Updates, commentary, training and advice on immigration and asylum law
Is it time for a whistleblower visa?

Is it time for a whistleblower visa?

Raising misconduct by or within your employer is a brave and difficult step. You put your financial security, your career and your well-being at risk for the greater good. Often the rewards are nil, if not negative. For migrants there is the additional burden of legal precarity, which is often overlooked. Their entitlement to be in the UK rests on continuing sponsorship by their employer or meeting a financial threshold.

In additional to financial ruin and being shunned by their sector, doing the right thing may mean that they and their family must leave the country.

Immigration protections for whistleblowers are near non-existent. The options available are cumbersome and can dissuade people from acting. And it affects a whole raft of people. This post will explore these issues and propose possible solutions for an effective safety net.

What is whistleblowing?

There is no formal legal definition of whistleblowing in law. The closest we have is the operation of the provisions in the Public Interest Disclosure Act 1998 (“PIDA”). This provides workers with a right not to be subjected to detriment for making a “protected disclosure”. There is also a presumption of unfair dismissal where a person is dismissed or made redundant for making a protected disclosure. Drawing on the legislation, the charity Protect defines whistleblowing as:

A worker raising a concern with someone in authority — internally and/or externally (e.g. to regulators, MPs, the media) — about wrongdoing, risk or malpractice that affects others.

In its 2019 report, the APPG for Whistleblowing stressed the benefits of whistleblowing:

The information disclosed can help prevent harm to the fundamental values of society, including individual rights and liberties, justice, health, economic prosperity and stability, and can help build a culture of integrity and accountability in business and public institutions. Whistleblowers are, therefore, a vital element of a transparent society.

Though it covers several areas of criminality and wrongdoing, the statistics on fraud are perhaps the most revealing. Drawing on National Audit Office data, the APPG’s 2022 report highlighted that between 43% and 47% of serious economic crimes were exposed by whistleblowers. This was compared to 19% of fraud uncovered by professional auditors. “To put that into perspective, whistleblowers alone uncover fraud to the value of around half of the NHS budget (£136bn) every year”.

But whistleblowing is not limited to massive public companies in Silicon Valley or the City of London. The benefits and consequences – which as we will see are significant and devastating – are felt across sectors. Of around 1,000 whistleblowers that contacted Greenwich Universities’ advice line, 15% worked in the in health sector, 14% in care and 11% in education.  

Experience of whistleblowers: the research

Whistleblowers often feel as though reporting wrong-doing is part of their job. Yet they can quickly face hostility from their colleagues and employer. As the APPG notes:

The person of integrity is then subjected to life-changing harm from the offender’s menu of punishment: abuses of the complaints system, subjected to false allegations, isolated, bullied, harassed, intimidated, slandered, libelled, defamed, dismissed, or any combination of the above and more

In its report, Silence in the City 2, Protect found that 70% of financial services workers that had used its advice lines between 2017-19 had been victimised, dismissed, or forced out of their jobs. Of those that did report, 47% did it within the first two years’ service (the APPG’s 2020 Report found that almost 40% of whistleblowers at the ET had spent less than two years in post). Researchers at Queen’s University Belfast found that 63% of respondents were dismissed and 28% had resigned. The average whistleblower they spoke to was out of work for an average of two years. 67% experienced a drop in income pre- and post-disclosure. The APPG found that 85% of whistleblowers suffered from conditions such as anxiety, depression and PTSD.

When it comes to solutions, it is also therefore important to be mindful of the practicalities. In reality, very few whistleblowers benefit from PIDA. Claims are expensive, complex, and there is an inequality of arms. The APPG had received multiple quotes from lawyers for a “straight-forward” whistleblowing claim in the Employment Tribunal (“ET”). These ranged from £75,000 to £100,000. Even where cases went ahead, only 4% of claims were successful. Its 2020 report the APPG noted that over half of ET cases took over two years. One in five too over three.

There is also a dearth of awareness. In a YouGov survey commissioned in 2021 by Protect, only 43% of respondents knew their employer had a whistleblowing policy. It highlights a significant gap in workers’ understanding of their rights and how an employer should act.

These consequences are enough to have a chilling effect on those who might want to raise concerns. But as the scenarios below show, there are immigration consequences that unnecessarily throw a person’s life into further instability and precarity.

