Safeguarding workers on temporary migration programmes: study

Understanding temporary migration programmes

Risks of exploitation in temporary migration programmes

Temporary migration programmes are in widespread use and favoured for their role in state labour regulation and migration control. Many such programmes rely on sponsorship visas, which tie a worker to a named employer or labour provider for the duration of their stay in a country. Temporary migration programmes are appealing for maintaining migrants as permanently peripheral to societies, often with limited access to social benefits. Temporary or short-term migrants are defined internationally as individuals spending between three and twelve months in a country of destination (UN DESA 1998). The UK generally places restrictions on benefits and services for short-term migrants, classifying individuals “moving to the UK for at least 12 months” (Migration Observatory 2022 p.3) as long-term immigrants, excluding short-term migrants from net-migration calculations.

Whilst temporary migration programmes, therefore, present a useful, targeted, and managed migration tool for states, evidence from countries around the world including Australia, the United States, New Zealand, Sweden and Finland shows that the dependency of workers on their employers in such schemes increases their risk of exploitation (Migration Observatory 2018 p.21). Indeed the elements that most benefit States are precisely the same ones that present the most risks to workers:

the same feature that enables work-permit schemes to target particular parts of the labour market—the fact that a worker is tied to a specific job—makes it harder for workers to leave exploitative employers (Ibid p.3).

The vulnerabilities created by such schemes have been labelled “state-mediated structures of exploitation” by one legal expert in human rights (Mantouvalou 2022 p.718). Temporary migration programmes are increasingly popular with governments as a migration governance solution, yet their proliferation has serious consequences for workers’ rights and incidences of labour exploitation.

UK temporary migration programmes and risks of exploitation

Analysis of previous and existing temporary migration programmes in the UK, including the former Seasonal Agricultural Worker’s Scheme (SAWS), the current Seasonal Worker visa (SWV) and the Overseas Domestic Worker Visa (ODWV) has linked them to increased risks of abuse and exploitation (Ewins 2015 p.24, MAC 2022 pp13-14, ICIBI 2022 p.2, FLEX 2019). The UK government’s Migration Advisory Committee (MAC) recently identified a number of features of temporary migration programmes that can increase risks of exploitation for workers including restrictions on the ability to change employers, restrictions on sector or geographical location limiting worker choice, and dependency on employers for accommodation (MAC 2022 p.13). The non-governmental organisation (NGO) Focus on Labour Exploitation (FLEX), has detailed further risks to workers posed by such schemes:

• Debt bondage due to upfront migration costs and illegal recruitment fees;
• Deception in recruitment;
• Barriers to changing job or sector;
• Multiple dependencies on employers or third parties;
• Destitution due to no recourse to public funds;
• Lack of access to information about rights or how to seek support;
• Barriers to accessing justice; and
• Lack of guaranteed hours/zero hours contracts (FLEX 2022 p.5).

These risks have been recognised by the UK Government’s Independent Anti-Slavery Commissioner (IASC) who has called for greater safeguarding for workers on such schemes (IASC 2022 and IASC 2020). Despite major safeguarding concerns raised about temporary migration programmes for low-paid workers, the UK government has continued to depend on such schemes to fill gaps in its labour market.

The UK ODWV is one temporary work visa that has been highlighted by worker support providers and human rights experts as creating a significant risk of exploitation for migrant workers (Kalayaan no date, Mantouvalou 2016). In 2012, the ODWV was changed from a sector specific visa to one that is tied to a single employer and restricted to six-month validity, without possibility for extension or settlement. The risks associated with the restrictive single employer tie and short-term nature of the visa are documented by the domestic worker support NGO, Kalayaan. These include increased physical abuse, movement restrictions and surveillance of workers and poorer working conditions and treatment for workers on the ODWV compared with workers on an open visa (Kalayaan 2015 p.1). In 2015, a UK government commissioned review of the ODWV conducted by James Ewins QC, found:

No evidence that a tie to a single employer does anything other than increase the risk of abuse and therefore increases actual abuse (Ewins 2015 p.24).

