09 September 2011

The Anti-Trafficking Legal Project (ATLeP) is an informal network of specialist practitioners who advise, represent and support victims of trafficking and other vulnerable people.

ATLeP was set up in September 2006 by a number of barristers and solicitors experienced in representing victims of trafficking and vulnerable women and child victim cases.  The project was set up in order to share our expertise, to exchange and make available useful resource materials and help develop good practice within the legal sector and social welfare sector in dealing with vulnerable clients.

As part of its activities, ATLeP runs training courses for immigration practitioners on legal and medical issues affecting victims of trafficking. We design courses for non-lawyers in the voluntary and social services sector who work with or come into contact with victims of trafficking.  ATLeP produces research guides for immigration practitioners representing victims of trafficking, comprising relevant country information, medical literature and expert contacts.  ATLeP undertakes research and makes policy submissions, for example on the identification and treatment of victims of trafficking.  ATLeP was called to give oral evidence to the Home Affairs Committee Inquiry into Human Trafficking in June 2008 and weight was given to its evidence in the final report, The Trade in Human Beings: Human Trafficking in the UK[1].

The members of ATLeP have considerable and extended experience representing trafficked and vulnerable immigration clients.  We are therefore well placed to assist on certain of the issues identified in this consultation.  Our response is focused on the measures relating to the particularly vulnerable group of overseas domestic workers.

Q26. Should the route for domestic workers in private households be closed?

No.

ATLeP has read the response to the consultation submitted by the organisation Kalayaan[2] and supports its well researched and evidenced conclusions.  Whilst recognising the vulnerability of domestic workers to exploitation during migration, we note that the individuals concerned consider that their best protection from abuse and exploitation is through the retention of the entry route for domestic workers in private households alongside appropriate safeguards including the right to change employer.  ATLeP considers that the views of overseas domestic workers themselves should be afforded particular consideration.

ATLeP is concerned that the closure of the route for domestic workers in private household may increase the vulnerability of domestic workers to trafficking and exploitation in their country of origin, contrary to the UK’s legal obligations to co-operate internationally to prevent trafficking and its underlying causes.

The Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention Against Transnational Organised Crime (Palermo Protocol) requires States to:

[T]ake or strengthen measures, including through bilateral or multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity[3].

This duty is echoed in the Council of Europe Convention which requires to States to establish and/or strengthen effective policies and programmes to prevent trafficking, for example through social and economic initiatives[4] which are explored further in the Explanatory Note to the Convention:

Social and economic initiatives tackle the underlying and structural causes of trafficking and require long-term investment. It is widely recognised that improvement of economic and social conditions in countries of origin and measures to deal with extreme poverty would be the most effective way of preventing trafficking. Among social and economic initiatives, improved training and more employment opportunities for people liable to be traffickers’ prime targets would undoubtedly help prevent trafficking in human beings[5].

In relation to these duties and to the Government’s stated development objectives to reduce poverty, the definition of migration policy solely in terms of national self-interest and economic benefits to the UK represents a lost opportunity when migration, both skilled and low-skilled, can bring benefits in terms of international development[6].  Further, the closure of the route for domestic workers may actively cause harm by requiring employers who migrate to the UK to dismiss their domestic worker.

Domestic workers are among the most marginalised members of the workforce in developing countries[7].   Domestic work is mainly carried out by women and girls, many of whom are members of disadvantaged communities and who are particularly vulnerable to discrimination in respect of conditions of employment and to abuses of human rights[8].  As many domestic workers will be employed in contexts of poverty and vulnerable employment, their dismissal may place them at heightened risk of trafficking or other forms of exploitation in their country of origin.  For example, it has been reported in Ethiopia that trafficking of women directly for the purposes of prostitution is not common practice but that:

In most cases women and children go into prostitution when the original purpose for migration or trafficking fails.  According to a study conducted on child prostitution in Addis Ababa, 36 out of 70 (51.1 per cent) of the respondents had tried alternative employment such as working as housemaids before engaging in prostitution.[9]

A further concern relates to the danger of unscrupulous employers bringing domestic workers to the UK unlawfully in where the legal migration route is removed, with the increased risk to the domestic worker of coercion and control on account of their illegal status.

