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June 28, 2016

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: