• Lorraine Barrie
Location:
Glasgow
Date:
Friday 11th June 2010
Reference:
SWI2010/017

Lorraine:

I work as a solicitor for Govanhill Law Centre and we were set up in November 2008 to provide advice and representation to people living in the Govanhill area with a focus on migrant workers and minority ethnic communities.

Simon:

So what’s the kind of work that you do in relation to the migrant workers?

     

Lorraine:

The kind of work we do is centered around housing, employment and benefits so we would give advice and represent clients who are having difficulties with their landlord, who were having difficulties having benefit applications processed. We submit benefits appeals, we have raised employment tribunal proceedings against employers for failing to pay wages or making unlawful deductions for things like travel, direct debit charges, those kind of things. All those sort of problems can be quite interlinked because often employment is tied in with housing and the failure of your employer to do something impacts on your benefits so they’re linked all together often.

Simon:

Well firstly, what kinds of areas of employment are you finding people that come to you are occupied in?

     

Lorraine:

The kinds of employment are factory work, food processing, fruit and vegetable processing, working in car washes, working in food shops and restaurants in the local community and cleaning. People who come from the so-called A2 countries, which are Romania and Bulgaria, their scheme is a lot more different from the A8 scheme (which are the majority of migrants in Govanhill) so a lot of Romanian clients are engaged self-employed in cleaning people’s homes and building work where they’re not actually employees, they are deemed to be self-employed.

Simon:

Just briefly, what’s the difference between the A2 and the A8, for somebody that’s not familiar with the terms?

     

Lorraine:

The difference between the A2 and the A8 is about when the member state joined the European Union so the A8 countries joined the European Union in 2004 and they include Slovakia, Czech Republic and Poland. Now if people come over from these A8 countries to work they have to be registered for one year with the Worker Registration Scheme and so basically the UK government and a few governments in Europe restricted the migrants’ access to freedom of movement by putting a criteria that you had to be employed by a registered employer. For A2 countries, which are Romania and Bulgaria, the rules are more difficult.

Simon:

So you mentioned about Workers Registration and this kind of bridges onto the stuff you’ve got here. What are the kinds of legal processes people have to go through when they’re coming to work with regards to stuff like that?

     

Lorraine:

Well, when an A8 worker arrives, within the first month of working they have to send in an application to the Home Office, the department called the Worker Registration Scheme. Now the onus is all on the worker so we’ve had people having problems where their employer has told them: “You’re wrong, you don’t need to register here,” and then two months down the line they find that was wrong advice. Or we’ve had people where their employer has delayed for maybe four, five, six months sending in the form so their work isn’t counted for that period. So to comply with the rules within the first month of work you submit your application, you receive a certificate and you pay £90 for that and then you must complete one year of continuous employment. You can have a short break of thirty days but that’s all you can have. If you change employers you’ve got to register again. You don’t have to pay your £90 again but that’s another loophole that people find difficult because they aren’t told at any stage that they’re required to submit a new application so we’ve had clients who have completed years of work under the impression they’re registered and they’d complied with the rules and then, maybe when their circumstances change and they need to apply for benefits, unfortunately we find that they’re not entitled.

Simon:

Have you come across why an employer would not ... or would tell someone that they don’t need to ...?

     

Lorraine:

I think ignorance might be one aspect. There’s a lot of misconceptions with employers. Some employers can be ignorant of the rules. Other employers, maybe less reputable employers, don’t want to be paying people the minimum wage so we’ve had clients where they’re working forty, forty-five hours a week but on their pay slip it only looks like they’re working eighteen or ninteen hours a week so that can cause difficulties when trying to prove that you’re genuinely and effectively in work.

Simon:

So one of the things you’re talking about is the fact that a lot of the benefits are interlinked and a lot of the forms ... the registration, that people that do one error can often impact on the others. Could you maybe explain some of those links?

