The Migrant Personal Work Relation: A New Category of Employment

ABSTRACT

The relationship between UK immigration law and labour law is increasingly intertwined and complex. Migrant workers are regularly incorporated into the labour market on an unequal and instrumental basis as economic commodities. A central aim of this paper is to expand our conceptual understanding of the legal nature and form of migrant employment. I contend that the regulatory integration of immigration law with labour law into a distinct, intermediate legal framework of 'migrant labour law' challenges and disrupts existing categories of employment classification and orthodox conceptions of modern employment. It does so by constructing ‘migrant personal work relations’ with a unique hybrid legal character of private contract and public immigration status, using migrants’ private capacities to regulate their relationship with the state and vice versa. Central to this endeavour is an idea of labour regulation that incorporates immigration norms of conditionality, deportability, deterrence and immobility into the construction of the migrant personal work relation. Five elements of the migrant personal work relation illustrate its hybrid character: formation, structure, content, variation, and termination. The interplay of public and private law doctrines exhibits immigration status distorting the employment contract and shows that migrant employment cannot be explained on a contractual basis. As a result, we start observing a juridical divide between migrant workers and citizen workers as separate legal subjects allocated to different regulatory regimes. It constitutes a whole new category of employment. Finally, the article examines the implications of its construction and legal character for its power dynamics. I argue that vulnerability to exploitation is a structural feature of the ‘migrant personal work relation’, such that it is a vulnerability-inducing legal institution. It exacerbates the pre-existing asymmetrical distribution of power and creates special vulnerabilities additional to those ordinarily present.

1. INTRODUCTION

Ms Wijesundera was a Sri Lankan woman who worked in the UK with a work permit.¹ After being made redundant, her urgent need to obtain new work in order to maintain lawful residency pushed her into precarious agency work. For nearly two years her new employer repeatedly promised they would transfer sponsorship of her work permit to them in order to regularise her status. They never did. During the same period, she was sexually harassed by a manager who knew of her immigration position. Her wages were often underpaid. Her insecure status and dependency on the employer to regularise her status meant she never left nor complained about her treatment. She was ultimately summarily dismissed. Although her discrimination and harassment claims succeeded, her claims for unlawful wage deductions and unfair dismissal failed on the basis of her ‘illegal’ immigration status.

Wijesundera is illustrative of a number of central issues in migrant employment. Firstly, her labour market membership and participation were shaped significantly by immigration regulations that provide close state control over her labour. Secondly, immigration status was a highly pertinent factor in the construction and nature of her employment. Ms Wijesundera’s employment relationship seems to contain different dynamics to citizens’ employment relationships. Thirdly, it is evident that her immigration status intensified her dependency and precarity and led to the denial of her legal rights. This article explores these issues and seeks to expand our conceptual understanding of migrant employment. How is migrant employment constructed? What is its legal form and character? What is the role of immigration status? What is the impact on labour law’s categories?

I argue that the orthodox contractual model of employment classification in UK labour law primarily centres upon citizens and cannot account for the intervention of immigration law. Although often viewed as separate bodies of law, in the regulation of migrant employment, immigration law and labour law are in fact integrated into a distinct legal framework running parallel to ‘general’ labour law that I label ‘migrant labour law’. Central to this endeavour, is an idea of migrant labour regulation that incorporates status-based organisational concepts and regulatory norms of conditionality, deportability, deterrence and immobility. Not all migrants working in the UK fall within the scope of this framework; it is selective. Migrants on some non-work related visas, eg, spousal visas and those with more long-term and unconditional statuses, such as refugee status and Indefinite Leave to Remain, remain subject to general labour law.

Migrant labour law constructs a novel form of employment distinct from citizen employment. I call this category the ‘migrant personal work relation’. It is a separate juridical category because of its unique hybrid legal character of status and contract. In this form of employment, immigration status is a central organising concept alongside the employment contract. It is an internal, constitutive component of migrant employment. Immigration status actively shapes five key stages of the employment relationship: formation, structure, content, variation and termination. These dimensions exhibit immigration law manipulating employment status and important employment rights and procedures connected to the status, such as dismissal and transferring employers. The status-based character of migrant employment challenges existing categories and conceptual accounts of employment. The emergence of this legal framework and form of employment may have further implications for the integrity of labour law and its worker-protective goals, both in the UK and potentially more widely in different jurisdictions too.

Section 2 argues that the contractual model of employment classification is incapable of fully accounting for and explaining migrant employment. I develop an account of a separate juridical category of employment, known as the migrant personal work relation, constructed by migrant labour law with a hybrid legal character of status and contract. The constitutive function of immigration status is explored in Section 3. Immigration status actively shapes the key stages of the employment relationship, materially altering its legal form and regulation. Section 4 examines the implications for labour law, the employment contract and migrant workers’ vulnerability to exploitation.

2. CATEGORISING MIGRANT EMPLOYMENT

A. The Contractual Model

Categories of employment are ordinarily identified and analysed on a contractual model. The formal classificatory regime categorises employment by reference to its bounded, bilateral contractual framing along a spectrum from employee to self-employed. The definitions of the main categories of ‘employee’ and ‘limb (b) worker’ in section 230 of the Employment Rights Act 1996 (ERA) require a contractual relationship, as does employment for Equality Act 2010 purposes under section 83. The extent to which sub-categories such as agency workers, casual workers, home-workers and ‘zero-hour’ workers fit into the main categories are defined by reference to the contractual arrangements. Uber v Aslam,² whilst relegating the employment contract’s evidential value compared to actual employment practices and providing a more flexible approach to classifying a relationship as ‘employment’, does not dispense with a contractual relationship as a prerequisite.³

The fragmentation of employment away from the paradigmatic ‘standard employment relationship’ has led scholars to question the unitary contractual classificatory model. Freedland and Kountouris argue that the employment contract is inapt for classifying, regulating and analysing a growing segment of work relations.⁴ Albin and Prassl further observe that the reality of fragmentation has not been absorbed into the unitary legal construction of the contract of employment.⁵ Indeed, some specific employment rights are already extended to work relations not necessarily governed by bilateral employment contracts, suggesting an underlying tension in a contractual model of classifying employment and distributing rights. This includes whistleblowing protection for Crown Office Holders.⁶ Part 5 of the Equality Act 2010 also extends non-discrimination protections to specific additional categories.

Migrant workers pose an underexplored problem and sit uneasily within formal categories. A central limitation of the prevailing approach is its single contractual axis organised around the paradigmatic contract of employment. Its narrowness tends to sideline the social dynamics of work and other important internal connections that shape the legal character and structure of employment. The contractual model obscures the cross-fertilisation of norms and rules that traverse legal boundaries within the internal structure of employment.

The singular focus on workers’ private capacities in bounded, bilateral private relations further suggests categories are designed around citizens whose relationship with the state is discrete from their employment. The contractual model has failed to adapt to the growing intervention of immigration controls into the employment sphere and cannot account for the blurred legal boundaries between immigration law and labour law, nor the way immigration statuses challenge contractual classifications by introducing personal categories into relational definitions.

Existing classifications are often assumed to apply evenly across all workers and do not include a migrant–citizen axis. Costello and Freedland argue that immigration law and labour law intersect due to their common concern about regulating migrant labour.⁷ At this intersection, immigration law has a divisive impact upon labour law. On their account, immigration status divides the legal subjects of labour law on a personal basis by directing or confining migrants’ choice of relation-based labour categories and determining their eligibility to enter the categories.⁸ Although they focus on how migrants are channelled towards or away from existing labour law categories, rather than whether new categories are emerging, their account nonetheless illustrates that the contractual model obscures this intersection and the disruption produced by immigration status.

