March 31, 2014

III. Obstacles to Protection

The most serious consequence of the new tied visa for migrant domestic workers is that if they leave their employer they become undocumented. As a result, domestic workers who have escaped from abusive conditions can be afraid to approach the police out of fear of being deported from the UK.[94] The fear of deportation is a strong deterrent for them to report abuse by their employer. If they become undocumented, migrant domestic workers are unable to register with a doctor and unable to work legally. As a result, they risk either being destitute or at risk of further exploitation if they take up informal work.

Ahead of its review of the UK’s compliance with the UN Convention on the Elimination of Discrimination against Women (CERD) in 2013, the Committee for the Elimination of Discrimination against Women requested information from the UK government about the removal of safeguards to migrant domestic workers under the Overseas Domestic Workers visa.[95] The government replied:

[W]e do not consider that the ability to change employer is necessary to provide protection. There are a range of options available to Overseas Domestic Workers (ODW) to seek protection such as access to the National Referral Mechanism (NRM) if they have been trafficked to the UK; the ability to report abuse or confiscation of a passport to the police; and as workers, the right to access the Employment Tribunal service or return home.[96]

The prohibition of slavery and forced labour under the European Convention on Human Rights (ECHR) and international treaties ratified by the UK, as well as its domestic law, obligates the UK to protect people from these abuses while on UK territory. However, the “range of options” the UK government listed in this response as constituting such protection for migrant domestic workers does not, in fact, provide adequate protection from abuse and exploitation.

Access to the National Referral Mechanism

The NRM is an identification process which can lead to a channel of redress only to those for whom the “Competent Authority,” that is the UK Human Trafficking Centre, which is part of the government’s National Crime Agency (NCA)  or the Home Office, find  that there are reasonable grounds to believe they are a victim of trafficking. The authority can then grant a recovery and reflection period of 45 days and accommodation in a government funded safe house. However, not all migrant domestic workers who have been abused have been trafficked, and not all those who have been trafficked are willing or able to make an application to the NRM.

Even for trafficking victims who are eligible, the NRM does not grant an automatic right to work even for a fixed period.[97] This makes the NRM a less desirable option for migrant domestic workers who have been trafficked and who face intense financial pressure to continue to send money back home. 

Once the UK Human Trafficking Centre or the Home Office (UK Visas and Immigration) have determined that there are “conclusive grounds” that a person is a victim of trafficking, he or she may be granted permission to remain in the UK to cooperate with the police in a criminal procedure against the trafficker. In the absence of a criminal procedure, the Home Office may grant a discretionary residence permit based on the person’s circumstances. However, if the person is not found to be a victim of trafficking, he or she may be referred to police or the Home Office and receive an offer to return home voluntarily.[98] He or she could also face possible removal from the UK. NGOs working with victims of trafficking have criticized the NRM on the grounds that the Home Office is both a decision maker on determinations of whether a person is a victim of human trafficking and responsible for controlling the UK’s borders, creating a conflict of interest.[99]

The All-Party Parliamentary Group (APPG) on Human Trafficking and Modern Day Slavery was concerned by reports that “the NRM decisions made by the Home Office UK Visas and Immigration are unduly influenced by their role in immigration control and that decision making is inconsistent between the two Competent Authorities.”[100] Both the APPG and the Modern Slavery Bill Evidence Review Panel, in its December 2013 report, recommended the removal of the Home Office UK Visas and Immigration from its position as Competent Authority within the NRM. They also recommended that decisions should be made by a new independent decision-making body, or that all decisions should be made solely by the United Kingdom Human Trafficking Centre.[101]

Kate Roberts, community advocate at Kalayaan, told Human Rights Watch that in cases involving domestic workers who have come to the UK under the new visa rules and have left their employment she must inform them of the risks of referring them through the NRM because it exposes their undocumented status to the authorities. However, Kalayaan does so, and increasingly so, because referral through the NRM remains the only possibility for them to obtain legal aid. “The only way they can get a lawyer is if they have legal aid,” Roberts said. “And the only way [to do that] is if they’ve been trafficked.”[102]

Reporting Abuses to the Police

Migrant domestic workers who are experiencing abuse as well as those who already have fled from an abusive employer can be reluctant to go to the police because of the fear of being deported if they do so. Some domestic workers told Human Rights Watch they had been threatened by their employer with being reported to the police and imprisoned.