     

Lorraine:

I think there’s a misconception that migrants can arrive here and receive the full array of benefits which certainly isn’t the case. If you are in registered work you are able to apply for things like Child Tax Credits, Child Benefit and Working Tax Credits, but you’d only be able to satisfy the tests that the HMRC (Her Majesty’s Revenue and Customs) put down for these benefits if you’re employer gave you pay slips, if your employer gave you a P60, if you did have a bank account, so those are hurdles. Habitual residency is about you physically being in Great Britain. The ‘right to reside’ test for A8 workers is all about being in registered work so if you are working for a reputable employer, you have your registration certificate and you have your wage slips, then you’re going to be able to demonstrate in most cases that you do have a right to reside. But if you don’t work for a reputable employer you’re going to have real difficulty showing that you satisfy the right to reside test.

Simon:

So what is this thing about continuous registration? And the other thing is that the work must be considered ‘effective and genuine’ activities? So you touched on it a bit already but maybe if you could explain in a bit more?

     

Lorraine:

So even if a worker’s able to prove that they are habitually resident in Great Britain and that they do have a right to reside, another hurdle that they come up against is the fact that their employment has to be ‘effective and genuine’ and there’s lots of case laws in the European Union about what this means, but basically if you’re working say two shifts a week, maybe three shifts a week, you’re able to show that that’s genuine and effective work over a certain period of time, quite a short period of time. But if you maybe work for an agency and one week they have lots of work and then they lose a contract and you don’t get any work for awhile, you can’t prove that you’re engaged in genuine and effective work and therefore you wouldn’t be able to claim things like tax credits. We have quite a few clients who used to work, maybe a year ago, they used to work five shifts a week, four shifts a week and now they’re lucky if they get one or two shifts a week and the benefits authorities are able to say that they’re not engaged in genuine and effective activities and therefore they’re not entitled. The definition they call it is activities that are ‘marginal and ancillary’ and we’ve got to sort of unpick that and advise clients that they really need to get into more work and that would bring them into benefits entitlement.

Simon:

Are there clear ways of identifying that or is it down to someone’s judgment?

     

Lorraine:

It depends on the circumstances. There’s a number of cases that taken together define the meaning of right to reside. For example, there’s one called Zalewska, a case called Raulin and a case called Lawrie-Blum and all of these have slightly different circumstances. Generally, if you work two shifts a week we would argue that that’s genuine and effective. We would also argue that ... a mum and a dad, for example, if one’s working one shift a week and the other’s working two shifts a week we would argue that that should be considered genuine and effective work but it really does depend on the circumstances and often, even if the client does have the circumstances and has been working, they don’t have the pay slips, or the P60 or don’t have their bank statement. One of the other difficulties a client can experience is they don’t want to rock the boat with their employer, even though we’ve advised them that there’s maybe a breach of law, for example they’re not getting the minimum wage or their pay slips aren’t accurate. They would rather receive the small amount of money they do get and leave the benefits to one side rather than jeopardise their employment. So people are too scared, too scared to actually challenge these things often.

Simon:

And how long does the ... Firstly, what do you find just generally in terms of how long till someone realises they’re in a bad situation and they actually come to you for help?

     

Lorraine:

It can depend. We’ve had people who’ve arrived on the Monday and been in to see us on the Wednesday because of the circumstances they’ve arrived into. The promises that were made about employment and housing haven’t borne out. Other times it can be people who’ve been here for several years, have never actually completed a year’s registered work either because of faults by their employer or they didn’t appreciate that they had to do that so we have to try and improve their position by saying: “You need to get into registered work, here’s the steps you need to take,” and trying over a period of time to stabilise their situation. Sometimes people can come in for one piece of advice and go away and we don’t see them again. We’ve got clients that we’ve had four, five, six files over a course of a year and a half, just different advice needs coming up which often include benefits and employer difficulties.

Simon:

How long does it ...? Once you actually deal with someone’s case, what’s the sort of average time it takes?

