Detained Migrants Are Workers. They Belong in the Trade Union Movement

by Isaac Ricca-Richardson and Franck Magennis

25 May 2020

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Currently, hundreds of migrants are detained in appalling conditions in immigration removal centres (IRCs) across the country. Rather than treating them as victims devoid of agency, trade unions must start organising as we would in any other workplace; through member-led activity and industrial action.

Before they are detained, the Home Office prevents the majority of asylum seekers and those without immigration status from taking up employment. Robbed of their capacity to legally earn wages, they are forced into lives of precarity and destitution. 

But in a cruel twist, as soon they have been detained, these same migrants are permitted, even encouraged, to work. Worst of all, they are paid just £1 per hour to do so. In return for this poverty wage, they clean the toilets, dispose of waste, staff the kitchens and provide welfare support. 

In response to Covid-19, migrants in immigration detention have even allegedly been asked to intensively clean for just £2 per day, so that the centres in which they are detained can pass inspection. 

The trade union movement has an obligation to start treating detained migrants as workers and to organise and incorporate them into the workers’ movement. This must not replace the fight to close detention centres altogether but instead act as a complimentary attack on the Home Office’s deeply inhumane policies. 

Such organising will be especially important if the Home Office attempts to re-detain migrants on a large scale once the danger posed by coronavirus begins to recede.

The lie of ‘paid activities’.

According to the government, detained migrants are not workers. Home Office policy makes no mention of work, only of “paid activities”.

The policy suggests that these activities form part of detained migrants’ wider entitlement to “participate in activities to meet, as far as possible, their recreational and intellectual needs and the relief of boredom”. This ‘opportunity’ is hinged on the individual’s compliance with both the operator of the detention centre and the Home Office’s attempts to process their removal from the country.

The implicit purpose of all this — the Orwellian replacement of work with “paid activities”, the link to recreational and intellectual stimulation, and the characterisation of activities as privileges — is to avoid being required to treat detained migrant workers as workers.

Once this reclassification is complete, it becomes possible to justify limiting pay to £1 per hour for “routine activities” and £1.25 per hour for “specified projects” — less than one seventh of the statutory minimum wage. 

When introducing the ‘right’ to work in detention, MP Tony McNulty, Labour’s then Home Office Minister, refused calls to provide the minimum wage by suggesting that detained migrants would not truly be working at all because of the “remedial and assistive” character of the tasks they would complete. Legislation was duly passed excluding detained migrants from minimum wage protection. 

But this denial of worker status is wholly divorced from reality. Detained migrants are permitted to work up to 30 hours per week, the equivalent of full time employment. Once they have accepted a role, they are given an ‘Employment Job Description’, setting out their hours, shift patterns and responsibilities. Indeed, between April 2016 and March 2017, detained migrants carried out 887,073 hours of paid work within IRCs. 

The work completed by detained migrants is not confined to “traditional custodial” or charitable activities. Instead, Freedom of Information Act requests show that it includes many of the tasks crucial to maintaining IRCs. Indeed, accounts suggest that the majority of cleaning in communal areas is completed by detained migrants.

However the Home Office attempts to frame it, the simple truth is that detention centres depend on the labour of detained migrants. The for-profit companies operating the centres are contractually obliged to maintain basic standards of hygiene and to feed and provide welfare to detainees. It is only because migrants fulfil those roles that they are able to avoid paying external workers at least the minimum wage to do so. 

Evidence suggests that they save millions of pounds as a result. Moreover, many detained migrants take on these so-called paid activities not for their own stimulation but in order to purchase basic necessities like soap and the phone credit required to call their lawyers, for which the ordinary allowance of 71p per day is insufficient.

The failure of the workers’ movement.

On any reasonable view, these so-called paid activities are a form of work and detained migrants are workers. This is true not only in principle but in law. The relationship between detainee and detention centre is contractual and the work done meets the definition in the Employment Rights Act 1996. The High Court has accepted that the vast majority of tasks fall within the ordinary meaning of the term. 

In spite of this, the union movement has, to date, neglected to challenge the Home Office’s super-exploitation of detained migrants. A movement whose principal purpose is to give power to workers is thereby failing to tackle one of the most extreme power imbalances imaginable; that which exists between workers, paid a pittance and subjected to appalling conditions, and their frequently abusive supervisors, who have the power to retract employment should they resist immigration control.

Faced with the inaction of the British trade union movement, action in this area has largely fallen to lawyers. 

Recent litigation has challenged the Home Office’s policy, albeit on incredibly narrow grounds, including quibbling over whether the pay rate of £1 per hour should have been adjusted for inflation. The challenge failed in the High Court and, just this week, was rejected by the Court of Appeal. In the latter judgment, it was stated that even if the flat £1 rate undervalues the work of detained migrants and is therefore exploitative, it is not unlawful because Parliament did not intend for the true value of the work to be compensated. 

