Photo:flickr/steven mitchell

Migrant workers: legislating for precarity

Mikhil Karnik, an immigration lawyer in Manchester, explains how changes in immigration law are driving migrant workers towards greater precarity

One measure of the distinction made between EU nationals and other immigrants is the disproportionate use of detention in Britain. Despite making up less than half the migrant population, non-EU migrants constitute about 90% of those detained. In 2015, 32,400 people were held in a UK immigration detention centre for some period. Only 3,700 came from the EU, who were primarily facing deportation following conviction and imprisonment. Detention, and the threat of detention, is just one of many draconian tools the state uses to engender a well-founded feeling of unremitting precariousness for migrant labour.

How non-EU migrants are treated is illuminating because it is an area that falls predominantly within the national state’s authority. The British state can largely do what it likes, unencumbered by EU law, when dealing with migrants from outside the EU. Their treatment offers an example of how an unfettered British state might act in all aspects of law making over immigration.

Since 1999 governments have passed 8 immigration acts, countless statutory instruments and pages of immigration rules. The most recent salvo is the Ministry of Injustice’s proposals to price most non-EU migrants out of their access to justice. EU law currently prevents such charges being imposed on EU citizens.

Kafkaesque

Currently the courts offer at least some protection against an increasingly Kafkaesque regime of controls. A recent client, let’s call her Janet, a British hairdresser, applied for her husband John to enter the UK. They submitted correctly the hundreds of necessary documents, along with the unrefundable application fee of over £1000, and demonstrated that Janet’s earnings crossed the £18,600 threshold. They were assured upon submission that all was correct. Six months later the application was rejected because one necessary document was alleged to be missing. The decision-maker had no system for recording what was submitted, and more importantly, conceded that the submitted documents had been irretrievably lost.

Janet and John are certain they provided everything, she still has copies, and appealed to the tribunal. They lost the appeal because they cannot prove that the documents they brought to court were the ones used in the application. They can’t prove it because the Home Office has lost them. I later challenged that reasoning in a superior court, which saw the error, but this still left us with no final outcome on the application. Getting to this point has cost over two years of separation, anxiety and legal bills. Under the new proposals it will cost an additional £800 court fee for the privilege of appealing, and a further £1315 to challenge an incorrect decision by the tribunal.

Priced out of justice

Each non-EU migrant has to pay thousands for each, obligatory, repeat application; they face arbitrary rule changes and obtuse decision-making. There can be no expectation that the visa will be renewed. These workers are truly precarious. A failure to challenge an incorrect decision leaves the migrant and their family as illegal overstayers. The new court fees will price most migrants out of any opportunity to seek an effective remedy.

British capital needs migrant labour, but it prefers precarious migrant labour. Along with other major capitalist economies it has developed sophisticated systems to regulate migrant labour. These systems incrementally make the life of migrant workers more challenging.

Estimates suggest there are currently over half a million overstayers, including those who have never sought to regularise their stay. These workers are the ultimate precariat, relying on borrowed identities and NI numbers, or by labouring in the black economy. They are trapped. They hold onto hope that they may ultimately become legal but fear they won’t. They can’t leave the UK and, more importantly, can’t leave their employment because as new employees elsewhere they would face rigorous checks. Soon they won’t be able to rent their homes without providing evidence of their legal status.

EU workers’ rights

EU workers and their families achieve settled status with minimal effort and no cost; 5 year’s residence spent mostly working is sufficient. For non-EU workers the route to settled status requires at least 10 years residence. The hurdles for the non-EU migrant are immense. The pitfalls along the way plentiful, deep and intractable. Once you fall foul of immigration law your prospects are extremely poor.

In recent months there have been reports of a surge in applications for British citizenship. At the same time there have been corresponding reports of a freeze in considering such applications. Standard Home Office letters putting applications on ice for over six months are now landing on doormats. Unlike applications made under EU law there are no strict time-limits. Applications for nationality fall under the British state’s authority and the Home Office can take as long as it likes.

A Brexit vote will not alter EU rights overnight, but it will be a vote for uncertainty. That uncertainty forms a foundational argument of the socialist case for Brexit, magnifying the existing instability within the structures of an already unreformable EU. At the same time uncertainty cannot but engender a deep feeling of insecurity among EU workers. A feeling that their situation is now more precarious, and with it a shift in their confidence to join struggles in their communities and workplaces.