act 2015, domestic workers found to be the victims of modern slavery can be granted an extension of stay and those suspected of being such victims are protected against enforcement action. From April 2016, the Government has removed the conditions which tied a worker to a specific employer, allowing them to change employer within the six month validity of their visa, a provision also extended to domestic workers employed in diplomatic households; and increased the period of leave which can be granted to an overseas domestic worker victim of slavery or trafficking from six months to two years (in addition to the discretionary leave available to all victims of human trafficking or modern slavery). While indicating that it does not monitor the nationality of Employment Tribunal claimants and cannot therefore provide information on their numbers and the nature and outcome of complaints, it underlines that migrant workers, including foreign domestic workers, are entitled to the same employment rights and redress available to all workers. The Committee also notes the TUC’s observations that foreign domestic workers who have been in the country more than six months are only able to leave their employer if they have a positive result from the National Referral Mechanism (NRM) that they are the victims of trafficking. Workers whose abuse is not deemed to constitute trafficking by the NRM are forced to stay with abusive employers or lose their immigration status. The Committee asks the Government to provide detailed information on the strategy adopted by the Director of Labour Market Enforcement in order to prevent and combat migrant workers’ exploitation and its results. It also asks the Government to indicate the specific conditions under which migrant domestic workers can change employer and the difficulties encountered by the NRM to identify migrant workers victims of abusive conditions of work.

Article 6(1)(b). Equality of treatment. Social security. In its previous comment, the Committee requested the Government to provide information on the practical application of the relevant provisions of the Immigration Act 2014 and the National Health Service Act 2006, including any regulations adopted setting out which temporary migrant workers will be required to pay a health surcharge (to use secondary health services, including hospital care), the level of the surcharge and the health services to which they apply. It also requested the Government to indicate the measures taken to address discrimination against migrant workers on the basis of gender, race or ethnicity in practice with respect to access to health services. The Committee notes the Government’s indication that, following the adoption of the Immigration Act of 2014, the Home Office introduced, on 6 April 2015, a requirement that most temporary, non-European Economic Area (EEA) migrants who make an application to come to the country for more than six months, or extend their stay, pay an immigration health surcharge towards the National Health Service (NHS). According to information provided on the Government’s website, the surcharge is now set at £300 per year for a student or Tier 5 (Youth Mobility Scheme) visa and £400 per year for all other visa and immigration applications. The NHS (Charges to Overseas Visitors) Regulations 2015, amended in 2017, provide for exemptions for certain types of treatment as well as for certain categories of persons among which victims and suspected victims of slavery or human trafficking (including domestic workers). The Government explains that the surcharge aims to ensure that all temporary migrants make a contribution to the cost of healthcare in the country but that the amount of the surcharge is significantly below the average per capita cost to the NHS of treating temporary migrants. It adds that urgent or immediately necessary care – which includes all maternity care – will always be provided without delay even if the surcharge payment has not yet been made. It also emphasizes that guidance on how to assess if patients are eligible for an exemption (i.e. free NHS care) stresses the need to avoid any kind of discrimination. The Committee also notes the TUC’s observations that the health surcharge is not justified financially and has a significant social cost. According to the TUC, its imposition constitutes a discriminatory barrier to healthcare for non-EEA citizens and impacts on those with protected characteristics under the Equality Act (2010), with compounded effect on BME groups. It expresses serious concerns that document checks required for healthcare turn health professionals into immigration officials. The Committee asks the Government to continue: (i) to provide information on the practical application of the relevant provisions regarding access to health services by migrant workers and the measures taken to evaluate their impact on such access in practice; and (ii) to indicate the specific measures taken to prevent and combat, in practice, discrimination against migrant workers on the basis of gender, race or ethnicity with respect to access to health services.

Enforcement. In its previous comment, the Committee highlighted that high fees to file discrimination claims may constitute an obstacle to the effective enforcement of the equal treatment principle embedded in the Convention and requested the Government to provide information on the measures taken to ensure that migrant workers can effectively assert their rights before the courts in practice, as well as statistics. The Committee notes the Government’s indication that the Supreme Court found employment tribunals fees unlawful and quashed the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013. The Committee asks the Government to provide statistics on the nature and number of complaints regarding discrimination filed by migrant workers before the employment tribunals and the Equality and Human Rights Commission, with respect to the matters covered in Article 6(1)(a)–(d) of the Convention.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Statistics on migration flows. The Committee welcomes the extensive information provided by the Government on efforts made to collect and publicize comprehensive immigration statistics on a regular basis, and notes that some statistics are disaggregated by sex. The Government also indicates that Home Office statisticians acknowledge that a published breakdown by sex (or other factors such as age) of certain data would be useful. The Committee encourages the Government to continue taking steps to collect and make available statistics on labour migration that are disaggregated by sex, and possibly other factors such as origin and age as well as sector of employment and occupation, and to indicate how these statistics reflect any changes in policies and legislation regarding the employment of migrant workers.

