Modern Slavery Bill: migrant domestic workers fall through the gaps

By Kate Roberts

UK immigration rules currently prevent migrant domestic workers from changing employers. This removes these migrant workers’ fundamental rights and leaves them vulnerable to abuse.

Effective laws and policies by the state are central to the promotion of human rights and the ending of conditions deemed to be modern slavery. The UK’s Modern Slavery Bill has aspirations to set a world-class example  in combating modern slavery. However, scrutiny of the bill and the government’s own immigration policies raise a number of critical questions in relation to migrant domestic workers.

The UK’s current immigration rules for migrant domestic workers, which were introduced in April 2012, tie domestic workers to their employers. They have resulted in an increase in the reported abuse and exploitation of these already vulnerable workers.

On 25 March the House of Lords will vote on an amendment that would address this issue. This is the final opportunity to close a shameful gap in the Modern Slavery Bill.

‘Domestic workers are imprisoned and made to work all hours of the day and night for little or no pay… We must put a stop to these crimes, and stamp out modern slavery. Theresa May, Home Secretary,foreword to the Modern Slavery Strategy, Nov 2014.

Domestic servitude and forced labour are forms of human trafficking, with the UK Government very keen to highlight that it is committed to the eradication of these and other forms of exploitation counted as modern slavery today. Paradoxically, the laws and policies applied by government to migrant domestic workers in the UK do not substantiate this rhetoric.

The April 2012 changes to the immigration rules for overseas domestic worker (ODW) visas removed the right of migrant domestic workers to change employer. Many workers now actually have their employer’s name written on their UK visa—a clear indication that in practice they are seen as their employer’s private concern. This effectively removes any bargaining power from within an already unbalanced employment relationship, with migrant domestic workers left unable to resign, question or challenge any aspect of their treatment.

Almost three years after migrant domestic workers were tied to their employers, the House of Lords voted in February for an amendment to the Modern Slavery Bill that would have reinstated the right to change employers and other basic protections. This was overturned in the House of Commons on 17 March and replaced by the government’s amendment in lieu. The government’s stated objection to the Lords’ amendment is that if domestic workers are able to change employers, workers who are abused may simply leave and get a new job. This would allow abusive employers to remain unreported and unprosecuted. Instead, the government’s amendment provides for only those workers who have entered the National Referral Mechanism (NRM) and been identified as trafficked to have the possibility of a six month visa as a domestic worker.

To prevent domestic workers from changing employers in order to encourage more prosecutions makes no sense. It misses the facts that being able to change employer did much to prevent abuse. Migrant domestic workers were more likely to go to the police when they had the right to change employer and were less fearful of authorities. It is Orwellian to leave migrant domestic workers tied to their employers in order to force them, once they are abused, to report their employers to the authorities in order to access any type of protection.

The government’s amendment will not be effective. Migrant domestic workers in the UK have now been tied to their employers for almost three years, and since then the only way they can access any advice or protection is if they are positively identified as trafficked via the NRM. To date there has been no upheld conviction for trafficking for the purpose of domestic servitude in the UK. Indeed, in February the Court of Appeal upheld a diplomat’s claim to immunity, thereby preventing two domestic workers deemed by the authorities to have been trafficked from bringing a claim for compensation.

The government’s stated reason for curtailing the right of migrant domestic workers to change employer in 2012 was to decrease net migration to the UK. However, the percentage impact of migrant domestic workers on UK net migration was less than 0.5 percent at the time. The number of visas issued for migrant domestic workers has remained more or less steady since the changes. Home Office figures show that 16,528 ODW visas were issued in 2013; 15,745 in 2012; 16,187 in 2011; 15,351 in 2010; and 14,887 in 2009, according to data obtained through freedom of information requests.

Beyond the 200 workers a year who come to Kalayaan, figures on the number of migrant domestic workers who run away from employers to escape suffering are not available. However, it is certain that those that do run away face a more precarious existence than before the introduction of the tied visa because they are no longer able to remain documented and visible.