Domestic workers interviewed by Human Rights Watch also described a number of other reasons that made it difficult for them to leave their employer, including not having their passport, not knowing people in the UK, and not knowing the city in which they are living.

Several domestic workers interviewed by Human Rights Watch said they were reluctant to go to the police because their employer had told them the police would detain them if they ran away, or because they did not trust the police. 

Elizabeth A., a Nigerian domestic worker who worked for her employer under the old visa rules said:

They [the employers] said “If you go out alone and the police see you they will take you and send you to Nigeria.” I didn’t know I could change employer, only when I met Kalayaan.… The one that scared me most was the police, that they’d send me to Nigeria.[103]

Comfort S., also a Nigerian domestic worker on an old visa, told Human Rights Watch:

She [the employer] said the visa I had I could only stay with her until it finished. I didn’t know I could change employer. There was a time when she beat me and I said I want to go to Nigeria. She said if I try to run away the police will take me, put me in prison. I was scared. I didn’t want to be on the street.[104]

Given the lack of information made available to migrant domestic workers going to the UK, many of those interviewed by Human Rights Watch said they did not know the terms of their visa until they escaped from their employer and received assistance from the NGO Kalayaan, self-help groups, or other domestic workers. However, for those under new visas, there is little help they can receive once they run away, leaving them undocumented and vulnerable to further abuse.

Linda S., a Filipina domestic worker brought to the UK from Qatar to look after her employers’ adult son, said that although her employers’ children threatened her and mistreated her, “I was scared to go to the police because maybe they’ll give them money [as a bribe].”[105]

Andrea N., a Filipina domestic worker whose employer, a diplomat, locked her in the apartment, said: “I wanted to go to the police and report, but I was afraid. He’s a diplomat, maybe he has power.… I only found out about the rules on the visa when I got legal advice.”[106]

Zahia M., a Moroccan domestic worker who came to the UK under the new visa rules, said she had heard from mutual acquaintances that her Saudi employers had reported her to the police. “I’m afraid of going to the GP [the doctor] and the bank. If I go to the police, they’ll send me to Morocco. I just want to work to help my family.” Zahia M. told Human Rights Watch she has a brother who is blind and doesn’t work, and a sister who had a heart operation. Zahia M. said she had to provide for them and pay for her sister’s medicine.[107]

Lisa J., a Filipina domestic worker who came to the UK with her employer from Dubai under the new visa rules, said: “My Madam’s sister had four small children, she borrowed me. I slept in the living room with my compagnon [another domestic worker]. I woke up at 7:30 a.m. or 8 a.m., [and worked] until 10 p.m. or 11 p.m.” Lisa J. said she didn’t have her passport. “I don’t want to tell the police because I’m afraid of their reaction, if they send me back to the Philippines,” she said.[108]

Access to the Employment Tribunal or other Legal Remedies

For a domestic worker staying in the UK under the new visa rules, filing a claim with an employment tribunal is, in practice, almost impossible. Firstly, the new Overseas Domestic Workers visa is limited to six months and is not renewable. Should a domestic worker bring a claim, if he or she were to remain in the UK to pursue a claim against an employer from whom they had fled, the person would be undocumented and would not be able to work legally to support themselves financially during that time. Secondly, due to recent cuts to legal aid, migrant domestic workers who have not been trafficked are not entitled to legal aid to bring employment claims except for cases of discrimination. While workers can represent themselves before an employment tribunal, in practice, a migrant domestic worker would only be able to do so with assistance from a lawyer because many migrant domestic workers are not familiar with the relevant laws and procedures in the UK, in addition to the language and literacy barriers some of them face. Finally, if the person is removed or leaves the UK, in practice, it will be virtually impossible for them to pursue a legal claim against their former employer.