Recognising the limits of a contractual model, Freedland and Kountouris have developed an innovative approach to classifying, constructing and analysing employment.⁹ Although they do not directly address migrant employment, their flexible framework and conceptual toolbox escape the rigid legal typology and help illuminate emerging legal forms of labour relations. Their analysis rests upon the idea that employment classification should not be a unitary process based upon a paradigmatic contract of employment but viewed as a ‘family of contracts’, supplemented by a recognition that work might not have a contractual form or might contain non-contractual connections and have legal ramifications beyond contractual connections.¹⁰

The benefits of this approach for understanding migrant employment include its detachment of legal analysis from its contractual anchor and the polycentric vision of forms of employment beyond an exclusively or primarily contractual framing. It captures the non-contractuality, multilateralism and the presence of incidental arrangements that the bounded, bilateral contractual model cannot.¹¹ It shows greater fidelity to the wider nexus of connections within employment, making it possible to factor in a multiplicity of relationships and how they influence each other. Their flexible approach more accurately identifies the particular regulatory framework constructing work relations and how a wider set of norms and consequences characterise the legal subject and form of work.

Rejecting a unitary paradigm of the contract of employment, their central concept of ‘personal work relation’ depicts a connection, or set of connections, between the worker and another person(s) or organisation(s) arising from an engagement for the personal carrying out of work or the rendering of service or services.¹² Its internal structure is composed of a nexus of connections between the parties without giving any privileged position to their formal bilateral, contractual relations.¹³ The concept avoids singularly centring employment upon its contractual form and illuminates a complex nexus of legal dynamics which tend to be obscured. It gives increased recognition to wider legally relevant non-contractual dimensions and connections that shape the character of work relations which need to be included in a complete juridical account of employment.¹⁴

The processes of legal characterisation and legal construction explain how personal work relations are instituted without relying on an exclusively contractual foundation. Legal characterisation is a combination of taxonomy and regulation that ordains a set of norms from a certain legal framework that applies to a particular set of personal work relations and provides the category which identifies them.¹⁵ A certain legal character is derived from that framework.¹⁶ Characterising personal work relations is contingent upon the relations’ broader legal and practical context.¹⁷ Legal characterisation is a dimension of legal construction, which refers to the shape or analysis that a legal system gives to work relations. Legal construction refers to the whole process of ascribing legal form and structure, determining which legal norms apply and forging the link between legal character and legal consequences.¹⁸

The scope and composition of the regulatory framework constructing and characterising personal work relations is not determined by exclusively contractual factors. As Zatz observes, work is not a purely economic practice, isolated from social spheres. Work is embedded in external social relationships and institutions.¹⁹ Personal work relations can be legally constructed by the interaction of overlapping regulatory spheres, each with its own rules, objectives and norms. How those spheres fit together is important to shaping their character. Their configuration determines how a legal subject stands in relation to existing legal categories and how they can legitimately be treated by the state and employers.²⁰

B. The Migrant Personal Work Relation

Scholars have observed a regulatory relationship between employment and migration, recognising that immigration law is a tool of employment regulation.²¹ Yet the legal form of migrant employment, how it undermines orthodox conceptions of employment and how the new employment status alters legal rights and procedures are relatively undertheorised. I do not think it is accurate or coherent to artificially force migrant workers into ever-expanding contractual categories. Drawing upon Freedland and Kountouris, a central tenet of my argument is that the legal subject of the migrant worker inhabits a distinct form of employment I call the migrant personal work relation. Moving away from an exclusive focus on the contractual dynamic incorporates considerations of the state, immigration law and migrant workers’ legal status within the host state. The relations that consequently emerge constitute a new, separate juridical category that resides in a different domain or axis to citizen employment.

The relationship between labour law and immigration law is crucial to constructing this juridical category. Migrant employment is constructed through public law as well as private law.²² Rather than simply interacting across separate spheres, they are so inextricably bound that they are essentially integrated together into an intermediate legal framework governing migrant workers operating parallel to general labour law. We can call this integrated legal framework, migrant labour law. The development of this framework reflects a policy objective of regulating migrant workers as normatively and legally distinct to citizens (and some settled workers) as a means of immigration control and to incorporate and control immobilised migrant workers in the labour market on an instrumental basis as economic commodities.

Certain relations are allocated to this parallel framework on the basis of the foreignness of the worker. The migrant personal work relation is constructed around two opposing components of migrants’ identity: their relational status as worker and their personal status as a foreigner. Foreignness is an alienating notion that excludes full labour market membership and participation.²³ The labour market is a key site for exclusion from full membership of the community.²⁴ Foreignness legally and normatively differentiates the social subject.

Constructing employment on the basis of foreignness functions through personal immigration statuses. Within migrant labour law, immigration status is a central organising concept that regulates the legal position within the host state by operationalising the workers’ foreignness and attaching legal conditions to it, including employment conditions. As a legal expression of a personal characteristic, immigration status is close to indelible and exists externally in any contractual relationship. Attaching employment-based conditions also means that migrants’ relationship with the state is governed through their private capacities and vice versa, creating a close nexus between public and private law relationships and doctrines and introducing additional non-contractual connections into employment.

Whilst immigration status may be viewed as a superimposed, external force restricting or distorting otherwise ordinary relationships, a better view is that it is an internal, constituent component of migrant employment. Immigration status is the key mechanism for constructing a normative model of employment that provides the core legal institution and regulatory subject of migrant labour law—the migrant personal work relation. It does so first by integrating the distinctive norms and regulatory objectives of the legal framework into labour relations, which depart from those regulating citizen employment. Centring the legal framework upon instrumental state control of migrant labour and exclusion from full labour market membership rests upon norms of conditionality, deportability, deterrence and immobility. These norms construct a normative standard for the structure and function of a juridical form of employment. By integrating these norms into labour relations, immigration status is a regulatory device that leads its subjects to acquire common status-based characteristics, alongside those which are ordinarily acquired through the employment contract, that cut across factual variations in employment.

Immigration statuses’ constitutive function and interaction with employment’s contractual dimensions (explored in Section 3) give the relationship a unique legal character and form. A crucial conceptual difference from citizens is that the foundation of the relationship is not solely private, relational and contractual but is determined by public, personal immigration status.²⁵ Its legal form cannot be explained on a contractual basis through the ordinary application of labour law and existing employment categories. The rights, obligations, powers and duties of the parties derive from the individual’s personal legal status, not just the contractual framing of work. The legal character of the migrant personal work relation, therefore, is a hybrid of personal status-based dimensions alongside relational, contract-based dimensions, ie, alien to citizens’ employment. We start observing a juridical divide between migrant workers and citizen workers that disrupts existing classifications and constructs a distinct legal subject in a separate juridical category of employment.

Status does not operate automatically, but selectively and deliberately. The law decides which foreignness is important for the purposes of legal construction. Certain types of more stable and unconditional migration, such as EU citizens with settled status, Irish citizens and those with Indefinite Leave to Remain (a largely unconditional status) remain subject to general labour law. It is usually types of migrant labour that are perceived or constructed as temporary that are allocated to migrant labour law.

It should be noted that the migrant personal work relation is not intended to be a unitary, unificatory concept, for that would fall into the same false uniformity that has plagued the contract of employment in an era of fragmentation. Rather, it constitutes a general defining category encapsulating and expressing the set of relations which are simultaneously the outcome and subject of the legal framework. There may be sub-categories within it due to factual variations, but the constitutive function of immigration status and its characteristics remain shared constituent factors.

