Immigration Law and Case Analysis - Essay Example

Immigration Law and Case Analysis SCHOOL Immigration Law and Case Analysis Most companies employing migrant workers do so for apparent business reasons including but not limited to skills and /or labour shortages in their country. This happens when these companies are unable to recruit the labour or skills they need from the locals in their area (Employingmigrantworkers.org, 2007). Thus, in order to address this problem, the UK Government enacted selective admission policy for migrant workers which addresses skills shortages and therefore boosts the UK economy overall. To make the most of the advantages that non-UK nationals can bring, employers, however, need to understand how to comply with relevant legislation as well as understanding how to recruit and retain migrant workers. According to Section 8 of the Asylum and Immigration Act 1996 or the law preventing illegal migrant from working which came into effect on 27th January 1997, there are three main components that employers must take into consideration when employing migrant workers: First, it is a criminal offence for an employer to employ someone who has no right to work in the United Kingdom, or no right to do the work they are offering; second, by checking and copying certain original documents belonging to the employee, the employer can establish a statutory defense against conviction for employing an illegal worker; and lastly, the employers are obliged to ensure that their recruitment practices do not discriminate against individuals on racial grounds (Employingmigrantworkers.org, 2007). With these in mind, let us take a closer look at some of the hypothetical cases given on which this paper will focused on. These cases concern Immigration Law and practices in United Kingdom and how employers should address each situation based on their legal ramifications on both the employees and the employers as well. Case # 1: Agrobiz, a large market gardening undertaking, manage an extensive cultivated acreage of soft fruit grown under polytunnels. Local villagers are unwilling to work for Agrobiz because the work is only available for a few months each year and the company only pays a minimum wage. In order to make the work more attractive to worker from abroad, Agrobiz is prepared to offer “free” chalet style accommodation and meals at its communal catering facility. Legal Implications: Migrant farm work is usually seasonal and inconsistent. Migrants are often needed because local people in the area are unwilling to do this kind of work. These workers are mostly comprised of immigrants, many of whom work illegally in this country. Several conditions create a market for migrant workers. Supply is often determined by the fact that too few people who live near farms are willing to do field work. Demand for migrant labor is created when producers grow labor-intensive crops. Just like in the case at bar, Agrobiz is opting to hire seasonal agricultural workers from abroad to work in his farm since no local villagers are willing to harvest the crops because the work is only available during harvesting season and also because Agrobiz is only willing to pay a minimum wage for the said hard labor. “Migrant seasonal agricultural worker” has been defined as someone who is "employed in agricultural employment of a seasonal or other temporary nature, and who is required to be absent overnight from his permanent place of residence" (Schneider 2001) in instances: (i) when he is employed on a farm or ranch performing field work related to planting, cultivating, or harvesting operations; or (ii) when he is employed in canning, packing, ginning, seed conditioning or related research, or processing operations, and transported, or caused to be transported, to or from the place of employment by means of a day-haul operation (Schneider 2001). Seasons here could refer to as comprising winter, spring, summer and autumn. It could also mean a period of the calendar. It could likewise be interpreted as referring to the planting season or the harvest season and such like. According to "Shorter Oxford Dictionary", however, season could refer to "a period of the year" and "the time of the year assigned to some particular operation of agriculture" (Sweet and Maxwell 2006). In this case, in order for Agrobiz to lawfully hire migrant seasonal agricultural workers, certain standards should be met. These standards are in addition to those that may be imposed by governing authorities. First is the “farm labor contractor” registration requirement. The "farm labor contractors" must register with the governing authority. An FLC is defined as a person who performs any farm labor contracting activity for consideration. "Farm labor contracting activity" is defined as "recruiting, soliciting, hiring, employing, furnishing, or transporting any migrant or seasonal agricultural worker" (Schneider 2001). Second are the terms of employment requirement. Each person employing an agricultural worker must pay all wages that are due. This requirement incorporates employment conditions that may be mandated by other statutes. Certain jurisdictions also prohibit the practice of requiring a worker to purchase goods or services from the employer or the farm labor contractor. Such sales can be made, but only on a voluntary basis. It is also required that the employer complied with the terms of any working arrangement agreed upon. Specifically, it provides that no FLC, agricultural