Supreme Court allows appeal for trafficked domestic worker on Anti Slavery Day 2017

Supreme Court allows appeal for trafficked domestic worker on Anti Slavery Day 2017

 18 October 2017

Kalayaan is delighted that on Anti Slavery Day 2017, the Supreme Court has handed down judgments in two cases in which domestic workers in diplomatic households challenged the immunity of their employers and that the domestic workers have won in both cases.

Ms Reyes, a claimed victim of trafficking who had been exploited in domestic servitude, brought a claim before the Employment Tribunal against the Saudi Arabian diplomat and his wife who had employed her. She claimed she had suffered racial discrimination, harassment and had not been paid the National Living Wage. The Employment Appeal Tribunal and Court of Appeal upheld the defence of immunity raised by her employers and refused her claims.

In its judgment, the Supreme Court allowed the appeal on the basis that Mr and Mrs Al-Malaki are no longer shielded by immunity because his posting in the UK finished, the employment of Ms Reyes was not in the course of his official functions and, as such, no residual immunity could apply.

Although it was not necessary to decide the case, the majority of the Court (Lord Wilson, Lady Hale and Lord Clarke) expressed the view that the law has developed since the 1961 Vienna Convention on Diplomatic relations, so that today human trafficking should be regarded as a ‘commercial activity’ outwith diplomatic immunity, when it comes to challenges in the civil courts, even while the diplomat is in post.

Kalayaan intervened in proceedings in the Court of Appeal and the Supreme Court and provided the court with evidence to demonstrate that trafficking in human beings is inherently commercial and that it is outside a diplomat’s official functions.

Consistent with the internationally accepted definition of trafficking in human beings, Kalayaan argued that all persons who knowingly engage in trafficking, from recruiting a domestic worker through to the acquisition and receipt of a person are treated in law and policy as equally engaged and complicit in the activity.

Kalayaan provided valuable evidence to the Court setting out how all the links in the chain of the illicit trade of human trafficking fuel the exploitation of people such as Ms Reyes. The Court specifically referred to Kalayaan’s evidence on how diplomatic agents can exploit their domestic workers with impunity relying on their diplomatic immunity.

Meanwhile in the case of Benkarabouche, Ms Benkarabouche was employed in the Sudanese embassy in London as a member of the domestic staff, Ms Janah in the Libyan Embassy. Following dismissal, they issued claims in the Employment Tribunal but the States of Libya and Sudan claimed immunity.  The Supreme Court upheld the judgment of the Court of Appeal that State immunity did not stop Ms Benkarabouche and Ms Janah bringing claims.  Insofar as the State Immunity Act 1978 said that it did, it was incompatible with their right to a fair trial under Article 6 of the European Convention on Human Rights and their employment law rights derived from EU law.

Avril Sharp, Policy Officer for Kalayaan says:

 These cases were about access to justice for domestic workers, including those who had been trafficked to the UK and exploited in domestic servitude and forced labour. Human trafficking and modern slavery are grave human rights violations. We are very encouraged by Lord Wilson’s comments that “the relevant “activity” is not just the so-called employment but the trafficking; the employer of the migrant is an integral part of the chain” and that exploitation drives the entire exercise from recruitment onwards.

 Kalayaan will continue to support domestic workers and assist them to bring cases before the employment tribunal to ensure their employers are held to account. Diplomatic immunity should not act as a bar to enforcing rights and is at odds with the UK’s stated aims of combatting and preventing modern slavery. We hope that when the case is remitted to the Employment Tribunal Ms Reyes will finally be able to achieve justice.  

 Zubier Yazdani, partner at Deighton Pierce Glynn who represented Kalayaan in Reyes says:

These successful appeals represent a significant inroad into chipping away at the veil of immunity that has so far shielded diplomats who have trafficked their domestic workers.

 The Court in Reyes held that employing a domestic worker to perform the kind of work that Ms Reyes did was not within a diplomat’s official functions and that therefore Mr and Mrs Al-Malki could not claim immunity once Mr Al-Malki had left his diplomatic post.

 The binding part of the decision did not confront whether the trafficking of a worker by a diplomat was a commercial activity.