It may be asked: why is employment not already a hybrid of status and contract? In short, ‘employment status’ has a relational character and refers to the contractual framing of the work arrangement based upon the parties’ ‘true agreement’,²⁶ rather than their independent attributes. Kahn-Freund explained that statutory regulations do not establish a status-based character as they ‘presuppose the existence of a contract of employment’ and use mandatory rules to mould an ‘existing contractual relation based on agreement, the existence and termination of which depends on the volition of the parties’.²⁷ Deakin and Wilkinson illustrate that historic status-based classifications were replaced in the post-war era with a unitary, contractual model based upon the contract of employment.²⁸ Immigration status, on the other hand, is a status that is imposed upon individuals and sustained and controlled by state institutions. It attributes ready-made legal conditions and consequences on a personal basis. It does not rely upon or presuppose a contractual agreement and lacks any meaningful notions of exchange, reciprocity or mutuality.

3. IMMIGRATION STATUS AT WORK

This section explains the migrant personal work relation’s status-based character, illustrating how immigration status and the concrete legal rules and norms it incorporates into employment are constitutive of migrant employment. It further illustrates how status interacts with the contractual dimension. The interplay of public law and private law highlights the hybrid legal character of the migrant personal work relation and how this form of employment defies an exclusively contractual understanding. The constitutive function of immigration status and creation of a juridical divide with citizen employment is most evident in five key stages of employment: (1) formation; (2) structure; (3) content; (4) variation and (5) termination. The hybrid form of employment status alters the content and application of connected substantive legal rights and procedural rules at these stages, including contractual ones.

A. Formation

The legal point of entry to employment and gateway to statutory rights is generally regarded as the employment contract.²⁹ Formation is ordinarily a straightforward voluntary contractual matter. Aside from anti-discrimination protections, labour law contains few preconditions or restrictions. In ruling that the forced labour of a domestic worker was not incidental to the ordinary conduct of daily life and exempt from diplomatic immunity, Basfar v Wong stated that ‘employment is a voluntary relationship, freely entered into and governed by the terms of a contract’.³⁰

The unitary conception of employment in Basfar, however, needs adjusting in the migration context. A central function of immigration law is to incorporate migrants into the labour market. Importantly, this introduces requirements of state authorisation in the formation of employment.

Migrants obtaining authorisation requires satisfying the relevant visa criteria and paying the relevant fees. Authorisation is only granted for certain jobs, in certain sectors, with certain employers, on certain terms. The Skilled Worker visa, eg, only permits employment in specific eligible occupations, with a Home Office licensed employer, that meets the minimum salary thresholds.³¹ Temporary sectoral schemes contain tighter occupational limits, such as the Seasonal Worker visa which restricts employment to the horticultural sector or poultry sector. Migrant workers must constantly satisfy the original entry criteria and conditions of leave.

Immigration control includes novel state oversight of employers’ hiring decisions. Sponsoring employers are obligated to only employ workers who are appropriately qualified and experienced, and who they believe will meet the visa requirements and are likely to comply with their immigration conditions.³² Unusually, employers may be required to justify hiring decisions to state authorities, who may scrutinise the ‘genuineness’ of the job, the hiring process and the migrant’s suitability.³³

Compliance is strict. KG (India) v Secretary of State for the Home Department concerned a refusal of leave to remain due to a nurse’s failure to satisfy the minimum yearly salary by £22.15 following wage re-structuring.³⁴ The court observed that the Immigration Rules identify precise criteria. The minimum salary threshold constitutes a ‘bright line’ rule that Parliament intended to be answered on a binary basis.³⁵ There was no room to imply a de minimis principle. The court had to have regard to ‘the importance of certainty and consistency which underpins the effective and fair operation of the Points Based Scheme’.³⁶

Authorisation is not only required for the original employment for which leave was granted. Transferring employers, particularly on the Skilled Worker visa, is often tightly controlled and requires state authorisation. Satisfying the visa criteria and submitting a fresh application with accompanying fees are required for approving a lawful transfer. In Sharma v Hindu Temple, a priest changed employers without obtaining a new work permit. Grounding its decision in the public policy on illegality, the Employment Appeal Tribunal (EAT) held that transferring without a fresh application meant that the contract was illegal at its inception and unenforceable.³⁷

Restrictions on transferring employers can be contrasted with the law on restrictive covenants in employment contracts which restrict post-termination employment, essentially acting as a kind of quasi-authorisation. Contractual restrictions of this kind are prima facie void on the grounds of restraint of trade, underpinned by the public policy of maintaining healthy competition.³⁸ Status-based, public law restrictions are not viewed with the same suspicion. Immigration policy often seeks to prevent migrants from directly competing with local workers.³⁹ Restraining competition and opportunities for employment, a kind of public law style restrictive covenant, is public policy; it illuminates the contrast between migrant and citizen employment and contractual and status-based dimensions of employment.

The overall length of employment is effectively determined by the length of a visa. Although an employment contract may be expressed as open-ended, if the visa expires so does the lawfulness of employment. In effect, the migrant personal work relation is frequently temporary and fixed-term.

The ‘Hostile Environment’ model of immigration control constructs legal barriers to important social goods, such as housing, healthcare and employment. The law conscripts private actors, such as employers and landlords, to implement the restrictions and reinforces them with criminal offences.⁴⁰ The stated goal is to coerce irregular migrants to voluntarily leave the UK by making it impossible to live here, though its barriers have become a feature of domestic life for a much broader range of people, as evident during the Windrush scandal.⁴¹ Immigration status disqualifies migrants from employment and is the legal mechanism for imposing sanctions on unauthorised employment. Certain groups are absolutely prohibited from employment, such as visitors and irregular migrants. Those granted conditional access to employment are prohibited from certain kinds of employment, eg, if their employment subsequently fails to satisfy the visa criteria and/or breaches conditions of leave. Such restrictions afford only a partial and conditional labour market membership as the state controls labour market access and labour mobility. Cases concerning ‘illegal work’ implicitly construct migrants as distinct subjects in the labour market. Sharma illustrates the restrictive legal control over labour market participation, whilst Blue Chip Trading v Helbawi refers to Parliament’s intention to prevent migrants from working apart from within the terms specified by the Home Secretary.⁴²  Okedina v Chikale also refers to the ‘undoubted public interest in preventing foreign nationals from working illegally’.⁴³

Restricting formation mandates deterrence, often punitively. Employers are liable to civil and criminal sanctions under section 15 and section 21, respectively, of the Immigration, Asylum and Nationality Act 2006 (IANA) for employing a person disqualified from the particular employment because of their immigration status. Workers are sanctioned by parallel criminal offences in section 34 of the Immigration Act 2016 if they work at a time they are disqualified from working by reason of their immigration status, either because they do not have any leave to enter/remain or their leave is subject to a condition preventing that kind of work and have reasonable cause to believe they are disqualified. The work itself is a criminal act. This construction means that the threat and power of deportation are directly connected to the circumstances of employment and status-based restrictions.

Immigration documentation requirements are derived from immigration status. A statutory excuse is available to employers if they check the worker’s documents to ensure they have the correct authorisation to work, inserting non-contractual dimensions and procedures into employment.⁴⁴ In Baker v Abellio London, a Windrush-style case, a Jamaican national who was not subject to immigration control and held the right to work, a fact acknowledged by the employer, could not be fairly dismissed solely for being unable to produce requested documents. The EAT held that the ‘right to work’ scheme only provides access to the statutory excuse and does not impose a legal obligation on employers to obtain proof of authorisation. Employers do not contravene a statutory duty under section 98(2)(d) of the ERA if they employ someone without the relevant documents.⁴⁵ Nonetheless, the practice of conducting immigration checks is widespread in part due to non-discrimination and sponsorship licencing duties, but also because of strong financial incentives to avoid significant civil penalties.