The International Labour Organisation has identified that trafficking flourishes in contexts where legal migration routes do not exist and labour standards are not applied[10], and both the UN Special Rapporteur on Trafficking in Persons, especially Women and Children[11] and the UN Special Rapporteur on Violence Against Women[12] identify restrictions on legal migration as a cause of vulnerability to trafficking for forced labour, the latter observing that women are particularly vulnerable[13].

The Council of Europe Convention on Action Against Trafficking in Human Beings places a duty on States to prevent trafficking:

Each Party shall take appropriate measures, as may be necessary, to enable migration to take place legally, in particular through dissemination of accurate information by relevant offices, on the conditions enabling the legal entry in and stay on its territory[14].

In relation to prevention, the Office of the High Commissioner for Human Rights Recommended Principles and Guidelines on Human Rights and Human Trafficking also advocates that States consider:

Reviewing and modifying policies that may compel people to resort to irregular and vulnerable labour migration. This process should include examining the effect on women of repressive and/or discriminatory nationality, property, immigration, emigration and migrant labour laws.

Examining ways of increasing opportunities for legal, gainful and non exploitative labour migration. The promotion of labour migration by the State should be dependent on the existence of regulatory and supervisory mechanisms to protect the rights of migrant workers[15].

The ILO, IOM and OSCE Handbook on Establishing Effective Labour Migration Policies in Countries of Origin and Destination  recommends a best practice approach to safeguarding domestic workers through ensuring labour legislation that provides domestic workers with employments rights and protections; the provision of legal migration channels; the monitoring and regulation of workplaces; the prosecution of employers who violate the rights of their workers; and increasing flexibility for domestic workers in changing their employer.

The UK’s current approach towards overseas domestic workers employed in private households has been internationally commended:

The Special Rapporteur notes with appreciation that the right to change employer has been instrumental in facilitating the escape of migrant domestic workers from exploitative and abusive situations. This is because they know they can receive support and assistance and still seek work with another employer without facing the risk of being removed from the United Kingdom.

The Special Rapporteur welcomes the decision of the Government to continue this visa scheme for migrant domestic workers for at least two years, notwithstanding the introduction of the points-based system for nationals who apply to work in the United Kingdom from outside the European Economic Area. As highlighted by certain stakeholders and the Home Affairs Committee, migrant domestic workers warrant the special status afforded by the current scheme, so that they have access to labour rights recognized as for all workers and may change employers in case of abuse or exploitation[16].

It is ATLeP’s view therefore that the removal of these protections for domestic workers, discussed in more detail at question 28, would represent a regressive step.

An additional impact of the proposed closure of the entry route for migrant workers in domestic households would be the disruption stable relationships and attachments developed between an employer’s children and their carer inconsistent with the Secretary of State’s duty under s.55 Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children[17], which involves ensuring that children grow up in circumstances with the provision of safe and effective care[18].

Q27. If we were to continue to allow domestic workers in private households to enter the UK, should their leave be capped (at a maximum of 6 months, or 12 months if accompanying a skilled worker)?

No.

There is a danger that capping domestic workers’ leave would force them into illegality through pressure from employers for them to continue working in their household.   This would leave domestic workers particularly vulnerable to exploitation and abuse.

ATLeP also considers that the ability of overseas domestic workers to change employers is an essential safeguard against exploitation and abuse as discussed below at question 28.  A cap on domestic workers’ leave would effectively prevent them from changing employers on account of the restricted length of time they could offer a second employer within the limit of their leave.

The dismissal of a domestic worker from an employer’s home to comply with the proposed immigration restriction also risks leaving  vulnerable workers in danger of unemployment and poverty as discussed at question 26 above.  The risks to the domestic worker may be increased by any additional costs they have incurred through migration.

An additional impact of the cap would be the disruption of stable relationships and attachments developed between an employer’s children and their carer inconsistent with the Secretary of State’s duty under s.55 Borders, Citizenship and Immigration Act 2009, as discussed at question 26 above.

Q28. Given the existence of the National Referral Mechanism for identifying victims of trafficking, should the unrestricted right of overseas domestic workers in private households to change employer be removed?

No.

This proposal will put the domestic worker entirely at the mercy of their employer and place them in a situation of indentured servitude.

