Wednesday, 6 July 2011

Work Permits Battle Looms

EVERY Islander will be affected by the biggest shake-up on immigration controls for a generation if the States back radical ministerial proposals due to be debated by the States today. Chief Minister Terry Le Sueur not only wants to overhaul the current system of housing qualifications, but also plans to introduce registration cards which all Islanders must show if they want to move home or get a new job. The aim is to stop people coming to Jersey and working illegally and to keep track of people's movements more easily.(1)

The idea of "registration cards" is quite interesting because when I was researching for my blog entries entitled "The Divided Parish" (on the troubles in St Brelade in the early 1980s), I came across a JEP article by Peter Body (who was then a humble journalist providing general reports for the Jersey Evening Post) was reporting on a big headline entitled "Work Permits Battle Looms".

This was a battle in 1982 between the Policy Advisory Committee (PAC), very much a forerunner of the Council of Ministers, and the Defense Committee (what later mutated into Home Affairs). Senator Pierre Horsfall was the President of PAC, and in favour of work permits, Senator John Ellis was the President of the Defense Committee, and opposed to them. Here is the JEP story (2):

The Policy Advisory Committee determined that are enabling legislation on work permits will be introduced soon -- despite the Defence Committee's refusal to bring the law to the states in its present form. The Defence Committee's objections to the legislation, which was drawn up by the previous committee and is now complete, is yet another delay in the work permits law which was described by the States as being urgent almost 4 years ago.

What is interesting is that the one of the reasons - protecting local jobs - is exactly the same:

The enabling legislation was designed so that work permits could be introduced quickly if the employment situation deteriorated to such an extent that jobs for local people had to be protected.

And then we get the reasons for the delays - today, of course, top civil servants jobs would also be excluded from the provisions of the law. It would be interesting to know if there has been any liaison or comment from the Home Office this time:

First of all, delays were caused by the complexity of the legislation, then there were other delays following objections from the Home Office, who wanted staff employed by the British government organisations, such as the BBC and British Airways, to be excluded from the provisions of the law. Now the Defence Committee who were given the task of presenting the legislation to the States, object to it in its present form, even though the previous committee approved it.

The president of the PAC, Senator Pierre Horsfall, said that his committee -- which originally proposed the legislation -- wanted to go to the States soon. "We are determined that the States decision should be carried out", he said.

The defence committee will be invited to a meeting with the PAC to consider their objections, which the Senator said he did not believe to be insurmountable. They would continue to discuss the matter, he said, but if the Defence Committee refused to bring in legislation to the States then the PAC might have to go to the House and ask for specific Act to force them to do so.

The President of the Defence Committee, Senator John Ellis, said that his committee were not opposed to the idea of work permits as such. "We agree with the principle, but we disagree with the methods of achieving it", he said. Senator Ellis declined however, to give details of their objections, except to say that the legislation as it was formed at present "would erode the traditional rights of Jersey employers." He said that his committee's objections could be overcome by amending a couple of clauses in the law, but he did not say why the committee had not done this themselves.

Few details have been released to the public about the proposed legislation. However, the enabling act is believed to prevent anyone from taking a job in the islands who is not exempted. And exempted person would include someone born in the islands and who has lived here for 10 years, or someone who had been resident in the island for 10 years prior to applying for a work permit.

Certain kinds of employment would also not require work permits, and this could be amended by regulations made by the administering committee. This is another problem, however, because no decision has yet been made about which committee would administer the law and all appear reluctant to take it on.

The States Minutes are relatively silent on the subject, apart from those of 30 November 1982, which are just as uninformative as to what Senator Ellis was about.

Work Permits - draft legislation. Question and answer.

Deputy Maurice Clement Buesnel of St. Helier asked Senator John William Ellis, President of the Defence Committee, the following question -

"Will the President be good enough to give the States the reasons for the continuing delay in the presentation to the States of draft legislation in respect of the introduction of work permits".