Case studies: immigration consequences of blowing the whistle

How does this play out in practice? The following three imagined scenarios are practical examples of issues people may face and how immigration law acts to dissuade disclosure or cause real hardship. They all find themselves in very different situations but there is one thing in common. The end of their employment is for reasons out of their control and leads to precariousness in their right to remain.

Case 1: the Skilled Worker

Mr Banker is an American national. He has been a compliance expert sponsored under the Skilled Worker route by XYZ Bank for 4 years. XYZ is a boutique bank based overseas with a small FCA-regulated branch in London catering to high-net-worth individuals. Mr Banker took the job with a view to settling permanently in the UK and bought a house with a mortgage.

In the course of his work he discovers that two members of XYZ’s staff are helping people to invest money in breach of sanctions. He confronts the staff, raises it with his seniors, contacts the FCA and also makes a suspicious activity report. The following day XYZ terminates his employment on the grounds of poor performance. He is not allowed to access his computer or emails and is marched out of the office. Frustrated, Mr Banker goes to the press and his case is widely reported. Some years later, XYZ is fined. The staff are subject to criminal investigation. 

Where a sponsored worker is dismissed and their employment ends earlier than the date shown in their certificate of sponsorship (“CoS”), the sponsor must notify the Home Office within 10 working days (para. C1.12 of Part 3 of the Guidance for Sponsors). Mr Banker’s leave to remain may then be curtailed by the Home Office under para’s 9.25.1 and 9.27.1(b). These are discretionary provisions and are assessed in line with the its guidance, Cancellation and Curtailment of Permission (the “Guidance”). Unless the caseworker considers there are reasons to cancel immediately, Mr Banker’s status will be curtailed to 60 days from the date he is notified by the Home Office: see p.53 of the Guidance. Armed with XYZ’s notification on the sponsor management system (“SMS”), this is what they do. Yet even if his leave was not curtailed, the end of his employment means he is ineligible for indefinite leave to remain under the Skilled Worker route: see para’s SW 24.2-3 of Appendix Skilled Worker.

With 60 days’ leave, Mr Banker looks for a new job but finds it difficult. A recruiter confides in him that the press coverage has led to him being black-listed within the sector. In other roles, prospective employers are unwilling to sponsor him or the salary is too low to meet his out-goings.

He seeks immigration advice and is told that his only other option to stay in the UK is for him to apply for leave to remain on human rights grounds. For this, he must show “very significant obstacles” to his integration into the US which he is told will be very difficult to establish. These decisions take several months to be decided and may be certified as unfounded by the decision-maker. This would mean that he could only appeal the decision outside the UK. With an appeal, it may take up to two years to be decided. He would not know his fate for some time.

Wanting to move on with his life, Mr Banker decides to leave the UK. He disengages from the police investigation and they are unable to contact him. This makes the resulting prosecution of the sanction-busting staff far more difficult.

Case 2: the exempt person

Ms Diplomat is a cultural attaché at the Embassy for the Republic of Croydonia in London and has been in post for eight years. She took the posting with a view to staying in the UK permanently. Her children were both attending secondary school and intended to go to university in the UK.

Early on in her presence in London, she sought advice on how to get indefinite leave to remain. She was told that after 10 years she could apply under the long-residence route. On reaching 10 years, she would need to end her posting, wait for 31 days to expire, and apply while she had 90 days’ deemed leave under section 8A of the Immigration Act 1971. Providing there were no problems with her absences and she passed the relevant tests, the matter would be straightforward.

Ahead of an important event at the Embassy, she has been working closely with the recently appointed Ambassador. He is closely connected to the ruling party that have been known to punish political dissidents. Their meetings take place at his residences. While waiting for these meetings, Ms Diplomat often speaks to one of the domestic workers. After a couple of meetings the worker confides that she and her colleagues are forced to work for no pay and are often beaten by the Ambassador. They live in an out-house in squalid conditions. It is clear that they do not know their rights or how to access any form of help. They exchanged numbers and Ms Diplomat started to receive photos of cuts and bruises, the accommodation, along with voice recordings of the Ambassador shouting abuse.

Ms Diplomat knew that her posting would be terminated if she raised what she knew with anyone and the Ambassador found out. She also knew that it was highly likely that she would be imprisoned if returned to Croydonia. Her immigration advisor told her that she could apply for asylum or humanitarian protection. However, this process could take several years. In the case of a claim for asylum, she was told that it is likely that she would be unable to work and would be forced to subsist on destitution-level support in squalid accommodation or an asylum camp.