Articles 2 and 7 of the Convention. Services and information to migrant workers. The Committee notes the Government’s indication that there is no specific Jobcentre Plus to assist migrant workers beyond the work of the advisers of the European Employment Services Network (EURES). The Government further indicates that cooperation with other States is limited to multilateral forums and ad hoc bilateral meetings. The Committee requests the Government to provide specific information on its cooperation with other States regarding services and assistance provided to migrant workers, including the provision of accurate information on the migration process and rights and obligations of migrant workers.

Article 3. Misleading propaganda. The Committee notes the observations by the Trade Union Congress (TUC), submitted by the Government with its report, that recent policies and legislation, including the Immigration Act, actively promote negative perceptions of migrant workers. The TUC considers rhetoric that singles out one category of citizens, namely undocumented migrants, as deserving hostile treatment may fuel negative association in public perceptions of migrants in general, regardless of status, and contribute to misleading propaganda. The Committee recalls that the Convention requires the State to take measures to combat misleading propaganda against both immigration and emigration, including misleading information concerning non-nationals arriving in the country (such as propagating stereotypes of migrants) as well as those targeting the national population (see General Survey on migrant workers, 1999, paragraph 217). The Committee stresses the importance of anti-racism and anti xenophobic measures in this regard, and requests the Government to provide information on the measures taken, in cooperation with the social partners and other relevant stakeholders where appropriate, to prevent and combat prejudices and stereotyping regarding immigrants in an effective manner, and to provide detailed information on the results achieved.

Article 6. Equality of treatment. Foreign domestic workers. The Committee recalls its previous observation noting concerns expressed by the TUC at the increased vulnerability of overseas domestic workers in private households and those in diplomatic households (Point Based System, Tier 5) concerning the non-respect of their employment rights due to the changes introduced in April 2012 for these workers, and existing difficulties to pursue justice through the courts. The Committee notes the Government’s affirmation that foreign domestic workers are entitled to the same employment rights as all other workers, and have access to the Employment Tribunal. The Government provides information on the practical measures taken to prevent abuse, including relevant helplines and legal aid. The Government explains that changes made in April 2012 were meant to restore the Route for overseas domestic workers to its original purpose, namely to enable domestic workers to accompany their overseas employer on trips to the UK and that national policy is not to admit low-skilled migrants from outside the European Economic Area (EEA). Given the particular vulnerability of foreign domestic workers to abuse, the Committee requests the Government to continue to monitor the effective enforcement of the legislation concerning their employment rights, including any difficulties encountered for these workers to effectively assert their rights before the employment tribunals and in other complaints procedures. Please provide information on the number and nature of complaints brought by foreign domestic workers regarding non-respect of rights relating to the matters set out in Article 8(1)(a)–(d) of the Convention, and their outcome.

Article 6(1)(b). Equality of treatment. Social security. The Committee notes the concerns of the TUC that the Immigration Act of 2014 introduces a health surcharge for temporary non-EEA immigrants and their dependants (who come to the United Kingdom for more than six months) to use secondary health services, including hospital care. It expresses particular concern at the impact of the measures on pregnant migrant workers unable to afford health charges. The TUC is also concerned about recently announced proposals to place additional restrictions on the ability of citizens of the European Union to claim benefits in the United Kingdom, and that the introduction of immigration status checks for use of the health service will lead to discrimination in frontline service delivery to individuals on the basis of gender, race and ethnicity. The Committee notes that pursuant to sections 38(1)(a) and (2)(a) and 39(1)(b) of the Immigration Act and section 175(1)(2)(b) of the National Health Service Act 2006 a health charge may be imposed in respect of the services provided to such persons not ordinarily resident in Great Britain (i.e. persons subject to immigration control who apply for leave to enter or remain in the United Kingdom for a limited period). The Committee requests the Government to reply to the observations of the TUC and provide information on the practical application of the relevant provisions of the Immigration Act 2014 and the National Health Service Act 2006, including any regulations adopted setting out which migrant workers will be required to pay the surcharge, the level of the surcharge and the health services to which they apply. The Committee also requests the Government to indicate the measures taken to address discrimination against migrant workers on the basis of gender, race or ethnicity in practice with respect to access to health services.

