Written Evidence by Kalayaan (HRW0061)

Introduction

1. Kalayaan was established in 1987 and is the UK’s leading charity offering advice, advocacy and support services to migrant domestic workers. This workforce, predominantly female workers from the Philippines, are permitted to enter the UK on the Overseas Domestic Worker (ODW) visa to undertake domestic labour for either private individuals or serving diplomats[1]. This work includes, but is not limited to, childcare responsibilities, elderly care, cooking, cleaning and chauffeuring. This visa is issued with the condition ‘no recourse to public funds’.

2. Kalayaan is a designated First Responder Organisation (FRO) to the National Referral Mechanism (NRM), the UK’s one and only system for formally identifying and providing support to suspected slavery survivors. We have held this status since the NRM was established in 2009. Kalayaan is currently one of 10 non-statutory organisations to hold the role of First Responder in the UK. We provide long term, holistic support, tailored to individual need according to the survivor. We do this outside of any constraints of government contracts or funding.

3. Kalayaan’s expertise on issues affecting and experienced by migrant domestic workers, and on the issue of trafficking for the purpose of domestic servitude, is widely recognised. We have delivered training to numerous statutory and non-statutory stakeholders. We have also provided expertise on migrant domestic workers at an international level; we were a Titular delegate of the UK Trades Union Congress in the ‘decent work for domestic workers’ committee of the United Nations International Labour Conference and have been invited to speak about migrant domestic workers by a number of British and International groups.

4. Kalayaan’s submission to this inquiry addresses the questions on labour market exploitation and international human rights treaties as applicable to migrant domestic workers.

5. Kalayaan is a member of the Labour Exploitation Advisory Group (LEAG) who have made a submission to this inquiry. Kalayaan’s submission is designed to be read in conjunction with the LEAG’s submission.

6. Kalayaan also endorses the submission made by the Employment Lawyers Association (ELA) and supports their recommendations.

Labour market exploitation

What is the current legal and policy framework for tackling labour exploitation in the UK? Is that framework effective to protect workers’ rights under Article 4 ECHR, which prohibits slavery, servitude and forced or compulsory labour?

7. The legislative and policy framework which applies to migrant domestic workers in the UK is directly attributable to the abuse faced by this workforce at work. This includes instances of trafficking and slavery, as well as migrant domestic workers being re-trafficked after they have arrived in the UK.[2] This is because this workforce, recognised as being especially vulnerable to abuse and exploitation, has no rights in which they can challenge abuse when it arises.

8. Prior to April 2012, migrant domestic workers were admitted to the UK on the Original Overseas Domestic Worker visa (in place starting from 1998). This gave workers certain basic but fundamental rights at work, including the right to change employer and the right to renew their visa. In April 2012, drastic changes were made to the terms of the visa, despite vehement opposition from workers, domestic and international stakeholders that the changes would introduce a kafala system to the UK. The changes meant workers were admitted on a non-renewable six-month visa, tied to the employer they accompanied to the UK and denied the right to change employer. By the time parliamentary debates were underway with the Modern Slavery Bill, Kalayaan had irrefutable evidence that the changes to the visa terms had only resulted in a significant decline in the reported experiences of domestic workers at work.[3] Two parliamentary committees also called for the 2012 changes to be urgently reversed.[4][5]

9. An independent review, which was evidence-based and looked at the full spectrum of abuse experienced by migrant domestic workers, ranging from labour law breaches at one end, to severe exploitative conditions that amount to trafficking and or slavery at the other end, was published in 2015. This confirmed that the visa tie to one employer and absence of a universal right to change employer and apply for extensions of the visa are incompatible with the reasonable protections of migrant domestic workers while in the UK.[6] Despite committing to implement all of the review’s recommendations,[7] the Government chose to accept only some.[8] They agreed that workers should have an immediate escape route from abuse, but not that they needed time to safely exercise the right to find decent re-employment elsewhere. The Government shared the concerns of the inaugural Independent Anti-Slavery Commissioner who was of the view that should workers have the right to renew their visa, abuse would go undetected.[9] Kalayaan was deeply disappointed with such a policy position, which was, in effect, to strip workers of their rights, including the right to be able to negotiate from a relative position of power to their employer, and if necessary, take steps to leave an abusive employer. It was also a puzzling response when considered against the requirements of workers who arrived in the UK prior to 2012. These workers are still required to notify the Home Office of any change in employment, together with reasons for the change, in order the authorities can consider commencing appropriate action against abusive employers.

