Embodied by disasters like the Morecambe Bay tragedy, the exploitation of irregular migrant workers has, in recent years, become a political maelstrom characterised by ostensibly ‘protective’ policies which contradict the punitive immigration controls, collectively known as the ‘Hostile Environment’. These restrictive policies insert immigration controls into everyday functions such as renting, studying and employment with the aim of tackling ‘illegal’ immigration “by making it harder to live and work illegally in the United Kingdom”. S.34 of the Immigration Act 2016 criminalises work by irregular migrants and designates their wages as proceeds of crime.
These are extreme measures designed to block access to work and deter living in the UK. The targeting of wages, an integral component of the employment relationship, is particularly pernicious and vindictive. Through various legal methods, the state itself facilitates and perpetrates the theft of irregular migrants’ wages. State-sanctioned wage theft essentially punishes irregular migrants for attempting to survive, enhances their vulnerability to exploitation, and embeds structural injustice into the immigration control regime. By depriving irregular migrants of an essential means of survival and subsistence, destitution and poverty become tools of immigration policy.
Irregular migrants’ wage-related rights and entitlements are internationally recognised. The basis for protecting the labour rights of irregular migrants is succinctly put by the Inter-American Court of Human Rights who note that: “Labor rights necessarily arise from the circumstance of being a worker, understood in the broadest sense…the migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights, including those related to employment”.
Numerous international instruments protect irregular migrants from non-payment, under-payment, and deductions in various ways. The International Labour Organisation’s (ILO) Convention 95, Convention 143, and Forced Labour Indicators prohibit wage-abuse, protect equal treatment in remuneration and permit sanctions only against employers of irregular migrants, not migrants themselves. When interpreting Article 4 of the European Convention on Human Rights (freedom from forced labour), the European Court of Human Rights often cites ILO jurisprudence and has found violations in cases involving irregular migrants. The UN’s International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (which the UK has not signed) guarantees equal treatment for irregular migrants in terms of remuneration. The UN Convention and the EU’s Employer Sanctions Directive (which the UK declined to transpose) protect the right to back payments of outstanding wages and require mechanisms to ensure receipt of wages before or prior to expulsion.
UK law and immigration control practices, however, often fail to comply with these international standards. In fact, not only is there a failure to comply with international protections, but the state actively and deliberately deprives irregular migrants of their wages. This is rarely characterised as wage theft, perhaps because the deprivation is usually addressed through the narrower framework of forced labour and human trafficking, or because wage-theft literature rarely addresses the law and the state’s role and does not give sufficient attention to the unique position of irregular migrants. Yet this is precisely what it should be characterised as. The deprivation is aimed solely at irregular migrants and deliberately designed to make life in the UK intolerable. Foregrounding legal forms of wage deprivation and broadening the concept of wage theft to include state immigration control exposes analytical shortcomings and reveals forms of legalised, state-sponsored wage-theft.
Wage theft
The concept of wage theft has rapidly grown in popularity, particularly amongst activists and scholars in the US calling attention to repugnant and abusive employment practices. The concept has powerful moral and rhetorical force to censure everyday wrongdoings and directly addresses the serious harm and moral wrong of depriving workers of their wages, without being limited to situations of extreme abuse.
Wage theft also offers a broader and more flexible framing of the issue than forced labour, which narrows in on extreme and specific forms of exploitation. As Harkins notes, forced labour tends to locate the primary harm of non-payment/under-payment of wages elsewhere by reference to debt bondage and restrictions on leaving an employer.
Wage theft is generally understood through the lens of the employment contract and employer practices, detached from the influence of immigration control policy. Though there are conceptual debates about whether, as Green argues, it should instead be labelled ‘wage fraud’, and whether certain legal and quasi-legal practices should be included, traditional definitions remain broadly accepted. What they have in common is that wages are lawfully due, the deprivation is usually (though not necessarily) contrary to the law, and the appropriation is committed by the employer.
But what if the work done is itself criminalised on the basis of migration status, and so wages might not be lawfully due? What if the law permits wholesale deprivation? And what if state authorities deprive the workers of their wages, rather than the employer? The case of irregular migrants in the ‘Hostile Environment’ sits awkwardly with traditional definitions and typologies. Deprivation facilitated or perpetrated by the state and the criminalisation of wages on the basis of factors extraneous to the work performed, such as migration status, also need to be included. As shown below, there are state practices which should be characterised and condemned as wage theft. The core wrong remains the same: unjustly depriving workers of full remuneration for their labour.
The case of irregular migrants exhibits a form of state-sponsored wage theft that challenges some of the assumptions in accepted accounts. But the conceptual issues do not require abandoning the concept of wage theft in the case of irregular migrants. It is a sufficiently flexible concept to act as a useful frame and it retains its moral force in identifying wrongdoing and unjust structures in a wide range of practices and legal frameworks. Although a full account of reconceptualising wage theft is beyond the scope of this article, scholars should reconsider and refine the concept to include the dimensions of state-sponsored wage theft and worker criminalisation seen in the UK.