Despite Baker, other cases suggest that migrant personal work relations are constructed on the basis of possessing satisfactory immigration documentation and employers’ belief in the right to work. Here we can see that the novel employment status simultaneously shapes and is the outcome of non-contractual legal procedures. Section 98(1)(b) of the ERA, which provides that a reason for dismissal can be potentially fair if it amounts to ‘some other substantial reason’ (SOSR), functions as an open-ended mechanism for introducing immigration factors into dismissal procedures. In doing so, it alters the legal form of employment by establishing unique requirements for the lawful formation of employment. In Bouchaala v Trusthouse Forte Hotels Ltd, the worker was dismissed after the immigration authorities incorrectly advised that his employment would be illegal as his student visa had expired.⁴⁶ It was subsequently confirmed that Mr Bouchaala had indefinite leave to remain and did not require permission to work. The court held that if an employer has a genuine but erroneous belief that it was impermissible to continue employing a person because of an immigration restriction, it can amount to SOSR.⁴⁷ Despite formally possessing the right to work, the employer’s dissatisfaction with the documentation and adequate consultation with the Home Office (despite the inaccurate advice received) was sufficient for a fair dismissal. As migrant workers can be fairly dismissed on what are effectively documentation grounds, regardless of their objective status, the character of the migrant personal work relation status is partially defined by immigration documentation and formed on a non-contractual foundation.

Concomitant on providing sufficient documentation is the employer’s belief that it establishes the right to work. Documentary evidence implies an objectivity that is not always present. Immigration documentation can be very complex and difficult for non-experts to assess. Some subjective judgement is likely. The legislative standard is itself subjective: the employer must ‘satisfy himself’ that the document establishes the right to work.⁴⁸ In cases of uncertain and purportedly inconclusive documentation, an employer’s mistake is not necessarily fatal to the fairness of dismissal provided sufficient procedural steps were taken to form a reasonable and genuine belief. This is often a low threshold. In Kurumuth and Klusova, it was sufficient for the employers to request and receive advice from the Home Office, even though the advice was incorrect, confusing and contradictory.⁴⁹ Dismissal was fair in Nayak v Royal Mail Group even though the employer received no response from the Home Office and had imposed its own requirements to check documents more frequently and to a higher standard in certain circumstances than that required by the statutory scheme.⁵⁰ The EAT also implicitly imposed higher evidentiary demands on the worker than the employer in the ‘reasonable belief’ question.⁵¹ The implication of the cases is that employment is constantly contingent on employers’ belief in the right to work. This is a novel way of constructing personal work relations that points towards a qualitatively different form of employment.

In the formation of employment, the role of immigration status and the distinct legal form of employment and associated rules are observed at an early stage in three ways: state authorisation, immigration documentation and employer belief in the right to work. Immigration status establishes state control over conditional labour market access by restricting migrant workers’ options and mobility in the labour market.

B. Structure

Immigration status has important consequences for the structure of the migrant personal work relation in three ways. Firstly, its hybrid character inserts the state into private labour relations. Migrants’ relationships with the state and employers are intertwined as the state uses migrants’ employment to control their instrumental function in the labour market. The migrant personal work relation expresses a novel and discrete trilateral nexus involving the worker, employer (or other sponsor) and the state.

Secondly, immigration status establishes additional legal and non-contractual connections within the work nexus. The status and identity of the employer is often central. Only a very limited set of visas that have worked as their primary purpose do not require sponsorship, eg, for certain entrepreneurs and graduates. Immigration statuses which have other primary purposes but do permit work, eg, spousal and student visas, do not require employer sponsorship. For the majority of work visas, there must be a Home Office licensed sponsor, normally the employer. Sponsorship alters migrant employment’s structure by creating an additional public connection in the form of a ‘sponsor-sponsee’ dynamic and reinforcing the connection to the state. Sponsorship is reinforced by the ‘direct relationship’ principle, which requires a direct legal and practical relationship between the employer and the sponsored worker. Triangular relationships are controlled by the state on the basis that they undermine immigration control and dilute the connection to the state.⁵²

The state necessitates triangular employment structures in certain circumstances, institutionalising labour intermediaries as an essential feature of employment in the Seasonal Worker visa. The scheme allows migrants to work in the horticultural sector for up to six months or the poultry sector between October and December, in a 12-month period. Workers are sponsored by one of the six approved labour intermediaries who directly facilitate and organise the migration process and organise their placement across registered employers.

Intermediaries complicate the structure of the work nexus for two reasons. Firstly, as residency and work rest upon intermediary sponsorship, an additional source of dependency is introduced for workers alongside employers.⁵³ The supply of temporary migrant labour through intermediaries opens up a more flexible and precarious source of labour for employers without the administrative responsibilities of sponsorship.

Secondly, the interaction of contract and status complicates the responsibility for upholding employment rights. In employment’s contractual dimension, triangular arrangements may fragment responsibility for upholding labour rights as there may be no employment contract with either the intermediary or the end user.⁵⁴ It is a duty in Seasonal Worker sponsors’ licences, however, to ensure that workers receive an employment contract. Moreover, the visa still requires a direct relationship between the sponsoring intermediary and the worker as chain recruitment is banned and the sponsor is responsible for guaranteeing fair working conditions and co-ordinating placements.⁵⁵ Responsibility for employment conditions and immigration compliance cannot be fragmented or avoided through triangular contractual arrangements. Nonetheless, the personal scope of labour law may still be fragmented as sponsors can and do, breach these duties, leaving workers without an employment contract and/or failing to ensure employment rights are upheld and it is not clear what legal redress is available for workers against their sponsor.⁵⁶ Furthermore, institutionalising labour intermediaries and sponsorship embeds the risk of illegal recruitment fees, which have been identified as serious problems in the Seasonal Worker visa and Health and Care Worker visa.⁵⁷

The public sponsorship dynamic, which may further include labour intermediaries, illustrates that there are multilateral non-contractual connections within work nexuses that are presented as simple bilateral relations.

Thirdly, the status dimension creates visa ties. A visa tie refers to labour migration policies that condition residency on a particular job, with a particular employer or sponsor, often in a particular sector, restricting access to the labour market and mobility within it.⁵⁸ Structuring employment in this way means that employment and residency are highly conditional and precarious. Workers are more exposed to immigration breaches and deportation, thereby increasing state control over labour mobility.

Migrant labour law generally constructs partially tied forms of employment. It is partial in the sense that whilst there is not an absolute prohibition on leaving an employer and residency is not automatically forfeited, residency often hinges critically on a particular employment relationship.⁵⁹ Migrant workers are ‘usually dependent upon their current employers for their continued right to live and work in this country’.⁶⁰ There are significant status-based exit costs and legal obstacles to changing employers that are emblematic of tied employment. Given the requirement of state authorisation in forming employment, most visas are not portable visas that workers can freely transfer between employers. For example, employment on a Skilled Worker visa is largely restricted to the sponsoring employer.⁶¹ Changing employers require reapplying to update the visa—amounting to state authorisation.⁶² Transferring without authorisation is a criminal offence and grounds for removal,⁶³ and the illegality doctrine may render the contract illegal and unenforceable.⁶⁴ Restrictions on transfer immobilise labour and permit only partial inclusion in the labour market.

The reasons for changing employers are usually irrelevant and do not generate an independent right to transfer. In addition to substantive constraints, high application fees—potentially over £1,000—constitute a substantial exit cost. Migrant workers’ exclusion from the welfare state through the ‘no recourse to public funds’ (NRPF) condition of leave further heightens exit costs.

