THE EQUALITY IMPLICATIONS OF BEING A MIGRANT IN BRITAIN
Other cases have covered similar issues affecting, especially, rights against inhuman and degrading treatment for those who have fallen through the gaps in the welfare safety net and have no other options. While many such cases inevitably involve former and current asylum seekers (who may be taking other legal proceedings about their asylum claims and so are already in touch with lawyers, and also avoid the possible argument that they can mitigate the breach of their human rights by going home), it is of note that O v London Borough Of Wandsworth / Bhikha v Leicester [2000] EWCA Civ 201, which is the core case that laid down the essential principles of using community care provisions for the destitute with no access to benefits or housing provision, involved two over-stayers, and also that it pre-dated the incorporation of the ECHR into British law, relying instead on the law of humanity and the belief by LJ Hales that ‘If there are to be immigrant beggars on our streets, then let them at least not be old, ill or disabled’. Human rights legislation has thus become part of the armoury of equality work. It may not, however, be enough. Tummon (2008) is concerned that an approach based more on human rights and less on the fight against discrimination and inequality may fail or be undermined because of a lack of political will. He cites issues such as equal pay, hate crime, high rates of economic inactivity among Muslim women (we might add, especially those with few qualifications and dependent children (Equal Opportunities Commission, 2006)), a clear pattern of marginalised employment among Muslim men, differential educational attainment, and Islamophobia, as too complex to tackle using a simple human rights approach, and others as potentially too politically sensitive to be easy to pursue, among which he includes the treatment of vulnerable migrant workers in agency-based employment. Beyond them, of course, stand the thousands of migrant workers in irregular employment and immigration status. For them, the possibilities opened up by human rights legislation are not only in challenging the extremes of destitution and degrading treatment they may face but also in opening up potential routes into regularisation. Human rights actions may also be their only resource in dealing with discrimination at work: Vakante v Addey and Stanhope School [2005] ICR 231 established that, where a migrant is not compliant with the law on authorisation to work, they have no legal contract and so cannot enforce their individual rights in relation to discrimination at work. Such discrimination, however, is not only a breach of the labour contract, it may also be a tort – a wrong not covered by a contract (unless the tort is inextricably tied up with the contract) – and this can be used to enforce against discrimination. In a recent case, Nabin Basnet v Thai Pavilion (unreported), the Employment Tribunal said it was appropriate to consider a claim of discrimination but went on to find the claim not proven against the employer.
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