Lord Wilson, Lady Hale and Lord Clarke expressed the view that that there were good reasons why domestic workers in Ms Reyes’ position should be given a remedy. As Lord Wilson stated,

‘.. it would be a strong thing for this court to diverge from the US jurisprudence …… and to adopt the robust interpretation of article 31(1) for which Ms Reyes contends. On the other hand it is difficult for this court to forsake what it perceives to be a legally respectable solution and instead to favour a conclusion that its system cannot provide redress for an apparently serious case of domestic servitude here in our capital city.’

The Supreme Court has left the door open for another case to revisit the issue.

 

Notes for editors

Kalayaan is a registered charity established in 1987. Kalayaan is the leading UK charity providing advice, advocacy and support to migrant domestic workers. Kalayaan is a UK designated First Responder to the National Referral Mechanism, the UK framework for identifying and supporting victims of trafficking.

Article 39(2) of the Vienna Convention on Diplomatic Relations states that immunity normally ceases when the diplomat leaves the country or on expiry of a reasonable period in which to do so. Acts performed in the exercise of his functions as a member of the mission will continue to be shielded by immunity.

Lord Sumption gives the leading judgment, but Lord Wilson, Lady Hale and Lord Clarke, thus the majority of the Court, do not agree with him on the question of whether trafficking is a commercial activity.  In the end, the case did not turn on this, because it was decided on the basis that because Mr Al-Maliki was no longer in post, he no longer enjoyed immunity for actions outside his diplomatic functions.

 

For further information contact:

Avril Sharp, Policy Officer: avril@kalayaan.org.uk

Alison Harvey, Chair of Kalayaan: aliromah@btinternet.com

Zubier Yazdani, Partner, Deighton Pierce Glynn: ZYazdani@dpglaw.co.uk


Still in the dark, still disempowered

Today marks 12 months since changes were made to the immigration rules for migrant domestic workers. These changes followed the independent review by James Ewins who was asked to assess how far the then existing arrangements for workers were effective in protecting them from abuse. One of the main recommendations in the review and accepted by the government, was the introduction of group information meetings. These should provide a safe, comfortable and confidential space for workers to get independent information, advice and support concerning their employment and immigration rights while at work in the UK. They are also an opportunity for workers to come together, socialise and share their experiences with each other.

More than 12 months have passed since the government responded to the independent review and made changes to the immigration rules. During this time approximately 17,000 domestic workers will have arrived in the UK to work for their employer. Regrettably the government has still to implement the information meetings so workers remain uninformed of their rights in the UK. Unfortunately the changes made to the immigration rules are of no worth to domestic workers who are not aware of and are able to enforce their rights.

In the last 12 months Kalayaan has continued to register domestic workers who are unaware of the terms of their visa, including the right to change employer and that this is not conditional upon proving abuse. Workers report not knowing what the National Minimum Wage is, that they should retain control of their passport, have a copy of their employment contract and have access to healthcare.

One of these clients was Leela who arrived in the UK on a domestic worker visa issued after April 2016. Leela was forced to accompany her employer to the UK as she was tied under the kafala system in Saudi Arabia which prevents workers from leaving their employers without their permission. Leela sought work abroad to help support her family who are reliant on her remittances to pay for basic essentials including food, clothes and rent.

After Leela arrived in the UK, her passport was taken from her. She stayed with her employer and their family in a hotel in London. She slept on the floor and was given no food to eat. She was responsible for her employer’s children and expected to be on call 24/7. She was not allowed outside unaccompanied. She survived by stealing the children’s food. She was never paid for her work as her employer told her it had cost a lot of money to bring her to the UK. Leela decided to run away as she could no longer endure working long hours with no food and no money.

When Leela came to Kalayaan she did not know she had the right to leave her employer and work for someone else. She says if she had known she had rights, she wouldn’t have tolerated her treatment and would have left her abusive employer a lot earlier.

Kalayaan has been informed that the government cannot make information meetings compulsory as there is no provision in law to make it a condition of the visa. The effect of this means that those who have no or severe restrictions placed on their freedom, those who need this information most, will not be in a position to attend which undermines the reasons behind introducing information meetings. This is at complete odds with the recommendation made in the independent review which discusses why a voluntary system would be wholly inadequate and why all evidence points to a mandatory condition to ensure workers fundamental rights are protected.