A significant factor in exploitative domestic worker arrangements is the control held by the employer over the immigration status of a worker and lack of alternatives for the worker.  In the UKBA instructions the following is recorded:

Domestic servitude

Domestic servitude often involves people working in a household where they are ill treated, humiliated and subjected to exhausting working hours. It occurs when domestic workers have their rights violated as they are forced to live and work under unbearable conditions for little or no pay – until they escape or are rescued. A common indicator is withholding of passports or information about their rights as workers or visitors in the UK.

The problems of domestic workers held in servitude are compounded by the fact that it is often very difficult for them to leave their employers and seek help. Abusive employers create physical and psychological obstacles by, for example, instilling fear in the domestic slave by threatening them – or their relatives – with further abuse or deportation, or by withholding their passport[19].

Enabling overseas domestic workers in private households to change employer has had a proven effect in assisting those in situations to leave their abusive employers.  In its Inquiry on Human Trafficking, the House of Commons Home Affairs Committee found that:

To retain the existing Migrant Domestic Workers visa and the protection it offers to workers is the single most important issue in preventing the forced labour and trafficking of such workers.[20]

This proposal will once again place domestic workers under the direct control of their employer with no avenue of escape.

ATLeP believes that this proposal would place the UK in breach of the Council of Europe Convention on Action Against Trafficking in Human Beings.  The paramount objectives of the Council of Europe Convention are set out in the Preamble at paragraph 5:

“[C]onsidering that respect for victims’ rights, protection of victims and action to combat trafficking in human beings must be the paramount objectives”

Under Article 5 of the Council of Europe Convention, States have a duty to take measures to prevent trafficking in human beings.  We also note the UK case of Kinuthia v SSHD [2002] INLR 133 in which the court held:

“The effectiveness of the system provided is to be judged normally by its systemic ability to deter and/or to prevent the form of persecution of which there is a risk, not just punishment of it after the event.”

Allowing domestic workers to change employer acts as a deterrent to the employer to act in an abusive and/or exploitative manner.  This deterrent would be removed if the employee had no alternative but to remain with the abusive employer in order to earn money.  As an employer will be aware that the worker is unable to change employment, the likelihood of abuse occurring will rise.

Many domestic workers are from countries with no welfare system and often are the only source of income for their family (and sometimes extended family).  Even in a situation of severe exploitation the income that they do earn is often essential for their family’s survival and therefore one of the reasons such workers remain in exploitative situations is their belief that there is no other option for them and their family.  Removing the ability to change employer will operate to confirm this belief.

This proposal will therefore make it significantly more difficult and less likely that a person in an exploitative situation will leave their employer with the result that it is likely to increase the incidence of abuse, domestic servitude, forced labour and trafficking and negatively affect the UK’s ability to prevent trafficking in human beings.

ATLeP does not consider that the deterrent and preventative effects achieved by the right to change employer can be replaced by the operation of the National Referral Mechanism (NRM).

The NRM is only effective if it is accessible to those who are victims of trafficking.  As discussed above, the proposal will act as a disincentive for victims to leave abusive employers and result in decreased identification of victims.

We note and agree with the concerns of Kalayaan that there are problems with the identification of domestic workers as victims of trafficking by the police including the return of victims to exploitative employers.

The NRM is not proactive in identifying victims of forced labour/domestic servitude.  Instead reliance is placed on “self-identification”.  The difficulties faced by overseas domestic workers in leaving such a situation are outlined in the UKBA policy above.  The only effect this proposal will have is to make it significantly more unlikely that victims will come forward.

Migrant domestic workers who seek protection under the NRM are not permitted to continue working.  The source of income to their families will therefore cease at the point they enter the NRM.  There is also no guarantee that a residence permit will be granted and it is more likely that the person, having come forward, will be subject to removal action.  This is not only counter-intuitive in terms of victims’ rights but also in terms of acting as a deterrent to employers.  The lack of incentive for victims to enter the NRM will have a negative effect on the UK’s ability to detect, prevent and prosecute trafficking offences.  Moreover, the NRM will not assist overseas domestic workers who do not meet the definition of “trafficking” but are otherwise exploited or abused.

Q29. Should leave for private servants in diplomatic households be capped at 12 months?

No.

The concerns discussed at question 27 above apply equally to private servants in domestic households.

Further, ATLeP considers that protections to private servants in domestic households should be extended to include safeguards such as the right to change employer.  This is in line with the recommendations made in this regard by the UN Special Rapporteur on Contemporary Forms of Slavery[21] and by the UN Special Rapporteur on the Human Rights of Migrants in the report of his visit to the UK in 2010[22].

