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

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)

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.

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 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

On the 2nd of December 2015, The London Assembly today called for the Mayor of London to write to the Home Secretary, Theresa May, and make the case to repeal the tied-visa system.

Introduced in 2012, the tied-visa system, attaches domestic workers to their employers.

Assembly Members agreed a unanimous motion calling for the protection of domestic workers, who are particularly vulnerable to exploitation.

Murad Qureshi AM, who proposed the motion said:

“With migrant domestic workers at risk of low pay, mental and physical abuse, and trafficking, we need urgent action to deliver protection and justice for those on the receiving end.

Even with greater efforts to check on the welfare of migrant workers, tied-visas can be a huge barrier to justice and a catalyst for modern day slavery.”

Andrew Boff AM, who seconded the motion said:

“In making changes to the domestic workers’ visa, the Government has actually become complicit in the slavery of domestic workers.

I don’t think that is the intention, but the result is the effective licensing of modern day slavery. It needs to change.”

To read the full text of the motion and the London Assembly’s press release see here

On December 1st, a panel discussion on the situation of Migrant Domestic Workers in the UK after the Modern Slavery Act was held in the House of Commons. The event was sponsored by Fiona Mactaggart MP and organised by domestic workers in Justice 4 Domestic Workers, the supporting organization Kalayaan and Unite the Union. This event brought together a range of supporters who talked about the current issues that migrant domestic workers are facing in the UK, who in spite of the Modern Slavery Act remain tied to their employers by the immigration rules. The panelists reiterated how pressing the current situation is and how important it is for something to be done.

Speakers included Fiona Mactaggart MP, Marissa Begonia of Justice 4 Domestic Workers, Karin Pape of the International Domestic Workers’ Federation, Ross Jardin who presented his research into health and safety issues which effect migrant domestic workers and Sarbjit Johal who had compiled a booklet on domestic workers’ stories. James Ewins who has been commissioned by the Home Secretary to carry out a review of the tied visa also spoke. As his findings have not yet been published by the Home Office he had to focus on the process of the review and the challenges of evidencing the hidden lives and treatment of migrant domestic workers in the UK. The event was Chaired by Diana Holland, Assistant General Secretary of Unite.

The event was packed with standing room only and many migrant domestic workers were present who spoke out from the floor. An exhibition of photos by Elijah Villanueva of migrant domestic workers in the UK was displayed around the room.

The speakers spoke of the historic struggle of migrant domestic workers in the UK, how the situation remains dire at present in spite of the Modern Slavery Act and the importance of continuing to campaign for justice and access to rights in practice for migrant domestic workers. This includes working to change the immigration rules in the UK to restore the rights contained within the Original Overseas Domestic Worker visa and to push for the UK to sign and ratify the International Labour Organisation’s Domestic Workers Convention 189 on ‘Decent Work for Domestic Workers’. This sets out the entitlements and protections that domestic workers should have around the world. The convention sets standards for domestic workers in terms of their working conditions, working hours, health and safety, payment, etc. This convention was established in 2011 and since then it has been ratified by twenty-two countries, however the UK is yet to ratify the convention.

Blog by Shavonne Ravlich (Kalayaan volunteer)

From Thursday the 1st October 2015, the UK National Minimum Wage has increased to £6.70 an hour.