Whatever the merits of Tony Blair’s recent retrospective apology for Britain’s leading role in the slave trade it would be less hypocritical if his government was not developing a modern system of slavery and the reintroduction of sweated labour through the reshaping of immigration controls.
The mechanisms of immigration control are changing. They are locating themselves in the workplace and on the factory floor. The agents and enforcers of controls are becoming employers. They are the managers of New Labours “managed migration”.
In fact this role began with the 1996 Asylum and Immigration Act which imposed criminal sanctions on bosses who employed those without the correct documentation. The real targets of these sanctions were never intended to be the employers but rather the undocumented, the sans papiers, the illegals, whose immigration status they were expected to police. The intent was to transform bosses into partners in control through the fear of criminalisation.
The statistics speak for themselves. For example in 2004 there were 1098 “successful operations” (i.e. raids) by the immigration service, which resulted in the arrest of 3,332 workers – but the successful prosecution of only eight employers! In the previous year only one boss was successfully prosecuted but 1,779 workers arrested, removed from the workplace and presumably deported.
The 2006 Immigration, Asylum and Nationality Act introduced civil penalties against employers as a deterrent against hiring those without status or without the correct status. Bosses will now have to check an employee’s papers at regular intervals to avoid employing an irregular worker. Most immigration documents are time-limited. Yesterday’s lawful entrant can become tomorrow’s sans papiers.
And it gets worse. Under the law regulating gangmasters – the Gangmasters Licensing Act introduced in 2004 after the drowning of Chinese cocklepickers – gangmasters will only preserve their registration if they show they are policing and refusing to employ undocumented workers.
There has been considerable publicity given to the new points system controlling the entry of migrant workers as detailed in the government’s white paper, A Points-Based System: Making Migration Work For Britain. Virtually nil publicity has been given to the requirement that employers will have to register before they are able to recruit overseas labour, and may jeopardise that registration if they are connected with employees who breach immigration law. Furthermore employers will have to report their employee(s) to the Home Office for absenteeism.
According to the White Paper: “Sponsors will be required to inform us if a sponsored migrant fails to turn up for their first day of work, or does not enrol on their course. Similarly they will be expected to report any prolonged absence from work or discontinuation of studies, or if their contract is being terminated, the migrant is leaving their employment, or is changing educational institution. Sponsors will also need to notify us if their circumstances alter, for example if they are subject to a merger or takeover”.
This level of surveillance is unprecedented in peacetime. Except today there is a new war – a war against workers. This primarily presents itself as a war on the undocumented. However the war extends even to the documented given the tenuous and circumscribed nature of immigration papers. It also extends to European Union workers. Workers from the new EU East European accession states are restricted in obtaining benefits and are bound by employment restrictions such as the need to register for work with the Home Office, a requirement which in itself may drive such workers into the underground economy of sweated labour (and it now seems there is an intention to restrict entry for Romanian and Bulgarian workers). It is a war on all imported workers.
The new factory floor mechanisms of control reflect the shift in the focus of immigration controls themselves.
For the last decade the focus, the demons, of control were asylum-seekers. In the 1970s and 1980s it was husbands from the Indian sub-continent who were accused of contracting “marriages of convenience” – along with children seeking to join parents here – and were accused of “not being genuine as claimed”. In the late 1960s it was Asians from East Africa… and it can go back in time to communists in the 1920s to Jews fleeing Tsarism at the turn of the century (leading to the first controls – the 1905 Aliens Act). Immigration controls always have their latest demons, real or imagined. Today it is “economic migrants” – whose labour is needed but whose presence is unwanted.
When it comes to migrant workers then, like every other construct tainted by immigration law, the very use of the term “rights” is an abuse of vocabulary. What “rights” the documented – those migrants with permission to enter and work – possess are usually impossible to enforce. The ability to bring a case for unfair dismissal requires having been in employment for a year – an impossibility for short-term, temporary labour. The “right” to a written statement of employment terms is pointless for those not literate in English.
And not all employment “rights” apply even to the documented. Parental “rights” under the Working Time Regulations – parental leave, time off in a family emergency, flexible working conditions to care for children – none of these appear to apply to the documented migrant at least where the child does not reside in the UK.