     

Lorraine:

Generally it’s not very fast. It depends on the client’s needs so it can vary. So, for example, your client might come in and say: “I need a P60.” You write to the employer and you get the P60 next week. That theoretically is a possible case. It doesn’t happen very often. If you were taking a case to the Employment Tribunal, for example, for unpaid wages, from the time that you first saw the client to that getting into the tribunal hearing, you’re probably talking about six to nine months and then you would have to think about how you got the money out of the ex-employer as well, so that would run on which can be very difficult for people. We advise clients of their legal rights and it’s very difficult to hear that a case that’s very urgent and important to you, even following the proper steps, could take a year and even if you’re successful in your hearing you may never see your money. So that’s very difficult for people ... Also some migrants are transitory, some want to stay and put down roots in the country, so if people have a bad experience often they can maybe move to another part of the UK for work, just write it off and they lose their money.

Simon:

You mentioned about the registered work. If someone has found themselves in the situation where they don’t have enough registered work time, is it that they just have to find other work? Can they prove past work has been registered at all or do they have to go and find another job?

     

Lorraine:

That’s one of the difficulties, the registration certificate can’t be backdated so even if you have completed a full year of continuous employment and can back it up with bank statements and wage slips, it’s all about when you send your application in. So we have to often tell people that: “The work you’ve done doesn’t count as far as the Worker Registration Scheme is concerned,” and if that happened we would sit down with them, fill out the Worker Registration form that day, tell them to take it to their employer, just get them registered as soon as possible. But that’s very difficult for them to hear.

Simon:

And you mentioned before about families with both partners, in terms of ... we were talking about this in terms of effectiveness but in terms of Workers Registration, can a couple combine their time or is it both people individually that have to have a year’s continuous registration?

     

Lorraine:

It’s all about how you derive a right to reside, so you can derive a right to reside in UK as a registered worker. You can derive a right to reside as a dependant of a registered worker and also if you have been working and you’re classed as a former worker there’s different rules for your status. But in terms of the registration, to answer your question, both people would have to be registered and they would both have to do the continuous work. It wouldn’t be able to be shared over a couple or anything like that.

Simon:

If you can tell me about the language itself that people have to deal with when they’re going through these processes?

     

Lorraine:

Well, language is quite complicated. Benefits claims in general are pretty complicated and intimidating and scary for people, we often find. The kind of language that the benefits authorities and tax authorities are using are phrases like ‘habitually resident’, ‘right to reside’ and those things don’t mean anything in themselves so often a client has to go and take advice, speak to somebody to find out what these mean. Something that compounds the difficulties for clients too is the lack of being able to read English. So if a client’s coming over to work and is confronted with lots of different legal terminologies and definitions, they will need to take advice and often will need an advisor to help them write letters to request information they need to prove they come within these criterias. The fact that it’s complicated I think is borne out by the fact it takes so long for the benefits applications to be processed too, so I think there can be a misunderstanding, not only with clients but with people, say, in the job centre, and the tax office. We know that all tax credits claims go to a complex cases unit which is based in Wick so that tells it’s own story, that the test is so complicated that the tax office don’t allow just the general run of the mill offices to deal with the claims, they all go to a specialist office. And, as I’ve talked about before, they can ask for twenty or thirty pieces of proof to help them ascertain whether you do have the right to reside.

Simon:

Do many people coming through agencies and getting employment through an agency go and work in another company that’s not the agency ... does that create additional complexities or problems with people?

     

Lorraine:

It really does create difficulties for people. Now we only see people when they have a difficulty or they’re looking for advice on their position so I’m sure there are reputable agencies around but we don’t have any dealings with them. There are particular agencies that recruit people to come to Scotland from the Czech Republic and Slovakia. They advertise in newspapers and Internet chat rooms. The leaflets that they have on their website shows fabulous accommodation and make promises about work. It says you don’t need to be able to speak English and really lures people over with the promise of jobs and great accommodation. When they arrive it’s a very different situation they find themselves in and the fact they’ve been told they don’t need to speak English I think is really, really difficult for people because that means they don’t often have the tools to allow them to go out off their own back and get a job in the UK. The agency that we have most dealings with seems to recruit to different factories and even they seem to be recruiting for agencies that place people in factories, so you can have exploitation caused by the agency that brought you here in the first place who also have something to do with your housing again. So you can have difficulties with the agency that they take you down to sign on as an agency worker and you can also have difficulties with the workplace that they place you in. Anywhere down the line we’ve found that if somebody challenges a decision, or seeks legal advice or if they say that they’ve not been paid correctly or challenge unlawful deductions on their wage slip ... If they fall out with any of these agencies they suddenly find they don’t have any work anymore so that’s a difficult thing for people to deal with. Whether it’s on the factory floor or if it’s in your own house, there’s a link there.