Access to legal assistance for migrant domestic workers has been seriously affected by the government’s cuts to legal aid as of April 1, 2013. These cuts particularly affect migrant domestic workers who have not been recognized as possible victims of trafficking.

Despite the UK’s obligations under the ECHR and the Human Rights Act to provide people whose rights under the convention have been breached with an effective remedy, legal aid is not available for victims of forced labour unless they have been trafficked.[109] Though UK law provides that legal aid can be granted in exceptional cases where failure to do so would be a breach of the individual’s rights under the ECHR, the wording suggests it would apply to specific cases and not to a category of individuals, such as domestic workers.[110]

Only those who have received either a decision by a “competent authority” that there are conclusive grounds indicating they have been trafficked, or reasonable grounds that they have been a victim of trafficking, can benefit from legal aid for their cases concerning their (non-asylum-related) immigration status in the UK. Those who have been referred by a first responder as victims of trafficking can make a claim under employment law in relation to their exploitation and claims for damages arising from their exploitation.[111] However, cuts to legal aid contracts for employment cases and the reduction in the number of cases the remaining providers can take mean that legal firms have had to decrease the number of cases in which they can assist victims of trafficking in making compensation claims and proceedings relating to exploitation by their employer.[112]

A migrant domestic worker who has not been paid, or who has been paid very little (the stark reality for the majority of domestic workers interviewed by Human Rights Watch for this report) would not be able to afford a lawyer’s fees. While many of the domestic workers interviewed by Human Rights Watch, particularly those from the Philippines, spoke English, it was not their mother tongue, and others did not speak English at all.

Since the cuts, legal aid for immigration proceedings, other than issues relating to asylum and immigration detention, is no longer available. Legal aid for cases relating to employment has also been cut, unless it is a case of discrimination.[113]  Although domestic workers could in theory bring an employment claim in the employment tribunal without being represented or otherwise assisted by a lawyer, the complexity of such cases and the language barrier make it, in practice, impossible.

Another obstacle, for those under the new visa, is that if they leave their employer or stay after their visa has expired, they lose their immigration status. They cannot work legally to support themselves while the case goes forward, and if they do work, they would not be covered by employment law for such work as it would not be legal.

Emily-Anna Gibbs, a lawyer who represents victims of trafficking and forced labour in employment cases, told Human Rights Watch:

She [a domestic worker on a new visa] would effectively have to get an employment solicitor and an immigration solicitor because she’ll be an overstayer. She’ll have to have a first responder, go through the NRM, make an argument that she needs to stay. If she hasn’t been trafficked, she pretty much won’t have status.[114]

Plans by the Ministry of Justice to further restrict legal aid would leave even more migrant domestic workers without legal assistance.[115] These plans include the introduction of a “residence test” for civil legal aid, by which applicants would have to have lived in the UK as legal residence for at least 12 continuous months. Migrant domestic workers who entered on the new tied visa who have not been recognized as potential victims of trafficking would automatically be excluded. A government consultation on the plans ended on November 1, 2013.[116] At the time of writing the proposed regulations had not yet been presented before parliament and were being challenged before the High Court.[117]

Domestic workers employed by diplomats face further obstacles to redress because their employers have diplomatic immunity. In a case involving two domestic workers in diplomatic households who brought claims against the embassies of Sudan and Libya respectively for unfair dismissal, breach of working time regulations, discrimination, and failure to pay the national minimum wage, the embassies argued that they had diplomatic immunity, which the employment tribunal upheld in each case.[118] In October 2013, the UK Employment Appeal Tribunal set aside the employers’ diplomatic immunity for the claims of breach of working time regulations and discrimination, on the grounds that the EU Charter of Fundamental Rights grants the right to an effective remedy. An appeal against the ruling was pending at time of writing.