Enforcement. The Committee recalls the reviews by the Equality and Human Rights Commission (EHRC), into discriminatory practices, including on the basis of nationality, against workers in the meat and poultry processing sector, which employ a large number of migrant workers. The Committee notes that the public helpline of the EHRC was replaced by the Equality Advisory and Support Service in the Government Equalities Office. The Committee also notes the adoption in July 2013 of the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 introducing a requirement to pay a fee to issue proceedings in the employment tribunals. The Committee refers in this regard to its comments on the Discrimination (Employment and Occupation), Convention, 1958 (No.111), and the Equal Remuneration Convention, 1951 (No. 100), regarding the impact of the Order on the number of discrimination claims filed before the Employment Tribunal. Considering that high fees to file discrimination claims may constitute an obstacle to the effective enforcement of the equal treatment principle embedded in the Convention, the Committee requests the Government to provide information on the measures taken to ensure that migrant workers, especially the most disadvantaged, can effectively assert their rights before the courts in practice. Please provide statistics on the nature and number of complaints regarding discrimination filed by migrant workers before the employment tribunals and the EHRC including with respect to the matters covered in Article 6(1)(a)–(d) of the Convention.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 1 of the Convention. Information on national policies, laws and regulations. Further to its observation, the Committee notes from the Government’s report that the most significant changes to the national immigration system with respect to migrant workers from outside the European Economic Area (EEA) were made between June 2007 and June 2012. The Committee notes the extensive explanations in the Government’s report regarding the contents and the modalities of the Points Based System (PBS). It notes that Tier 1 covers highly skilled individuals to contribute to growth and productivity, while Tier 3 covers skilled workers with a job offer to fill gaps in the UK labour market, and Tier 5 youth mobility and temporary workers. The “Temporary Workers Route” has five sub-categories including charity workers, creative and sporting, government authorized exchange, international agreement and religious workers. Regarding other work-related routes, the Committee notes that a number of routes were deleted in 2008, including those for “work permits”, “overseas qualified nurse or midwife”, “au pairs”, and “private servants in diplomatic households” and that on 6 April 2012, new changes were introduced to the procedure for overseas domestic workers and domestic workers in diplomatic households. The Committee requests the Government to explain the reasons for the changes to the immigration “routes” for overseas domestic workers and to continue to provide information on any developments in the laws and policies concerning migration, with an indication of their impact on the application of the provisions of the Convention.

Statistics. The Committee notes the efforts made by the Home Office to collect and publicize on its website comprehensive immigration statistics on a regular basis. The Committee notes that the statistics are not disaggregated by sex and that the Government refers in this regard to a publication assessing the gender-related impacts of policy changes, which is however not available. While welcoming this initiative, the Committee would appreciate, given the comprehensive information available, if the Government could include in its next report a summary of its own assessment of the statistics on migration, including to what extent they reflect changes in policies and legislation regarding the employment of migrant workers. Given the feminisation of international labour migration in general, the Committee asks the Government to take steps to ensure that migration statistics are disaggregated by sex, and hopes that the Government will be in a position to provide such statistics in its next report.

Articles 2 and 7. Services and information to migrant workers and international cooperation among public employment agencies. The Committee notes the Government’s indication that Jobcentre Plus is an active participant in the European Employment Services Network (EURES) and provides national coverage of EURES advisers, including with the EURES Team in Northern Ireland. Access is also provided to all vacancies held on its national database via the EURES Web Services vacancy exchange with European Member States. The Government further participates in meetings with non-governmental organizations, employers and partners in other States to help resolve issues faced by migrant workers coming to the United Kingdom. The Committee asks the Government to provide information on the specific activities of Jobcentre Plus to assist migrant workers in the United Kingdom, as well as additional information on its cooperation with workers’ civil society, and employers’ organizations and partners in other States regarding services provided to migrant workers.