The review recommended that the ODWV be changed to provide workers:

a right to change employer, but limited to domestic work in a private household, that is not conditional upon claiming or proving any form of abuse (Ibid p.34).

In addition Ewins called for a “period of 28 days grace” during which workers could leave their employer and take time to find an alternative employer without becoming undocumented (ibid). The changes to the ODWV in 2012 to tie workers to a single employer have been linked to increases in incidences and risks of exploitation.

The SWV for migrant workers in horticulture was introduced in 2019 as a temporary work visa. The scheme has been expanded annually, including in 2022 the addition of visas for use in the poultry sector (Defra 2022 p.10). UK labour providers receive Home Office licenses to operate as ‘scheme operators’, sponsoring workers to come to work in UK horticulture for a maximum of six months in any 12-month period and in poultry from 18 October to 31 December in the same year. Whilst workers on the SWV are sponsored by a scheme operator, they are largely employed by farms and may make a transfer request to switch employers in case of problems. This visa tie to labour providers marks a shift from the predecessor SAWS which tied workers to a single employer, thereby demonstrating some recognition by the Home Office of the risk inherent in this tied relationship.

Initial research engaging workers on the SWV found major practical barriers to worker employment transfers (FLEX 2021). In addition, a UK government review of the first year of the SWV identified serious concerns about worker welfare, detailing worker reports of: not having their contract terms met, inadequate complaints processes, poor employer responses to medical incidents, and unfair treatment by managers (Defra and Home Office 2021 pp.15-16). Further, a recent report by the UK government’s Independent Chief Inspector for Borders and Immigration (ICIBI) reviewed Home Office SWV scheme compliance data and found “serious or alarming concerns” raised by workers in a number of reports yet limited action taken in redress (ICIBI 2022 p.44). Whilst the SWV tie to a labour provider rather than a single employer is marginally less restrictive than for its predecessor scheme, in practice workers report major barriers to switching employers and the serious welfare concerns persist.

Summary

Temporary migration programmes, such as the SWV and ODWV in the UK, are popular with States worldwide, yet pose significant safeguarding risks to workers, serving to increase vulnerability to exploitation. The core elements of such schemes are the employer or labour provider specific visa tie and their short-term nature, both features that serve to shift power away from workers in favour of employers. Instead of increasing the number of workers on temporary migration programmes, States should introduce alternative schemes where workers are not tied to a specific employer, labour provider or sector, with the possibility of transferring to longer term visas with pathways to settlement.

Responses to safeguarding risks by the UK and Scottish Governments

The UK Government has not taken significant steps to address concerns raised about the ODWV and the SWV, yet numbers on each visa, outside the COVID-19 travel restriction period, have grown annually. Prior to the 2020 COVID-19 lockdown annual positive ODWV decisions had reached 21,075 in 2019, up from 16,652 in 2013.^[1] The SWV has been expanded from an initial annual quota of 2500 visas in 2019, to 47,000 in 2023, with a further 10,000 to be added if necessary; meaning the SWV quota has increased almost 20 fold since its introduction, just under four years ago.^[2] In response to the 2015 review into the ODWV the UK government changed the immigration rules to permit overseas domestic workers (ODWs) to change employer during their six-month visa period without requiring evidence of abuse (Hansard HC Deb 7 March 2016 c583WS). However, ODWs remained ineligible to extend their period of stay in the UK, which poses a significant practical barrier to workers switching employer given the time constraints. Safeguarding issues identified in relation to the SWV have led the UK government to amend Scheme Operator guidance in relation to wages and transfer requests and most recently to announce plans to establish a Home Office led “team to monitor the operational immigration elements of the scheme” (Home Office 2022). Whilst serious safeguarding risks related to the design of UK temporary work visas have been raised by independent and Government experts and acknowledged by the UK government, very minimal changes have been made to date.