Returning Home

Returning home is not a realistic protection measure for domestic workers who have been abused by their employer. Expecting migrant domestic workers who have fled from abusive employers to return home grants effective impunity to those employers and absolves the UK of its obligation to ensure effective remedies for domestic workers who have been victims of forced labour or servitude regardless of whether they have been trafficked. It is also not an option many will consider, given the considerable pressure they face to provide for their relatives back home.

“None of them want to go home,” Marissa Begonia, coordinator of the self-help group Justice for Domestic Workers, told Human Rights Watch. “They came to the UK to provide for their family. Those who went through an agency have a loan. There’s nothing there for them; it’s humiliating if they go back unsuccessful.”[119]

Sarah S.’s case

Sarah S. is a 39-year-old Filipina domestic worker who is the single mother of two children. After a year and a half in a Gulf country, Sarah S. went to London with her employers for a two week vacation in 2012. 

“In London they just locked me at home. I think it was the third floor. We arrived in London and went directly to the house.… I ate after they finished, the leftovers”, she said. “They didn’t pay me here. It was included in the salary [in the Gulf]. I had [the equivalent of US$50] only. When I changed it, it was £20 or £30.… I felt so sad because they just locked me in the house. I didn’t see anything. They went out with the children and I stayed alone.… I felt very sad. No telephone, no one to talk to. One day my tooth was very painful, I said ‘Madam I’m not feeling well.’ She said just take a paracetamol. For three days it was painful.”

Sarah S.’s employer kept her passport locked in a drawer. One day while she was cleaning she saw the key to the front door in a drawer and left.

“When I ran away I was sleeping in the park because I didn’t know anybody here…. I was five days in Regent’s Park. I felt like a beggar,” she said.

When she was interviewed by Human Rights Watch, Sarah S. was working as an undocumented domestic worker looking after three children (including a baby), cleaning, and cooking. Sarah S. said that when the baby woke up during the night, she was the one to wake up with her. She had two days off per week but if her employer worked she had to work too. Her employer paid her £20 per day. Once, Sarah S. fell while she was cleaning and badly hurt her ankle and knee. She wasn’t able to walk for three days, but she didn’t go to see a doctor as her employer told her she couldn’t go due to her undocumented status. She just took some medicine her employer gave her.

Sarah S. said she sometimes thought of leaving her employer, but that she was afraid because her employer threatened to call the police. “She says ‘Sarah if you go out of my place I will call the police and they’ll send you back.’ … [She says] ‘You must be thankful that I pay you £20. You cannot work anywhere.’” [120]

[94] Human Rights Watch interviews with Irene C., (not her real name), London, July 26, 2013; Ana V. (not her real name), January 26, 2014; Zahia M. (not her real name), January 29, 2014; and with Kate Roberts, Community Advocate at Kalayaan, London, December 6, 2013.

[95] Committee on the Elimination of Discrimination against Women, “List of issues and questions to the United Kingdom of Great Britain and Northern Ireland,” November 2, 2012, paragraph 21, available on Equality and Diversity Forum, http://www.edf.org.uk/blog/?p=25071 (accessed January 23, 2014).

[96] Committee on the Elimination of Discrimination against Women, “Replies of the United Kingdom of Great Britain and Northern Ireland to the list of issues to be taken up in connection with the consideration of its seventh periodic report,” February 5, 2013, paragraph 174, http://www2.ohchr.org/English/bodies/cedaw/docs/CEDAW.C.GBR.Q.7.Add.1.pdf (accessed January 23, 2014).

[97] However, victims of trafficking can simultaneously apply for asylum and, as asylum-seekers, apply for permission to work.

[98] National Crime Agency, “National Referral Mechanism,” undated, http://www.nationalcrimeagency.gov.uk/about-us/what-we-do/specialist-capabilities/uk-human-trafficking-centre/national-referral-mechanism (accessed January 23, 2014).

[99] The Anti Trafficking Monitoring Group, “Hidden in plain sight – Three years on: updated analysis of UK measures to protect trafficked persons,” October 2013, http://www.antislavery.org/includes/documents/cm_docs/2013/h/hidden_in_plain_sight.pdf (accessed February 2, 2014).