For more information please contact Avril Sharp at Kalayaan: avril@kalayaan.org.uk.

 


Training from Kalayaan : Migrant domestic workers, their rights as workers and as victims of modern slavery – 9 February 2017

Location: London

Address: Freshfields Bruckhaus Deringer LLP, 65 Fleet Street, London, EC4Y 1HS

Date: Tuesday 9 February 2017 at 2pm (2 hours)

Cost: £60.00 per person

In March 2016 the government responded to the independent review of the Overseas Domestic Worker visa by James Ewins in which he was asked to assess how far the then existing arrangements for Overseas Domestic Workers were effective in protecting workers from abuse. The review found that ‘the existence of a tie to a specific employer and the absence of a universal right to change employer and apply for extensions of the visa are incompatible with the reasonable protection of overseas domestic workers while in the UK’. The review made a number of recommendations, however the government chose to implement only some through changes to the Immigration Rules in April 2016.

This training explores the history of the domestic worker visa from 1998 up until the changes made in April 2016 to the Immigration Rules. It will provide practitioners with the knowledge to identify indicators of domestic servitude and the rights for those referred and recognised through the National Referral Mechanism as a victim of trafficking or modern day slavery, following the changes made in April 2016. Kalayaan anticipates a number of issues with some of the changes made so these will also be explored and practitioners made aware of how best to prepare for them.

This training is essential for any firm representing migrant domestic workers.

The training is delivered by Marta Bratek, immigration solicitor with 10 years of immigration law practice experience and Avril Sharp, level 3 OISC advisor, former legal officer for the POPPY Project and a policy advocate for Kalayaan.

This training is suitable for:

  • Solicitors
  • Caseworkers and paralegals
  • Firms regulated by the Office of the Immigration Services Commissioner

For relevant CPD competencies related to the new SRA/OISC schemes click  below:

https://sra.org.uk/solicitors/cpd.page

https://www.gov.uk/government/news/oiscs-reviewed-cpd-scheme

How to book:

Please email your full name and name of your firm to avril@kalayaan.org.uk to secure a place. We will then confirm your place and provide details on making payment.


Kalayaan attends launch of Independent Anti Slavery Commissioner’s Annual Report

On 12 October 2016, the Commissioner released his first annual report (for the period 1 August 2015 – 30 September 2016). This report comments on key achievements since taking office and looking forward, his priorities for 2017. The report can be accessed here: https://www.gov.uk/government/publications/independent-anti-slavery-commissioner-annual-report-2016

Kalayaan welcomes the work done by the Commissioner’s office on training for health care professionals and local authorities to recognise and offer support to victims of modern slavery. We are also pleased that the Commissioner has scrutinised and made recommendations to regional police forces across the country to ensure all trafficking and modern slavery claims are recorded as crimes and investigated.

In his first year the Commissioner contributed to the Independent Chief Inspector of Borders and Immigration’s inspection into the identification and support offered to victims of trafficking at the UK border. Kalayaan also contributed to this inspection and recommended that all domestic workers arriving in the UK at all ports be issued information in a language they can understand which clearly informs them of their employment rights under UK legislation and the practical steps they can take if they are working for an abusive employer. The ICIBI has since informed Kalayaan that they will be taking forward some of our recommendations when they present their final report to the Home Secretary by the end of 2016.

Kalayaan has also contributed to a Ministry of Justice consultation on the provision of legal aid for compensation claims. Given the restricted matter starts given to experienced solicitors firms for compensation claims, Kalayaan remains concerned that victims who have the right to pursue a claim are being denied the opportunity to do so. Kalayaan welcomes any support the Commissioner can lend to the government’s review so that domestic workers are able to access justice.

Kalayaan remains concerned at the government’s delay in implementing information sessions to domestic workers, as recommended by James Ewins in his independent review. Whilst we accept changes have been made to the Immigration Rules, (including being able to apply for a visa for up to 2 years if conclusively determined to be a victim of trafficking or slavery), in the 10 months since the independent review was first published, several thousand domestic workers will have entered the UK in ignorance of their employment and immigration rights. The changes made to the regime are of little worth if domestic workers are not aware of and are able to enforce their rights.

