Supplementary memorandum submitted by
Kalayaan
SUMMARY
Since Kalayaan's original submission to this
inquiry in February 2008 there has been an important positive
step forward in protecting the rights of migrant domestic workers
and preventing what would have clearly been an increase in trafficking
of MDWs to the UK for domestic servitude.
In June 2008 the then minister for immigration,
Liam Byrne, announced in the government's Response to the Consultation
on Visitors that the government is "committed to ensuring
that future arrangements concerning overseas domestic workers
minimise any risk of abuse or exploitation" (Para 4.3). The
announcement provided for the current system for MDWs entering
the UK to remain in place for at least the first two years' operation
of the reformed immigration system (the Points Based System) and
when the government has road tested its anti trafficking strategy.
The government has committed to carrying out research into the
situation of MDWs in the UK and that the results of their research
will inform the development of any future arrangements for MDWs
in the UK.
It is vital that any future review of the immigration
arrangements for MDWs in the UK builds on and facilitates access
to existing protections as despite the maintenance of vital escape
routes from trafficking such as the right to change employer and
find alternative employment in another private household MDWs
are still being trafficked for domestic servitude.
Additional concerns include:
— Migrant domestic workers who enter
the UK in the employ of diplomats. Unlike other MDWs these workers
are not allowed to change employer outside of the diplomatic mission
with which they have entered the UK making them especially vulnerable
to trafficking and other forms of exploitation. Kalayaan's recommendation
is that domestic workers (diplomats) have the same rights to change
employer to work in any other private household as other MDWs.
— Despite the welcome announcement
by the minister in June 2008 that MDWs would retain the right
to change employer to work in another private household, so allowing
them to escape abuse MDWs visas have been curtailed by UKBA for
this very reason.
— The proposals to replace Indefinite
Leave to Remain with "probationary citizenship" within
the Borders, Immigration and Citizenship Bill cause Kalayaan great
concern. The Bill proposes that "probationary citizens"
will be required to remain in "continuous employment".
It is unclear if MDWs who have obtained probationary citizenship
will be required to remain in full time domestic work or will
be able to undertake other forms of employment. Either way the
Bill will mean that the status of MDWs in the UK will remain temporary
for an additional four years, making a total of nine years before
they can apply for permanent status. As MDWs' employment is so
often not documented (they do not receive payslips or have bank
accounts) it is unclear how they will prove this continuous employment.
It is also not clear if any break in employment while an MDW finds
a new job having escaped an abusive employer will be considered
to breach the conditions of their stay in the UK.
MAIN EVIDENCE
Diplomatic MDWs
The fact that MDWs who enter the UK in the employ
of diplomats cannot change employer outside of their first employer's
diplomatic mission leaves them unacceptably vulnerable to trafficking.
Not only do they have no realistic options to escape abuse but
their employer also benefits from diplomatic immunity.
Between May and September 2008 Kalayaan participated
as a referral organisation in the Home Office's Labour Trafficking
Pilot (Operation Tolerance). It is important to note that we only
made referrals to the pilot where the trafficked person gave their
consent for us to do so. The number of trafficked people who came
to Kalayaan during this period is far higher that the referrals
made but many MDWs chose not to be referred to the pilot.
Of the 12 MDWs referred by Kalayaan accepted
on to the Labour Trafficking Pilot (Operation Tolerance) five
entered the UK in the employ of diplomats. Clearly it was not
a realistic option for these women to escape their trafficker
and find alternative employment within the same diplomatic mission
as that of their trafficker.
Diplomatic MDWs need to have the same minimum
standard of protection as other MDWs allowing them to escape abuse
and find alternative employment as a domestic worker in any private
household.
Curtailment of visas
It is incredibly disappointing that Kalayaan
is having to use our limited resources to claw back rights to
which the government has already made a clear commitment to maintain.
It is clear in law that MDWs are allowed to change employer. It
is also inevitable that an individual who has been horrendously
abused, and in many cases trafficked, will not be able to find
alternative full time work as a domestic worker in a private household
immediately upon escaping their trafficker.