Immigration and visas are reserved matters for the UK government; therefore, the Scottish government cannot make visa changes. However, the Scottish government is seeking to become a “leading Fair Work nation” (Scottish government 2022) by 2025 and has underlined its support for migration policy that is supporting “fair work, protecting workers’ rights, pay and access to employment and preventing exploitation and abuse” (Scottish government 2020 p.10). In reference to tied migration programmes for low paid workers, the Scottish Government has recognised the risks to workers of exploitation created by a tie between workers and employers (Ibid p.47). In response to research into the risks of exploitation for workers on the SWV in Scotland, the Scottish Government funded worker’s rights information leaflets (FLEX et al 2022), a helpline (Macpherson 2021) and a Worker Support Centre (Scottish government 2022b) for workers on the SWV. In 2020 the Scottish government proposed a “Scottish visa” which would be endorsed and sponsored by the Scottish government, without tying workers to a particular employer, with a route to settlement in Scotland (Scottish government 2020 pp 18-25). More recently the Scottish government has put forward proposals for a long-term rural visa valid for up to four years, tied to a geographical area within Scotland and for the first 12 months to a single employer, with permanent residency after four years (Scottish government 2022c). These proposals have not been adopted by the UK government. Whilst immigration and visas are reserved matters, the Scottish government has sought to implement a range of safeguarding measures for workers on the SWV and in its immigration proposals has recognised the risks of tying workers to employers, seeking alternative options for Scotland.

International experience of temporary migration programmes

Two countries that have recently reviewed their temporary migration programmes for the safeguarding risks they pose workers, Canada and New Zealand, provide useful case studies for Scotland. These examples are relevant for the comparability of the temporary migration programmes with those in place in the UK, and for the innovative policy options pursued by Government to address migrant worker safeguarding risks. These contexts will be explored in brief below.

Canada’s Temporary Foreign Worker Program (TFWP)

There are two main temporary labour migration programs in Canada, the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP). These two streams were formally created by the Government of Canada in 2014. The IMP is managed by the Ministry of Immigration, Refugees and Citizenship Canada (IRCC) and the TFWP is managed by the Ministry of Employment and Social Development Canada (ESDC). By numbers, the IMP is the larger of the two streams and mainly facilitates higher skilled migration to roles that are exempt from the Labour Market Impact Assessment (LMIA). In 2021 there were 485,400 work permits (new and extensions) issued under the IMP and 113,900 issued under the TFWP (Government of Canada, 2022a). The IMP predominately applies to high-wage work and includes open worker permits and is comprised of migrants from high- and middle-income countries, this stream also includes racialised and younger workers in low paid roles on tied work permits who are vulnerable to exploitation (Faraday 2016 p.11). The IMP and TFWP are considered by experts to increase vulnerability to exploitation, yet it is the TFWP that has faced ongoing and increasing attention for the risks it poses to workers.

Canada’s TFWP establishes specified streams by which employers can hire workers including: the high-wage stream for roles above median hourly wage; the low-wage stream for roles paying below provincial median hourly wage; the Seasonal Agricultural Worker Program (SAWP), the primary agriculture stream for workers in on farm work (from countries not specified in the SAWP); and the Global Talent Stream (Parliament of Canada 2020). Whilst this programme is applicable to workers across all skill levels it is mainly comprised of low-skilled workers with the agricultural stream comprising over half of all workers on the TFWP (Akbar 2021 p.52). The SAWP permits workers to migrate to Canada from twelve specified countries for employment in agriculture for a period of up to eight months. Workers on the SAWP are issued sector-specific work permits, permitting them to move between employers in the programme, yet they must obtain permission from their in-Canada foreign agent, the new employer and often their current employer to do so.

Within the TFWP, low-wage and agricultural streams, workers face a range of restrictions associated with increased risks of exploitation including: employer dependency for their visa and housing; restrictions on immediate access to public healthcare; and limited routes to permanent residency (ESDC 2023). The “key feature” of the TFWP thought to contribute to workers’ risk of exploitation is its tied nature:

The work permits remain tied permits that restrict the migrant to working only for the one specific employer named on the work permit […] This restriction on a worker’s mobility makes them dependent on, and beholden to, that one employer for their status in this country (Faraday 2016 p.47).