During the parliamentary debates after the independent review, James Brokenshire said that the government would use the powers in section 4(1) of the Immigration Act 1971 to permit domestic workers referred into the National Referral Mechanism during their initial six month stay to have permission to take employment whilst their case is being assessed.[1] Kalayaan was then disappointed to learn that the government chose to restrict this right even further by permitting only those domestic workers referred and issued a positive reasonable grounds decision during their initial six month stay with permission to work.[2]

It is essential that domestic workers know their rights whilst at work in the UK. Kalayaan and the Commissioner have offered to work together with the Home Office to lend our experience and expertise in supporting domestic workers and victims of modern slavery. The Home Office has told Kalayaan we will be able to feed into the preparation of the information meetings before they are rolled out. Kalayaan also hopes that the Home Office carefully considers the terms of the tender and that the organisation awarded the contract has proven expertise of the issues faced by domestic workers.

[1] https://hansard.parliament.uk/Commons/2016-04-25/debates/16042535000002/ImmigrationBill

[2] http://www.legislation.gov.uk/uksi/2016/948/pdfs/uksi_20160948_en.pdf


Overseas Domestic Workers left in the dark by the Immigration Act 2016

As the latest Immigration Bill passed through parliament, the government acknowledged that Overseas Migrant Domestic Workers remain an especially vulnerable group in need of protection against unscrupulous and abusive employers. On 7 March 2016, the Minister for Immigration James Brokenshire responded to the independent report of James Ewins QC and his review of the tied visa in which he was asked by the government to assess how far the then existing arrangements for Overseas Domestic Workers were effective in protecting workers from abuse. On 12 May 2016 the Immigration Bill received Royal Assent and became the Immigration Act 2016.  Sadly, changes made to the Immigration Rules have fallen far short of the recommendations of the Ewins’ report and will keep domestic workers in the dark and at continued risk of abuse and exploitation.

Changing employer

The Ewins’ report recommended that Overseas Domestic Workers be allowed to change employer to give them a real and practical route out of exploitation without the then possibility of a precarious immigration status and risk to livelihood. The report states ‘the existence of a tie to a specific employer and the absence of a universal right to change employer and apply for extensions of the visa are incompatible with the reasonable protection of overseas domestic workers while in the UK’. It recommended that workers be allowed to apply for annual visa extensions of up to 2 years which was the minimum required to give effective protection to those who had been abused while in the UK. The review concluded that ‘informed, empowered and safe workers will be more likely to support or even initiate such enquiries [against their employers] than embattled, insecure and frightened workers’.

On 7 March the Minister accepted that Overseas Domestic Workers should be provided an immediate escape route from abuse and permitted that they be allowed to change employer and work during the term of their initial six month visa on which they were admitted to the UK. However, in reality abused workers who do leave their employer will have just a few months or weeks remaining on their visa in which to find work as a domestic worker and will likely be doing so without any references. This will not prove attractive to prospective employers. Overseas Domestic Workers will be left with a choice of remaining in an exploitative situation, risk entering into a new one or with no work and no recourse to public funds, becoming destitute. Kalayaan remains of the view that a right to change employer in the first six months will not lead to workers having greater confidence in reporting their employers to the authorities and will not enable them to safely enter into a new working relationship. It will strengthen the hand of the exploitative employer who will know it is unlikely domestic workers will change employers given the difficulties in finding work in such a short period.

Abolishing the visa tie

The government also refused to accept one of the independent report’s main recommendations and abolish the visa system in which Overseas Domestic Workers are tied to their employers.  Lord Hylton, a long time supporter of domestic workers rights and Labour Peer Lord Rosser tabled an amendment to the bill which gave effect to the main recommendations of the Ewins’ review which was passed in the House of Lords but later defeated in the Commons. The government believes that relaxing the visa tie may lead to a revolving door of abuse where employers remain unidentified and are free to recycle the abuse onto the next worker. They argue that the National Referral Mechanism (NRM) is the vehicle to report abuse and for victims to access support.

This concern was addressed in the Ewins’ review which suggested that any change of employer be registered with the Home Office who could pass the information to the police to consider commencing an investigation. This recommendation would have alleviated the evidential burden placed on victims by entering into the NRM.

