1. Labour migration after Brexit: New questions, new answers?
Bernard Ryan
School of Law, University of Leicester
‘Migration after Brexit: the challenge for labour standards’
Institute of Employment Rights:
15 March 2017

2. Migration and employment law after Brexit
Previous Institute of Employment Rights work:
Labour Migration and Employment Rights (September 2005)
Background of optimism about openness to migration
Labour migration in hard times: Reforming labour market regulation? (November 2013)
Background of pessimism about migration policy - linked to numbers, ‘austerity’, policy on non-EU migration, doubts over EU membership
Greater awareness of specific challenges in labour market: a legal right to work not a panacea; enforcement of contracts/ rights a key problem
Implications of ‘hard Brexit’?
Pessimism over migration appears triumphant
Majority of voters + Government giving up single market membership, in order to gain sovereignty over migration, accepted by Labour Party leadership
Yet, significant migration is almost certain to continue
Legal status of migrants likely to be weaker (temporary/ conditional work statuses)
And: little prospect of strengthening of employment standards regime

3. Increase in migrant employment
Employment by country of birth (LFS, United Kingdom, thousands)
Q1 1997
Q1 2004
Q4 2016
Change
Total
26,245
28,327
31,916
+ 5,672 UK
24,323
25,738
26,369
+ 2,046
Non UK
1,921
2,593
5,543
+ 3,622 %
7.32
9.15
17.37
EU27
638
746
2,304
+ 1,665
2.43
2.63
7.22
+ 4.79
EU14
565
620
929
+ 365
2.15
2.19
2.91
+0.76
EU8+EU2 28 75
1,336
+ 1,309
0.11
0.27
4.19
+ 4.08
non-EU
1,283
1,847
3,239
1,956
4.89
6.52
10.15
+ 5.26
Source: Labour Force Survey. United Kingdom.
Increase in foreign-born employed of 3.6 million. Employment of UK-born has increased by 2 million. Foreign-born share of employed increased by 10%: 5% non-EU, 4% EU8+EU2, 1% EU14

4. What link to flexible labour market?
Many factors contribute to the increase in labour migration:
Increase in available labour abroad: skills, means to get here, legal rights in EU
Ease of entry to labour market: English language + migrant networks
Simply linked to expansion of economy (as it has grown, so has employment)
Lack of British/ resident labour for less attractive work (ageing, education patterns, etc)
International sectors requiring international labour
Cost pressures in all sectors
Post-1979 flexible labour market also plays a part:
Emphasis on freedom of contract over core questions: pay/ time/ form of employment
Rise in non-full-time work: part-time, agencies, zero-hours, labour-only self-employment. Tending to weaken de facto job security
Collective bargaining/ trade union representation weaker and narrower
Contracts and rights difficult to enforce (e.g. tribunal fees, lack of labour inspectorate)
Weak regulation leaves employers freedom to take opportunities given by labour market - the availability of migrant labour is a major opportunity
Enables expansion of certain forms of economic activity
Migrants may be prepared to accept less attractive work, or poorer wage-work bargain, or may find it harder to enforce rights (for social and legal reasons)

5. Evidence concerning labour market impacts
Migration Observatory (2014) shows high shares (30-40%) in lower-skilled process occupations, cleaning, food preparation/ hospitality. Also health professionals = 28%
Qualitative evidence of employer preference for migrants in certain sectors – Adams et al, Recruitment in Britain (2016, Equality and Human Rights Commission)
No evidence of displacement effects in post-2008 recession: see Devlin et al (Home Office/ BIS, 2014).
Some evidence of reduction in average wages, in lower-skilled occupations only: see Nickell and Saleheen (2015): suggest on average 10% increase leads to a 1% fall, rising to 1.8% in case of lower-skilled.

6. Perspectives on labour migration and employment regulation
High
Economic liberalism
Labour supply benefits of migration
Flexibility in labour markets
Benefits to national workers as consumers
Popular
nationalism
Costs of migration to identity/ social provision
Regulation of labour markets (only) to prevent abuses
Egalitarianism
Rights of migrants to work and then to equal treatment
Regulation of labour markets to benefit/ protect all workers
Labour protectionism
Labour market competition due to migration
Regulation of labour markets to benefit/ protect British workers
REGUL
High
MIGR
ATION
TION
Low
Low

7. Three (unfashionable) perspectives …
Economic liberalism
: dominant political outlook in relation to migration
Emphasis on flexible labour supply from EU + ‘selective migration for non-EU
Concessions to public opinion: points-based system (2005-), employer civil penalties (2008), Conservative net migration target, Coalition reforms to labour migration ( )
Employment law regime retained and expanded in parts (minimum wage)
Egalitarianism
Accepts legitimacy of migration for work, and seeks equality of treatment (legally and de facto) in labour market
Miliband-led Labour Party advocated labour market reform within migration policy debate ( ), focused on avoiding pressure on wages and conditions.
Labour protectionism
Seeks to limit migration and to regulate to protect national workers
Remains present within Labour Party/ trade unions (e.g. ‘Labour leave’)

8. … and a fourth which currently dominates
Contemporary/ popular nationalism
Emphasis on migration’s ‘damage’ to communities and social costs
Theresa May, Conservative Party, 6 October 2015: “when immigration is too high, when the pace of change is too fast, it’s impossible to build a cohesive society. It’s difficult for schools and hospitals and core infrastructure like housing and transport to cope. And … for people in low-paid jobs, wages are forced down even further while some people are forced out of work altogether.”
Consistent with selective and conditional labour migration policy.
For example, since 2011 restrictions on settlement for Tier 2 economic migrants earning below £35,000 – blocks route to full participation in labour market/ society
Regulation focuses on abuse in employment and criminalisation:
Modern Slavery Act 2015: offences including forced labour and trafficking for ‘exploitation’, which includes ‘securing services … by force, threats or deception’
Immigration Act 2016: Director of Labour Market Enforcement + renamed Gangmasters and Labour Abuse Authority

9. Further thoughts Pre-referendum …
My view was that employment law reform critical if a ‘remain’ decision. Labour market regulation then the only way (1) to address labour market challenges of migration and (2) to promote public acceptance.
That implied creative approach to (a) equal treatment and (b) raising of standards in labour market: e.g. collective agreements, de-casualisation, labour inspection
... currently
High levels of labour migration likely to continue – consensus on the need in many sectors (from agriculture, care work, hospitality, NHS, higher education, science, finance)
Employment law reforms needed more than ever
Sceptical that ‘criminalisation’ approach of Immigration Act 2016 the way forward – likely to address extremes, and not designed to protect workers as such
Need for employment law values in design of immigration policy – especially power to change employer, acquisition of indefinite leave
Also, in shaping employer checks against irregular work by migrants – these likely to become more significant, as number of migrants with full rights to work declines
Politically, is it possible to move from nationalism to an egalitarian perspective?