By Kate Roberts and Jacob Bolton

The UK’s House of Lords Horticultural Committee has dedicated a section of their report ‘Sowing the seeds: A blooming English horticultural sector’ (November 2023) to labour shortages, and within this, people who migrate to the UK on the agricultural Seasonal Worker visa. Workers on this scheme have a six month visa restricted to certain roles within the agricultural sector, and to certain farms provided by their visa sponsor or ‘Scheme Operator’. We welcome the Committee’s reminder of the UK’s obligations to the workers who we invite to the UK to support our horticulture industry and to put food on our shelves:

“Seasonal workers work in the UK for a short time, but for the time that they are here, they are owed the full protection of existing UK employment laws and standards.” 

Such access to UK employment law in practice must be the cornerstone for any UK work visa. Migration routes for workers to support the UK’s horticulture sector must be safe and fair. The serious risks to workers, highlighted so clearly in the committee’s report, should be thoroughly addressed as part of any scheme extension or expansion.

This blog examines some of the Committee’s recommendations on visa design, a separation of labour inspection from immigration enforcement and compliance, examining how they might be implemented in practice. It is, however, FLEX’s view that the current design of the scheme is overly complex and at the same time suffers from a lack of transparency and confusion around responsibility and enforcement. The Committee describes the situation as follows in recommendation 268 of their report:

Routes to redress for workers are limited, and when they do report exploitation, the effectiveness of enforcement is curtailed by the coupling of labour market with immigration enforcement, and a jumbled mix of bodies responsible for carrying out enforcement.  

The need for comprehensive reform of the scheme

There is a strong body of evidence as to the risks faced by workers who travel to the UK on the scheme, some of which was set out in evidence to the Committee. The current complexity and confusion around the structure of the scheme and responsibility for worker’s rights adds to the risks. This can be seen in recent media coverage revealing that even where issues were reported they were not acted on. It is unacceptable for workers to continue to be invited to the UK and exposed to known risks. Any extension to the scheme must be accompanied by a comprehensive overhaul that addresses existing risks to workers. 

Proactive Labour Market Enforcement

FLEX has long called for proactive Labour Market Enforcement, within this and all other high-risk sectors. Labour Market Enforcement must be adequately resourced, and treated separately to Immigration Enforcement. Recommendation 269 calls for the Government to:

separate labour inspectorates from immigration enforcement and make clearer the roles and responsibilities of current enforcement bodies including the Home Office. The Government must provide an official source of redress to seasonal workers that is not linked to immigration.

This recommendation recognises that workers on insecure, temporary or restrictive work visas are unlikely to report exploitation for fear of facing immigration consequences. It also recognises the lack of clarity around where accountability lies for the scheme and the fact that, at present, access to UK employment law and redress does not exist in practice for many workers – workers who are dependent on their employers for work, income to repay migration debts and accommodation while in the UK. Workers may not speak English, and may struggle to access independent advice to inform any employment claim. In any case, current Employment Tribunal timeframes mean that access to redress is unlikely during the period in which the worker is in the UK. 

The current complaints processes are unclear. Workers are encouraged to complain to their supervisors or Scheme Operators, and we hear anecdotally that they may be referred to their recruiters. There are a number of helplines and apps through which complaints can be made. These are usually funded by industry and workers may not feel sure they are independent. They may consider that the risks of making a complaint (including loss of work) outweighs any likely redress.This is in fact noted in evidence to the committee provided by a seasonal worker (Q205): “The only advice we were given was first to contact the sponsor if we had any problems. We were not given any information on how to contact any other institution—for example, a government-related agency… Many people are afraid that, if they contact the farm or sponsor regarding some issue or problem, they might lose their job and not be provided with another, and eventually they would have to leave the country.”

Secure reporting

Additionally, there is a lack of proactive and independent monitoring of working conditions. We welcome the recommendations to address this, including recommendation 271 which aims to ensure that welfare standards are upheld on farms, and 279, that calls for the Home Office to increase the budget for the GLAA so they are “able to hire more labour inspectors in line with the number recommended by the ILO”. At present the scheme relies on self-reporting by Scheme Operators and suffers from a lack of independent monitoring. The lack of resources has also impeded the GLAA’s ability to conduct inspections, having conducted just 12 inspections of its more than 1,000 license holders to check for compliance by August 2022. Nor is it clear how accommodation standards and access to healthcare are independently monitored and enforced. 