State-sponsored wage theft in the UK
It is widely acknowledged that irregular migrants are vulnerable to abuse and that an irregular migration status is used by some employers to deny full remuneration and force workers into accepting poor working conditions. Reports by FLEX and the Joseph Rowntree Foundation reveal this includes widespread underpayment and other wage-related abuses.
These abuses, however, are not solely the responsibility of unscrupulous employers. The law and state authorities are not absent from the abuse of irregular migrants. Wage-theft is embedded into the structure of the UK’s restrictive immigration control regime in such a way that it is facilitated or even perpetrated by the state itself. There are three components to state-sponsored wage theft in the UK: 1) the illegality doctrine; 2) forced removals; 3) designation as proceeds of crime. These components exhibit the use of destitution as a tool of immigration control, the prioritisation of immigration control objectives over labour law protections, and that irregular migrants experience a dual-vulnerability to wage theft from their employer and the state.
Illegality
‘Illegality’ is a defence based on the public policy principles that a person should not benefit from their own wrong; and that the law should not condone illegality. It is highly problematic in the context of contractual claims brought by irregular migrants.
The doctrine operates on the basis that no claims can be brought under the employment contract as the contract is itself ‘illegal’. Its strict application denies irregular migrants wages that would, were it not for their immigration status, be due under their contract or by law (e.g. the national minimum wage). Employers may deprive irregular workers of their wages, and the law will deny workers a remedy.
The 2019 Court of Appeal judgment in Okedina did, however, allow a contractual claim to proceed, generating hope that more irregular migrants would be able to succeed in recovering stolen wages. Given Okedina’s lack of awareness of her irregular situation and the fact the law in question was only directed at the employer, it was held that public policy did not require innocent employees to be deprived of all contractual remedies. While the court adopted a more liberal, permissive approach in this case, aspects of the reasoning may work against irregular migrants in the future. The claim was brought before the Immigration Act 2016 came into force and the court relied heavily on the employee’s ‘innocence’ and the (at the time) one-sided nature of the statutory sanctions. Its reasoning may not protect workers now classified as ‘illegal workers’ and their wages as ‘proceeds of crime’ by s.34 of the Immigration Act 2016. The sanctions are not just targeted at employers, but workers too, making it more difficult to characterise them as the ‘innocent party’. The result of Okedinia may in fact be the prohibition of contractual claims – e.g. for unpaid wages – brought subsequent to the Immigration Act 2016.
The illegality doctrine, exacerbated by worker criminalisation, also influences the operation of state labour inspectorates. The Home Office commented in a 2019 report that: “HMRC cannot take National Minimum Wage (NMW) enforcement action where the workers concerned are illegal migrants. This is not a loophole in the law, but a deliberate policy to avoid rewarding illegal workers for breaking the law by guaranteeing them NMW rights. Working illegally is a criminal offence.” By denying irregular migrants contractual rights and remedies, the law facilitates wage theft. Provided it does not amount to forced labour or modern slavery, employers are essentially permitted by the law to underpay and deprive irregular migrants of their wages.
Forced removals
Illegality doctrine aside, forced removal from the UK is effectively fatal to any wage claim. The rush to remove individuals places practical and temporal restraints on pursuing claims for unpaid wages. Immigration enforcement has adopted a stringent removal-centred approach and, as noted in the case of Thapa, “the time between the reaching of the decision and removal is likely to be very short.” The notice period of removal is rarely longer than seven days and can be as short as 72 hours. Unlike the EU’s Employer Sanctions Directive, UK law does not contain any clear mechanism to allow irregular migrants to receive any outstanding remuneration before, nor after, removal. The basic act of forced removal enables employers to retain unpaid wages, facilitated by the state.
The Hostile Environment provides an additional dimension to the state’s facilitation of wage theft via forced removals. By increasingly involving private actors like employers into an ostensible state-function, there is a growing connection between immigration removals and wage theft. A much closer relationship between employers and immigration enforcement has emerged during the Hostile Environment’s evolution. In addition to the coercive sanctions for ‘illegal employment’, greater cooperation and collaboration is sought through ‘nudge letters’, ‘educational visits’, and various means of administrative dialogue with employers. Transforming employers into quasi-border guards with a working relationship with immigration authorities heightens the danger of removal and empowers employers to use the state’s removal apparatus as an instrument of wage theft.
Fear is a powerful tool. The ICIBI’s 2019 report commented that “migrants working illegally would be unlikely to report labour abuses to the police or other authorities and, particularly, to immigration enforcement as they feared being arrested and detained”. Employers’ role in immigration control enables them to capitalise on this fear. Threatening denunciation to the authorities is often cited as a means to enforce poor working conditions, including wage theft. Short of modern slavery offences, there is a lack of legal protection for migrants in these situations.