The President of the Defence Committee replied as follows -

"The draft legislation in respect of the introduction of work permits has been completed and, as such, is ready for presentation to the States. The Defence Committee, however, as the Committee which it was agreed in 1980 would present the draft Bill, has serious misgivings about certain of its implications and finds itself unable to undertake its presentation at this time. The Committee will be seeking discussions with the Policy Advisory Committee on this matter and when those discussions are completed I will be able to advise the House fully."

Those discussions must have taken an age, and never lead anywhere, for when the matter resurfaces, it is in the Minutes for 16th June, 1987, and there is still no legislation!

But that does raise an interesting question. If people don't have the proposed new registration cards, can they be deported from the Island, as the Immigration laws seem to have followed the UK Immigration Act and applied it to Jersey? Senator Ellis reply does raise some points which might still be pertinent today, and even more so with the EU legislation on free movement of people within the EU, and how far this applies to Jersey:

Work permits and enforcement of visitors who break laws to leave the Island. Questions and answers.
Senator Richard Joseph Shenton asked Senator John William Ellis, President of the Defence Committee, the following questions -
1.  Does the President believe that work permits would help in curbing the numbers of undesirable people flooding into our Island at the      present time?
2.  Is the President in favour of the introduction of legislation whereby any visitor to the Island committing any act of violence or breaking our laws should be forced to leave at the end of his sentence?''
The President of the Defence Committee replied as follows -
1. The purpose of the Protection of Employment Opportunities (Jersey) Law, 1986, adopted by the States on 19th August, 1986, is to deal with situations of unemployment in the Island and in such circumstances to ensure that local people are protected in terms of job opportunities. The Law is not designed to provide a means of immigration control, but I believe that coincidentally, bearing in mind the matters to which the Committee concerned is required to have regard when considering whether to grant or refuse an application for consent to take employment in the Island, the introduction of a system of work permits should be of some assistance in curbing arrivals of the people to which the question refers.
2.  I am not in favour of the introduction of the legislation envisaged by the questioner. To begin with the question is aimed at `any visitor to the Island' and not as residents of the Island of however short a duration. It must be very rare indeed for a visitor to the Island to commit an offence leading to a custodial sentence and to stay in Jersey at the end of his holiday or at the end of his sentence, whichever is the later.  Legislation could not be justified.
However, the question raises broader issues. The legal position is governed by the Immigration Act 1971, as extended to Jersey by the Immigration (Jersey) Order, 1972 and as amended by the British Nationality Act 1981 and the consequential Immigration (Jersey)  (Variation) Order, 1982, which give in simple terms, a right of abode in Jersey to every British Citizen.
British Citizens are free to live in, and to come and go into and from the Bailiwick without let or hindrance.
A person who is not a British Citizen and does not otherwise have the right of abode (e.g. certain Commonwealth citizens) is liable to deportation from the Bailiwick, inter alia, if the Lieutenant Governor deems his deportation to be conducive to the public good. Such a person is also liable to deportation if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by the Court that sentences him.
The suggested deportation of British Citizens would raise fundamental constitutional and other questions relating to nationality, freedom of  movement and the common travel area and so forth, and would require an Act of Parliament. At present the immigration laws of Jersey are fully integrated with those of the United Kingdom, Guernsey and the Isle of Man, and I have no doubt that, on balance, this is vastly more to the advantage of this Island than would the power to deport a comparatively small number of offenders.''

Paul Le Claire would later try to revive the idea of permits in 2001, and the Policy and Resources Committee of the day turned it down on the grounds of problems with Jersey's obligations to the UK and the EU. It will be interesting to see if any similar questions arise from these new registration cards. They certainly appear, from the media release that they will restrict "white van men", and Deputy Sean Power's call that they do not go far enough, to be work permits under another name. Here is what PAC said in 2001:

there are no powers to inhibit from entering Jersey those who have right of abode in the United Kingdom under the Immigration Act 1971 and later enactments. Broadly this includes all European Union and European Economic Area citizens (the EU15 plus Iceland, Liechtenstein and Norway), and certain Commonwealth citizens. This list will be extended when European Union enlargement to the east eventually takes place, after any transitional period, to include countries such as Poland; and when the Overseas Territories Bill, currently before Parliament, comes into force. This, inter alia, extends British citizenship to all citizens of the Overseas Territories. So if one were contemplating work permits as a means of 'immigration policy' it is important to be clear that there is a very large group entitled to come to and live in Jersey, other things being equal.