10. This has meant that since April 2016, workers have been allowed to change employer but only whilst their visa remains valid. The right to change employer without the linked right to renew the visa is a meaningless concession and is not what was envisaged by the recommendations in the government commissioned independent review. Workers have merely weeks on their visa at the point they leave an abusive employer and typically are doing so without possession of their passport, or any references.  This leaves workers at risk without any options: either they remain with an abusive employer, or without the ability to demonstrate their right to work to prospective employers, become susceptible to those looking to exploit their insecure status in the UK.[10]

11. Kalayaan has observed that the Government’s repeated response to workers’ calling for their rights to be restored has been to wrongfully state that abused workers can avail themselves of the National Referral Mechanism (NRM), the UK’s framework for identifying and supporting suspected slavery survivors.[11][12][13] This policy position fails to prevent abuse from deteriorating and also fails to recognise that abuse occurs across a spectrum, as was identified in the independent review, meaning that not all abuse experienced by migrant domestic workers falls within the legal definition of having been trafficked or enslaved. It means there is a protection gap for this group of workers. This group have no rights in the UK and cannot avail themselves of the protections provided for by the NRM, meaning they are at risk of further abuse from those looking to exploit their insecure and vulnerable status in the UK.[14]

12. In addition to this, specific statutory provisions directly exclude domestic workers from other fundamental rights that are designed to keep workers safe and guard against workplace abuse and exploitation. Many migrant domestic workers are denied a fair wage for their work when abusive employers rely on Section 57(3) of the National Minimum Wage Regulations 2015. This provision, known as the ‘Family Worker Exemption’ provides a defence to abusive employers to avoid paying their domestic worker a salary compliant with the National Minimum Wage on the grounds they live in their house and are treated as a member of the family. Although Kalayaan, numerous stakeholders and workers themselves have been calling for this exemption to be abolished for years now, the UK Government only agreed to do so in March 2022 and only when ‘parliamentary time allows’.[15] It is deeply disappointing that a year has passed without further action when the Government accepts that the exemption is a modern slavery loophole which discriminates and disproportionately affects domestic workers who are women.[16]

13. Other specific statutory provisions include Section 51 of The Health and Safety at Work etc Act 1974, which excludes an employer of a domestic ‘servant’ in a private household from following occupational health and safety duties normally imposed in a workplace. Another exclusion is in The Working Time Regulations. Unlike other workers who have the maximum number of hours worked in a week capped at 48, the same does not apply to domestic workers or ‘servants’ in private households.

Are there any improvements that could be made to better tackle exploitative labour practices which are contrary to Article 4 in the UK?

14. Migrant domestic workers remain one of the most vulnerable populations at work in the UK. The hidden nature of their work, coupled with the legislative landscape, which facilitates their abuse and excludes them from certain fundamental protections, puts them at unacceptable risk of abuse. Workers have been clear for the past decade that they need access to rights that are enforceable in order they can be safe at work. Kalayaan supports workers in their call to restore the terms of the Original Overseas Domestic Worker visa. This is recognised nationally and internationally as the best form of protection for this workforce and is supported by evidence compiled by Kalayaan over the past decade.  Reinstating the visa terms in place prior to 2012 would recalibrate the power imbalance currently weighted heavily in favour of employers and crucially, ensures that no worker need wait until their work conditions deteriorate to the point of slavery before they are able to access protections. It also means that all migrant domestic workers are protected, not just those who have been subjected to the most egregious offences under modern slavery laws.

Do workers from particular groups or in precarious employment disproportionately experience labour market exploitation? Does this raise concerns under Article 14 ECHR (freedom from discrimination)?

15. It has long been accepted that migrant domestic workers are especially vulnerable to workplace abuse and exploitation. Due to the nature of this work and the relevant legislative framework, workers are increasingly left with no option but precarious work, leaving them vulnerable to labour market exploitation. This can be on account of their time limited visa, their lack of access to information prior to or after their arrival in the UK, language and cultural barriers as well as abusive employers using coercive methods in which to manipulate, isolate and control their employees.

16. Kalayaan endorses LEAG’s submission in relation to UK systems creating a hierarchy of vulnerability and compounding and or exacerbating such vulnerabilities for workers employed in already high-risk sectors, including domestic work and agriculture.

International human rights treaties

Does the UK effectively comply with its international obligations to protect workers’ rights under the International Covenant on Civil and Political Rights, International Covenant on Economic and Social Rights, and International Labour Organisation Conventions? If not, what improvements should be made?

17. In 2011, the Government abstained from voting to ratify the International Labour Organisation’s Convention 189 concerning decent work for domestic workers. At the time the Government cited excellent domestic legislation as reason that the Convention was not required, but these were the same protections that they went on to remove in 2012.

13/04/2023