The Canadian TFWP and particularly the SAWP is tightly regulated, including bilateral agreements between SAWP participating countries and the Government of Canada and detailed standards on housing, working hours and wages and benefits. However, despite these measures, the TFWP has been widely associated with a high risk of worker exploitation (Mcgrath and Strauss 2017).

The Canadian OWPVW was primarily introduced in response to critiques of the TFWP and the risks of exploitation it poses to workers yet applies to all workers in Canada on tied visas. It was established through regulations amending the Immigration and Refugee Protection Regulations and entered into force on 4^th June 2019. The OWPVW is largely based on an open work permit for temporary foreign workers at risk. It was initially established in the Canadian province of British Columbia as a pilot scheme which operated from 2016-18. This open work permit seeks to address the obstacles tied work permits place on workers who wish to leave abusive employment, including barriers to reporting abuse for risk of deportation or reprisals and to switching employer. Its objectives are threefold: 1. to provide migrant workers experiencing abuse with a means of leaving their employer; 2. to prevent migrant workers from becoming undocumented as a result of leaving their job; and 3. to facilitate the participation of migrant workers experiencing abuse in inspections of their former employer or recruiter. The Canadian OWPVW, with its origins in a Canadian provincial pilot, presents an interesting example to Scotland to consider as it seeks to safeguard workers on temporary work visas.

New Zealand’s employer-assisted temporary work visas

New Zealand has a range of working holiday, student and ‘employer-assisted temporary work visas.’ It has specific routes for horticulture and viticulture: the Supplementary Seasonal Employment Work Visa valid for up to six months and fishing, the Fishing Crew Work Visa valid up to 12 months. In 2019, responding to growing concerns about migrant worker exploitation, the New Zealand government initiated an independent review of ‘temporary migrant worker exploitation’ which found:

Amongst both temporary migrant workers and key stakeholders, employer-assisted visas were identified as the key mechanism for establishing and maintaining exploitation in the workplace (Collins and Stringer 2019 p.83).

In particular, the review highlighted the power imbalance between workers and employers on such visas and the dampening effect of tied visas on workers reporting abuses (Ibid). As a result of the review the New Zealand government consulted on and implemented new migrant worker protection measures including: a freephone number for workers facing exploitation; a register of exploitative individuals and businesses; and a new Migrant Exploitation Protection Work Visa (MEPV) (Radhakrishnan 2022). The New Zealand government has implemented a range of safeguards for workers on tied and temporary visas yet has stopped short of removing the tie between workers and employers which drives the risk to visa holders.

Following its review of worker exploitation in 2019, the New Zealand government introduced the MEPV for migrants on employer assisted temporary work visas in July 2021. This visa is designed for workers at risk of or who have experienced material harm to their “economic, social, physical or emotional well-being” (Employment New Zealand 2022). On average visas take 16 days from application to issue and once granted provide exploited migrant workers an open visa valid for up to six months (NZ House of Representatives Education and Workforce Committee 2022 p.16). Following critique of the short-length of the visa, the New Zealand government is currently considering maximum and minimum visa lengths (Ibid p.17). In addition, the visa has been criticised for being overly bureaucratic, requiring a “report of exploitation assessed by Employment New Zealand” and receipt of a letter confirming exploitation (Aspoas 2021). The MEPV provides an additional example to the OWPVW of an open work permit dedicated to assisting workers at risk of or experiencing abuse and exploitation.

Summary

Both Canada and New Zealand present interesting examples of countries that have conducted inquiries into their temporary migration programmes which have identified high-risks of abuse and exploitation. In response to these findings, both governments have resisted amendments to the programme design yet have instead consulted on and introduced innovative open visas for workers at risk of or experiencing abuse. The experience of both countries provides useful learning for Scotland as it seeks safeguarding solutions to UK temporary migration programmes. The case study example of Canada will be considered in more depth in this Report.