Work permits per se are not a means of keeping people out; they are, or rather could be, an economic instrument in place of, say, the Regulation of Undertakings and Development Law, whose effect would be to inhibit people in practice from coming to live and work in the Island (if, that is, permits were rationed to a number below indicative job formation - otherwise they would simply encourage entry).

Residence itself, save for economic constraints such as housing or employment rules, is not subject to control in respect of the large group with right of abode; under the Immigration Act 1971, as extended to Jersey by the Immigration (Jersey) Order 1993, those without right of abode in the United Kingdom (or, therefore, Jersey) may live, work and settle "by permission and subject to such regulation and control of their entry into, stay and in and departure from" the Island as imposed by the Act.

This is the basis for the work permit regime currently operated by the Immigration Department in respect of non-European Economic Area nationals such as, for example, those groups of workers recruited lately from places like Poland for the tourism and agriculture industries, and for dealing with one-off applications in, say, the finance or entertainment sectors; under Article 4 of Protocol 3 to the Act of Accession annexed to the 1972 Treaty concerning the accession of Denmark, Ireland and the United Kingdom to the European Economic Community, Jersey must apply the same treatment to all natural and legal persons of the Community.

There is jurisprudence of the European Court (Case C-355/89, judgment delivered on 2nd July 1991), in respect of an Isle of Man case, to the effect that a requirement upon nationals of the European Union Member States who wish to take up employment in one of the Islands to which Protocol 3 applies to hold work permits is permissible provided the requirement is applied to such nationals without discrimination.

It is on this legal basis that the Isle of Man operates a work permit scheme. The legal basis holds even though Isle of Man legislation provides for derogations from work permit requirements in the case of certain types of employment (e.g. doctors and police) which could in certain cases give rise in practice to discrimination in favour of nationals of certain Member States as regarding certain types of employment (for example because of language).

It is a pity the media - and Deputy Sean Power - have been more focused on the emotional drum-beating about immigration, foreign workers coming and paying no taxes or social security (which surely is the responsibility of their employers), and the use of registration to curb it, rather than the legal niceties which may be more dull, but should also be considered.

I would have also thought that a simple change in the law to ensure that subcontractors have to show social security cards before being employed to do jobs for building firms, for example, would put more of the onus on those employing such labour to ensure they are paying social security. If social security was more integrated with the tax office, as happens in other jurisdictions, then the said individuals could also be checked for registration for ITIS, especially if over here for three months or so.

What is also not mentioned, and goes unsaid, in the opposition of Senator Ellis and his committee to work permits, is of course, the historical legacy - the last time there were identity cards was in the German Occupation, where the diligent aliens Officer, Clifford Orange, zealously marked out those individuals as of Jewish origin. The new cards, we are told, are not identity cards, because they do not contain a picture. But once in place, of course, it would be relatively easy to extend their scope, including the use of photographs as well. What is promised, with the limits set in place, and what emerges later, are two entirely different things, and our current crop of politicians - such as those in the Council of Ministers - do not have a particularly good record of keeping faith with the electorate.

(2) JEP, December 1982
(3) States Minutes, 1982, 1987 extracts.


Tom Gruchy said...

The establishment is terrified that successful human rights challenges will be made under the ancient housing and work controls. Therefore it is imperative to rework the discrimination and prejudice into a new framework.
The "card" is simply a left-over from the UKs failed ID card system which was going to impact on Jersey. The UK government had the sense to scrap the whole thing on cost and human rights grounds. Jersey has had no such second thoughts but sees this as the first stage of a very repressive and restricting "information based"
control system

With all the details from several States departments centralized under the Chief Ministers domain the prospect is wholly frightening.

