Seasonal Workers’ Rights; Who’s Responsible?

By Olivia McAuliffe, Focus on Labour Exploitation (FLEX)

First introduced in 2019, the Seasonal Worker Visa (SWV) scheme is a restrictive and short-term visa route that facilitates the recruitment of migrant workers into horticulture and poultry production jobs in the UK. Since its inception, there has been much discussion around the importance of the SWV route for the UK agriculture sector.

In an announcement about the route being extended to the end of 2024, Farming Minister Mark Spencer stated that ‘we’ve listened to the UK’s horticulture sector, and today’s announcement will provide our growers with the labour they need to bring in the harvest and continue to put their produce on our tables.’

However, much less attention has been given to measures required to help protect the rights of workers on the scheme and on how employment and accommodation standards as well as general conditions on the scheme are monitored. This is despite widespread and continued reports of workers on the scheme being at risk of exploitation and repeated calls to the Government, including by FLEX, to prevent these risks.

Unclear distribution of responsibilities

The Home Office has the overall responsibility for the operation of the SWV route, yet there is a lack of clarity on how the roles and responsibilities for governing the scheme are distributed across the Home Office, Department for the Environment, Food and Rural Affairs (DEFRA), other government departments, devolved authorities, and local authorities. An inspection of the scheme in 2022 from the Independent Chief Inspector of Borders and Immigration (ICIBI), found that Home Office staff and other government departments provided contradictory information on the distribution of responsibilities. In response to a recommendation from the ICIBI report, the Home Office agreed to prepare a document setting out the roles and responsibilities of various Home Office units involved with the route by July 2023. However, this document is at present not publicly available.

The ICIBI’s investigation found that the Home Office did not act promptly or take genuine action in response to serious concerns raised by workers during Home Office farm visits. These concerns included hundreds of allegations of welfare issues, including racism, wage theft, mistreatment or discrimination, and threats of being sent home, as outlined by a recent investigation by The Bureau for Investigative Journalism (TBIJ).

Lack of oversight

Home Office guidance effectively outsources much of the responsibility of monitoring ‘worker welfare’ onto scheme operators, who are responsible for recruiting and placing workers in employment in the UK. ‘Worker welfare’ is used in the context of the scheme as a comprehensive term which subsumes employment rights, accommodation standards and access to healthcare and seeks to imply that these statutory rights are effectively privatised for this group of workers. The guidance states that scheme operators must carry out ‘robust and comprehensive’ monitoring in order to ensure welfare standards are met, including by ensuring that workers can work safely, are paid properly, and are treated fairly, among other welfare-related requirements.

However, it is not always clear how effectively these requirements are being monitored in practice, nor is it clear what, if any enforcement happens when rights are breached, as there is little available data published by the government.

This is despite the scheme rapidly expanding since first being introduced (from 2,500 visas in 2019 to up to 57,000 visas in 2023). Only one Home Office review of the scheme has been published, with the Home Office and DEFRA publishing a review of the performance of the pilot in the first year of operation (2019), on Christmas eve 2021. The review identified areas where compliance requirements were not being met in relation to ‘worker welfare’, or rights and entitlements of workers, such as workers not being paid fully or on time, workers not receiving their contract in a language they understand, employers not providing the appropriate health and safety equipment required by law, workers not being placed in safe and hygienic accommodation and unfair treatment from farm managers, which included racism and discrimination.

DEFRA also published seasonal workers survey results for 2020 and 2021 in August 2023. However, the Home Office has yet to publish a review for these years, despite anticipating that the review would be completed by April 2023.

Despite concerns which were highlighted by the Home Office review of the Seasonal Worker Pilot, it is hard to find evidence of actions taken by the government to monitor whether scheme operators are meeting either worker welfare compliance requirements or UK employment law standards and decent standards for accommodation. Nor is there evidence of proactive enforcement of the rights of workers on the scheme or access to redress in practice for workers. The ICIBI’s investigation found that the Home Office did not act promptly or take genuine action in response to serious concerns raised by workers during Home Office farm visits and that ‘overall, the Home Office has not demonstrated that it has the mechanisms or capabilities in place to assure itself that scheme operators are meeting compliance requirements.’

Lack of reporting channels

Beyond the lack of oversight from the government to ensure compliance with worker welfare requirements, workers face multiple barriers to reporting exploitation.

The vulnerabilities created by restrictive, short-term visas, can create the conditions whereby workers do not feel able to report issues at work. Since workers’ visas are tied to a single Scheme Operator and the duration is a maximum of 6 months (or 3 months for poultry), workers may fear losing work, destitution or detention and immigration removal if they raise concerns about their working conditions.

As part of DEFRA’s 2021 survey questions were asked of those who filed a complaint during their stay (12% of survey respondents). The most frequently picked reason for filing a complaint, from the choices provided, were ‘living conditions’, ‘treatment by farm managers’ and ‘working conditions’. Of these complainants, 40% stated that it was not easy to file a complaint and only 44% felt their complaint was followed up. It is worth noting that scheme operators shared the survey with workers on DEFRA’s behalf, which puts into question whether workers felt comfortable enough to give honest responses to a survey shared with them by the same people who will decide whether they will be granted a seasonal work visa the following year, should they wish to return.

Recommentations

The identified lack of oversight and reporting channels, or options for workers to challenge poor conditions or access redress requires urgent attention.

The Government needs to review the scheme’s structure, including effectively communicating where responsibilities for the scheme are held, how compliance is monitored and enforced and how the risks highlighted in its own review are being addressed.
There should also be reviews of the scheme which are regularly published. Since temporary migration schemes entail higher risks of exploitation, and agriculture is a high-risk sector, more oversight and a practical safety net is needed to prevent the exploitation of workers on the scheme.
There needs to be sufficient monitoring and compliance enforcement.
Secure reporting mechanisms that enable workers to raise complaints are key to this and should be embedded into a restructured scheme.