The Seasonal Worker and the Overseas Domestic Worker visas contain limited rights to change employers without state authorisation. Seasonal workers can change employers, but only if a transfer request is authorised by their sponsor. Sponsors are required to establish a ‘clear employer transfer pathway’ for workers to switch employers either at their own request or if the sponsor identifies welfare issues.⁶⁵ Requests must normally be accepted unless there are significant reasons not to.⁶⁶ This illustrates the employment statuses’ non-contractual dimensions altering the structure of employment and attached legal procedures. Furthermore, the transfer pathway has been criticised as weak and ineffective, in practice allowing tied employment.⁶⁷ The pathway only provides a right to request a transfer; there is no way to transfer if a sponsor refuses and no mechanism for appealing a refused request. Moreover, workers cannot extend their visa upon transferring, nor can they switch to another sponsor, even if their sponsor unreasonably refuses transfers or fails to ensure the employer upholds employment rights.⁶⁸ It is not clear whether Sharma applies equally to when a worker changes employer without sponsor authorisation, rather than state authorisation; the conditions of the visa combined with the section 34 offence suggests that it probably does.

The Overseas Domestic Worker visa, which permits domestic workers to travel to the UK with their current overseas employer for up to six months, does not require any state or sponsor transfer authorisation. They are legally free to change employers within the sector at any time after arrival. This right is rendered largely illusory, however, as it does not extend the visa beyond its maximum term which makes it difficult to realistically find new domestic employment for the short remainder of the visa.⁶⁹

Losing sponsored employment severely jeopardises secure residency, exhibiting its tied nature. Losing sponsorship, either due to resignation,⁷⁰ dismissal,⁷¹ employer withdrawal of sponsorship⁷² or revocation of the employer’s sponsorship licence,⁷³ often results in leave being curtailed to just 60 days, particularly on the Skilled Worker visa.⁷⁴ Leave can be cancelled immediately if the worker was complicit in the licence being revoked⁷⁵ or if they were dismissed for gross misconduct which is serious enough to mean that 60 days leave should not be granted.⁷⁶ No definitions are provided for either exception. Ill-defined rules and reliance on employer attestation create significant state and employer discretion in sponsorship decisions and inadequate opportunities for migrant workers to challenge the relevant decision and its consequences.

The 60-day rule is a significant exit cost that effectively places migrant workers in immigration limbo, a highly insecure status which allows limited time to fully regularise their status. 60 days is a short time to find a new eligible job with a sponsoring employer.⁷⁷ The temporal constraint is compounded by eligibility criteria and the fact that the worker is in a foreign country.

Short of an offence in section 1 of the Modern Slavery Act 2015, which criminalises slavery, servitude and forced or compulsory labour, the 60-day rule lacks exceptions for abusive and unlawful treatment.⁷⁸ The rule appears to apply uniformly and no consideration is given to the effect of a successful unfair dismissal claim. Besides, the two-year qualifying period and three-month limitation period are significant impediments to such claims. With only 60 days to find new employment, it is reasonable to assume migrants use most of their time and energy searching for work rather than pursuing legal claims. Moreover, the time between issuing a claim and its final resolution will be longer than 60 days and there is no immigration ‘pause’ whilst a claim is pending. Even if successful, as no injunctions are available and reinstatement is rare, it is unlikely to change the immigration position and does not trigger an extended grace period to find new employment. The incongruence between immigration rules and dismissal claims conflicts with article 32 of ILO R151, which requires sufficient time to pursue a claim and find alternative employment if successful.

An array of connections exist within the structure of the migrant personal work relation, including non-contractual connections that establish a public law dynamic with the employer and insert the state into private relations. Intermediaries may also form an essential dimension, further complicating its structure and legal procedures. Importantly, the structure of employment is predicated on visa ties that immobilise labour.

C. Content

Immigration status is deeply implicated in two fundamental terms: wages and working time. Immigration status sets the parameters of the wage term, often on a protectionist basis.⁷⁹ Salary thresholds and calculations are very complex, but, in short, each Skilled Worker visa contains a minimum salary that must equal or exceed: a yearly minimum, and the ‘going rate’. Temporary visas usually require £11.44 per hour, or the national minimum wage (NMW).

Immigration status can effectively disapply the wage term. The illegality doctrine frequently extinguishes contractual and statutory rights to wages for ‘illegal work’.⁸⁰ The illegality doctrine is a public policy doctrine that provides a defence to private law claims where the claimant has been involved in illegal conduct which is closely connected to their claim. Furthermore, in line with the Hostile Environment, wages for ‘illegal work’, criminalised under section 34 of the Immigration Act 2016, are designated as proceeds of crime that can be confiscated under section 304 of the Proceeds of Crime Act 2002. Cash, often constituting wages, is regularly seized during ‘illegal work’ raids by Immigration Enforcement.⁸¹ The Home Office states that: ‘HMRC cannot take 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’.⁸²

Whilst the illegality doctrine has been softened by the rejection of free-floating references to criminality as the basis for prohibiting contracts⁸³ and tort-based claims for discrimination and harassment have succeeded,⁸⁴ precisely when an employment contract is enforceable remains uncertain.⁸⁵  Okedina upheld contractual rights, holding that there is no statutory prohibition in section 15 or section 21 of the IANA on concluding or performing the employment contract that directly targets the parties’ contractual capacities.⁸⁶ The fact that the prohibitions only targeted the employer and the worker was wholly unaware of her irregular status meant that there was no culpability on the part of the worker. Therefore, public policy did not require a statutory construction which would deprive the ‘innocent employee of all contractual remedies against the employer in circumstances of that kind’.⁸⁷

However, Okedina may not constitute a ‘new dawn’ for illegality due to the dual criminal liability regime in the Immigration Act 2016. As Bogg argues, the reasoning in Okedina, particularly the endorsement of the ‘knowledge and participation test’,⁸⁸ may result in implied statutory prohibition under the 2016 Act.⁸⁹ A further problem is the emphasis on a formalistic application of implied statutory prohibition, which ‘depends upon considerations of public policy in the light of the mischief which the statute is designed to prevent, its language, scope and purpose, [and] the consequences for the innocent party’.⁹⁰ As workers are targeted by section 34 and thus may not be ‘innocent parties’, wages are designated as proceeds of crime and the purpose of the Hostile Environment’s criminalisation regime is to coerce voluntary removals through economic destitution and social isolation, the result may be a harsh application of statutory illegality.

Helbawi suggests that immigration status also impacts wages for work that does not prima facie breach immigration restrictions.⁹¹ Mr Helbawi’s student visa limited his term-time employment to 20 hours a week, which he occasionally breached.⁹² He brought claims for non-payment of the NMW. Applying the illegality doctrine, the EAT rejected the public policy argument that workers should be paid the legal minimum wage and that migrants with NRPF are particularly vulnerable to exploitation out of fear of losing their jobs. It was the clear intention of Parliament that he could only work within the terms specified by the Home Secretary.⁹³ His breach of the limit was the ‘very thing he was forbidden to do’ and was purportedly a ‘feature of the contract’.⁹⁴ The lawful and unlawful performance of an open-ended employment contract could, however, be severed. Yet rather than severing the hours worked above the weekly limit from those below the limit, without any clear explanation the EAT severed the weeks in which no breaches occurred from the weeks in which breaches occurred. No claims could be made for any of the hours worked in weeks that exceeded the 20-hour limit, even for hours within the limit.⁹⁵ This creates the strange result that otherwise lawful work is transformed into unlawful work for which no wages are due.

