On 16 August 2017, the UK Home Office published new guidance that includes some paragraphs on pages 38 and 39 about volunteering by refugees and asylum seekers.
I wrote to the Home Office for clarification, and it turns out that the crucial issue is a distinction between ‘volunteering’ and ‘voluntary work’. The Home Office begin the section by saying that ordinary volunteering is permissible.
The remainder of the paragraphs on pages 38 and 39 make an attempt to broaden the usual rules for paid employment so that they apply to internships, unpaid work experience and similar activities. In these settings, the person is not actually a volunteer at all – they are expected to turn up and do the task set before them, and the employer would be aggrieved if they did not do so. There is a verbal or even a written contract that, to all intents and purposes, would stand as a contract of employment. Under normal circumstances, the whole raft of employment law would apply, and the employee would be entitled to the Living Wage, to holiday pay and the other benefits of a job.
So we read in Page 39 of the Home Office guidance, ‘It is likely to be voluntary work if: (i) there is an obligation on the individual to perform the work and in return an obligation on the organisation to provide it. The obligation does not have to be in writing; (ii) The individual is rewarded for that work, either through money or benefits in kind. An obligation to work or receipt of remuneration is likely to mean that the individual is working under a mutuality of obligation. Where there is mutuality of obligation, it is voluntary work. (my emphasis).
This statement makes no sense of one reads it as all about volunteering, but in fact it is all about work – the special kind of work that they label as ‘voluntary’ work.
The Home Office recognises that some practices, such as internships, unpaid work experience and the like have grown up where the usual benefits and protections of employment are not provided. The Home Office view appears to be that, even if there is a way to legally set aside all other employment rights (to the Living Wage, safe working conditions and so on), the Right to Work regulations continue to apply. Thus, the employer has an obligation to check that the person has the Right to Work in this country, and must not offer them a job, or an internship or unpaid work experience (i.e. ‘voluntary’ work) if they do not hold the Right.
The Home Office are clear that all this is not legal guidance, and they are not attempting to offer a legal interpretation or definition of the categories of ‘work’, ‘voluntary work’ or ‘volunteering’. They do state clearly that ordinary volunteering is permissible.
Where things become complex is where roles and activities overlap, and where money is involved. This can happen in many settings, of which the most obvious is a charity shop where the shop manager is salaried, but all the other staff are volunteers. This situation is problematic on two counts, but the first may be disposed of quite easily. A very clear role description for the volunteer and the manager should reveal that their tasks do not overlap, as blurring the distinctiveness of the two roles would raise questions about whether the volunteer is actually doing the manager’s waged job but without pay. Not only would this trigger the Home Office requirements regarding Right to Work checks, but it breaches the Charter with the Trades Unions that volunteers should never replace paid staff.
The second issue arises because the charity shop includes commercial activities and money, even where it is a nonprofit undertaking carried on for community benefit. Here we turn to the government’s interpretation of an obscure part of the Children and Young Person’s Act 1933. Sections 18(1)(a) and 18 (2) (ia) (see here) of that 80 year old legislation state that a person under the age of 14, or in certain circumstances, under 13, may not work. Then section 30 goes on to say that a such a person who assists in a trade or occupation carried on for profit is considered as employed even though he or she may receive no payment. The UK Government Department for Children, Schools and Families considers that in today’s circumstances, “any occupation where the aim is to make a surplus would be considered as a trade or occupation carried on for profit, so unpaid work at a charity shop would count as employment, but not, for example, unpaid work at a youth club.” (DCSF, 2009, p4 – See here). DCSF pointed to this advice as still valid in relation to children when they answered my inquiry in September 2017.
So refugees and asylum seekers may volunteer, but hybrid settings where some people are waged employees and some are volunteers may be problematic, as well as any setting where money is changing hands. It would be interesting to know if these issues have been used to prevent refugees from engaging as volunteers, or whether the regulatory difficulties are quietly ignored and common sense prevails.
Fortunately, the Home Office have clarified and shown that they take a commonsense view. I asked them about situations where nobody is making a profit, it is not employment and the people who get involved are not working…. walking the dog for a housebound neighbour, giving out food at a neighbourhood food bank or helping in a charity shop. Here’s the text of their reply which I received on 14th November 2017, quoted in full, as it is all important to the argument.
‘…the distinction between voluntary work and volunteering is complex, but you are correct to note that where there is no obligation on an individual to carry out the activity in question and they do not receive remuneration or payment in kind, they are likely to be volunteering and, as a result, a Right to Work check is not required.
The Right to Work checks conducted by employers are designed to prevent illegal working, which is often linked to other labour market abuse such as tax evasion, breach of the national minimum wage and exploitative working conditions. It also results in businesses that are not playing by the rules undercutting legitimate businesses who are. The Home Office takes its responsibility to prevent illegal working and related abuses seriously.
As indicated above, when volunteering (i.e. where there is no obligation to do so and where the individual is not remunerated), it is not the intention of the Home Office to prevent individuals from carrying out those activities you describe in your response; all of which constitute valuable contributions to local communities, and facilitate community cohesion. However, it should be noted that it is not the nature of the activity which determines whether it constitutes volunteering or voluntary work, rather its arrangement, and it is therefore possible for these activities to be part of a voluntary work arrangement (for example if it were to be remunerated or with an obligation on the individual to carry out the activity).
Moreover, the Disclosure and Barring Service provides a ‘fingerprint route’ in the absence of formal documents. In this scenario, an applicant would declare that they do not have the necessary documents to demonstrate their identity or Right to Work in the UK. DBS would then ask for a consent form to be signed and then send the information to the person’s local Police Station to have their fingerprints taken. These are then used to check if the person is known to the Police and a DBS certificate can be issued.
So we can be reassured. Volunteering opportunities have not been curtailed, unlike migrant’s access to healthcare (as shown by changes that took effect on 23 October 2017, summarised here), housing and welfare benefits (see here), and right to privacy (see paragraph 4 here), as part of the Prime Minister’s xenophobic hostile environment. A society that asks about eligibility before acting with humanity has started its journey towards the horrors of ethnic cleansing.
Instead, we can celebrate the fact that volunteering by migrants is a positive contribution to society, as was emphasised by the UNHCR report written by Rebecca Tuck in 2011 and the outcome of the 2013 Right to Volunteer campaign led by Refugee Action (see here). For myself, news reports of hostility and rejection merely strengthen my resolve to offer our guests a warm welcome.