Article 3. Licensing of private recruitment agencies and misleading propaganda. The Committee notes with interest the various measures and action taken by the Gangmasters Licensing Agency (GLA) to enforce the Gangmasters (Licensing) Act of 2004 and to provide information to both workers and employers as well as labour providers. The Committee notes in particular the information on the GLA’s website regarding its prosecution policy, complaints procedures, the list of registered providers that have a licence, and information for workers, such as the Guide on “Workers’ Rights. Protecting Workers through Licensing”, available in 18 languages, and the codes of practice on compliance and enforcement, as well as several guides for labour users. The Committee notes from the GLA’s annual reports that the GLA collaborates with external partners such as the Human Trafficking Centre and the police to enforce the relevant legislation. The Committee requests the Government to continue to provide information about the activities of the Gangmasters (Licencing) Act of 2004, and on any complaints submitted by migrant workers to the competent authorities regarding non-compliance, including misleading information provided by gangmasters relating to terms and conditions of work or the migration process in general.

Article 6. Equality of treatment. The Committee notes that the Equality Act of 2010 prohibits discrimination on the basis of a number of grounds including sex, religion and race, which also includes nationality (section 9(1)(b)). The Committee also notes the Agency Workers Regulations 2010 and the action undertaken, including the inquiries and subsequent reviews by the Equality and Human Rights Commission (EHRC), into discriminatory practices, including on the basis of nationality, against workers in the meat and poultry processing sector, which employ a large number of migrant workers. In 2011, migrant workers accounted 34 per cent of the total work force in the poultry and meat sector. The Committee asks the Government to provide information on the number and nature of any complaints brought to the EHRC or the courts by migrant workers relating to racial discrimination on the basis of nationality with respect to the matters covered in Article 6(1)(a)–(d) of the Convention. Please also provide information on any initiatives by the EHRC or other authorities competent to monitor or enforce equality legislation to assess and detect unequal treatment between migrant workers and nationals regarding the matters covered by Article 6 of the Convention.

Article 6(1)(a)(iii). Equality of treatment with respect to accommodation. The Committee notes the Government’s indication that there are no restrictions on the freedom of a person admitted to the United Kingdom to access accommodation on the same basis as nationals. Third country nationals who have demonstrated a sufficient link to the United Kingdom can also access publicly subsidised housing or housing benefits where those services constitute social assistance and social security. The Government also refers to the protection against discrimination in the provision of services, including accommodation services, under the Equality Act of 2010. The Committee asks the Government to provide information on the practical application of the relevant provisions in the Equality Act prohibiting discrimination in the provision of services, including housing, including any cases submitted by migrant workers to the EHRC, the courts or other competent authorities, alleging unequal treatment based on nationality with respect to the provision of accommodation.

Article 8. Maintenance of residence in case of incapacity for work. The Committee notes the Government’s confirmation that while it is a requirement for the acquisition of Indefinite Leave to Remain ((ILR) or “settlement”) that the applicant must be able to maintain and accommodate themselves without recourse to public funds, the ILR would not be revoked in the circumstances that once granted, these conditions ceased to be met.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the observations dated 29 August 2012, of the Trade Union Congress (TUC), which were prepared in collaboration with Anti-Slavery International and Kalayaan, to the extent that they cover matters which relate to the application of the Convention.

Article 6 of the Convention. Equality of treatment – foreign domestic workers. The Committee notes that in its communication, the TUC draws particular attention to the working conditions of foreign domestic workers, including the fact that living and working in their employers’ homes makes them more vulnerable to abuse and non-respect of their rights. According to the TUC, the changes introduced on 6 April 2012 for overseas domestic workers, removing the fundamental safeguards of the Overseas Domestic Work Visa (ODW visa), including the right to change employer, are damaging to the protection of migrant domestic workers and increasing their vulnerability to abuse and unequal treatment. According to the TUC, the arrangement prior to 6 April 2012 under the ODW visa had been shown to work well and had been recognized internationally as an example of good practice. The TUC maintains that migrant workers, while theoretically enjoying equal treatment in respect of the matters set out in Article 6 of the Convention, are unable to access and enforce their employment rights in an effective manner in practice. According to the TUC, migrant domestic workers have no opportunity to pursue justice through the courts in the absence of the right to stay, and because of the absence of a residence permit allowing them to pursue compensation through the employment tribunals or civil courts. Referring to cases registered by Kalayaan, the TUC also draws attention to the heightened power imbalance between diplomatic domestic workers and their employers due to the status of the employer and the diplomatic immunity they are able to invoke, which makes domestic workers highly vulnerable to non-respect of employment rights and abuse, including payment below the national minimum wage, excessive working hours, psychological, physical and sexual abuse, withdrawal of passports and prohibition to leave the house unaccompanied. Further, the TUC challenges the effectiveness of certain protection measures put in place by the Government, namely requesting more evidence of an employee-employer relationship, requiring written terms and conditions of employment agreed to by the employer and the worker, and by providing translated information to domestic workers about their rights in the United Kingdom, as well as the possibility to contact the Pay and Work Rights Helpline for persons in need of employment advice.