The Special Rapporteur expressed concerns that domestic workers who accompany diplomats to the UK are particularly vulnerable as they are currently unable to change employers outside the diplomatic mission.  This leaves them unable to leave exploitative and abusive situations as their families are usually reliant on their remittances.  The diplomatic status of their employers also makes it difficult for domestic workers to feel able to seek redress and access justice[23].

Research undertaken by Kalayaan has also identified an increased risk of trafficking of domestic workers by diplomats in comparison to trafficking by employers in private households, highlighting the efficacy of the right to withdraw labour and change employers in preventing abuse and exploitation[24].

Q30. Should an avenue to settlement be removed from overseas domestic workers (private servants in diplomatic households and domestic workers in private households)?

No.

As highlighted in the consultation document, the case for providing an avenue to settlement relates to the vulnerability of domestic workers to mistreatment and abuse[25].  There is no change to the vulnerability of domestic workers and the case for providing a route to settlement remains.

ATLeP does not consider that it is illogical or unfair to permit domestic workers to apply for settlement where settlement may be restricted to Tier 2 workers.  It remains the case that domestic workers are vulnerable to mistreatment and abuse and the special provision for domestic workers should continue to apply.  Domestic workers are particularly vulnerable as they work in private households, have restricted opportunities to change employer and, as domestic work is traditionally undervalued and low paid, they have fewer financial resources to enable them to leave abusive situations.

We also consider that an exception is appropriate because it takes into account the entrenched discrimination towards women involved in the lack of value accorded to domestic work and its classification as ‘low skilled’ when it may involve any of a range of essential and valuable tasks traditionally undertaken by women such as child care, care of the elderly, household maintenance, cooking and/or cleaning.

Further, domestic workers occupy a unique position in contributing their labour to facilitate the achievement and paid opportunities of others outside the home.  As Michelle Bachelet, Head of UN Women, has stated:

Behind these figures [for domestic labour] there are people, most often a woman or girl who works tirelessly so others can engage in paid employment, enhance material and emotional well-being, enjoy reduced workloads, and live in relative degrees of comfort[26].

It is correct that recognition is given to the invisible contribution of overseas domestic workers to the contribution of migrants defined as highly skilled that the UK is keen to attract.

Question 31: Should the right for overseas domestic workers (private servants in diplomatic households and domestic workers in private households) to bring their dependants (spouses and children) to the UK be removed?

No.

Overseas domestic workers are currently permitted to bring their dependants to the UK if they are able to maintain and accommodate them without recourse to public funds.  ATLeP considers that migrant domestic workers should continue to have the right to bring their dependants to the UK in the same way as other workers without discrimination and in recognition of their human rights to family life.

Question 32: If we were to continue to allow overseas domestic workers to bring their dependants, should those dependants’ right to work be removed?

No.

ATLeP considers that the right to work of dependants of overseas domestic workers should be retained.  Not only does this enable domestic workers to remain with their families but the presence of their dependents and the additional source of income may lessen their isolation and dependency on an employer and reduce their vulnerability to exploitation and abuse.



[1]  Home Affairs Committee, Sixth Report – The Trade in Human Beings: Human Trafficking in the UK (London: The Stationery Office), 06 May 2009 at: http://www.publications.parliament.uk/pa/cm200809/cmselect/cmhaff/23/2302.htm

[2] Kalayaan (2011) Kalayaan response to consultation – questions on migrant domestic workers at: http://www.kalayaan.org.uk/documents/Kalayaan%20full%20response%20to%20consultation%20%28final%29.pdf

[3] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (UNGA Res. 55/25), 15 November 2000 at: http://www.unodc.org/unodc/en/treaties/CTOC/index.html, article 9(4)

[4] Council of Europe Convention on Action against Trafficking in Human Beings and Its Explanatory Report (ETS 197), 16 May 2005 at: http://www.coe.int/t/dg2/trafficking/campaign/Source/PDF_Conv_197_Trafficking_E.pdf, article 5

[5] Ibid, Explanatory Note 103

[6] Laura Chappell and Sarah Mulley (2010) Development: Do points mean prizes? How the UK’s migration policies could benefit the world’s poor. Development on the Move Working Paper 5 (London: Institute of Public Policy Research) at: http://www.ippr.org/images/media/files/publication/2011/05/Development_Do%20points%20mean%20prizes_1754.pdf