employer, or agricultural association shall violate the terms of the employment arrangement "without justification"(Schneider 2001). In this case, since Agrobiz offered and willing to provide “free” chalet style accommodation and meals at its communal catering facility to those who would agree to its arrangement, Agrobiz must not violate such provision of the contract in addition to all other mandatory requirements. The requirement is the disclosure and informational Requirements. This policy is intended to promote agricultural workers understanding of the nature of their employment and their legal rights. Disclosure of the terms and conditions of employment must be made at the time that worker is recruited for the job. If housing is provided, a poster explaining the terms and conditions of occupancy must also be displayed. Written disclosures are to be provided in English, or "as necessary and reasonable" in the language of the workers who are not fluent or literate in English (Schneider 2001). Specific employment records for each employee, likewise, must be made, kept, and preserved for a certain number of years. These records must comprise the basis on which wages are paid, the number of hours worked, the total pay period earnings, the amounts withheld, and the net pay earned. Each worker must be provided with an itemized written statement setting forth this information each pay period. Agricultural employer, or agricultural associations are also prohibited from knowingly providing false information to any worker regarding the terms, conditions, or existence of agricultural employment (Schneider 2001). Fourth are the accommodation requirements. Given the itinerant and temporary nature of farm labor, housing for migrant workers is properly considered a condition of employment (LeRoy 1998). Each employer who "owns or controls" property that is used as housing for migrant workers is responsible for ensuring that the housing complies with safety and health standards. There is also a requirement that the housing be inspected and certified to be in compliance. Persons who provide housing on a commercial basis to the general public, however, are exempted from these requirements (Schneider 2001). Since Agrobiz will provide “free” chalet style accommodation and meals at its communal catering facility, Agrobiz should see that it conform to the safety and health standards required. Lastly is the requirement of non-discrimination. The law mandates an express prohibition of any action taken to "intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any migrant or seasonal agricultural worker" due to his/her age, gender, race or religious affiliations (Schneider 2001). Under the Seasonal Agricultural Workers’ Scheme (SAWS), on the other hand, migrants may be admitted to the United Kingdom to undertake seasonal work on farms. The Home Office contracts with a number of organizations known as Operators to administer the scheme on its behalf, and workers seeking to enter the UK under the SAWS must be recruited by one of these Operators. There is a restriction on the total number of seasonal workers recruited each year. Currently, the quota is 25,000. All new recruits must be students in full time education abroad and aged 18 or above. Applicants are required to provide proof of their age and status to the Scheme Operator. Although all the requirements of Paragraph 104 of the Immigration Rules must be met, there are key points on which the immigration officers must be keen with: (1) he is a student in full time education aged 18 or above; (2) he holds a valid Home Office work card issued by an approved Operator; (3) he does not intend to take any other employment; and (4) he intends to leave the United Kingdom on completion of his period of leave as a seasonal agricultural worker (IND, Immigration Rules). In sum, in order for Agrobiz to legally hire migrant seasonal farm employees certain requirements must be met. It is not sufficient that the employer will provide a free “chalet” style of accommodation in its facility. Rules have been established in order to safeguard the rights of seasonal farm workers. Case #2: Betjeman busses operate various routes throughout metro land. Despite a local advertising campaign on vehicle windows and on local radio stations, no locals in the area to run their service efficiently. Young Betjeman recalls that in similar circumstances after the war, his father John recruited drivers from the Caribbean and has decided to follow the family tradition. Legal Implications: According to Immigration Directorates Instructions (Dec 2006) overseas nationals who are not settled here and who intend to take employment in the United Kingdom are required to have work permits unless they are: (a) EEA Nationals and their families; (b) Gibraltarians; (c) Commonwealth Citizens given leave to enter or remain on the basis of United Kingdom ancestry; (d) Seamen under contract to join a ship due to leave British waters; (e) Persons employed as civilian components of NATO Forces; (f) Persons admitted as the dependants of persons settled here and other dependants (under limited circumstances); (g) Students (under limited circumstances). In the case at bar, since the Carribean drivers that Betjeman wanted to employ are not one of those above-mentioned, they are required by law to have work permits in order for Betjeman to legally hire them for its transportation business. Under the Immigration Rules, an individual may be given a work permit for a