The government’s position also fails to recognise that the NRM was and still is not designed to deal with the problems and abuse faced by domestic workers tied to their employers. The government has proffered that victims who are identified as having been trafficked and meeting the internationally defined requirement in the Council of Europe Convention will be allowed to apply for a 2 year visa, up from the 6 months provided for by the Modern Slavery Act 2015.  This will be of no use however to domestic workers who have been abused by their employer but who do not meet the definition of having been trafficked for the purposes of exploitation. Kalayaan envisages that domestic workers with no option but to be referred into the NRM will receive negative decisions on the grounds that they have fabricated allegations against employers to try and remain in the UK.

In 2015, 353 adults were referred into the NRM to be identified as having been trafficked for the purposes of domestic servitude. There is no distinction made whether this number is solely for those who came to the UK on the Overseas Domestic Worker visa. Of those who did come on the Overseas Domestic Worker visa, there are no figures confirming how many of these received positive conclusive grounds decisions and how many of those applied and were successfully granted a domestic worker visa.[1]

Other changes

The government has agreed to implement the Ewins’ second key recommendation of mandatory information meetings for domestic workers who remain in the UK for more than 42 days. The provision of independent information, advice and support in a format and language domestic workers can understand is of fundamental importance so they are aware of and are able to enforce their rights while at work in the UK. Kalayaan looks forward to seeing how this recommendation will be implemented and monitored.

The government has also stated that they want to refocus their checks on employers to ensure that they can better prevent them bringing more domestic workers to the UK when they do not comply with requirements. The government has said they will introduce this by changes to the Immigration Rules later this year.[2]  It remains to be seen how the government will punish abusive employers and whether this will act as a sufficient deterrent.

Right to work

Domestic workers who are referred into the NRM during the duration of their initial 6 month visa will be permitted to continue working for so long as their case is being considered. Those who come to the attention of the authorities as a potential victim after 6 months and are then referred into the NRM will need to wait until a decision is made whether the government conclusively accepts they are a victim before they can then apply for a visa. In some cases, Kalayaan has had clients waiting for over a year before a decision is made at the conclusive grounds stage. This is a time of extreme worry and confusion for vulnerable domestic workers.

A victim’s ability to utilise this provision hinges on the delivery of information to overseas domestic workers when they apply for entry clearance to the UK and their attendance at information meetings. If domestic workers are not informed of their rights and entitlements in a language they can understand, they will not be able to enforce them and they may remain in situations of abuse.

If a victim is issued a conclusive grounds decision, they must apply for a visa within 28 days of receiving confirmation from the Home Office. There is no fee for this application. The Home Office website says that a victim of trafficking does not need to have a job when they apply for this visa[3] but victims must provide evidence of their finances and how they plan to maintain and accommodate themselves without recourse to public funds. This will prove nigh impossible for those who have been residing in safe house accommodation and have not had permission to work whilst a decision on their trafficking claim is being considered. Many will have been out of work for a long period of time and will be without references.

The current guidance to Competent Authorities states that ‘the expectation is that a Conclusive Grounds decision will be made as soon as possible following day 45 of the recovery and reflection period. There is no target to make a conclusive grounds decision within 45 days. The timescale for making a conclusive grounds decision will be based on all the circumstances of the case.’[4] Given that domestic workers will not know when a decision can be expected or what that decision will be, they will be unable to start searching for work and speaking with prospective employers. It is also unclear how long a domestic worker will have to find a job if the visa is issued on the basis that it allows individuals to remain in the UK so long as they are employed full time in a private household.

These changes will ultimately leave domestic workers without the security and safety they need in order to move forward and rebuild their lives.

For more information please contact Avril Sharp at Kalayaan: avril@kalayaan.org.uk.

