Time for a firewall: ensuring safe reporting for victims of exploitation

Blog19 Feb 2019

A recently published report has announced the Home Office’s intention to establish a centralised digital system that obtains and shares people’s immigration status. It will share this information in real time with immigration enforcement and authorised bodies. Its first service, the digital ‘right to work’ status check, has already been trialled with 23 employers and will soon be expanded to other spheres to cover ‘right to rent’ and drivers’ licences. This system, named the ‘Status Checking Project’, will further add to hostile environment policies that prevent undocumented migrants from accessing work, housing, healthcare, benefits and even bank accounts by creating a full-time migrant surveillance system.

As FLEX has previously warned, hostile environment policies undermine the UK’s efforts to establish itself as an international leader in combatting human trafficking by increasing workers’ risk to exploitation. If the UK wants to ‘lead the way in defeating modern slavery’, it must adopt a strict firewall between its government agencies and immigration enforcement.

What is a firewall and why is it important?

The term ‘firewall’ refers to a separation of immigration enforcement activities from public service provision, such as healthcare, education and housing. Its goal is to ensure that everyone can access these essential services and can experience good working conditions, irrespective of immigration status. Firewalls are important because they allow people to use services and seek assistance when needed without the fear of immigration-related repercussions, such as arrest, detention and deportation. FLEX advocates specifically for a firewall between immigration enforcement and labour inspectorates so that everyone, regardless of immigration status, can have their workplace rights protected and upheld.

For people to come forward about abuse and exploitation at work, they need to trust that they won’t end up arrested or detained for immigration offences, which makes firewalls a key mechanism for labour inspectorates to do their jobs well. Without a firewall, undocumented migrants often choose not to report workplace violations, which prevents labour inspectors from identifying and prosecuting abusive employers and ensuring workers can access justice. The Latin American Women’s Rights Service, long advocate for the firewall and chair of the Labour Exploitation Advisory Group (LEAG) established by FLEX in 2015, has identified the practical consequences of the absence of this mechanism. LAWRS supported an undocumented worker experiencing abuses at work who, upon being informed there would be a labour inspection in her workplace, decided not to go to work because she was afraid of coming to the attention of immigration authorities. In this case, labour inspectors missed a key opportunity to identify an abusive employer and to support someone experiencing abuse at work, two outcomes that are at the core of their mission.

Firewalls are important not solely to identify and support people who have suffered abour abuses, but also those experiencing trafficking for labour exploitation. When police and labour inspectors are undertaking operations through a lens of immigration enforcement, they are likely to miss indicators of trafficking. This has severe consequences for victims, who may be detained and experience worsening of physical and mental health conditions.

The lack of a firewall also means undocumented victims of trafficking are choosing not to enter the UK’s National Referral Mechanism (NRM) to avoid being detected by immigration authorities. The NRM is the state framework to identify and support potential victims of modern slavery and human trafficking. They see little benefit in being referred to the NRM as this will place them on the radar of immigration authorities. As it provides very limited avenues for a victim to stay in the UK once their case is concluded, they often choose to move on without access to remedies or compensation.

Lack of documentation must not leave migrants without protections

Hostile environment policies are designed to make undocumented migrants’ life in the UK difficult with the aim of encouraging them to leave – or not to come in the first place. But this approach hides the diverse reasons someone can become undocumented. For example, people in abusive relationships can become undocumented if their right to stay is linked to their partner. They may face the dilemma of leaving domestic abuse and becoming undocumented or remaining in their abusive situation in order to keep legal status. Equally, many migrant domestic workers who came to the UK on visas that tied them to their employer have become undocumented after deciding to leave an exploitative workplace. While 2016 changes to the overseas domestic worker visas terms have abolished tied visas, those who became undocumented between 2012 and 2016 while the tie was in place still face the challenges imposed by the hostile environment.

It is illegal to employ an undocumented migrant in the UK, punishable by up to five years in prison for an employer found to have done so. Therefore, only employers willing to bear legal risk will tend to employ undocumented people which can push undocumented migrants into informal jobs where they are less protected against abusive employment practices. And, once there, they will be less likely to disclose issues of abuse and exploitation due to the lack of a firewall, as previously described.

While hostile environment policies may lead us to believe undocumented migrants have no rights, all migrants, including those with undocumented status, have the right to freedom from discrimination, protection from abuse and exploitation, to a fair trial and legal redress, and favourable working conditions, as highlighted by the UN Special Rapporteur on the Human Rights of Migrants.

What does a firewall look like in practice?

Due to its recognition of the importance of the firewall in identifying and supporting workers experiencing issues at work, the United States established a memorandum of understanding (MoU) between the Department of Labor and the Department of Homeland Security separating immigration control from labour inspection activities. In practice, when the Wages and Hours Directorate investigates cases of unpaid wages they must not ask for immigration documents. This clear separation of roles, and the fact that workers’ rights are protected in the USA regardless of immigration status, gives undocumented workers the chance to seek help when experiencing abuse and exploitation.

Brazil goes even further. After identifying that Federal Police officers were treating labour exploitation of undocumented workers solely as a violation of immigration policies, Brazil implemented a complete separation between labour inspection and immigration enforcement at all government levels, which they believe is essential to counter precarity at the workplace and promote better working conditions for all. In practice, labour inspectors do not enquire about workers’ immigration status and if they are found to be undocumented, immigration authorities are not alerted. Brazil also adopted a key incentive for victims to come forward about labour exploitation. In 2017, a new law stated that any migrant subjected to trafficking in persons is entitled to permanent residence and the same benefits as nationals – including the right to work, irrespective of their collaboration in criminal investigations. Such an outcome provides victims with an incentive to disclose workplace violations and a clear pathway to recovery.

While the USA and Brazil have created formal mechanisms to establish a firewall, Israel has always had a firewall due to the way its data systems operate. All government databases are independent and cannot be accessed by immigration authorities. This allows victims to report issues at work without fear of repercussion and for labour inspectorates, police and other bodies to record information that is vital to their work without eroding workers’ trust. Undocumented workers enjoy the same labour rights as citizens because immigration status is seen as irrelevant when it comes to labour rights. The Israeli Government believes that ensuring labour rights for all protects the labour market from a ‘race to the bottom’ that would leave all workers worse off. For the same reason, in 2011, undocumented workers were given the right to unionise so they can jointly advocate for their rights.

How can we support workers experiencing exploitation?

The lack of a firewall puts an unfair burden on undocumented workers experiencing abuse. Victims of trafficking for labour exploitation should not have to risk immigration-related consequences when they seek support to leave an exploitative situation, nor should they be relegated to informal jobs where they are less protected against abusive employment practices.

Firewalls give undocumented workers the chance to come forward about abuse and exploitation, and they help labour inspectorates and the police to fulfil their duty to protect vulnerable and exploited workers. If the UK is serious about combatting extreme forms of labour exploitation, it should adopt a firewall so that workers can seek advice and support without the threat of immigration action being taken against them. A firewall between labour inspectorates and immigration enforcement is key to the UK becoming an international leader in the fight against human trafficking for labour exploitation.