In the first curtailment case of which Kalayaan
was aware the visa was curtailed because the embassy of the first,
abusive, employer had written to UKBA telling them that the MDW
had "absconded". It is alarming that rather than seeing
this as a potential indicator of trafficking and asking from what
the worker had "absconded" UKBA did as the embassy asked
and curtailed the visa. The visa was curtailed despite the fact
that the worker had found alternative full time employment as
a domestic worker in a private household, in accordance with the
terms of their visa. The news of the curtailment led the new employer,
for fear of employing someone in breach of the immigration rules
to dismiss the MDW.
Kalayaan supported this worker to find a pro
bono solicitor to take the appeal, which was won. The judgment
concludes that "the Respondent erred in law in curtailing
the leave to remain". Since this time however, at least two
more MDW visas have been curtailed under similar circumstances.
We are been forced to appeal another case despite having pointed
out the law and the previous judgment to UKBA. Even without considering
the individual trauma caused by these actions, it is impossible
to see how small voluntary organisations and lawyers working pro
bono can push forward anti-trafficking work if we need to
repeatedly defend basic rights which have already been won.
Borders, Immigration and Citizenship Bill
The implications of the Borders, Citizenship
and Immigration Bill ("the Bill") for MDWs are not entirely
clear however the indications are that proposed changes to the
rules for British citizenship and the likely removal of Indefinite
Leave to Remain (ILR) as a category will effect MDWs negatively.
Currently MDWs become eligible to apply for ILR after they have
completed five years in the UK on the domestic worker visa (without
any sizable absences) and met the language and knowledge of life
in the UK requirements.[197]
If they chose to do so, one year after they have been granted
ILR, MDWs become eligible to apply for citizenship.
The importance of ILR to MDWs should not be
underestimated. As stated above, while the MDW visa does give
some important rights, principally the right to change employer,
allowing MDWs to escape abuse, the visa also puts many restrictions
on MDWs in the UK which limit their negotiating powers with employers
and their ability to access their rights in the UK. While an MDW
is on the MDW visa they have to apply every year to renew their
visa, at considerable expense, they are limited to full time domestic
work job in one private household and have no recourse to public
funds. This limits opportunities to access many fundamental rights
such as starting a family until the worker gets ILR (pregnancy
inevitably results in dismissal causing visa problems) and illness
of any length is also likely to result in curtailment of the MDWs
visa. The dependencies on employers caused by the visa are without
doubt a significant factor in unacceptable abuse of MDWs by employers.
The "probationary citizenship" to
which an individual will move from the MDW visa as proposed within
the Bill will leave individuals far more vulnerable that they
would have been with ILR. Unlike ILR the proposed probationary
citizenship appears to be a temporary category. It is unclear
if MDWs for example will continue to be limited to full time domestic
work in a private household on this visa. If this does become
the case MDWs would be tied to domestic work on an insecure immigration
status for an additional four years (on top of the five already
completed) as this is the proposed time in which individuals who
don't participate in "prescribed activities" will take
to "earn" their citizenship and permanent status in
the UK. MDWs typically work 16 or more hours a day. It is not
fair or realistic to expect some of the hardest working contributors
to our economy to volunteer in the tiny amount of free time they
have.
Kalayaan is especially concerned about the proposed
requirement for "continuous employment" within the Bill.
We are worried that this requirement could be even more restrictive
than the current MDW visa. A change in employer, as permitted
under the MDW visa inevitably entails some (often short) break
in employment while the worker finds a new job. It is unrealistic
for an MDW working in abusive employment conditions (on call,
no day off, often not allowed out of the house) to find a new
job before escaping. We are also unclear as to how MDWs will prove
"continuous employment". The Home Office are well aware
that MDWs often do not receive payslips, have no bank accounts
and are paid in cash. Employers often do not make NI and tax deductions
or payments. If a worker challenges this situation they are sacked
so potentially in breach of the continuous employment requirement.