The undocumented, those without leave to be here and/or work, are simply non-persons. They are literally illegal – they live outside of the law, hunted and harassed by the law and without the protection of the law. For instance they cannot enforce their contracts of employment, secure payment of the minimum wage, claim unfair dismissal, demand not to have unlawful deduction from wages, indeed claim to have wages at all. The Court of Appeal in the case of Vakante v Addey and Stanhope School has in essence confirmed all the above in deciding that an undocumented worker cannot bring a case against a boss under the Race Relations Act. Even attempting to join a union where the employer attempts to impose a non-union shop becomes a major obstacle as undocumented workers cannot assert a breach of trade union rights – as they have no trade union rights.
One of the suggestions made in a recent book showing the relationship between immigration status and employment “rights” (Labour, Migration and Employment Rights published by the Institute of Employment Rights) is that the laws against discrimination should extend to immigration status. As a practicing lawyer I once thought this as well. However I now think this is as utopian – i.e. conceptually impossible – as is the demand in some quarters for “fair” control. “Fair” controls are utopian because by definition controls are both discriminatory and unfair. Just so, the issue is not one of achieving equality of immigration status. The issue is one of getting rid of immigration controls and indeed of “status” altogether. This might well require a revolution. Fair or non-discriminatory controls would require a miracle.
It is hardly possible to exaggerate the gravity of the situation. The economic rank of the documented, of those with papers, is at its best often equivalent to the villein or serf under feudal law – just as the villein was tied to the land and could not move elsewhere so the documented, other than the most skilled, is tied to the job and therefore the master. The sans papier is akin to that of a slave. It is true that the s/he does have one essential feature in common with the supposed “free labourer” under capitalism. So Marx in the – did not define slavery in terms of economic relations but as a “relation of domination” – with domination being direct under slavery and indirect under capitalism. However the undocumented in all other ways is quite distinct from all others under capitalism. The sans papier is entirely at the mercy of his/her master/mistress.
The precariousness of even the documented means they can easily slide into the world of those without papers. And those without papers and not already in detention are driven into the slave-like conditions of the underground economy where they service the rag trade, fast-food joints, garages, nursing homes and sex joints of our metropolitan centres. Then when their work is no longer required, or when they are so exhausted by work that they have no energy to fight to stay, they are transported (deported) in accordance with the economic needs and national prejudices of their masters in the UK – often to be returned into the hands of the masters from which they escaped in their country of origin.
In British immigration law recent statutory measures have judicially sanctioned these slavery analogies even further. Under the latest 2006 legislation those about to be deported and incarcerated in removal centres will now be allowed to work. But this work will not attract the rewards of a free labourer but rather those of the prisoner. Section 59 of the Act specifically provides that the law relating to the national minimum wage shall not apply.
However Section 10 of the 2004 Asylum and Immigration Act represents an even more vivid example of the statutory confirmation of a slave like existence. This makes provision of housing and other poor-law support for certain refugees to be conditional on their undertaking “community services”. These are refugees whose claim has been rejected by the Home Office but are unable to return home because of circumstances beyond their control – because they are stateless or ill or (paradoxically in the case of a rejected asylum application) the country of return is too dangerous. Section 10 transforms asylum-seekers into slaves. It makes their labour compulsory, as refusal to participate will result in deprivation of housing and other support. When the Act was being debated in its committee stage in the House of Lords (15 June 2004), Lord Rooker encouraged voluntary sector groups to get involved in tendering for this slave labour. He also suggested that this compulsory refugee labour could be used for the maintenance of the refugee’s own accommodation – which is a way local authorities and private companies can get otherwise run-down unlettable properties updated for free.
There has been successful resistance to the implementation of section 10. In Liverpool the YMCA tendered for the scheme. But after outrage was expressed by the undocumented and their supporters the tender was withdrawn.
It is these slave-like conditions enforced and reinforced by immigration controls that indicate the impossibility of such controls being sanitised by reform or other legal mechanisms. The only options are abolition or further repression. Likewise classical slavery was incapable of reform – it had to be abolished. One writer (William Fisher) in describing forced labour has said “In most contexts they were treated as things – objects or assets to be bought and sold, mortgaged and wagered, devised and condemned”. He might as well be referring to today’s sans papiers. In fact he was describing the ideology behind the institution of ante-bellum American slavery. The 1696 Slave Code of South Carolina began by proclaiming “Whereas the plantations and estates of the Province cannot be well and sufficiently managed and brought into use, without the labor and service of negroes and other slaves…”
Substitute “economic migrants” for “negroes” and this well expresses the rationale, and uses the same language, as New Labour’s “managed migration”. It is not so new after all.
First published in Legal Action, August 1997