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Sex discrimination in British immigration law is likely to get worse after Brexit

The British government’s plans for migration control after Brexit may, if implemented, exacerbate existing sex discrimination in immigration law. My own recent research shows that men are significantly more likely than women to benefit from key migration opportunities – including the ability to work in the UK as skilled labour migrants. Not only do the immigration rules that distribute these opportunities disadvantage women, they may also unlawfully discriminate against them. It is these rules that the government plans to extend and build upon after Brexit.

In a white paper on immigration, published in December 2018, the government promised to “reset the conversation on migration” after Brexit. It plans to achieve this by ending freedom of movement for EU citizens and replacing the current labour migration rules which apply to everyone else with a single, skills-based system.

This system would allow skilled and highly skilled migrants from EU and non-EU countries alike to work in the UK. Those considered low-skilled may be able to work in the UK for 12 months in a route for “temporary short-term workers”. Unlike the skilled workers whose migration the government seeks to encourage, the proposals seek to substantially limit the rights of short-term workers. These workers will not be able to extend their stay or remain here on a different basis. Nor will they be able to bring family members with them or make the UK their home.

Much is still unknown about how the system will work. But one question raised by the proposals is just how much of a “reset” of immigration law they represent.

Migration hierarchies

Non-EU migrants currently need permission to live and work in the UK. Yet, someone who seeks such permission does not receive a straightforward “yes” or “no” answer to their application. Instead, if they are successful, the Home Office will grant them one of a range of migration statuses which determines the length of time they may remain in the UK and for what purpose. It also determines what rights they have while in the country to be accompanied by their family, access welfare benefits and even open a bank account.

Different migration statuses bestow different bundles of rights – and obligations. Some are considerably more advantageous than others. Skilled labour migrants, for example, may work in the UK for up to five years, change employers, bring their families with them and potentially settle here. Domestic workers have no such rights. They cannot change their employer – unless they have been trafficked – and they must leave the UK after just six months. So immigration law creates a status-based labour migration hierarchy which differentiates between labour migrants, advantaging some and disadvantaging others.

Migration law establishes as status-based hierarchy. By Kseniya Lanzarote/Shutterstock

In my research, I reviewed information on the distribution of different migration statuses taken from over a ten year period to see how these hierarchies affect women. I supplemented public Home Office statistics with data obtained by freedom of information request.

I found that certain key family and labour migration statuses are distributed differently to women and men – to the disadvantage of women. While three-quarters of those granted the advantageous status of “skilled” labour migrant are men, three-quarters of those granted the highly disadvantageous status of “domestic worker” are women. Nearly three-quarters of those granted the relatively disadvantageous status of “partner” are women.

In contrast to family migration, labour migration is predominantly male and men are more likely to be at the top of the labour migration hierarchy, as skilled migrants, than women.

Stereotypes about ‘skills’

The rules which distribute these migration statuses indirectly discriminate against women because they are premised on stereotypes.

Labour migration statuses are distributed on the basis of skill. Feminist analyses of the labour market have highlighted the sexed and gendered stereotypes that underlie the categorisations of certain types of work and worker as either low- or high-skilled. Such analyses have also questioned the idea that a person’s “skill” can itself be determined objectively.

Such stereotypes, that women are particularly suited to undertake caring work for example, or that such work is almost by definition, low-skilled, affect almost every aspect of women’s participation in the job market. They are implicated in the gender pay gap, and the devaluation in terms of pay and status of the work that women do, particularly caring work.

As Eleonore Kofman, professor of social policy at Middlesex University, argues the immigration rules that rank “skills” appear to be gender-neutral, but they actually privilege certain types of knowledge, and discount others, in a highly gendered way. I argue that they do so because because the rules that determine who is “skilled”, or not, or who is a “partner” – and what type of relationship this involves – are rooted in stereotypical understandings of women’s and men’s roles and abilities.

Another kind of reset required

Debates about labour migration post-Brexit are beginning to consider the ability of the NHS and others to employ the staff they need if the proposals in the white paper are implemented. My research indicates that the consequences of these proposals could be more significant than is currently appreciated. The establishment of an even more segmented and hierarchical labour migration system which relies on stereotypes to differentiate between workers and which significantly disadvantages those it considers unskilled, is likely to have particularly negative consequences for women.

The ending of free movement will profoundly change the nature of migration to and from the UK. Just one of the potential consequences of this change, the replacement of EU law and the existing rules that enable non-EU labour migrants to work in the UK with a system which may reproduce and amplify those parts of the current system that disadvantage and discriminate against women, has yet to be fully explored. This is concerning not only for those whose right to remain in the UK is currently determined by British immigration law, but all those EU citizens who face being made subject to it following Britian’s departure from the EU.

A reset of British immigration law is required, but it’s not the one that the government is proposing.

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