In 2009 the Home Affairs Select Committee’s Inquiry into Trafficking found that retaining the protections provided by the pre-2012 ODW visa was “the single most important issue in preventing the forced labour and trafficking of such workers.” With this in mind it is incredible that these very rights were removed so soon after the committee’s findings, particularly so because denying migrant domestic workers the right to change their employers by extension denies them the basic negotiating and registration rights that should be available to any worker.

As the Joint Committee on the Draft Modern Slavery Bill published in April 2014 found, “In the case of the domestic worker’s visa, policy changes have unintentionally strengthened the hand of the slave master against the victim of slavery.”

The experiences of domestic workers on the tied visa

At present, very little is known about what happens to migrant domestic workers once they enter the UK with their employer. Most available evidence comes from Kalayaan, which registered 402 new migrant domestic workers between April 2012 and April 2014. Of these, 120 workers were on the post-2012 visa and therefore tied to their employers. These workers generally reported less freedom and more control by their employers than those who were not tied. Their experiences, about which Kalayaan published a briefing in April 2014, are summarised as follows:

• Almost three-quarters of workers tied to their employers reported never being allowed out of the house unsupervised (71 percent), compared to under half on the original visa (43 percent).
• 65 percent of tied migrant domestic workers (MDWs) did not have their own rooms—they shared with the children or slept in the kitchen or lounge—compared with 34 percent of those not tied to their employers.
• 53 percent of tied MDWs worked more than 16 hours a day, compared to 32 percent of those who had the right to change employer.
• 60 percent of those on the tied visa were paid less than £50 a week, compared with 36 percent of those on the original visa.
• Kalayaan staff internally assessed more than double (69 percent) of those who were tied as trafficked, in contrast with 26 percent of those who had not been tied. Two thirds of referrals into the NRMfor identifying victims of trafficking made by Kalayaan were of domestic workers who were tied to their employers.

The government’s amendment in lieu

The government’s amendment in lieu does nothing to protect migrant domestic workers against abuse in the way that allowing them to change employers would. Those migrant domestic workers identified as trafficked through the NRM may get a six month visa, but for the worker trapped with her employer the choice remains the same: endure abuse, or break the law and leave.

There is no guarantee of protection until the worker receives a positive decision through the NRM. This requires them to go to the authorities—having already breached the immigration rules by leaving their employer—before they know they are safe. Even for those who do escape, who get good advice and support, and who make the decision to enter the NRM the likelihood of actually finding work on a six month visa is low and the fate of the worker beyond this is unclear. There is also the possibility that prosecutions of employers will be less likely, as they can easily suggest that allegations of maltreatment were fabricated in order for the worker to stay in the UK. Only a positive decision as having been trafficked will allow the worker can stay in the UK.

Lord Hylton, who is fighting to return basic protections to migrant domestic workers, has tabled a further amendment to the government’s amendment. This will be debated on 25 March, and asks only for the minimum migrant domestic workers need to be safe: a) the ability to change employer but not sector; b) the ability to renew visas while employed in full-time domestic work; and c) the ability to obtain temporary visas when found to have been subject to slavery, thereby allowing migrant domestic workers time to look for other jobs. The amendment also requires domestic workers to notify the Secretary of State when they change employers, thereby giving the government the opportunity to follow up with any employers where they are concerned abuse may have occurred.

It would be shameful to have a Modern Slavery Bill in the UK which leaves in place a tied visa regime found to have so facilitated the abuse of migrant domestic workers in the UK. 25 March will be Peers’ final opportunity to ensure that this doesn’t happen, but no win can be secured without also being passed by the Commons. We have to hope that parliamentarians will see the right of migrant domestic workers to change employer for what it is; a most basic right without which no worker has any bargaining power or means to challenge abuse. To quote Sir John Randall MP, when he explained his support for the amendment at report stage in the Commons:

‘I have met too many victims to be able to say that it is a matter for another day’