By Dr Katie Bales, Lecturer in Law (University of Bristol Law School) and Dr Lucy Mayblin, Assistant Professor in Sociology (Department of Sociology, Warwick University).*
In June 2017, ten immigration detainees launched a judicial review action against the Home Office challenging the payment of ‘slave’ like wages for labour undertaken within immigration detention.
This practice, termed ‘paid work’ by the Government, is remunerated at a rate of £1.00 or £1.25 per hour and includes work as cleaners, cooks, hairdressers, gym orderlies and gardeners – roles that are essential to the running of the immigration removal centres. In 2014 this practice resulted in 44,832 hours’ worth of work.
In this blog, we argue that this work is exploitative and ‘unfree’. In recognition that many detainees wish to work however, we do not call for an end to this practice; rather we highlight the structural conditions that render detainees more likely to accept exploitative conditions of work (including but not restricted to low pay), and argue that, at the very least, detainees should be provided with the national minimum wage.
The Government justifies the payment of low wages on grounds that ‘paid work’ is in the detainees’ interests as it ‘prevents boredom and frustration’ and that paying them a higher rate would not ‘reflect the true economic value of their labour’. Yet the Government stands accused of having another motivation for creating a system of ‘paid work’ within immigration detention: utilising cheap labour which potentially saves the private corporations running the detention estate up to £1.5million in annual savings: money that would otherwise be spent on paying the workers the national minimum wage.
At present, the majority of immigration removal centres in the UK are outsourced to private corporations such as G4S, GEO, MITIE and SERCO which makes immigration detention a highly profitable sector of the incarceration industry. Unsurprisingly, the UK has one of the largest immigration detention estates in Europe. In the year ending September 2016, for example, 29,762 people were indefinitely detained, some of whom had been imprisoned for over two years. Though immigration detainees have not committed any crime, their detention is justified on grounds that they are prima facie offenders against the immigration rules. While the majority of those detained are refused asylum seekers, a number of other groups are subject to immigration detention, including (but not limited to) visa overstayers and those in breach of visa conditions.
Despite the huge costs to the taxpayer, the UK’s detention estate has grown considerably over the last two decades: from a capacity of 250 detainees in 1993 to over 4000 in 2017. In 2013/14, the average daily cost of detaining one person was £98.70 (the equivalent of £36,026.00 per year) which far outweighs the costs of less draconian methods to avoid absconding. Bacon links this growth in the detention estate to its privatisation, resulting in a system in which private companies have a vested interest in keeping detention levels high.
‘Paid work’ was introduced by Blair’s Labour Government in 2003 as a means of preventing boredom and frustration amongst detainees but, concerned that detainees would be regarded as workers (and thereby entitled to a range of employment rights), the government excluded immigration detainees from national minimum wage protections. A Freedom of Information Act request made in August 2016 revealed that detainees satisfy all the legal requirements for recognition as an employee and that ‘paid work’ has many of the hallmarks of regular employment–such as employee agreements, time sheets, breaks, sick pay. Yet despite the fact that detainees perform the same jobs as their citizen counterparts, they are paid at a rate of 13% of the national minimum wage. Their low pay has nothing to do with the value of their work but is solely due to their vulnerable immigration status, an unfortunate paradox for a Government aiming to combat modern slavery and reduce exploitation.
Ironically, detained migrants are prohibited from engaging in employment outside of detention which is justified as a form of deterrence and protecting ‘British jobs for British workers’. Yet detention centre practices in which detainees work for low pay, potentially displacing British workers, conflicts with this position. Though the Home Office maintains that detainee labour is not replacing that of paid staff, and exists merely to ‘alleviate boredom’, why focus solely on activities which render detainees complicit in their own incarceration (as cleaners, cooks, and handymen)? Perhaps because those running the immigration removal centres benefit twice over from the ‘paid work’ system: they use cheap labour to provide essential services in the centres and avoid the provision of leisure activities to relieve boredom (such as language classes, exercise and crafts) which would cost money.
On Thursday, June 29, the High Court granted ten immigration detainees permission to bring a judicial review claim against the Home Office. The grounds on which the claim is being brought remain unknown, but it seems likely that the claimants will rely on Article 4 of the European Convention on Human Rights and its prohibition of slavery and forced labour. The legal threshold of ‘forced’ labour however is set high and overlooks many of the economic and structural pressures that might coerce someone into agreeing to perform underpaid work.
Regardless of the legal claim’s outcome, the ‘paid work’ system is exploitative and although ‘consensual’, should not be regarded as free. This is because a number of factors, such as the experience of destitution outside of detention and the threat of deportation, mean that detainees are likely to agree to work in spite of exploitative conditions such as low wages.
Outside of detention, detainees are prohibited from working and face criminal sanctions if they are caught doing so – many detainees will end up in detention for this very reason. As a result, engaging in ‘paid work’ in centres is the only form of legal employment that this group can engage in without the overarching fear of prosecution. In addition to restrictions on working, the majority of detainees are prevented from accessing welfare benefits or social housing which ultimately results in destitution.
The need to work to pay for goods and services whilst in detention is cited by many detainees as a motivating factor to work, as is the need to send remittances to family members outside of detention. Of course we also cannot ignore the fact that detainees working within immigration removal centres are incarcerated. The compulsion to work in detention as a means of earning money is not therefore a voluntary choice made within a suite of options, there is no other option.
The uncertainty of immigration status also renders individuals precarious and susceptible to exploitation. The fact that detainees could be deported back to their country of origin at any given time and the insecurity that arises from their ‘deportability’ frames detainees’ engagement in employment.
Conditions of detention are also relevant here. Detainees are physically immobilised and isolated from society, many of whom are incarcerated within immigration removal centres that mirror category B style prisons. Detention conditions have been subject to constant criticism, particularly from the detainees themselves, who have made repeated allegations of sexual abuse, inhumane and degrading treatment, racism and malpractice on behalf of guards.
Such behaviour was recently exposed in a Channel 4 documentary during which SERCO guards were caught describing detainees as ‘animals’, ‘beasties’ and ‘bitches’. This context and the inherent power imbalance between the detention centre and the detainee cannot be ignored when assessing the freedom with which detainees’ ‘consent’ to underpaid labour.
When assessing detainees’ consent, we must consider the wider context of immigration controls, criminal sanctions, socio-economic conditions and detainees’ vulnerability to deportation. Of course the multi-million-pound corporations running the immigration detention estate would like us to think that consent renders this labour non-exploitative, in keeping with the neo-liberal logic that fuels the profit-making industry of incarceration. This logic is contradicted by the purpose of the national minimum wage legislation, which was introduced to redress the inherent power imbalance between employee and employer – an imbalance that is no more apparent than between captive and captor. All the more reason, then, why the national minimum wage should be paid to all immigration detainees engaging in ‘paid work’.
* This post was first published by Discover Society on 2 August 2017.