Memorandum submitted by Kalayaan
Summary: Although migrant domestic workers
(MDWs) currently enter the UK on a specific visa which offers
them some protection against abuse by employers Kalayaan still
documents shockingly high levels of exploitation of migrant domestic
workers. Sometimes the deception and coercion involved in bringing
the worker to the UK makes it clear that they have been trafficked,
despite entering on the domestic worker visa and so in theory
able to access protection.
Much of the existing exploitation of MDWs occurs
because the workers are unable to access information about their
rights and entitlements in the UK and advice and support to implement
these rights. Instead they are deliberately misinformed by their
employers who use this together with other methods such as the
confiscation of workers passports to control their employees and
prevent them from leaving despite their mistreatment.
It is clear that MDWs existing rights need to
be enforced and steps need to be taken to ensure that MDWs are
informed of their rights, employers of their duties and authorities
of the vulnerabilities of MDWs and enforcing these rights.
Instead, despite stated policies to protect
victims of trafficking and to prevent trafficking, the Government
is now proposing to end the existing visa with the introduction
of the Points Based System for migration to the UK. Instead MDWs
will be brought in as "business assistants" and will
be tied to one employer giving them no option to escape abuse
within the immigration rules. It is also uncertain whether they
will be protected under UK employment law under the proposed changes.
To retain the existing migrant domestic worker
visa and the protection it offers to workers is the single most
important issue the government can do to prevent forced labour
and trafficking of MDWs.
MAIN EVIDENCE
1. Kalayaan is a UK based charity which
works with migrant domestic workers in the UK. Our response to
this inquiry is therefore limited to our experience of working
with this particular group of migrant workers who enter the UK
on this specific visa. We have OISC exemption to give basic immigration
advice and we also give basic employment advice as well as working
closely with law centres and solicitors to refer on cases which
we cannot cope with internally.
2. Kalayaan has been working with migrant
domestic workers in the UK since 1987. As a workers rights and
community organisation we have focused our work on this particular
group of migrants as the vulnerability of their immigration status
together with their dependence on a specific employer for their
employment, their housing and all information about their rights
in the UK makes them especially vulnerable to abuse and exploitation,
which includes trafficking for forced labour and often involves
sexual exploitation.
3. In 1998, following over ten years of
campaigning the government decided that the documented levels
of abuse and exploitation of migrant domestic workers (MDWs) who
were entering the UK with their employers was unacceptable and
that there needed to be protection in law for these workers.
4. Prior to 1998 there was no formal route
for MDWs to enter the UK, instead they would be given leave to
enter as either a visitor, a family member or given a "to
work with." stamp. This meant that these workers were not
formally recognised as workers in the UK leaving them extremely
vulnerable to exploitation by their employers and others. When
they escaped an exploitative employer these workers would usually
have to leave without their passports and their undocumented status
would leave them with no recourse to any protection under UK law,
leaving them open to further exploitation, or re- trafficking.
5. In an attempt to offer MDWs in the UK
recognition as workers and protection under UK law since 1998
MDWs have entered on a specific visa, the migrant domestic worker
visa. The first visa is usually valid for six months and if in
full time employment the worker can apply to renew their visa
for up to a year at a time. After five years working on this visa
and passing a test to show knowledge of English and Citizenship
MDWs can apply for Indefinite Leave to Remain, or settlement.
The visa recognises that MDWs are workers who are "normally
resident" in the UK. MDWs on this visa are allowed to change
employers, but not sector; one condition of their visa is that
they must be in full time employment in one job as a domestic
worker in a private household. They have no recourse to public
funds and pay all the costs of renewing their visa. This provides
MDWs with a vital escape route from exploitation.
6. The isolation and dependence on their
employer for all information about their rights in the UK as well
as the constraints of needing to be in full time employment in
one private household and having no recourse to public funds mean
that MDWs continue to be exploited despite the additional rights
the visa gives them. However they are able to leave an exploitative
situation without jeopardising their immigration status, seek
advice, and if they wish they can seek assistance from the police
or go to an employment tribunal.
CASE STUDY
Kalayaan was contacted by the police who were
looking for housing and support for an MDW who had been locked
in the house and repeatedly raped by her employer. The police
had nowhere to house her and were concerned about her vulnerability
and that she receive ongoing support.
Kalayaan was able to find her accommodation with
a religious organisation. During the day she would come regularly
to Kalayaan where she learnt about her rights as a domestic worker
in the UK, made friends with other workers and developed a support
network in the UK. Eventually she felt ready to find a new job.
She is now working in a good job as a domestic worker in a private
household.
This case study shows how Kalayaan is able to
work with statutory bodies like the police to protect and support
MDWs. Without the migrant domestic worker visa which allowed her
to leave her employer this worker would have been in breach of
her immigration status and would have been liable to detention
and deportation. However, it should be noted that not all police
forces appear to be aware of the rules that apply to MDWs or of
the dangers of trafficking and so some MDWs may simply be treated
as illegal migrants.
