Kalayaan has been closely following government guidance with respect to the various provisions being introduced in response to coronavirus. We welcome many of these measures to alleviate the distress faced by some of the most vulnerable groups in society. We do however remain concerned that the unique circumstances facing migrant domestic workers has not been considered in the government’s response to date.

Kalayaan has received a number of reports from workers and those supporting them that they have been dismissed without cause or notice and face homelessness, destitution and exposure to the virus placing themselves and others at risk. We have also heard reports that workers are having to endure abuse and exploitation for fear that they will be thrown out and have no form of support available to them.

The terms of the Overseas Domestic Worker visa are that workers are employed full time for one employer and have no recourse to public funds. (Workers are not permitted to be self-employed). This means that those who are dismissed, perhaps because of an employer’s personal financial situation, are in breach of the terms of their visa and have no access to support including housing or financial assistance. Government advice remains that if you are in the UK with limited leave to remain and plan to remain here and apply to extend your visa, you must continue to do this. For those workers who have been laid off and are unable to find re-employment, they face becoming undocumented, at risk of exploitation and having to do battle with the hostile environment.

On 17 April 2020, Kalayaan raised our concerns in a letter to the Ministers of Immigration and Safeguarding together with recommendations to keep this vulnerable workforce safe and prevent them from remaining in situations of abuse or having to accept precarious employment to avoid destitution. Our letter can be found here.

Among our recommendations, we are calling on the government to suspend the No Recourse to Public Funds condition for all ODW visa holders, including victims of modern slavery, to enable them to access the support they will need in the event their employment is terminated or if they need to flee an abusive employer. We also recommend a concession for ODW visa holders with an automatic extension of 6 months to their leave to enable them to be safe during the lockdown, adhere to government guidance on social distancing measures and remain documented.

Update: 1 June 2020

The Home Office responded to Kalayaan’s letter on 13 May 2020. Unfortunately this failed to engage with the substance of the issues we raised. We have written to them again asking they consider the recommendations we set out to ensure that all ODW visa holders are protected during the pandemic.

Our letter in response can be found here.

For details of other campaigns we are supporting during the pandemic, check out our Publications page here.

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.

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.

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