Tendering process for information meetings fails to empower workers and penalize exploitative employers

Last week the Home Office opened the tendering process inviting bids from organisations wishing to run the service delivering information sessions to migrant domestic workers newly arrived in the UK. The deadline for return of bids is 13 July 2018.

These sessions were originally conceived to assist abused and exploited workers to make informed decisions about their situation in the UK, including taking practical self-help steps to leave abusive employers and support to do so.

Kalayaan and members of an advisory group made up of individuals with relevant expertise, including James Ewins QC, raised concerns over the draft requirements for the tender and the impact they would have on vulnerable and exploited workers coming to the UK. We are disappointed that we have not been able to review the revised tender before it was finalized and that some of the recommendations made in our minimum standards are considered outside the scope of the pilot. These were drafted in consultation with migrant domestic workers and advocates providing them with direct support and were designed to ensure workers were made aware of the information meetings prior to and after their arrival in the UK.

A summary of our concerns on the tender can be found here.

 

 


Kalayaan and experts publish minimum standards for ODW information meetings

In January 2018, the Home Office announced their proposed timeline for the implementation of information meetings for migrant domestic workers newly arrived in the UK. They have stated their intention to run a 6 month pilot due to commence in July 2018.

Information meetings were originally conceived by James Ewins QC, author of the independent review into the terms of the Overseas Domestic Worker visa, which identified procedural failings in ensuring that workers knew of their rights prior to their arrival in the UK.

Kalayaan has worked in partnership with a number of experts and front line practitioners to produce some minimum standards that we consider are essential to informing the scope and delivery of the meetings. We have also included recommendations on the visa application process through to arriving in the UK and being requested to attend a meeting. In doing so, we hope to maximize the opportunities for workers and employers to be made aware of the meetings as the Home Office has stated they have no legal power to compel a worker to attend.

The Home Office has yet to announce what safeguards they will put in place should a worker disclose they are being abused or exploited at an information meeting. It is crucial that a worker is not left having to return to their employer but can access safe and emergency accommodation and receive further information and advice concerning their rights as a worker.

The minimum standards can be accessed on our Publications page here.

If your organisation is considering bidding for this service and would like to know more about our recommendations please contact Avril Sharp, Policy Officer at avril@kalayaan.org.uk or call 0207 243 2942.


Help us reach out to more migrant domestic workers

Do you work with or provide support to migrant communities in the UK? Could you help us reach out to more migrant domestic workers? Kalayaan would love to hear from you

Kalayaan is developing a new outreach model and is keen to hear from NGOs, charities and businesses across the UK who support or speak to migrants in order to raise awareness of the independent services Kalayaan provides.

We want to be able to reach out to communities who include mainly – but not exclusively – Filipino, Indian and Indonesian migrant domestic workers who might need our help. Kalayaan can provide immigration advice and services and discuss any employment issues workers may be having with their employer in the UK. All services are free and confidential and are designed to empower workers so they know and can enforce their rights in the UK.

As part of this work we have developed some materials with our contact details on which we would be happy to share with different organisations. These materials include posters in various sizes and leaflets with details of our services and how we are campaigning for better protections for workers. We would love to have these displayed in community centres and in public places across the UK so that more workers can learn of our services and how to get in touch with us if they ever need help. We have also designed some banner pens with our contact details. All of our materials are produced in English, Tagalog, Hindi and Bahasa.

If you would like to help Kalayaan reach more workers or to find out more, please get in touch with us: outreach@kalayaan.org.uk.

Blog by Miela Lilles (Kalayaan Volunteer)


Kalayaan backs campaign to ensure victims of modern slavery can live free for good

Kalayaan calls on the government to ensure that all recognised victims of human trafficking and modern slavery are provided with long term care and support to guarantee their security, recovery and safety.

An inexcusable lack of support

In England and Wales, there is no automatic entitlement to ongoing assistance or practical support once a victim is formally recognised by the authorities. Victims who have been receiving support whilst waiting for a final determination on their trafficking claims, often for months and sometimes years, currently have only 14 days to exit support services and find alternative accommodation and means to survive. The lack of a guaranteed pathway to further support coupled with only 14 days for a recognised survivor to access mainstream services leaves them at real risk of homelessness, destitution and re-trafficking.