Recommendation 271 states that compulsory welfare spot-checks would entail workers being interviewed by the “GLAA/ Home Office to ensure that welfare standards are being upheld on the farm”. The recommendation goes on to say that “this interview should be available in the first language of the workers, and it should be made clear that it has no link to their immigration status and is totally anonymous and confidential”. However if the Home Office are conducting the interviews it is unrealistic to expect workers on restrictive visas to trust that the interview will not be linked to their immigration status, or that a complaint won’t run the risk of resulting in a loss of work. In order to make sure the recommendation ensures that secure reporting pathways are in place and that inspections are carried out by the most relevant institution, enforcement should be carried out by the labour market enforcement agencies such as the GLAA rather than the Home Office. 

Visa length and the health surcharge 

Another recommendation seeks to extend the length of the visa, and ask employers to pay the NHS surcharge that this would (presumably) make workers liable for – a cost set to rise to £1035 per year in January:

235: To lower recruitment and training costs to growers, increase efficiency, and to retain and attract talent on UK farms, the seasonal worker scheme visa should be extended to nine months, and employers should bear the consequent cost of the NHS surcharge incurred after six months.

The suggestion to increase the length of the visa is helpful as it could give workers more time in the UK to earn — particularly in light of the high upfront visa and travel costs people pay to access work in the UK in the first place. However, it is unclear whether this extension impacts the ‘cooling off’ period, the time that workers must spend out of the country before applying for another visa (currently six months). Extending the visa to nine months without an accompanying reduction in the cooling off period will mean returning workers’ availability becomes decoupled from the growing season.

Additionally, many pickers are reporting a widespread lack of work, with people paying high costs to come to the UK only to find that there is not enough work to keep them gainfully employed. Therefore, for workers to be able to count on a longer period of time working in the UK, this extension would also have to come alongside amendments that grant pickers more security. This could be, for example, a guarantee of work throughout the full duration of the visa, a measure alluded to in recommendation 281 (calling for the government to “update the guidance to specify that this means 32 hours a week for the full six-month season”), but not definitively. We would appreciate further clarity on what this recommendation entails, and how it would be enforced for the full six-month period (or the recommended period of 9 months). The problem of the lack of work is also compounded by restrictions on changing employers, with pickers limited to working only on farms registered with their visa sponsor (Scheme Operator). At present there are workers reporting a lack of work whilst we understand there are labour shortages within the wider sector.

More consideration should be given to the suggestion that employers pay the cost of the NHS surcharge that workers may become liable for following a stay in the country of more than six months. Firstly, it is wrong to assume that this cost must be levied on all longer-term workers: people in the UK on a Health and Care Worker Visa, for example, are currently exempt from paying the surcharge. Given that pickers are key workers, why not suggest the same exemption to the Seasonal Worker Visa?

Secondly, if growers were to bear the costs of the surcharge, then this would raise operating costs, which would mean growers have to charge more for their produce. This suggestion seems to be at odds with other claims and observations made elsewhere in the report, namely that the “perceived imperative to offer low prices to consumers at the expense of grower returns is squeezing the UK horticultural sector out in favour of cheaper imports” (62). Measures that only incur further costs to growers will raise prices, deterring supermarkets from buying UK produce and damaging UK food security. More consideration could be given to how value is currently distributed across the entire supply chain, to ensure that recommendations for the industry to support employment-related costs borne by workers are better balanced.

Additionally, if it is deemed unviable that workers pay for recruitment-related costs such as the NHS surcharge, then why not apply the same logic to their rising visa fees and travel costs? A recurrent issue on the scheme is workers arriving in the UK with high levels of debt that they then must work off, a situation that exacerbates the risk of exploitation. Against this, we would suggest the adoption of an employer pays principle (also known as zero cost recruitment), which the UK actively advocates for internationally, in which the upfront costs for workers accessing employment are borne by the employer. We recognise however that growers may not be in a position to bear all these costs themselves (for reasons outlined in the inquiry), therefore we would suggest that these costs are borne by parties throughout the entire food supply chain, including growers, suppliers and supermarkets. To assist this, we welcome the recommendation in response to the ALP’s suggestion that the government should not charge workers more for their visas than the processing cost (249), although it is unclear why the report’s recommendation applies only to returning workers, and not to everyone accessing the scheme.

Conclusion

The Horticultural Committee have made some helpful recommendations that – properly exercised – could protect worker’s rights, help identify and prevent exploitation and, in doing so, support safe and fair labour migration to the UK. This will, in turn, support a robust horticultural sector and strengthen UK food security. To ensure that workers who we invite to the UK to help put food on our shelves are not exposed to unacceptable levels of risk, the UK urgently needs to address the structural issues in the scheme which create and exacerbate these risks. These include migration debts, the lack of guarantees of work in the UK, and restrictions around options for workers to find alternative work. The proactive enforcement of labour standards in agriculture and ensuring that workers have full access to UK employment law in practice will protect horticultural workers, securing the future of the sector.