There are also numerous examples of employers actually denouncing their workers to immigration authorities to strategically rid themselves of ‘troublesome workers’, as notably occurred with Amey, ISS, Deliveroo, and Byron Burgers. The 2019 ICIBI report also cites a case in which a fishing boat exploited irregular workers for several months before having them detained and removed. By denouncing workers, employers may use state immigration authorities to avoid paying them. Once more, immigration control can facilitate wage theft.
One may question why, given the sanctions for employing irregular migrants, employers would alert immigration enforcement to their own workers even if it enabled them to avoid paying wages. Firstly, employers may ‘feel the heat’ and seek to cut their losses by cooperating with immigration enforcement in order to access significant discounts on civil sanctions for illegal employment. Secondly, as Bales observes, it is easier for employers to cooperate in the knowledge that workers’ rights are legally undermined for reasons of immigration control. Thirdly, the ICIBI reported action is not always taken against the employer – the operational focus is primarily on removing the worker.
Designation as proceeds of crime
S.34(5) of the Immigration Act 2016 designates the wages of irregular migrants as proceeds of crime that may be seized and confiscated under the Proceeds of Crime Act 2002 (POCA). Broad powers of search and seizure can therefore be deployed against irregular migrants wages, who are usually paid in cash. The UK is an outlier in this regard. Targeting irregular migrants’ wages with criminal powers is rare internationally, going beyond even the notorious Kafala system in the Gulf states.
Cash is regularly seized during ‘illegal work’ raids conducted by Immigration Enforcement under s.294 of the Proceeds of Crime Act 2002 or s.48 of the Immigration Act 2016. Between 2015-2019, £1,787,468 in cash was seized from 531 raids. Whilst Immigration Enforcement does not collect data on the precise number of irregular migrants who had their wages seized and their characteristics, given the preponderance with which irregular migrants are paid in cash, the seizure of this amount of cash during raids targeting irregular migrants almost certainly involves the seizure of their wages. This constitutes a form of wage theft perpetrated by the state itself, potentially on a massive scale.
Seizure is not the end of the problem. State-perpetrated wage theft is even more problematic as the detention and confiscation of the cash has, in practice, an unclear legal basis. Per s.50 of the Immigration Act 2016, cash may only be detained for as long as it may be used as evidence at trial. A detention order may also be made by a magistrate on the condition of further investigations or court proceedings. Detention relies on an investigation and/or criminal trial for the relevant criminal offence. Yet immigration removal takes precedence over criminal proceedings that are deemed time-consuming, expensive and disproportionate. Criminal charges are rarely bothered with. There were only 67 prosecutions arising from workplace raids in 2015-2018 – a figure that will also include prosecution of employers. Furthermore, guidance does not instruct Immigration Officers to delineate and record precisely who the cash belongs to, how much, and for how much work. Cash seized is not delineated and demarcated. It is not clear on what basis s.50 retention or a detention order could be sustained if there is no intention to pursue criminal charges nor the requisite information recorded about the cash.
The government cannot, lawfully, simply seize property and retain it indefinitely, yet that appears to the present modus operandi of immigration enforcement. Permanent proceeds of crime confiscation must be ordered by the Crown Court following conviction for a s.34 ‘illegal working’ offence. If criminal charges are not pursued and the required information about individual workers’ cash wages is not collected, a Crown Court order is not possible. Confiscation by the civil courts also runs into similar difficulties.
It is unclear if any seized cash is ever returned and, if so, to whom. Despite the legal difficulties identified, all seized cash seems to be retained and confiscated. Not only does this constitute wage theft by the state, but it is conducted on a questionable legal basis. Even if they aren’t prosecuted or removed, their status is mistaken, or they are able to regularise their status, it seems migrants will still be deprived of those wages.
Conclusion
Irregular migrants in the UK are vulnerable to a host of poor working conditions and abusive practices. Using wage theft as a framework enables a broader, more inclusive analysis of the pecuniary abuses experienced beyond extreme cases of forced labour. We must also expand our gaze beyond employers breaking the law. The UK’s immigration control regime implicates the structural role of the law and state authorities in depriving irregular migrants’ of their wages. The illegality doctrine and forced removal apparatus facilitate wage theft by employers, whilst the criminalization of work and use of the Proceeds of Crime Act 2002 constitutes wage theft by the state itself. Wage theft in the UK is not the preserve of unscrupulous employers in the black and grey areas of the shadow economy, hidden from the light of the law. It is a (largely) legal, deliberate state-sponsored abuse.
Jack Beadsworth is a PhD candidate at UCL.
Image credit: Andrew Hall on Unsplash