Working time is directly and indirectly regulated. Work can be permitted on Student visas for a maximum of 20 hours during term time (or 10 hours if below degree level) and full-time employment outside term time.⁹⁶ Seasonal workers must work a minimum of 32 hours a week.⁹⁷

The calculation of average pay indirectly creates a weekly working limit on Skilled Worker visas. The annual salary is balanced with the average weekly hours over a certain period (maximum 17 weeks). The salary threshold for the yearly minimum is calculated according to the first 48 hours worked in a week, but the hourly ‘going rate’ is calculated for all hours worked.⁹⁸ Working excessive hours that brings the average hourly pay for that week below the given hourly ‘going rate’ breaches the visa.

Salary calculations limit flexible working patterns for skilled worker visas. ‘Pay which cannot be guaranteed because the nature of the job means that hours fluctuate’ is not included in the calculation.⁹⁹ There is little guidance on what ‘guarantee’ and ‘fluctuate’ mean here, nor what degrees are acceptable. On a plain reading, zero-hour and other intermittent forms of employment are unlikely to satisfy immigration conditions.

Regulating the content of employment through immigration status does not serve a worker-protective purpose. Whilst refusing to leave if a job does not comply with the National Minimum Wage Regulations or the Working Time Regulations ostensibly has an anti-exploitation purpose,¹⁰⁰ it is a blunt tool that does not provide any safety net or mechanism to find alternative work. The only options might be leaving the UK or working illegally.

Furthermore, the flexibility of incomplete, open-textured employment contracts and the discretionary exercise of the managerial prerogative conflicts with rigid immigration conditions.¹⁰¹ Employers can generate a breach by paying below the minimum threshold. As the actual performance of work is dictated by employers,¹⁰² conflicts may arise between employer instructions and immigration conditions. Employers may instruct workers to take on duties beyond their visa, placing migrant workers in a very precarious position. This is evident from Helbawi, where in 2012 immigration authorities raided a Tesco, deporting at least 20 student visa holders who had allegedly been working two to three times the legal limit.¹⁰³

This subsection shows that the parameters of contractual terms may be set by immigration status, illustrating a hybrid interaction between status and contractual elements. Regulation through immigration status does not have a protective purpose. Tensions arise between the two sources of regulation that increase employer power and expose migrants to illegality and deportation.

D. Variation

Temporariness goes beyond the fixed term of a visa. Another dimension includes the temporariness of terms and conditions. Employment terms can vary as a result of changes to immigration status. Immigration states introduce mechanisms for variation that are alien to modern labour law and its fluidity gives employment an inherently temporary and unstable character. Firstly, the conditions attached to a particular status can be varied by amending the Immigration Rules. Secondly, immigration statuses are dynamic, often highly precarious and conditional. Individuals can move between different statuses, each with varying effects on working conditions.

Variations through changes to immigration status create a complex nexus with unilateral contractual variation. Immigration status variation is more potent and is not subject to the same limits as unilateral contractual variation. Whilst employers have no implied right to unilaterally vary contractual terms,¹⁰⁴ the government has significant discretionary power to effectively unilaterally vary status-based employment terms contained within the Immigration Rules. The Immigration Rules are statements detailing how ministers propose to exercise executive power to control immigration.¹⁰⁵ They are almost entirely within the discretionary control of the executive with minimal input from Parliament, and subject to limited judicial oversight. Immigration Rule changes can vary the minimum salary thresholds, how working hours count towards the salary calculation, job classifications, the qualifications required and the right to change employers. Changes are frequent and can apply retrospectively to applications made before the amendment.¹⁰⁶ In some ways these status variations are less dynamic and immediate than contractual variations. They generally only take effect when applying to renew or update a visa, rather than during the term of an existing visa.

The executive’s wide discretion in varying status-based conditions may limit employers’ recourse to unilateral contractual variation. Visas, sponsorship duties on reporting employment changes and state authorisation requirements in hiring make ‘fire and re-hire’ style variations administratively burdensome for employers. The scope of contractual variation is also constrained by the interaction of immigration status with contractual doctrines. Although there is no case law on refusing to accept a variation because it breaches visa conditions, imposing the variation is almost certainly a breach of contract. As a matter of construction, in light of shared background knowledge on the visa terms, sponsorship duties, and sanctions for breaches, a court should conclude that the parties’ common intention must be to confine the scope of the clause to variations which do not breach the individual’s visa.¹⁰⁷ The implied terms of good faith and mutual trust and confidence also limit the exercise of the contractual power against breaching visa conditions. As does the general ‘public duty’ in Dhatt v McDonald’s Hamburgers on employers to ensure their workers comply with immigration law—though in that case, the duty upheld a seemingly discriminatory ‘right to work’ check policy on the basis that Parliament had specifically recognised a more limited right to work for non-EEC nationals.¹⁰⁸

These limits on contractual variation do not necessarily guard against temporariness and instability. There may be tensions between status and contract brought about by varying one but not the other, such that they are inconsistent. The primary variation that causes the inconsistency produces a secondary variation shifting the immigration status of the individual from regular to irregular, impacting the legality of their employment and the enforcement of contractual terms and statutory rights. The shift in status may also be the result of legal changes that the parties fail to adjust for, such as amending visa conditions.

Echoing the problems with status-based content regulation, conditioning residency on the particular performance of employment relationship is problematic given the fundamental inequality of power and rigidity of visa conditions. The tension produces volatility and uncertainty in migrant employment. Employers may purport to impose contractual variations even if they breach visa conditions. In practice, dependent and precarious migrant workers may have little choice but to continue working under the varied terms and the variation is capable of altering their status despite likely constituting a breach of contract. Even if work is performed ‘under protest’ or the variation is otherwise rejected whilst continuing to work,¹⁰⁹ performing work under the varied terms is sufficient to vary immigration status.

Status variations can trigger dismissals, enhancing precarity and uncertainty. When immigration status becomes irregular, employers may lawfully dismiss and are strongly incentivised to do so. Furthermore, if the minimum salary threshold is radically altered, such as the recent 33% increase to the Skilled Worker threshold, employers who are unable or unwilling to meet it will simply dismiss the worker when the visa requires renewing on varied terms. Re-classifying jobs so that they are no longer eligible occupations has the same effect.

Variation through immigration status illustrates the instability and volatility of migrant employment. It further illustrates the tensions that may arise as immigration status and employment contracts grapple with each other in framing and regulating working arrangements. The insertion of the state into private relations is also exhibited as the state may restrict contractual variations whilst varying employment terms itself according to its own interests.

E. Termination

Whilst stopping short of automatically terminating employment as a matter of law, migrant labour law imposes significant pressures on employers to dismiss migrants working unlawfully through the threat of civil and criminal sanctions. Furthermore, sponsorship licences impose a duty to dismiss workers whose immigration status no longer entitles them to do the job.¹¹⁰ Although this does not mean that the employment relationship is no longer effective, non-compliance is a serious breach that will likely result in the licence being revoked.¹¹¹ Similarly, employers’ ‘public duty’ to ensure employees comply with immigration law could feasibly include dismissing those in breach.¹¹²

Employees are protected from unfair dismissal under section 94 of the ERA. Employers must establish a potentially fair reason for the dismissal and show that the dismissal fell within the ‘band of reasonable responses’.¹¹³ Immigration status directly influences the scope and application of two potentially fair reasons and alters the procedures applicable to the migrant personal work relation.