7. Between April 2006 and March 2007 Kalayaan
registered 340 new migrant domestic workers and gave 2,476 advice
and support sessions to MDWs, of the workers we saw 84% were women.
Of new registrations, 69% of workers reported psychological abuse
and 24% reported physical abuse to us. 68% had no time off from
their jobs, 61% were not allowed out of their employer's house
without their employer knowing exactly where they were and over
half did not have their own room giving them no privacy or time
to themselves. 32% of workers were not in possession of their
passports when they arrived at Kalayaan as these had been taken
from them by their employers. Many of these had no knowledge of
their own immigration status and so of their position in the UK.
It is common that employers lie to the domestic workers they employ,
telling them that their visa has expired and that they are "illegal"
so should not speak to anyone and cannot go to the police or other
authority for help. While many migrant workers are vulnerable
to exploitation, these levels of abuse and coercion, combined
with deception as to what treatment they should expect as workers
in the UK, mean that many of the MDWs who come to Kalayaan can
be identified as having been trafficked. Levels of sexual abuse
reported by MDWs registering at Kalayaan are relatively low at
9% during the April 06 to March 07 time period. However we believe
that sexual abuse is under reported as workers are unlikely to
speak about such a taboo subject when they first meet Kalayaan
staff.
8. Scale of activity
UK visas have confirmed under the Freedom of
Information Act that 18,206 visas were issued to migrant domestic
workers to enter the UK between January and December 2006. Many
of these workers would have entered and left the UK with their
employers within the six month duration of their initial visa.
We do not know how many stay in the UK nor how they are treated
in the UK. Only a very small proportion of MDWs entering the UK
make it to Kalayaan (340 new registrations between April 06 and
March 07) and although we collect statistics on the treatment
of these workers we do not know how representative this treatment
is. Workers usually find us through word of mouth or by referral
from another organisation and it may be that the most abused MDWs
never get the opportunity to leave.
9. Identifying victims
In Kalayaan's experience victims of trafficking
for labour exploitation are often seen as immigration offenders
rather than victims of trafficking. As explained above, 32% of
the workers who register at Kalayaan have had their passports
kept from them by their employers. Some of these workers will
have been trafficked in that they have been deceived, threatened
and controlled by their employers. It is commonly recognised among
experts in trafficking that keeping someone's documents is a way
of controlling them and preventing them from leaving, particularly
if that document contains their visa with proof of their right
to work in the UK. The large number of workers arriving at Kalayaan
without their passports means that this is an issue on which Kalayaan
has to regularly work with the authorities to resolve. However,
our general experience is that the worker is the one treated with
suspicion by the police and is put under obligation to prove their
immigration status, despite having gone to the police as the victim
of a crime. Kalayaan has a procedure which we follow when passports
have been taken by employers; we will first call the employer
to ask that they return the passport either to the worker or to
the worker's embassy. If they do not do so, we then write them
a letter giving them seven days to return the passport. If they
still do not return the passport, we then go to the police with
clear evidence that the passport is being deliberately withheld
by the employer. Despite this it is rare that the police will
ever take any action against the employer. We have never had an
experience where the police see this withholding of documents
as an indicator of trafficking and decide to investigate further.
10. There needs to be specific training
for authorities with whom victims of trafficking may come into
contact on identification of victims. There needs a lot of work
done on indicators of trafficking and there needs to be support
which the authorities can offer victims. The current situation
is that there is no housing or other help for victims of trafficking
for labour. This lack of support combined with the likelihood
of being treated as a criminal rather than a victim gives little
incentive to victims to come forward. In consequence the chances
of traffickers or abusers being prosecuted are low.
11. Any work done to look at support for
victims of trafficking must also look at ways to prevent people
from becoming victims in the first place. Currently MDWs are recognised
as workers and can use existing legal structures to escape an
abusive employer and go about rebuilding their lives. To remove
this protection will dramatically change the power relationship
between the worker and the employer making the worker entirely
dependent upon the one employer with no legal protection and will
clearly facilitate trafficking of this group of workers. In their
26th report of session 2005-06, the Joint Committee on Human Rights
recommend under "Protection of victims" (point 32) that
"proposed changes to the domestic worker regime would mean
that domestic workers who are trying to flee a violent employer
would be less likely to do, and less likely to approach public
authorities for help". They urge that the Government "review
these proposals and..ascertain their likely negative impact on
victims of trafficking". The Government can do a large amount
towards preventing forced labour by retaining the current protection
in place for this group of workers and ensuring that other vulnerable
workers and victims of trafficking can also take action without
being treated as immigration offenders.
12. Treatment of those who have been trafficked
but have no legal right to remain in the UK, including the requirements
imposed by the Council of Europe Convention on Combating Human
Trafficking; There clearly needs to be protection in place for
workers (and others) who have been trafficked in order that they
can seek assistance. Again however we return to the issue of identifying
victims of trafficking and the fact that the fewer rights any
worker has in the UK the more vulnerable they are to trafficking.