Simon:

So people can actually be connected with multiple agencies ...

     

Lorraine:

Yes.

     

Simon:

Dealing with different aspects of their ... not only of their employment but of their general circumstances in the UK?

     

Lorraine:

Yes, exactly. Many of our clients who moved here from the Czech Republic and Slovakia have been promised work by the same people who say they’re going to house them so when they come here and find that there isn’t any employment for them they feel very, very vulnerable in their houses because they can have visits, people saying: “You’re not paying your rent, get out of the house, we’re going to cut off your gas and electricity.” This is despite the fact they’ve got a lease agreement and they’re allowed to stay in the house for nine months or a year. This is really difficult for clients because on the face of it they are accruing rent arrears and they aren’t able to pay their rent which puts their tenancy in jeopardy long-term but it’s because of the actions of the people that brought you here. That’s why you’re not working and there’s lots of different people in contractual relationships involved which can make it a bit difficult for us to try and say: “This particular agency’s at fault,” or: “This particular housing provider is at fault,” because they all tend to hide behind one and other, we’ve found. Companies also seem to change their names all the time and we’ve had clients who are trying to sue a particular company and we’ve find that their name’s changed so we’ve got to rethink what we’re going to do to get the client’s money back. So that’s just a flavour of the difficulties that clients find themselves in and they are absolutely astonished when they find that it’s really difficult for us, for example, getting their deposit back, getting back their month’s rent. It’s a really lengthy process.

Simon:

If someone’s been here, say, nine months and loses their job, what’s sort of situation do they find themselves in?

     

Lorraine:

If they lose their job they would need to find another job within thirty days and then they would need to register that work within thirty days and then their nine months of registered work would carry on and they would have their thirty days gap, the clock would continue to run, as they say. But if they were out of work for say two months, three months, they’ve lost their nine months work and they need to basically register again and start from scratch again.

Simon:

What will their access to benefits be during those periods? What are they eligible for?

     

Lorraine:

There has been a couple of cases, one’s called Baumbast. There’s been a case called London Borough of Harrow v Ibrahim and it talks about if someone’s a former worker, what their entitlement to benefits is. The Ibrahim case involved a partner of an EU worker who had children. The couple separated and their children had already started school. Their children had already started going to school so their children have rights themselves so the case talks about how a former worker, or partner of a former worker, can derive the right to reside through a child who has the right to education. But our view would be different from the view that the government takes. When we saw the Ibrahim case we thought: “That’s great! Loads of our clients will be able to claim benefits because they have previously been in work.” But after that case came out, we believe that the benefits authorities and tax credits authorities were told: “Wait! Don’t process these claims yet. We need to have a think about how we’re going to deal with them.” And I understand there’s been a circular recently released, I’m not sure if it’s around the DWP (Department for Work and Pensions) or the tax office, basically saying that they will only pay benefits in that situation if you’ve been a former worker for more than a year so you’ve gone through that year’s worker registration process. Now, on my reading of the case, I don’t think that’s a consideration, the year’s service, but a cynic might say that the government are trying to restrict the potential claims which isn’t a surprise but there may be further legal challenges. But that just gives you an idea of the sort of labyrinth of difficulties that clients find themselves in, having to work out a way of deriving a right to reside. They may have been here for a long time, they may have been a dependent of a worker which you can see that it’s very difficult for people to work out what they’re entitled to.

Simon:

Do you have any cases of people becoming homeless and having the difficulties that affect you if you’ve become homeless? Let’s say you’ve lost your job and also been thrown out of the flat?