[1] http://www.nationalcrimeagency.gov.uk/publications/national-referral-mechanism-statistics/676-national-referral-mechanism-statistics-end-of-year-summary-2015/file

[2] https://hansard.parliament.uk/Commons/2016-04-25/debates/16042535000002/ImmigrationBill

[3] https://www.gov.uk/domestic-workers-in-a-private-household-visa/victim-slavery-human-trafficking

[4]https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/521763/Victims_of_modern_slavery_-_Competent_Authority_guidance_v3_0.pdf


Overseas Domestic Workers left in the dark by the Immigration Act 2016

As the latest Immigration Bill passed through parliament, the government acknowledged that Overseas Migrant Domestic Workers remain an especially vulnerable group in need of protection against unscrupulous and abusive employers. On 7 March 2016, the Minister for Immigration James Brokenshire responded to the independent report of James Ewins QC and his review of the tied visa in which he was asked by the government to assess how far the then existing arrangements for Overseas Domestic Workers were effective in protecting workers from abuse. On 12 May 2016 the Immigration Bill received Royal Assent and became the Immigration Act 2016.  Sadly, changes made to the Immigration Rules have fallen far short of the recommendations of the Ewins’ report and will keep domestic workers in the dark and at continued risk of abuse and exploitation.

Changing employer

The Ewins’ report recommended that Overseas Domestic Workers be allowed to change employer to give them a real and practical route out of exploitation without the then possibility of a precarious immigration status and risk to livelihood. The report states ‘the existence of a tie to a specific employer and the absence of a universal right to change employer and apply for extensions of the visa are incompatible with the reasonable protection of overseas domestic workers while in the UK’. It recommended that workers be allowed to apply for annual visa extensions of up to 2 years which was the minimum required to give effective protection to those who had been abused while in the UK. The review concluded that ‘informed, empowered and safe workers will be more likely to support or even initiate such enquiries [against their employers] than embattled, insecure and frightened workers’.

On 7 March the Minister accepted that Overseas Domestic Workers should be provided an immediate escape route from abuse and permitted that they be allowed to change employer and work during the term of their initial six month visa on which they were admitted to the UK. However, in reality abused workers who do leave their employer will have just a few months or weeks remaining on their visa in which to find work as a domestic worker and will likely be doing so without any references. This will not prove attractive to prospective employers. Overseas Domestic Workers will be left with a choice of remaining in an exploitative situation, risk entering into a new one or with no work and no recourse to public funds, becoming destitute. Kalayaan remains of the view that a right to change employer in the first six months will not lead to workers having greater confidence in reporting their employers to the authorities and will not enable them to safely enter into a new working relationship. It will strengthen the hand of the exploitative employer who will know it is unlikely domestic workers will change employers given the difficulties in finding work in such a short period.

Abolishing the visa tie

The government also refused to accept one of the independent report’s main recommendations and abolish the visa system in which Overseas Domestic Workers are tied to their employers.  Lord Hylton, a long time supporter of domestic workers rights and Labour Peer Lord Rosser tabled an amendment to the bill which gave effect to the main recommendations of the Ewins’ review which was passed in the House of Lords but later defeated in the Commons. The government believes that relaxing the visa tie may lead to a revolving door of abuse where employers remain unidentified and are free to recycle the abuse onto the next worker. They argue that the National Referral Mechanism (NRM) is the vehicle to report abuse and for victims to access support.

This concern was addressed in the Ewins’ review which suggested that any change of employer be registered with the Home Office who could pass the information to the police to consider commencing an investigation. This recommendation would have alleviated the evidential burden placed on victims by entering into the NRM.

The government’s position also fails to recognise that the NRM was and still is not designed to deal with the problems and abuse faced by domestic workers tied to their employers. The government has proffered that victims who are identified as having been trafficked and meeting the internationally defined requirement in the Council of Europe Convention will be allowed to apply for a 2 year visa, up from the 6 months provided for by the Modern Slavery Act 2015.  This will be of no use however to domestic workers who have been abused by their employer but who do not meet the definition of having been trafficked for the purposes of exploitation. Kalayaan envisages that domestic workers with no option but to be referred into the NRM will receive negative decisions on the grounds that they have fabricated allegations against employers to try and remain in the UK.

In 2015, 353 adults were referred into the NRM to be identified as having been trafficked for the purposes of domestic servitude. There is no distinction made whether this number is solely for those who came to the UK on the Overseas Domestic Worker visa. Of those who did come on the Overseas Domestic Worker visa, there are no figures confirming how many of these received positive conclusive grounds decisions and how many of those applied and were successfully granted a domestic worker visa.[1]

Other changes

The government has agreed to implement the Ewins’ second key recommendation of mandatory information meetings for domestic workers who remain in the UK for more than 42 days. The provision of independent information, advice and support in a format and language domestic workers can understand is of fundamental importance so they are aware of and are able to enforce their rights while at work in the UK. Kalayaan looks forward to seeing how this recommendation will be implemented and monitored.