period not exceeding the period of employment approved by the Home Office (as specified in his work permit), subject to a condition restricting him to that approved employment, provided that on his arrival, he is able to produce to the Immigration Officer a valid United Kingdom entry clearance for entry in this capacity or each of the requirements stated in paragraph 128(i)-(vi) of the Immigration Rules has been met where entry clearance is not required. These requirements are as follows: (1) a valid Home Office work permit; (2) not of an age which puts him outside the limits for employment; (3) capable of undertaking the employment specified in the work permit; (4) does not intend to take employment except as specified in his work permit; (5) able to maintain and accommodate himself and any dependants adequately without recourse to public funds; (6) in the case of a person in possession of a work permit which is valid for a period of 12 months or less, intention to leave the United Kingdom at the end of his approved employment; (7) holds a valid United Kingdom entry clearance for entry in this capacity except where he holds a work permit valid for 6 months or less or he is a British National (Overseas), a British overseas territories citizen, a British Overseas citizen, a British protected person or a person who under the British Nationality Act 1981 is a British subject. After the Carribean drivers had satisfied all the above requirements, Betjemin can now legally employ them. However, Betjemin should also take into consideration some important points when hiring them. It is important that their recruitment practices do not discriminate against any person on the basis of their racial background. If an employer discriminate against someone on racial grounds and go against the code of practice issued by the Government, then this can be used as evidence against the employer under the Race Relations Act 1976 before an employment tribunal. An employer should not employ anyone on the basis of their claim to be British or whether they think they appear to be British. It is best to treat all job applicants in the same way in order to prevent discrimination in the recruitment practices (Kelly 2007). Since the Carribean drivers belong to ethnic minority groups, Betjemin should be careful not to discriminate against them in terms of conditions of employment. Case # 3: Careless cleaning has a contract to manage the offices of the asylum and immigration tribunal at the Piccadilly Exchange Manchester. In order to win the competitive tender careless cleaning began to recruit former students who decided to stay in the UK when their hairdressing course ended, as there were no jobs to go back to in the Philippines. They are supervised by three French Canadians who originally flew into Manchester to watch the athletics at the commonwealth games. Several of the cleaners have been recognizes by the presenting officers of the immigration and nationality directorate. Despite this Careless says it’s a cash arrangement; and that they are happy to let “foreigners work for peanuts”, in order to keep their contract. Legal Implications: In the case at bar, there are three situations that need to be considered. First is the situation of Careless cleaning for hiring former students. Second is the circumstance surrounding the employment of the students. Lastly, consideration should also be given to the three French Canadians who acted as the student’s supervisors. Careless Cleaning in hiring its former students violated Section 8 of the Asylum and Immigration Act 1996 regarding employing workers who has no legal right to work in United Kingdom. Students are only allowed under the Immigration Law to work in limited circumstances. Section 8 of the Asylum and Immigration Act 1996 provides the law preventing illegal migrant working. As a direct consequence of this law, there are three main components employers must consider: (1) it is a criminal offence to employ someone who has no right to work in the United Kingdom, or no right to do the work you are offering; (2) by checking and copying certain original documents belonging to your employee, you can establish a statutory defense against conviction for employing an illegal worker; (3) you are obliged to ensure that your recruitment practices do not discriminate against individuals on racial grounds. Careless Cleaning has prior knowledge that its former students have no legal right to work after their hairdressing course and yet it has actively recruited them. Careless Cleaning may be penalized in doing so. The maximum penalty for the said offence was previously £5,000 and was now increased to an unlimited fine. This amount is payable for each person found to have been employed illegally, and on indictment (Employingmigrantworker.org.uk 2007). With regards to the students, there are strict conditions on the type of work they can take while they are studying in the UK. They can only be employed (1) for up to 20 hours per week during term time. The only exception to this is where a student may have been placed with employer to meet the definition of their sandwich course or internship; or (2) full-time only outside of their term time or during vacation period; and (3) they must still have valid leave. A student must not also engage in business, self-employment or the provision of services as a professional sports person or entertainer. A student is not permitted also to pursue a career by filling a permanent full-time