Where an individual is disqualified from a particular job by virtue of their immigration status, dismissal falls within the ‘statutory duty’ grounds of dismissal in section 98(2)(d).¹¹⁴  Kelly v University of Southampton doubted, in obiter, that section 98(2)(d) could always be accessed and make a dismissal fair where immigration law restrictions on workers are breached.¹¹⁵ An American’s leave to remain expired before her work permit did and she was dismissed. The continuing validity of her work permit meant her employer was not criminally liable and was unable to rely on section 98(2)(d). The EAT provided three circumstances in which dismissal might not be fair: (1) the irregularity resulted from some past conduct or omission of the employer,¹¹⁶ (2) simple future steps can readily be done to remedy the legal position¹¹⁷ and (3) appropriate and reasonable procedures should be taken where the irregularity is disputed, technical or arises from an easily remediable oversight.¹¹⁸

However, a range of factors suggest that the reasons given in Kelly may not curtail employers’ power to dismiss. Firstly, Okedina observes that mistakes by employers leading to or failing to remedy an immigration irregularity may not be unreasonable.¹¹⁹ Secondly, visa renewal is not always available and overstayers’ applications are ordinarily refused.¹²⁰ It is not clear what happens if non-renewal was due to an error by the employer supporting the application, nor how serious the error must be. Thirdly, the dual liability regime in the Immigration Act 2016 means that, regardless of whose fault the irregularity is and how easily remediable it is, the worker is committing a criminal offence. Finally, Kelly also conflicts with the sponsorship licence duties and the dicta in Dhatt which seem to require termination in the event of a breach.

Where employers cannot rely on the unlawfulness of employment, section 98(1)(b) provides a second opportunity to establish the fairness of dismissal by reference to immigration control factors. This often concerns the adequacy of immigration documents and employers’ belief in the right to work. For employers to bring themselves within section 98(1)(b) and Bouchaala on the basis of these non-contractual factors, employers must take the necessary procedural steps to form a genuine and reasonable belief. Case law on this question gives significant weight to the extent of an employer’s consultation with the Home Office, effectively constructing employer-Home Office consultation as a feature of dismissal procedures.¹²¹ The threshold for adequate consultation is low, simply requiring the provision of sufficient information for the Home Office to provide advice¹²² and does not even require a clear response from the Home Office—there may be no response at all per Nayak¹²³ or contradictory responses from different teams as in Klusova.¹²⁴

4. IMPLICATIONS

The emergence of migrant labour law creates deep divisions and tensions with labour regulation, ‘othering’ migrant workers as separate legal subjects. The migrant personal work relation adds another domain to the map of personal work relations separate from citizen employment. The implications of this status and its non-contractual dimensions extent beyond the classificatory problem, impacting the employment contract, the normative regulatory objectives and the vulnerability of migrant workers to exploitation.

A. Employment Contract

Immigration status and the employment contract have an interdependent and recursive relationship, shaping the employment contract’s form and functions. The contractual dimension of migrant employment is distorted by immigration status, creating a qualitatively different employment contract in comparison to citizens’.¹²⁵ It remains a species of employment contract but in a separate, extended category.

The migrant employment contract has a dual regulatory quality, simultaneously framing the working arrangement and shaping migrant workers’ immigration status, which is contingent, in part, upon the existence and performance of the employment contract. If they are consistent, the form and terms of the employment contract ground lawful immigration statuses. Equally, its terms, performance or breach may establish the basis for deportation. For example, visitor visa holders can perform voluntary work for up to 30 days, but not an employment contract,¹²⁶ whilst students cannot enter into a permanent, full-time employment contract.¹²⁷ A contradiction is that by shaping immigration status and triggering immigration sanctions the employment contract may, as shown above, render itself void and unenforceable. It should also be noted that, because employer sanctions only apply to employing someone on a contract of employment, employers are incentivised to frame irregular migrant employment as precarious forms of ‘limb b’ and self-employed contracts.¹²⁸

The potential unenforceability of the contract and its relationship with immigration status raises questions about its function as a vehicle for social goals. By virtue of its statutory and institutional setting, the contract of employment ordinarily has a ‘public-regulatory’ function connecting worker subordination to protective social rights and social security.¹²⁹ The statutory relationship and institutional setting of migrants’ employment contracts, however, further includes exclusionary immigration dimensions that control and immobilise migrant labour on a commodified, instrumental basis and grant citizens preferential labour market access.¹³⁰ As such, the migrant employment contract features a ‘control function’ in which it connects employment to rules and institutions aimed at directing and restricting labour market participation. The migrant employment contract emphasises the relationship between migrant workers as ‘foreign’ subjects of immigration control and employers as agents of immigration control on behalf of the state. It is not just a socio-economic mechanism framing productive relations. It also foregrounds the partial and conditional labour market membership of migrant workers, suppressed by their ‘foreignness’ and precarious relationship with the state. It has a distinct character as a mechanism of state control over labour mobility. Its function relates more to implementing state restrictions and immobilising labour than distributing labour protections and facilitating labour mobility.

Tying migrant workers to a particular contract and controlling their ability to freely circulate in the labour market and commodify their labour power is a notable illustration of the ‘control function’. In occupying a close contractual relationship with migrants, employers have a duty to ensure their workers comply with immigration restrictions, either at common law¹³¹ or more concretely through sponsorship licences. Migrant workers are locked into a more subordinate position than citizens. Whilst these are not indentured contracts, they perform a materially different function to citizens’ employment contracts and are imbued with norms of deterrence, immobility and deportability. Tied contracts are conducive to employers engaging in a range of unlawful and exploitative practices.

B. Normative Hierarchy

Within migrant labour law, the normative ideals, objectives and purposes underpinning the respective fields become intertwined. They are not, however, harmonious and compatible. Labour law’s worker-protective commitment conflicts with immigration law’s primary objective of controlling the conditions for entry and restricting post-entry capacities.¹³² Outside of migrant labour law, its broader worker-protective goal is often underpinned by more inclusionary and empowering ideals such as equality, non-exploitation and dignity (albeit with some flaws). Immigration law scarcely takes account of such ideals and is not motivated by the protection or empowerment of weaker parties in social relations. It is premised on ideals of territorial integrity, state sovereignty and exclusion.

The creation of a parallel legal framework undermines the status of migrant workers as full legal subjects of labour law. The tension between immigration law and labour law norms and regulatory functions is often resolved in favour of the immigration element. Immigration norms are often the dominant partner, intensifying divisions within labour protection. A normative hierarchy prioritises the regulatory functions of immigration law, amplifying control objectives whilst marginalising worker protections.

The hierarchy can be seen in at least three areas. Firstly, the connection between worker subordination and worker protection in the ‘public-regulatory function’ is weakened in the migrant personal work relation. In addition to how the contractual form may affect this connection, immigration status and its norms tend to preserve and reinforce the managerial prerogative and worker subordination whilst, to varying degrees, diluting the connection to worker protection, enhancing the risk that employment’s inherent feature of subordination will subjugate workers.

Secondly, through immigration status, employers’ role in immigration control and the dual regulatory quality and control function of the contract, state power is embedded in the legal foundations of employment, subordinating the ‘public-regulatory function’. Employers do not just possess private power; they share exclusionary, coercive state power. Bridging the traditional divide between public state and private employer power combines the breadth and scale of state power with the immediacy of employer power.¹³³

Thirdly, the hierarchy has a divisive impact, creating a normative ordering of workers by denying full labour market membership to migrant workers and stratifying industrial citizenship. Allocating labour relations to migrant labour law, rather than ‘general’ labour law, is a form of ‘unfavourable inclusion’ that drives social exclusion and relegates migrant workers to lower strata of labour market membership.¹³⁴ Operationalising foreignness alienates migrant workers as outsiders, physically present but normatively absent, articulated as economic commodities whilst frequently deprived of the mechanisms of labour power and rejected as active members of the production process.¹³⁵

C. Vulnerability to Exploitation

Structural accounts of exploitation are an increasingly prominent way of understanding the role of the law in producing exploitative labour relations.¹³⁶ Mantouvalou shows that the state creates and reinforces legal structures which condition power dynamics in specific labour contexts to generate patterns that systematically disadvantage groups of workers.¹³⁷ The law places workers in a vulnerable position which employers can take unfair advantage of and fails to provide legal protection and redress to the abuse of power thereby facilitating exploitative conduct.