The government has also stated that they want to refocus their checks on employers to ensure that they can better prevent them bringing more domestic workers to the UK when they do not comply with requirements. The government has said they will introduce this by changes to the Immigration Rules later this year.[2]  It remains to be seen how the government will punish abusive employers and whether this will act as a sufficient deterrent.

Right to work

Domestic workers who are referred into the NRM during the duration of their initial 6 month visa will be permitted to continue working for so long as their case is being considered. Those who come to the attention of the authorities as a potential victim after 6 months and are then referred into the NRM will need to wait until a decision is made whether the government conclusively accepts they are a victim before they can then apply for a visa. In some cases, Kalayaan has had clients waiting for over a year before a decision is made at the conclusive grounds stage. This is a time of extreme worry and confusion for vulnerable domestic workers.

A victim’s ability to utilise this provision hinges on the delivery of information to overseas domestic workers when they apply for entry clearance to the UK and their attendance at information meetings. If domestic workers are not informed of their rights and entitlements in a language they can understand, they will not be able to enforce them and they may remain in situations of abuse.

If a victim is issued a conclusive grounds decision, they must apply for a visa within 28 days of receiving confirmation from the Home Office. There is no fee for this application. The Home Office website says that a victim of trafficking does not need to have a job when they apply for this visa[3] but victims must provide evidence of their finances and how they plan to maintain and accommodate themselves without recourse to public funds. This will prove nigh impossible for those who have been residing in safe house accommodation and have not had permission to work whilst a decision on their trafficking claim is being considered. Many will have been out of work for a long period of time and will be without references.

The current guidance to Competent Authorities states that ‘the expectation is that a Conclusive Grounds decision will be made as soon as possible following day 45 of the recovery and reflection period. There is no target to make a conclusive grounds decision within 45 days. The timescale for making a conclusive grounds decision will be based on all the circumstances of the case.’[4] Given that domestic workers will not know when a decision can be expected or what that decision will be, they will be unable to start searching for work and speaking with prospective employers. It is also unclear how long a domestic worker will have to find a job if the visa is issued on the basis that it allows individuals to remain in the UK so long as they are employed full time in a private household.

These changes will ultimately leave domestic workers without the security and safety they need in order to move forward and rebuild their lives.

For more information please contact Avril Sharp at Kalayaan: avril@kalayaan.org.uk.

[1] http://www.nationalcrimeagency.gov.uk/publications/national-referral-mechanism-statistics/676-national-referral-mechanism-statistics-end-of-year-summary-2015/file

[2] https://hansard.parliament.uk/Commons/2016-04-25/debates/16042535000002/ImmigrationBill

[3] https://www.gov.uk/domestic-workers-in-a-private-household-visa/victim-slavery-human-trafficking

[4]https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/521763/Victims_of_modern_slavery_-_Competent_Authority_guidance_v3_0.pdf


The Independent Review of the Overseas Domestic Worker Visa – A Panel Discussion

On 9 February 2016, James Ewins presented the main findings of his Independent Review of the Overseas Domestic Workers Visa at an event hosted by Lord Hylton at the House of Lords. The event’s organisers, Kalayaan, Unite the Union and Justice 4 Domestic Workers, led a panel discussion following the presentation, with poignant contribution from many domestic workers in attendance.

Published in December 2015, James Ewins’ review found that “the existence of a tie to a specific employer and the absence of a universal right to change employer and apply for extensions of the visa are incompatible with the reasonable protection of overseas domestic workers while in the UK.”

Ewins discussed the challenges he faced in obtaining quantitative evidence for his review, pointing to the dearth of data on overseas domestic workers at the Home Office. He noted that while the Home Office’s data collection grows daily, the information remains unprocessed and inaccessible. Ewins relied primarily on qualitative evidence gathered from a variety of sources such as NGOs, employment agencies and individual witnesses. His recommendations, he emphasised, are based on the best evidence available.