The other option in her mind is to say nothing and wait two years before getting indefinite leave.

Case 3: the Appendix FM migrant

Mr Cleaner is a British national employed by A. Carehome Limited (“ACL”), a specialist care home for those with serious disabilities. They are in a small village in Cornwall. His wife is Vietnamese and has status under Appendix FM. ACL pay him an annual salary of £22,000 p.a. He has worked with ACL for several years and they pay him comparatively well. Others in the region pay £16,000 or only need part-time assistance. ACL had also informally offered to provide training so that he could become a specialist carer. The couple have no savings.

During a shift he sees a senior manager abusing a resident. He confides in a colleague that says the manger is well-known for mis-treatment. Mr Cleaner goes to a separate manager and reports the abuse. An investigation takes place and no further action is taken. Since the report, Mr Cleaner has found that his shifts have become more unpredictable and that he is often put on to work night shifts. This puts a strain on his relationship. The opportunity for training was also denied because of funding constraints. Yet Mr Cleaner learns that his colleagues were being given the training.

Finding work unbearable and sensing that they are trying to push him out, he weighs up his options. He wants to contact his MP and the local paper but feels this may lead to him losing his job. The other option is to simply quit and move on. Before deciding, Mr Cleaner consults the Immigration Rules. Under Appendix FM, he must show an income of £18,600 to sponsor his wife. For this, per Appendix FM-SE, he must provide 6 months’ payslips and a letter from his employer. If he stops working (and even if he works elsewhere in the area), he cannot provide this evidence. The other option is to apply for leave under the “10-year route to settlement”. This is highly uncertain as he would need to show “exceptional circumstances” that would lead to “unjustifiably harsh consequences” for his partner and him. Even if this is successful, Mr Cleaner faces several years of paying thousands of pounds to the Home Office.

Possible solutions

Workers from overseas make up a significant portion of the UK’s workforce. In 2021, there were nearly 240,000 work-related visas granted by the Home Office – a 110% increase from 2020. This does not include students that work around their studies or those on other visas, such as Appendix FM. Nor does it identify dependants or the partners and children of workers affected by their British sponsors employment. The examples above show an urgent need for additional support.

Readers of this article may take the view that there are solutions in the human rights and asylum provisions within the Immigration Rules. And that would be right in the black letter sense. Asylum and insurmountable obstacles have been mentioned. Yet these throw the whistleblower and their family into greater uncertainty. In addition to the hostility of their former employer, they face additional scrutiny by the Home Office and often a significant wait. If we are to encourage whistleblowing there must be explicit, rigid provisions on which a worker and their family can fall.

Any solution should therefore reflect the consequences to a whistleblower. At one level, this may be provision of a waiver of certain requirements. Obvious to the above would be for a caseworker to ignore the financial or work requirement in appendices FM and Skilled Worker. Yet this would not help people such as Ms Diplomat whose status in the UK is nuanced and complex.

There is also an issue of evidence. The success-rate in the ET does not reflect the number of those who ought to fall within PIDA or otherwise be considered as whistleblowers. Even if a person pursues a claim, it may take several years before it goes before a judge. What can a person provide? Mr Banker has the benefit of press reports, but what of a person suddenly shut out of their emails and frog-marched from the office? From the Home Office’s perspective, how does one stop spurious applications by those who simply resigned or were rightly dismissed. Speaking to the Sponsor would make things worse and require the Department to reconcile conflicting accounts.

In my view, the best model would be to follow the principles underlying the provisions applicable to victims of domestic violence (“DV”). A worker or their family subject to any route should be able to apply for indefinite leave to remain where (i) the worker has raised wrong-doing within the work-place; and (ii) they have been dismissed or felt compelled to resign within two years. In respect of evidence, the Home Office ought to apply a lower standard of proof and take steps to interview the worker where necessary. This may involve putting notes input by the Sponsor on the SMS to the worker. The Home Office should adopt a “minded to grant” position unless there are cogent factors that suggest otherwise.

This may be wishful thinking but belies an important point. Immigration protection for whistleblowers needs to be strengthened if the government wish to take their rights seriously and realise the benefit of those that highlight wrong-doing within and by their employer.

Joseph is an immigration caseworker at Paul L Simon Solicitors. He is due to start pupillage at a criminal, regulatory, and public law chambers in October 2022.