Migrant labour makes the construction industry work, so the government must think hard about proposed laws that would make it harder to employ it
The government is to opt out of a proposed EU directive that would strengthen the penalty for employing anyone not eligible to work in the UK.
The CBI sounded the alarm over these proposals over the summer, arguing that they would have a “far-reaching and damaging effect on the UK labour market”. It feared UK businesses would be hit by heavy penalties, taxes and fines. The most draconian measure proposed was that those who knowingly employ migrants illegally would face up to two years in prison or an unlimited fine.
Illegal working has been a perennial issue for the construction industry. In 2006 a Chartered Institute of Building survey of more than 1,400 construction professionals concluded that three in four (76%) of respondents regarded the employment of illegal workers as widespread in the UK.
It is estimated that at least 2% of the UK’s 30 million-strong workforce consists of migrant workers, who are essential for large building programmes such as the 2012 Olympics. In fact, the construction industry has said it would not be able to complete the government’s building programmes without the help of migrant labour.
Furthermore, it is widely believed that, without illegal workers the government would have missed its key economic growth targets in recent years. Cynics even advance this as a reason for the small number of prosecutions for employing illegal workers.
The construction industry has said it would not be able to complete the government’s current building programmes
without migrant labour
The UK’s open-door policy on migrant workers has long been seen as favourable by business leaders and, as such, businesses were concerned about measures that might deter employers from considering taking on foreign workers.
It is clear that there is an unquantifiable number of illegal migrants working in the UK whose contribution to the economy is invaluable, but the downside of illegal working is also obvious.
The Morecambe Bay disaster, in which 23 Chinese people lost their lives while harvesting cockles, illustrated the plight of foreign workers with no rights. In addition, the Treasury worries over the tax and National Insurance evaded through the employment of illegal migrants.
Keen to appear responsible in the wake of the decision to opt out of the EU law, the government has emphasised that it supports the principle of tough controls on illegal working. It is already an offence to employ anyone without a legal right to work in the UK, although the maximum penalty of a £5,000 fine is much lighter than the punishments envisaged by the EU.
Moreover, proposed laws to be introduced in March next year, backed by business bodies and unions, are intended to reduce the volume of illegal migrant workers. The laws would enforce measures such as compulsory ID cards for foreign nationals and more stringent checks on migrant workers before they travel to the UK.
There is an unquantifiable number of illegal migrants working in the UK whose contribution to the economy is invaluable
At the same time, the government is proposing to address skill shortages by making it easier for skilled workers to come to the UK.
It says it recognises that the current rules are too complex and that it intends to simplify and streamline the laws and guidance. It has proposed introducing a points-based system resembling the model used in Australia.
The government has also indicated that its opt-out of the EU directive is not final. The UK could still sign up to it at a later stage if the government’s concerns are resolved.
Whatever Britain’s long-term decision on this directive, it is clear that the issue of migrant workers will not go away quietly.
Tom Potbury is a senior associate and Jenny Heyes is a trainee solicitor in the employment law division of national law firm Pinsent Masons
For more legal news and analysis, go to www.building.co.uk/legal