The Committee notes that in 2008 the United Kingdom Border Agency (UKBA) introduced the Points-Based System (PBS) replacing over 80 previous economic migration “routes” with a 5-tier system. It also notes that on 6 April 2012 the Government introduced important changes regarding the employment of overseas domestic workers in the United Kingdom. The Committee notes that overseas domestic workers in diplomatic households are covered as “private servants in diplomatic households” under the PBS, Tier 5 (Temporary worker – international agreement) category. Migrant workers who applied for a visa in this capacity on or after 6 April 2012 can apply to extend their stay for a maximum of 12 months at a time, up to a total of five years or the length of their employer's posting, whichever is shorter. They cannot change employer during their stay but may sponsor dependants. Diplomatic domestic workers may only work in the household of the employer recorded on the certificate of sponsorship, and will not be able to apply for settlement in the United Kingdom. With regard to overseas domestic workers in private households – who are not included in the PBS – the Committee notes that under the new Immigration Rules (section 159A and 159B) these domestic workers will only be allowed entry into the United Kingdom to accompany their overseas employer on a visit to the United Kingdom for the time that the employer is in the country, or for six months, whichever is shorter. No extensions are allowed beyond this time. Overseas domestic workers may no longer change employer, sponsor dependants or apply for settlement in the United Kingdom from this route. For overseas domestic workers who have applied for an ODW visa before 6 April 2012, the former Immigration Rules continue to apply (sections 159EA and 159EB).

The Committee notes from the statistics published by the Home Office that for the year ending June 2012, there were 14,779 “out-of-country” visas and 4,384 “in-country” extensions of stay issued to overseas domestic workers in private households (making up, respectively, 14.1 per cent and 4.73 per cent of the total number of “out-of-country” visas and total “in-country” extensions issued); two “out-of-country” visas and five “in-country” extensions were issued to domestic workers in diplomatic households. Visas were also issued or extensions granted to dependants of these workers. The Committee requests the Government to reply to the observations made by the TUC and provide detailed information on the following:

(i) The measures taken to enforce the application of the rights of overseas domestic workers regarding the matters set out in Article 6(1)(a)–(d) of the Convention including the relevant complaints procedures and mechanisms in place. Please also include information on the availability of and accessibility to legal aid and assistance for migrant workers. The Committee also requests the Government to provide information on the manner in which effective enforcement is being monitored, including information of any complaints received regarding non-respect of rights and their outcome for both the employer and the domestic worker.
(ii) The specific procedure in place for both categories of overseas domestic workers who have left their employer because of abuse and who have filed a complaint with the competent authorities regarding unequal treatment with respect to any of the matters covered by Article 6 of the Convention, and any measures taken to reduce domestic workers’ dependence on their employer as this is an important aspect of ensuring that equal treatment is applied to migrant workers in practice.
(iii) The measures taken to ensure that the rights under the national legislation as well as the available complaints procedures and mechanisms for redress are made known and are understood by migrant domestic workers.

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2014.]

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

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.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information supplied in the Government’s report.

1. The Committee recalls, as it noted in its General Survey of 1999 on migrant workers (see paragraphs 5-17), that the extent, direction and nature of international labour migration have undergone profound changes since the Convention was adopted. The Committee therefore asks the Government to provide copies of any new provisions of law or regulations adopted, together with up-to-date information on its emigration and immigration policy. It would also be grateful if the Government would state how the current trends in migration flows have affected the content and implementation of its national policy and legislation on emigration and immigration.

2. Article 8. Since this was one of the provisions cited most often by governments, at the time of the above General Survey (paragraphs 600-608), as being difficult to apply, the Committee requests the Government to provide information on how the right of migrant workers who have been admitted on a permanent basis to reside in the country is maintained in practice in the event of incapacity to work.