     

Lorraine:

Yes. We have had clients who’ve been made homeless and that is very traumatic because if you don’t have a right to reside you are not entitled to homelessness assistance which means that you could be roofless and sleeping on the streets, effectively. We’ve found that migrant workers are incredibly resourceful and really help each other out so we’ve got a number of clients who’ll have arrived within three or four months of each other from Czech Republic and Slovakia and they, without going into too many details, have been subjected to assaults, terrible abuse, thrown out of houses, unlawfully evicted and they’ve all really rallied round and helped one another, for example, going to stay on the couch in other people’s houses. Somebody maybe moves out a flat, there’s a phonecall to say: “Why don’t you come and live here?” So that’s very difficult for people and you can imagine how if you’re trying to set up roots in a different country and a landlord repeatedly tries to unlawfully evict you, you feel very unsafe and insecure in your own home and the fact that there’s a country member of yours that’s able to step in and help you out is really a lifeline because the council will not provide you with homeless assistance. We’ve had cases of people who’ve arrived here and been subject to terrible harassment by landlords or agents and have said: “You know, I just need to go home but I don’t have any money because I’ve paid it all to this agency!” So we’ve helped the client go to social work and apply for assistance to get back home again, either on the bus or on a flight, and there are regulations about that that give the council discretion to pay for someone to go back home. We’ve found that a lot of people coming over here to work are single and don’t have any children or their children are back home with their partner and the council, as far as we’re aware, point blank refuse to pay for anyone to go home in that situation so often people do some unregistered work casually, save up enough for a bus ticket and go home that way. If a client has children and it was going to be difficult for social work to accommodate children, the social work have duties to children themselves under the Children (Scotland) Act. I think they would be more sympathetic to paying for a family to go home again, but again that would all depend on the circumstances and that particular social work department’s decision. So homelessness is a real fear and it’s one of the reasons that maybe people are reluctant to report breaches of employment and housing rules, because they know there’s no safety net and they’ll be destitute.

Simon:

In terms of the A8 countries, you have countries which have varying economic situations and also varying forms of existing welfare within the countries themselves and people who come are familiar with some kind of welfare system and state support system. To what extent do you see those differences or that prior knowledge in any way showing up in how people ... what expectations they have of the UK or how they feel able to deal with processes over here?

     

Lorraine:

One of the things that’s been most striking in repeated interviews I’ve had with clients is the lack of understanding of the homeless system. Now loads of UK citizens don’t have any understanding of the homeless system because it is really complicated and there’s lots of hurdles to be deemed as unintentionally homeless and have priority needs and all those things but it’s a real learning curve for me as an advisor to speak to people and give them the spiel about homeless accommodation and, maybe ten minutes later, for somebody to say: “I really don’t have a clue what you’re talking about,” and having misconceptions about that or you’ve heard rumours or: “I’ve never heard of it before.” So that’s quite difficult for us because we’re used to people having a very basic common knowledge about the system with which social work functions, with what you can expect from the state, and we find that people from the Czech Republic and Slovakia ... that’s brand new to them and it can be difficult for us to advise them on the best course of action because often clients feel they have to go away and really have a think about what they want to do. For example, if somebody who had lived in the country for many years came to me and said: “My landlord forced their way into my house last night and said if I didn’t leave I would be assaulted.” It would be straightaway from an advisors point of view: police, homelessness application, gather the evidence, “get your belongings out of there and we’ll progress your homelessness application.” But if somebody’s coming from a place of really not understanding what that represents ... The fact that, for example, in Glasgow, if you are placed in temporary accommodation while the council process your homeless application, that can be anywhere in Glasgow, which is also really daunting if somebody has come to an area and there’s a big community in the south east of Glasgow and they feel secure and safe in the south east of Glasgow, to go away to Easterhouse or somewhere in the north of the city is really quite scary and daunting as well. So that’s some of the difficulties people have. As an advisor, I’d be saying: “Your number one priority is to be safe and well. You need to get out of that house.” But when people can’t prove they’ve got the right to reside or don’t have it or are newly arrived, we’re in a position where we say: “Normally we’d be advising you to get out of there but you would be roofless so do you have a friend you could stay with?” So it’s looking at sort of extra-legal solutions outside of the legal system because of the lack of rights that they have.