The legal construction of personal work relations affects the allocation of power, potentially enabling employers to systematically benefit by accumulating power at the expense of workers.¹³⁸ Immigration status reinforces and exacerbates pre-existing power asymmetries in the employment relationship and produces special vulnerabilities additional to those ordinarily present. As immigration status is an internal constitutive element of migrant personal work relations, we can say that this is a structural vulnerability produced by the law that systematically disadvantages a group of workers.¹³⁹ It is a vulnerability-inducing legal institution, expanding the scope for coercive power and arbitrary interference. Of course, a plurality of factors outside of the law, such as race, class and gender, shape how legal vulnerability is experienced and the extent to which it manifests into exploitation.

Vulnerabilities produced by the contractual form and terms of employment are compounded by the effect of status and facilitate exploitation. Taiwo v Olaigbe, a case concerning the abusive treatment of a domestic worker on a tied visa, recognised that visa ties render migrant workers vulnerable to mistreatment.¹⁴⁰ Her existing low pay, isolation and exclusion from labour rights were compounded by the dependency on the visa, expanding employer power and opportunities for arbitrary actions.

The additional vulnerabilities are the inevitable functions of a legal framework structured around ‘foreignness’ and coercive state power. Three underlying norms are particularly damaging. Firstly, conditioning residency and employment on a particular employment relationship or employment in a particular sector amplifies vulnerability by placing employers in a powerful position. Their effective ownership over the right to work creates unprecedented powers of control and intensifies worker dependency and subordination.¹⁴¹ Formal conditionality is increased by introducing subjective conditions, namely employers’ belief in the right to work. The law empowers employers to effectively determine immigration status in a formal and subjective sense, and use illegality, real or threatened, as a disciplinary tool. Migrants are likely to be more compliant and less challenging when their residency is dependent on their employer.¹⁴²

Employer discretion can become arbitrary and create considerable uncertainty and instability. Combining employer ownership of the right to work with weak exit rights and dismissal protections heightens dependence and precarity. Residency is contingent on the goodwill of employers who may terminate employment at their discretion.¹⁴³ The employment relationship is effectively placed on an ‘at-will’ footing, shifting the power dynamics significantly in favour of the employer. Anderson writes, ‘employers are handed additional means of control: should they have any reason to be displeased with the worker’s performance or indeed even have a personal grudge against them, not only the worker’s job but their residency can be put in jeopardy’.¹⁴⁴ Migrants’ vulnerability from the fear of arbitrary dismissal is compounded when they have no recourse to social security.¹⁴⁵

Secondly, although the government often claims that migrants are protected from exploitation by stringent, exclusionary immigration controls,¹⁴⁶ in fact, threats of criminality and deportation make all migrants more vulnerable. It is not an ‘illegal’ status, nor deportation per se, that generates vulnerability, but deportability—the risk of deportation—that renders migrant labour a disposable commodity.¹⁴⁷ Immigration law constructs deportability as a basic feature of migrant employment due to the contingency of residency on the existence, terms and performance of employment. Deportability is intensified by the centrality of the workplace to immigration control, the routine practice of checking documents and the proximity of employers to immigration institutions. Even if actual removal is a distant possibility, given the precarity and contingency of immigration status, deportability looms as a background threat to the entirety of the migrant personal work relation.

Case law shows that deportability is an effective tool for disciplining labour.¹⁴⁸ Employers are documented using ‘threats to employees and cooperation with immigration authorities to derail worker organisation and to suppress dissent’.¹⁴⁹ For example, the cleaning company, ISS, used a tactic of fake ‘emergency staff meetings’ to denounce nine cleaners who had been campaigning for a ‘living wage’ to Immigration Enforcement for arrest and detention.¹⁵⁰ In the recent NHS strikes, striking doctors were warned that their absence would be reported to the Home Office and could lead to problems in renewing their visas.¹⁵¹ Deportability isolates workers and has a chilling effect on basic rights as migrants avoid actions that could antagonise their employer and lead to denunciation and deportation.

Finally, freedom of exit is a central liberty of free labour. In Nokes v Doncaster Amalgamated Collieries, Lord Atkin stated that ‘ingrained in the personal status of a citizen under our laws was the right to choose for himself whom he would serve, and this right of choice constituted the main difference between a servant and serf’.¹⁵² The US Supreme Court in Pollock v Williams observed that the basic ‘defence against oppressive hours, pay, working conditions or treatment is the right to change employers’.¹⁵³

This basic liberty and defence to exploitation is not entirely ingrained in the migrant personal work relation. It is a form of immobilised labour. Immigration status undermines the ordinary contractual rules on non-indentured employment. There is a stringent regime of labour immobility, sustained by requirements for state authorisation, sponsorship and high exit costs. Ajayi v Abu, in which a domestic worker tied to her employer was subjected to forced labour, noted that employer dependency makes it ‘much harder, or impossible, to remove themselves from exploitation’.¹⁵⁴ Legal means of coercion such as loss of status, criminalisation and deportation either block some options or impose prohibitive costs on labour mobility.¹⁵⁵ Labour immobility exposes migrants to conditions of arbitrary treatment and domination. Exploitative and abusive conditions do not generate an independent right to transfer or leave an employer without severely affecting the security of residency.

5. CONCLUSION

On the basis of the foreignness of an individual, certain personal work relations are allocated to a parallel legal framework of migrant labour law formed by the regulatory integration of immigration law and labour law. Labour relations within the framework cannot be explained on an exclusively contractual basis. The migrant personal work relation, a normative model of employment forming a novel employment category with a hybrid legal character of status and contract, is constructed as the regulatory institution of migrant labour law. This new form of employment challenges the orthodox contractual model of categorising and analysing legal forms of employment. It falls outside of existing categories constructed by the contractual model and resides in a separate domain to citizens. Migrant workers are constructed as distinct legal subjects across a juridical divide.

The account developed here reinforces Costello and Freedland’s observation of migration dividing the objects and subjects of labour law,¹⁵⁶ which perhaps runs much deeper than first thought. The status-based character of migrant employment creates new, additional sources of vulnerability to exploitation. The allocation of migrant workers to migrant labour law exposes their employment to exclusionary norms and regulatory objectives. Conditionality, deportability, deterrence and immobility create new mechanisms of employer power, undermine workers’ basic rights and liberties and exclude full membership and participation in the labour market.

A new conceptual dilemma may be incipient. It is difficult to see how labour law can continue its commitment to a contractual model. The one-dimensional map of employment categories as a form of overlapping concentric circles requires a second dimension for migrants’ status-based relations. Certain personal work relations are further fragmenting and undermining the conceptual categories of labour law and are being drawn away from its protective sphere. It is essential to further explore the migrant labour sphere in order to find ways to re-integrate migrant workers back into labour law.

I am grateful to the reviewers for their insightful and detailed comments. I would also like to thank the members of the London Labour Law Discussion Group who provided helpful comments on an earlier draft, and Professors Virginia Mantouvalou and Nicola Countouris for their excellent support and supervision. All errors are my own.

Footnotes