[100] All Party Parliamentary Group on Human Trafficking and Modern Day Slavery, “Inquiry into the collection, exchange and use of data about human trafficking and modern slavery,” January 2014, page 24, http://humantraffickingfoundation.org/sites/default/files/DataInquiry2014.pdf (accessed February 25, 2014).

[101] Modern Slavery Bill Evidence Review Panel, “Establishing Britain as a world leader in the fight against modern slavery,” December 2013, p. 58, http://www.centreforsocialjustice.org.uk/UserStorage/pdf/Pdf%20reports/Establishing-Britain-as-a-world-leader-in-the-fight-against-modern-slavery.pdf (accessed February 25, 2014).

[102] Human Rights Watch interview with Kate Roberts, Community Advocate at Kalayaan, London, December 6, 2013.

[103] Human Rights Watch interview with Elizabeth A. (not her real name), London, December 1, 2013.

[104] Human Rights Watch interview with Comfort S. (not her real name), October 25, 2013.

[105] Human Rights Watch interview with Linda S. (not her real name), September 8, 2013.

[106] Human Rights Watch interview with Andrea N. (not her real name), September 8, 2013. Andrea had made an application under the National Referral Mechanism.

[107] Human Rights Watch interview with Zahia M. (not her real name), January 19, 2014.

[108] Human Rights Watch interview with Lisa J. (not her real name), September 8, 2013.

[109] While there is no right to legal aid under the European Convention on Human Rights (ECHR) in civil law, the European Court of Human Rights has ruled that Article 6 of the ECHR “may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory […], or by reason of the complexity of the procedure or of the case.” (Airey v. Ireland, October 9, 1979, paragraph 26).

[110] Legal Aid, Sentencing and Punishment of Offenders Act 2012, section 10.; Human Rights Watch interview with Andrew Tucker, Senior Policy Manager on family, immigration, asylum and international legal aid and access to justice, Ministry of Justice, London, January 28, 2014.

[111] Legal Aid, Sentencing and Punishment of Offenders Act 2012, Schedule 1, Part 1, paragraph 32.

[112] Human Rights Watch interview with a lawyer who requested anonymity, London, December 11, 2013.

[113] Legal Aid, Sentencing and Punishment of Offenders Act 2012, Schedule 1, Part 3, paragraph 20. Cases of discrimination are defined as “civil legal services provided in relation to contravention of the Equality Act 2010 or a previous discrimination enactment” and include discrimination on grounds of sex, disability, race, religion, or belief (LASPO, Schedule 1, Part 1, paragraph 43).

[114] Human Rights Watch interview with Emil-Anna Gibbs, solicitor at the Anti-Trafficking and Labour Exploitation Unit, London, December 9, 2013.

[115] As well as the introduction of a residence test for civil legal aid, the government’s proposals include the restriction of legal aid available to prisoners, the removal of legal aid for cases considered to have “borderline” chances of success and the restriction of legal aid to challenge government laws and policies through judicial review applications.

[116] A first consultation phase ended on June 4, 2013, but the Ministry of Justice amended certain proposals in light of the responses it received, and a consultation on the amended proposals ended on November 1, 2013: Ministry of Justice, “Transforming Legal Aid: Next Steps,” https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-steps (accessed February 26, 2014).

[117] The legal charity Public Law Project initiated a judicial review of the residence test, which was pending at the time of writing: Public Law Project, “Permission granted in residence test challenge,” January 24, 2014, http://www.publiclawproject.org.uk/news/31/permission-granted-in-residence-test-challenge. (accessed March 25, 2014).

[118] UK Employment Appeal Tribunal, Benkharbouche v Sudan, Janah v Libya, October 4, 2013, UKEAT/0401/12/GE.

[119] Human Rights Watch interview with Marissa Begonia, coordinator of Justice for Domestic Workers London, July 23, 2013.

[120] Human Rights Watch interview with Sarah S. (not her real name), London, December 18, 2013.