Kalayaan would also like to respond to some
of the individual points in which the Committee have told us they
have an interest:
— Views we have on whether the police
and/ or immigration officers have become more aware of the problem
of trafficking and better able to identify and support victims;
Kalayaan has regular experience of supporting
trafficked individuals to seek support from the police, particularly
in instances where their passports have been taken from them as
a Many MDWs have had little formal education and meeting the requirements
of the test can be especially challenging means of control and
preventing their escape. Disappointingly, with the exception of
a couple of committed individuals, Kalayaan still experiences
significant difficulties with supporting trafficked people, including
those already identified as having been trafficked, to access
any support or investigation into the crimes committed against
them.
As detailed above, the curtailment of individual's
visas on the instruction of a previous employer without any investigation
into the reasons as to why the MDW may have left demonstrates
a clear need for increased awareness into trafficking within UKBA.
— Whether the UKHTC has been a success
in promoting understanding of the problem and co-ordinating the
various agencies involved in tackling it;
Kalayaan's main contact with the UKTHC has been
as a referral body, referring migrant domestic workers who we
consider to have been trafficked to the UK to the UKHTC for identification
and for support.
Between 1 May-5 September 2008 Kalayaan participated
as a referral organisation in a Home Office pilot on trafficking
for labour exploitation called "Operation Tolerance".
UKHTC, together with UKBA acted as the "Competent Authority"
for identifying trafficked individuals during the pilot.
While overall Kalayaan was pleased with the pilot,
which identified 12 MDWs referred by Kalayaan as having been trafficked
for labour exploitation[198]
we were surprised and concerned by the lack of clarity and coordination
of the pilot. Systems and processes were unclear as were roles
and responsibilities of the different organisations and agencies
involved.
Particular concerns include:
1. A lack of clear case ownership. Once
someone has been identified as trafficked it was not clear (particularly
if they were not accommodated by the pilot) who was responsible
for having an overview of the case and ensuring the trafficked
person receives appropriate legal advice and support. Kalayaan
felt there was a real danger of individuals being identified and
then receiving no, or inadequate follow-up support.
2. There were issues about timing on the
identification of victims. Many decisions as to whether there
were "reasonable grounds" for an individual to be considered
to have been trafficked took far longer than the five days specified.
When decisions were received late the period of leave granted
for reflection was sometimes backdated.
3. Kalayaan was disappointed with the lack
of cooperation we received with regard to supporting individuals
who were either potential, or identified, victims of trafficking.
For example, many migrant domestic workers have their passports
taken from them and do not know what their immigration status
is, making them especially vulnerable. The only way Kalayaan can
access this information is by submitting a Subject Access Bureau
request to the UKBA. This usually takes about three months during
which time it is almost impossible to advise the individual about
their situation in the UK. We were disappointed that UKHTC were
not able to better facilitate access to this information to support
trafficked individuals.
4. In terms of coordination, Kalayaan has
been disappointed that where we have encountered problems working
with other agencies, such as the police, work to support victims
has not been better facilitated. We have had considerable difficulty
persuading the police to address crimes against trafficked people.
5. Kalayaan also felt that the referral
process did not always best meet the needs of the individuals
involved. A long form needed to be completed and sent to UKHTC
before the individual could access accommodation. This was not
always realistic, for example if an individual arrived at Kalayaan
late at night. There should be provision for referral organisations
to be able to make a judgement in the short term as to if someone
may have been trafficked and refer direct to accommodation providers
to ensure the individual is safe until the Competent Authority
can make an assessment.
6. Kalayaan has been disappointed that despite
the considerable amount of time and energy put into developing
systems during the course of the pilot, following the end of the
pilot on 5 September there has been no formal procedure for identifying
an individual as having been trafficked. We have been told that
there is no funding to continue to provide accommodation but we
do not understand why the UKHTC or other body cannot continue
to provide an assessment as to if there is a reasonable indication
that an individual has been trafficked.
March 2009
197 Many MDWs have had little formal education and
meeting the requirements of the test can be especially challenging. Back
198
Kalayaan attempted to refer a 13th MDW to the pilot but the referral
was not accepted as the individual was based outside of the geographical
area (London) from which Kalayaan was authorised to refer. Back
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