Workers need to be able to defend their rights and access protection
on the basis of being workers rather than victims. The MDW experience
shows that the introduction of a formal migrant domestic worker
visa has improved the treatment of MDWs in the UK. Baroness Scotland
noted on 26 March 2007 that the Government is "conscious
that the changes we brought in greatly benefited domestic workers
in this situation." Without the visa MDWs were brought in
as visitors or family members. This put the workers in a situation
that despite having no direct involvement in the application for
their visa or the arrangement for coming to the UK they were in
breach of the immigration rules. This gave them cause to fear
authorities and ammunition for employers to use as a threat. Since
1998 and the introduction of the migrant domestic worker visa
workers are clearly identified as workers, have protection under
UK employment law on this basis and can access such protection
due to the current provision which allows them to leave an abusive
employer.
13. Effectiveness of the co-ordination between
public authorities in the UK; Kalayaan's experience of working
with public authorities in the UK is that there is little effective
co-ordination. This also applies within individual government
departments. For example while the Home Office has a stated aim
of both preventing and protecting victims of trafficking, the
Border and Immigration Agency is proposing to remove a key protection
from one of the most vulnerable categories of migrant workers
many of whom are already trafficked. Similarly the BIA need to
be far more proactive if they are to prevent trafficking in terms
of informing employers of their duties as employers and workers
of their rights as workers in the UK. Data collected from MDWs
registering at Kalayaan shows that (contrary to current guidelines)
the majority of MDWs are not interviewed separately to their employers
when applying for their visas, are not informed about their rights
and are not given any information prior to entry.
14. Similarly, as described above, Kalayaan
frequently experiences difficulties making the police aware that
MDWs who have had their passports stolen are the victims of crime
and could well have been trafficked. Often when a worker runs
away the employer reports them to the police and they get referred
to the missing persons unit. Kalayaan has asked that when MPUs
have such reports made they take a proactive approach to see if
the worker has been a victim of trafficking or other crime[50].
For example that the police ask the whereabouts of the worker's
passport, ask where the worker slept, what she or he was paid,
the hours they worked etc. This is not happening. Conversely we
find that the employer's account of events is taken at face value,
and no questions are asked as to what could have driven the worker
to have run away, leaving everything and knowing no one. We have
had cases where, despite the employer having stolen the passport
this is not investigated but the worker is arrested and called
in to answer the employer's counter allegations, which often include
theft of jewellery.
15. Kalayaan also experiences considerable
difficulties establishing with employers (or their solicitors)
something as basic as the fact that the worker's passport (and
UK visa which it contains) is the property of the worker and not
the employer. Many employers refuse to return the passport as
the visa was issued on the basis of their employment of the worker
and they therefore claim to believe that they are responsible
for "cancelling" the visa if the worker leaves. We have
considerable difficulty where workers passports are sent to the
employer's embassy (despite the employer being from a different
country to the worker), or to the Home Office or even back to
the country from which the worker was recruited, leaving her in
the UK without any papers. Although BIA have now included guidelines
on their website which state that an employer should not keep
a domestic worker's passport, the illegality of such actions[51]
needs to be highlighted as employers' actions clearly show that
this is not something they take seriously.
16. Despite their current status as workers
who are "normally resident" in the UK and protected
by UK employment law Kalayaan has experience considerable difficulty
with supporting MDWs to take National Minimum Wage claims. It
is of great concern to us that on every case we have supported
we have had to demonstrate to the Compliance Team that the worker
is in fact a worker covered by the National Minimum Wage. We have
been told that MDWs are exempt from the NMW and we have had to
prove that this is not the case. As a government body enforcing
the National Minimum Wage we would hope that the Compliance Team
would be well aware of the vulnerability of migrant workers and
would be proactive in investigating cases of migrant workers.
Contacting the NMW Compliance team is one way in which workers
trafficked for labour may contact the authorities and investigating
these cases could well lead to the discovery of other abuses including
trafficking. Vulnerable workers should not have to establish their
eligibility to the NMW before the case will be looked at. To be
told they are not covered by the NMW is unlikely to encourage
vulnerable workers to think other authorities would be any more
helpful.
17. It is clear that MDWs, including those
who have been trafficked, can, with the right support and advice,
escape from their situation and, without any recourse to state
funding, rebuild their lives as well as meet a demand for their
employment in the UK and send valuable remittances back to their
families. There is a need to build on the existing protection
by working with authorities and increasing the information and
support available to workers to access their rights, as well as
being serious about prosecuting employers who take advantage of
a workers immigration status to exploit them. By retaining the
existing protection in place for MDWs and continuing to work with
organisations such as Kalayaan and MDWs themselves, so that MDWs
can access their basic rights, the Government will be taking a
simple yet important step to protect against and prevent trafficking.
8 February 2008
50 Discussion at the Migrant Domestic Workers Awareness
Day, 10 May 2007 at the Diversity and Citizen Focus Directorate Back
51
See Identity Cards act 2006, sections 25 and 26 Back
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