[7] ILO Convention concerning decent work for domestic workers, at: http://www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/meetingdocument/wcms_157836.pdf, preamble

[8] Ibid

[9] Yoseph Endeshaw, Mebratu Gebeyehu, Belete Reta (2006 ) Assessment of Trafficking In Women and Children in and from Ethiopia, International Organisation for Migration

[10] P.A. Taran & G. Moreno-Fontes Chammartin (ILO) (2002) Getting at the roots: Stopping exploitation of migrant workers by organized crime, paper presented at the International Symposium on the UN Convention Against Transnational Organized Crime: Requirements for Effective Implementation, Turin, Feb 22-23 2002, at: http://www.ilo.org/public/english/protection/migrant/download/pom/pom1e.pdf,

[11] UN Special Rapporteur on Trafficking in Persons, especially Women and Children (2010) Report of the Special Rapporteur on Trafficking in Persons, especially Women and Children, A/65/288, at: http://www2.ohchr.org/english/issues/trafficking/annual.htm, para 24

[12] Special Rapporteur on Violence Against Women (2000) Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences, E/CN.4/2000/68, http://www.ohchr.org/EN/Issues/Women/SRWomen/Pages/AnnualReports.aspx, para 61-62

Ibid (2001) Report of the Special Rapporteur of the Commission on Human Rights on Violence Against Women on the subject of race, gender and violence against women, A/Conf.189/PC.3/5 at: http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/644460b7ef7d41c9c1256aa9003453c5/$FILE/G0114744.doc , para 102

[13] Special Rapporteur on Violence Against Women (2000) Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences, E/CN.4/2000/68, http://www.ohchr.org/EN/Issues/Women/SRWomen/Pages/AnnualReports.aspx, para 101

[14] Article 5(4)

[16] Special Rapporteur on the Human Rights of Migrants (2010) Report of the Special Rapporteur on the Human Rights of Migrants Addendum: Mission to the United Kingdom of Great Britain and Northern Ireland, A/HRC/14/30/Add.3 at: http://www.ohchr.org/EN/countries/ENACARegion/Pages/GBIndex.aspx, para 60-61

[17] Borders, Citizen and Immigration Act 2009 at: http://www.legislation.gov.uk/ukpga/2009/11/contents

[18] UK Border Agency & Department for Children Schools and Families (2009) Every Child Matters: Statutory Guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children.  Issued under section 55 of the Borders, Citizenship and Immigration Act 2009 at: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/legislation/bci-act1/change-for-children.pdf?view=Binary

[20] House of Commons Home Affairs Committee (2009) The Trade in Human Beings: Human Trafficking in the UK (London: TSO) at: http://www.publications.parliament.uk/pa/cm200809/cmselect/cmhaff/23/23i.pdf

[21] Special Rapporteur on Contemporary Forms of Slavery (2010) Report of the Special Rapporteur on Contemporary Forms of Slavery, A/HRC/15/20 at: http://www2.ohchr.org/english/issues/slavery/rapporteur/docs/A.HRC.15.20_EN.pdf, para 96

[22] Special Rapporteur on the Human Rights of Migrants (2010) Report of the Special Rapporteur on the Human Rights of Migrants Addendum: Mission to the United Kingdom of Great Britain and Northern Ireland, A/HRC/14/30/Add.3 at: http://www.ohchr.org/EN/countries/ENACARegion/Pages/GBIndex.aspx, para 76(a)

[23] Ibid, para 62

[24] Mumtaz Lalani (2011) Ending the Abuse: Policies that work to protect migrant domestic workers (London: Kalayaan) at: http://www.kalayaan.org.uk/documents/Kalayaan%20Report%20final.pdf

[25] UKBA (2011) Employment-related settlement, Tier 5 and overseas domestic workers: a consultation, at: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/consultations/employment-related-settlement/, para 7.13

[26] Michelle Bachelet (2011) Address by Michelle Bachelet on the Occasion of the Adoption of the ILO Convention and Recommendation on Domestic Workers at: http://www.unwomen.org/2011/06/address-by-michelle-bachelet-on-the-occasion-of-the-adoption-of-the-ilo-convention-and-recommendation-on-domestic-workers/