Ewins highlighted his main proposals for changing the current rules governing overseas domestic workers, based on the principles of prevention, protection and prosecution. He argued for the exemplary treatment of overseas domestic workers who come forward as victims of abuse and punishment for their abusive sponsors.

Ewins advocated for the right of overseas domestic workers to change their employer and to legally work in the UK for up to 2 ½ years. He explained that while this is not a fixed number, 2 ½ years represents a viable alternative to the current 6 months, as it will provide overseas domestic workers with greater stability and a meaningful opportunity to escape abusive employers and find alternative work in the UK.

Ewins noted that the visa application process was insufficient to prevent abuse and called for the introduction of in-country information meetings for overseas domestic workers who are in the UK for more than 42 days. Such meetings would provide information, advice and support to empower workers through knowledge of their rights and the capacity to exercise those rights while in the UK.

Finally, Ewins emphasised the need for increased prosecutions in cases of abuse of overseas domestic workers by their sponsors. He noted that criminal prosecutions, immigration and employment sanctions could act as a substantial deterrent to abuse by sponsors who frequently visit the UK.

Ewins’ review is currently under Government consideration. Ewins asked supporters to maintain visibility on the issues faced by overseas domestic workers in the UK and pressure on the Government to act on his recommendations.

Blog by Zina Al-Askari (Kalayaan Volunteer)


The right to change employer- used by those who need it

Migrant domestic workers who accompanied an employer to the UK to work in their private household before the rules changed in April 2012 had the right to change employer. This right was an important protection which allowed those who needed to to escape abuse and find another job, and to go on and apply to renew their visa in the UK if they remained in full time work as a domestic worker in a private household in the UK.

The answer given on the 20th January 2016 by James Brokenshire MP to Jim Shannon MP’s question as to how many domestic workers from overseas applied for leave to remain in the UK in each of the last five years suggests that only 8% of those migrant domestic workers who entered on the Overseas Domestic Worker (ODW) visa before April 2012 and who had the right to change employer and / or renew their visa and remain in the UK did so.

This is because in any of the given years there are at least 5 years of entrants on the ODW visa who would potentially be applying for Leave to Remain. Anyone who remains in the UK on the pre 2012 ODW visa has to apply to renew their visa annually until they become eligible for Indefinite Leave to Remain (ILR). ILR eligibility for pre 2012 ODWs requires 5 years of lawful residence plus meeting the English language requirements. 5 years of leave to remain applications (or visa renewals) is an underestimate for some migrant domestic workers as some are not able to apply for ILR after 5 years, usually because they have not met the English language requirement. This means that in practice less than 8% of eligible ODWs may be successfully applying for leave to remain in the UK. The calculations for this can be found in the following table ODWs and LTR 2010-14 table

These figures suggests that the pre 2010 right to renew the visa and remain in the UK was an option used by a minority of workers on this visa. Given the reports of serious abuse and exploitation including trafficking made to organisations such as Kalayaan it is likely that it is those workers who were seriously mistreated by their employers who used the rights provided by the pre 2012 ODW visa to escape their employer, find other work as a domestic worker in the UK and move on and rebuild their lives.


Appendix 7 of the Immigration Rules – section 12, Healthcare

There is no longer a requirement that an employer needs to take out private health insurance for the domestic worker they employ. The requirement to pay the Immigration Health Surcharge when applying to renew the visa remains in place.

Appendix 7 of the Immigration Rules was amended last Autumn so that the employer can simply give the undertaking that they will ensure that the worker has access to free healthcare.

See Appendix 7 here

Information on the Immigration Health Surcharge (IHS) can be found here https://www.gov.uk/healthcare-immigration-application/overview


Freshfields secures £300,000 for trafficking victim – Protracted case highlights difficulties of enforcing judgements

Freshfields has secured over £300,000 for a recognised victim of human trafficking from South Asia who was exploited as a domestic servant within the UK.

Freshfields has secured over £300,000 for a recognised victim of human trafficking from South Asia who was exploited as a domestic servant within the UK. The case, which took four and a half years to resolve, has highlighted issues in the British legal system in enforcing judgements on defendants who try to avoid paying.

See full article here