3. The Committee notes that section 22 of the Immigration and Asylum Act, 1999, requires the adoption by the Secretary of State of a code of practice for employers with a view to avoiding unlawful discrimination in employment. The Committee would be grateful if the Government would keep it informed of progress on the finalization of the code and supply a copy of it with its next report.

4. The Committee notes that a review of work permit arrangements was carried out between November 1999 and February 2000, and that some work is still to be completed in this respect. The Committee requests the Government to provide further particulars regarding the changes involved and their impact on the presence and conditions of employment of migrant workers in the United Kingdom.

5. The Committee asks the Government to continue providing statistics on United Kingdom nationals working abroad and the countries of origin of foreigners employed in the United Kingdom and to communicate the results, if any, of the relevant activities of the labour inspection service, in accordance with the provisions of the Convention.

6. Finally, the Committee asks the Government to state whether courts of law or other tribunals have handed down decisions involving questions of principle relating to the application of the Convention, particularly with respect to discrimination against foreign job applicants. If so, please supply the text of these decisions.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information supplied in the Government's report. It asks the Government to provide additional information on the following points.

Article 6 of the Convention. The Committee notes with interest the Parliament's adoption of the Race Relations (Remedies) Act of 3 May 1994, which removes the ceiling on compensation that may be awarded by industrial tribunals in cases of racial discrimination in the fields of employment and vocational training. It also notes the publication, in June 1994, of a booklet entitled "Positive Action - Promoting Racial Equality in Employment" by the Race Relations Advisory Service of the Labour Department.

The Committee would be grateful if the Government would provide information on the legislation in force for foreign domestic workers, concerning residence and work permits, job mobility, etc.

Point V of the report form. The Committee asks the Government to provide statistics on United Kingdom nationals working abroad, and the countries of origin of foreigners employed in the United Kingdom. It also asks the Government to provide information on any practical difficulties encountered in the application of the Convention, and to communicate the relevant results, if any, of the activities of the labour inspection service, in accordance with these provisions of the Convention.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's report as well as the observations made by the Trades Union Congress (TUC) on the application of the Convention and the comments made in reply by the Government.

The Committee notes that the TUC considers that the "Habitual Residence Test", which came into force on 1 August 1994, restricts access to income support, housing benefit and council tax benefit for some immigrants. The Government indicates that the Habitual Residence Test applies in the same way to all people, including British citizens, who claim the above-mentioned benefits. It further states, referring to Article 6(1)(b)(ii) of the Convention, that the Test has been introduced to ensure that access to non-contributory, income-related benefits is focused on those people whom the Government believes it is right that the British taxpayer should be asked to support.

The Committee notes that the Habitual Residence Test is not applied regarding the social security contingencies covered by Article 6(1)(b) and therefore does not fall within the scope of the Convention. It hopes that the Government will provide information in its future reports if any test that takes into consideration such factors as the person's nationality, race, religion or sex is introduced for determining the eligibility for social security benefits covered by the Convention.

The Committee is also addressing a direct request to the Government on certain points.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Referring to its previous comment, the Committee notes with interest that following constructive contacts with the Office, the United Kingdom will continue to be bound by the Convention.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee has taken note of the communication from the Trades Union Congress addressed to the Secretary of State for Employment on 19 December 1991, a copy of which was sent to the International Labour Office. By a letter of 10 January 1992 the Office informed the Government that, in accordance with established practice, that communication, as well as any comments that the Government might wish to make on the points raised therein, would be brought to the attention of the Committee of Experts at the March 1992 Session. According to the communication, the General Council of the Trades Union Congress is firmly opposed to the Asylum Bill which, if enacted, would abandon the basic right of equal treatment under the law for all residents, and to the proposal to denounce Convention No. 97 and Article 19.4(c) of the European Social Charter.

With regard to Convention No. 97 the General Council points out that the Convention is concerned with protecting the basic rights of immigrants and that, as the Government itself has taken pains to point out, asylum-seekers are not immigrants. The Trades Union Congress considers that, before taking any decision, it would be sensible to check with the Office whether the measures proposed in the Asylum Bill have a bearing on the application of the Convention.

The Committee notes that the Government has made no comment on the points raised in this communication. It hopes that the Government will be in a position to ask the Office for technical advice before taking a final decision concerning the denunciation of that Convention.