The debate has already revealed that this is clearly just the first stage and with people like Perchard proposing elsewhere that convicts should pay to be in prison - we can only guess where it might lead.
Unfortunately, even "progressives" are revealing their thinly veiled true colours and lining up to impose stricter controls - work permits at the very least - for all sorts of questionable reasons.

For many it is just that Jersey cows have a prior claim to green fields over the working population. A deep seated prejudice that draws on a quaint view of some mythical rural culture under threat from immigrant hordes.
It is just such emotional and ill considered beliefs that can be manipulated by our politicians to justify this latest legislation. How many people have actually read what is proposed?
Yes - we should be afraid but who really cares in this Island? Human Rights? They are for pretty persecuted political people in Burma - not the Channel Islands surely!

James said...

Tom has a lot of useful stuff to say on human rights challenges and the psuedo-ID card. However, he is fairly seriously off-beam in what he says about cows and rural culture.

Firstly: the claim that rural culture is a myth is tendentious. There is plenty of evidence for a culture that was dominant across the island for centuries, and there is equally plenty of evidence (in the continuation of certain community events) that it is still hanging on.

This culture was not unreceptive to immigrants. A cursory check through the Archives will show that numerous families came to Jersey from France and far from being left in some poverty-stricken ghetto, a good many joined the farming community as full members - owners of property. One of the French immigrant farmers was (I think) a contender for President of the RJAHS.

However, there is a real threat to rural culture from immigrants. By this I do not mean working people: rather I mean the wealthy who decide that they want a country lifestyle. This is precisely why pressure needs to be upped on Dep Noel for his half-baked and ill-thought-out comments on 1.1.ks.

Cows are irrelevant to the issue: the Jersey herd is now down below 3000 heads (a century ago it was nearer 10000). But the real issue is this: you can graze 50 cows on a field, but you need a field the same size to support one horse. Who wants to keep horses? Why, the wealthy of course. Who own much of the land that cannot be developed? The wealthy immigrants.

If we are serious about a sustainable Jersey, part of the battle has to be not so much protecting the countryside but making it productive.

Anonymous said...

I think that Tom's sacred Jersey cows are more symblic than mythical James.
It is the green countryside and welly lobby v town plebs and lots of undesirable urban activities that fuels the population control debate.
No need to consider the details, just feel the prejudice.

Nick Le Cornu said...

There was only residual concern amongst States Members for what used to be called the “civil liberties” aspect of the creation of a centralised data base by the state of all islanders. Allusions were made to the period of the Occupation when liberties were severely curtailed by the German forces and the requirement for all to carry an identity card.

For many these concerns were a matter of indifference, so gung ho are they with the “lets close the borders and deport all foreigners” mentality. That this conflicts with the interests of finance to bring in skilled labour as required, is entirely missed.

As Tom Gruchy suggests, this may be the implementation in Jersey of fag end legislation that has been dumped in the UK on the grounds of bureaucratic complexity and expense. The government is profoundly aware that its current laws and restrictions are vulnerable to challenge on Human Rights grounds. They now wish to repackage them in a forma that appears more compliant.

The Crown Officers did obtain legal opinion on the Human Rights compatibility of the legislation, but this has not been made publicly available and was probably not available to the Corporate Affairs Scrutiny Panel that was undertaking a review.

As the implementation of the legislation in practical steps occurs, many islanders will realise the noose that has been placed around their necks. Those right-wingers who shout most for more authoritarian state controls will suddenly wake up. It may be too late.

It will certainly annoy sections of the working class who live their lives with the “its got nothing to do with me mate” mentality and refuse to think politically or vote. The new layer of bureaucratic control may provoke a reaction.

We are surely sleepwalking into something and it may be tyranny.