vacancy. In the case at bar, the former students of Careless Cleaning has every intention to remain in United Kingdom even if their permit do not allow them to do so much more to work. A violation of the Immigration Rules has been committed when the students decided to accept the employment offer of Careless Cleaning (Employingmigrantworker.org.uk 2007). It is advisable that if the conditions under which the leave was originally granted have changed, then permission must be sought from the Home Office for further leave to enter or remain in the UK. This is because the only authorization conferred by the stamp or endorsement is an authorization to engage in the employment specified on the face of the work permit or letter of approval, which was held by the holder when the leave was granted. Concerning the three French Canadian supervisors, they are in the country only because they wanted to watch the athletics at the commonwealth games. Clearly, they have not been granted by the Governing authority a permit for the purpose of employment. Again, working legally in the United Kingdom requires a permit to work. Failure to obtain such permit may lead to criminal prosecution under the Immigration Law. Case # 4: Yesbride owns several large fish processing factories in Grimsby and Immingham. In order to keep their competitive edge, Yesbride has recently purchased a few freezing plants built in the far east, but cannot install and run it because there are no local engineers with the necessary qualification and know how to operate and maintain the and equipment. They also wish to recruit finger slicers, fish block cutters and crumbers. Yesbride has mounted an extensive advertising campaign for these manual occupations, but no one applied for the work which is repetitive, smelly and low paid. They are considering filling these positions from abroad. Legal Implications: Yesbride may legally hire foreign engineers in order to operate and maintain the equipment provided that the requirements for leave to enter as a highly skilled migrant under the Immigration Rules have been met: (1) must produce a valid document issued by the Home Office confirming that he meets, at the time of the issue of that document, the criteria specified by the Secretary of State for entry to the United Kingdom under the Highly Skilled Migrant Programme; (2) intends to make the United Kingdom his main home; (3) is able to maintain and accommodate himself and any dependants adequately without recourse to public funds; (4) holds a valid United Kingdom entry clearance for entry in this capacity. Yesbride may also lawfully employ finger slicers, fish block cutters and crumbers from abroad since no local workers in the area are willing to do the work. However, Yesbride must comply with the certain requirements before hiring them. As mentioned earlier, under the Immigration Rules, an individual may be given a work permit for a period not exceeding the period of employment approved by the Home Office (as specified in his work permit), subject to a condition restricting him to that approved employment, provided that on his arrival, he is able to produce to the Immigration Officer a valid United Kingdom entry clearance for entry in this capacity or each of the requirements stated in paragraph 128(i)-(vi) of the Immigration Rules has been met where entry clearance is not required. These requirements are as follows: (1) a valid Home Office work permit; (2) not of an age which puts him outside the limits for employment; (3) capable of undertaking the employment specified in the work permit; (4) does not intend to take employment except as specified in his work permit; (5) able to maintain and accommodate himself and any dependants adequately without recourse to public funds; (6) in the case of a person in possession of a work permit which is valid for a period of 12 months or less, intention to leave the United Kingdom at the end of his approved employment; (7) holds a valid United Kingdom entry clearance for entry in this capacity except where he holds a work permit valid for 6 months or less or he is a British National (Overseas), a British overseas territories citizen, a British Overseas citizen, a British protected person or a person who under the British Nationality Act 1981 is a British subject. References: Davies, A.C.L. (2006). Casual Workers and Continuity of Employment, 35 Industrial Law Journal 196. Employing Migrant Workers. Retrieved 28 April 2007 from http://www.employingmigrantworkers.org.uk/why/6_0_0.html Immigration Directorates Instructions (Dec 2006). Retrieved 28 April 2007 from http://www.ind.homeoffice.gov.uk/documents/idischapter5/section1.pdf?view=Binary Kelly, Lynnette. Intpol - United Kingdom Integration Policies in the UK. Retrieved 28 April 2007 from http://www.emz-berlin.de/projekte_e/pj32_1pdf/IntPol_UK.pdf Laws and Policy. Retrieved 28 April 2007 from http://www.ind.homeoffice.gov.uk/lawandpolicy/immigrationrules LeRoy, Michael (1998). Farm Labor Contractors and Agricultural Producers as Joint Employers Under the Migrant and Seasonal Agricultural Worker Protection Act: An Empirical Public Policy Analysis Berkeley Journal of Employment and Labor Law, 175 Berkeley Journal of Employment and Labor Law. Schneider, S. (2001). Notes on the Migrant and Seasonal Agricultural Worker Protection Act, 57 Arkansas Law Notes 2001. Sweet & Maxwell Limited and Contributors (2007). Ministerial Planning Decision. 761 Journal of Planning & Environment Law 2006. Read More