It remains to be seen whether that decision will be appealed to the Supreme Court. But even if the challenge ultimately succeeds, its narrow focus means that the current regime will remain largely unaltered. In truth, legal action is all but powerless to do anything but fiddle at the edges, because the exploitation of detained migrants is authorised by primary legislation passed by Parliament. In such circumstances, direct activism and organising is more likely to produce results. 

The brave women who went on hunger strike in Yarl’s Wood in 2018 formed the backdrop for the Home Affairs Select Committee questioning of Serco, the company that runs the detention centre, and pushed Labour to commit to closing both Yarl’s Wood and Brook House. In other contexts, direct action such as the Strangeways prison riot and rent strikes throughout the 20th century have precipitated sweeping changes to prison and housing law respectively, in a way that legal challenges could not.  

Detained migrants have the clear potential to take industrial and direct action, including strikes to enforce changes to the practical conditions of their detention and to the law itself. The workers’ movement must organise with them to do so.

The obstacles to organising with detained migrants.

The proposal to bring detained migrants into the trade union movement is clearly ambitious and, if done without proper care, fraught with risk. 

As many as half of detained migrants are recognised by the Home Office as being at risk and therefore vulnerable. If workers withdrew their labour without a proper strategy in place, others might be left without the cleaners, kitchen staff and welfare assistants that make life in detention marginally more tolerable.  

Vocal participants in previous actions within detention centres have also suffered reprisals from the Home Office. Five women who led the 2013 Yarl’s Wood protests against forcible deportations were quickly relocated to prison, in a move described by campaign group Movement for Justice as an infringement on the “fundamental democratic right to organise”.

And although the 2018 Yarl’s Wood hunger strike produced results, the Home Office initially sought to silence the protesters by threatening accelerated removal and announcing their names across the detention centre sound-system.   

These risks mean that the impetus for industrial action must come primarily from migrants themselves. The union movement should not direct its new members from the top down, but instead lend solidarity and institutional support to whatever action they choose to take. Those with lived experience must also be consulted throughout, as they know far more about the potential dangers of detention than any outside observer.   

Provided those conditions are met, unions should not patronise migrants by presuming to know what they think or the steps they are willing to take to further their interests. As argued by Asad Haider, author of Mistaken Identity: Anti-Racism and the Struggle Against White Supremacy, we should instead have the humility to ask workers how they perceive their own situation and allow them the space and freedom to articulate their views. 

On multiple occasions across a number of IRCs, detained migrants have shown a determination to take organised action regardless of the risks. It is not the place of the union movement to tell them that they are wrong to do so. 

In addition, the immigration legal sector must be primed to defend the rights of detained migrants in the courts. If the Home Office attempted to defeat industrial action by allowing conditions in detention centres to become unhygienic, there is a clear line of authority suggesting they would be in breach of Article 3 of the ECHR.

Similarly, the detention centre operators would be in breach of their contractual and statutory obligations if they declined to fill the gap left by the withdrawal of migrant labour. 

A further potential obstacle to organising with detained migrants is the temporary nature of detention, as workers may be released or removed from the country at any time. Although this is somewhat unique to detained migrant workers, long-term detention remains all too common. 

In the year ending June 2019, a quarter of those who left detention had been incarcerated for over a month, and three percent for over six months. Until the Home Office changes its inhumane approach to indefinite detention, there will remain a stable basis of individuals who can organise. 

When migrant members are released from detention, it need not signal the end of their trade union relationship. Although undocumented migrants are legally prohibited from working, many of them still do and are often employed by unscrupulous businesses with little regard for fair pay or safe conditions. 

More importantly, the British trade union movement already organises with those who are involuntarily unemployed. Why should migrants who are prevented from working by a racist border regime be any different?  

It is also important to consider the cost of union membership. The same detained migrants who struggle to buy basic necessities will have difficulty affording union subscription. 

Some unions already employ a gradated approach to subscription based on income. While a system of increased contributions from more affluent members so as to subsidise the membership of detained migrants should also be explored. If necessary, the union can directly subsidise categories of workers whose ability to afford membership is obliterated by detention.

A global trade union movement. 

Trade unions must do more to develop a strategy for organising with detained migrants. Doing so will require careful thought and dialogue with those most at risk. But detained migrants are workers, and workers of all nationalities belong in the global trade union movement, united as they are by a shared experience of the institution of wage labour.

Bosses and the Home Office pursue a nationalistic ‘divide and rule’ strategy to split up and disorientate the international working class. The appropriate response to these tactics is international working class unity and material solidarity; a strategy grounded in politics and economics, to which legal action can, at most, play a complementary role. 

It’s high time that British trade unions started to organise with detained migrants on that simple, principled basis: an injury to one is an injury to all.

Isaac is an organiser with Legal Sector Workers United and member of United Voices of the World. He works as an immigration and asylum paralegal and will shortly become a pupil barrister.

Franck is an executive committee member at the trade union United Voices of the World. He is a practicing barrister at Garden Court Chambers.

The authors welcome contact from anybody with lived or professional experience of immigration detention who would be interested in contributing to this project. 

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