The risk of being forced into exploitative working and living arrangements is compounded for migrant domestic workers who are accepted as trafficked but not granted discretionary leave to remain. The Modern Slavery Act states that provision must be made for a migrant domestic worker to apply for further leave to remain as a recognised victim of trafficking, however this leave is restricted to work as a domestic worker in a private household without recourse to public funds. An application for further leave needs to be made within 28 days of being formally recognised and documentary evidence provided on how the domestic worker will maintain and accommodate themselves without recourse to public funds. This will be impossible for those residing in safe house accommodation, who have not had permission to work whilst they are waiting for their trafficking claim to be determined and are then made to leave support services within 14 days of being identified. Additionally, if a domestic worker has an outstanding protection claim, their application for further leave will not be processed until their protection claim is determined first. This leaves recognised victims of trafficking facing an undeterminable length of time waiting, no longer eligible for support as a victim and without permission to work. This is inconsistent with those victims granted discretionary leave to remain who have outstanding protection claims who can otherwise work or access financial support.

In March 2017, Kalayaan and a coalition of anti trafficking organisations providing direct support and advocacy to victims co-authored a report calling on the government to ensure all recognised victims are given a meaningful rehabilitation period for a minimum of 12 months. In April 2017 the Work and Pensions Select Committee published their report which found an inexcusable lack of support for victims left them destitute whilst their abusers go free. The Committee echoed our recommendations and called for all recognised victims to be given at least one year’s leave to remain with recourse to benefits and services, allowing victims to receive advice and support and the time needed to plan their next steps.

 

In response, the government has made a series of announcements as part of the reforms being made to the National Referral Mechanism and the support being offered to victims after they are identified. They have announced their intention to provide victims with a longer period of move on support from 14 days to 45 days and drop in services for up to 6 months to aid the transition. Whilst this is a welcome first step, it does not guarantee the security and stability victims need to recover from the ordeal of being trafficked.

The government does not agree that all victims should be granted discretionary leave to remain. Their response to the Work and Pensions Select Committee states a blanket policy ‘risks incentivising individuals to make false trafficking claims in an attempt to fraudulently obtain leave to remain or delay removal’. There is no evidence to substantiate this. This argument forgets that victims cannot consent to being trafficked and traffickers do not seek to exploit people with the aim that they should escape and receive leave to remain with recourse to benefits and services. The identification process will also ensure that any fraudulent claims are filtered out and issued negative decisions. The call for long term support is for those individuals conclusively accepted by the authorities as trafficked.

Supporting modern slavery victims to live free for good

Kalayaan is proud to support the Free For Good campaign in partnership with a number of other leading UK anti trafficking charities and organisations. The campaign backs legislation that enshrines victim support into law and has been set up to mobilise support for the Modern Slavery (Victim Support) Bill which would guarantee all recognised victims to be given leave to remain and specialist support tailored to individual need for 12 months. The bill specifies the minimum standards of support that victims must receive, ensuring that no victim falls between the gaps at risk of further exploitation or harm.

Please visit the Free for Good website to learn more about the campaign and to ask your MP to pledge their support and back the bill as it proceeds through the House of Lords into the House of Commons.

The bill is currently in the House of Lords awaiting a date for committee stage. The bill received cross party support at second reading and Kalayaan wishes to express particular thanks to Baroness Cox for highlighting the difficulties still faced by migrant domestic workers in spite of recent provisions.

Kalayaan’s briefing for second reading of the Modern Slavery (Victim Support) Bill is available here.


Supreme Court allows appeal for trafficked domestic worker on Anti Slavery Day 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 coverage and analysis of the judgments, please visit our News and Resources pages on our website.

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 Anti Slavery Commissioner’s first 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.

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. 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.

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.


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

As the latest Immigration Bill passed through parliament, the government acknowledged that 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 migrant domestic workers visa 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