Abstract

Excerpted From: Natalie Sedacca, Migrant Work, Gender and the Hostile Environment: A Human Rights Analysis, 53 Industrial Law Journal 63 (March, 2024) (182 Footnotes) (Full Document)

In a now infamous 2012 interview, Home Secretary Theresa May declared her intention to create a 'really hostile environment’ for 'illegal’ migrants in the UK, in order to avoid 'a situation where people think they can come here and overstay because they're able to access everything they need’. This signalled a move to increasingly draconian restrictions on the ability to live, work and access services and benefits for individuals who could not prove their legal status in the UK, pejoratively referred to as 'illegal migrants' in official discourse. After the 2018 Windrush scandal, these restrictions were rebranded as the 'compliant environment’ but remained largely intact, continuing to impact access to work, private renting, public funds, health services, banking and driving. Since the rebranding of policies as the 'compliant environment’ did not amount to a change of substance, this article uses the term 'hostile environment’.

Many have rightly noted the pronounced impact of the hostile environment on ethnic minority communities and individuals, including those beyond the purported target of irregular migrants. Another crucial area of enquiry that has received less attention is its gendered implications. While valuable studies on women and the hostile environment exist, they are limited in number and are not focused primarily on work-related matters. This article thus makes a distinctive contribution through a focus on work-related and gendered harms of the hostile environment and their human rights implications, drawing on legislation, grey literature including government-commissioned and NGO reports, and academic studies. It examines factors that can make women susceptible to becoming irregular and therefore subjected to hostile environment measures, as well as specific forms of gendered harm and violence in and related to the workplace. It argues that the hostile environment has significant detrimental impacts on migrant workers, especially those with irregular status, with particular areas of vulnerability for women, and that these impacts and failings in protection contravene international and regional human rights obligations.

The article's next section outlines the main provisions of the post-2012 'hostile environment’, and problematises the assumption that these measures affect only a discrete group of irregular or 'illegal’ migrants. It explores how workplace related measures like criminalising work without status, and data sharing between labour inspection and immigration enforcement agencies, damage migrant workers' protection and fuel susceptibility to exploitation. Section three examines gendered factors that interact with the hostile environment and work, including visa statuses and labour market positioning that can make women more susceptible to irregularity and to workplace violations, as well as specific forms of harm such as sexual harassment.

The final section analyses the identified impacts of the hostile environment against the UK's regional and international human rights obligations. It addresses how barring certain migrants from access to the labour market may violate the socio-economic right to work and/ or the right to a private and family life and considers how poor working conditions, and a lack of access to legal remedy or labour inspection, can breach migrants' right to decent work and undermine protections against forced labour. It also analyses human rights provisions on gender-based violence and harassment, with a focus on two specialist instruments recently ratified by the UK on violence against women (The Istanbul Convention) and violence and harassment at work (ILO Convention 190). While these ratifications signify a renewed commitment to protecting women from violence in the workplace and beyond, the article argues that this is undermined by the ongoing operation of the hostile environment.

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The hostile environment is ostensibly directed against 'illegal’ migrants as a distinct and blameworthy group, seeking to make life in the UK unsustainable through data sharing, criminalisation and restriction of access to necessities. In reality, these measures have an impact on people who are not irregular migrants, and/or whose irregular status is created and sustained by the immigration system through factors like inability to renew a visa or denial of permission to work while awaiting the determination of an asylum or trafficking claim. The measures the hostile environment directs against migrants at work concentrate migrants into precarious, low-paid and unregulated sectors of the labour market and make it more difficult to access justice, enforce rights at work, or exit exploitative situations.

For migrant women, this exacerbates an otherwise precarious situation in the labour market, including a concentration into feminised and hidden sectors such as care and domestic work, and constrained dependency created by restrictive visa schemes, while hostile environment measures and the need to retain status deter the reporting of gendered crimes such as domestic abuse. Even for women with permission to work, the denial of welfare benefits and resulting lack of access to affordable childcare severely constrains employment options. As well as fuelling labour abuses and exploitation, these factors increase migrant women's vulnerability to gendered harms including workplace sexual harassment.

The article has argued that these impacts contravene human rights obligations, which largely remain applicable to migrants even where they have irregular status. As well as clearly universalistic standards in UN monitoring bodies and the Istanbul Convention, decisions of the ECSR and the ECtHR have recognised the need to protect irregular migrants against violations of fundamental rights. Denying access to the labour market for those entitled to remain interferes with the right to work and the right to a private and family life, and the proportionality of justifications is highly questionable since neither the hostile environment nor the ban on asylum seekers working have been shown to meet their stated aims. By pushing work underground and reducing access to labour inspections or remedies for violations, the hostile environment interferes with the right to decent work, which requires fair and equal remuneration, safe conditions and effective enforcement of labour rights. In the interests of decent work and the prevention of forced labour, inspection should be clearly separated from immigration enforcement as well as being better resourced and applicable to all sectors.

Measures that facilitate gendered harm such as sexual harassment and undermine prospects of existing domestic abuse are contrary to human rights obligations prohibiting inhuman and degrading treatment and protecting the right to a private and family life. They also violate duties in the Istanbul Convention and ILO C-190 on the need for effective and universal protection against violence in the public and private sphere. The UK's recent ratification of these conventions is a valuable signifier of the importance placed on safeguarding women from violence and harassment. Yet while the hostile environment remains in effect, with protection attainable only for those with a sufficiently secure position and migration status, their universalistic promise is unlikely to be realised.

Assistant Professor in Employment Law, Durham Law School, Durham University, United Kingdom.