Written evidence submitted by Kalayaan

Kalayaan is an expert organisation on issues effecting migrant domestic workers in the UK and is the principle organisation which works to provide direct support and advice to these individuals. Kalayaan is also a recognised ‘First Responder’ and so can refer individuals identified as potential victims of trafficking to the Government’s National Referral Mechanism (NRM). The evidence for this inquiry has been prepared by Kate Roberts who has worked with migrant domestic workers at Kalayaan since 2005.

Since its inception in 1987, Kalayaan has provided advice, advocacy and support services to migrant domestic workers (MDWs) in the UK. The immigration rules at that time admitted migrant domestic workers to the UK under a ‘concession’ which tied migrant domestic workers to the employer with whom they entered the UK. There were no safeguards in place for domestic workers who were abused or exploited or for those who had become undocumented having fled abuse experienced in their domestic work place. In response to the evidence of widespread abuse of workers brought to the UK under the concession, the Overseas Domestic Worker visa was introduced in 1998. This gave important protection to the visa holders in the form of an immigration status which allowed them to change employer (though not sector) and recognition as a worker in the UK. These protections remained in place until the visa was changed and protections removed on the 6 April 2012.

Executive summary

Under the new tied ODW visa, the visa holder is tied to their original employer and the visa is not renewable beyond its initial 6 month duration. These changes have had a direct and significant impact on the level of control that can be now exercised by employers over the domestic workers they employ and on the number of workers who are able to seek help and assistance. From the evidence we have seen at Kalayaan it is clear that the tying of domestic workers to their employers has given employers a clear message that the worker is in practise actually tied to them during their time in the UK. The numbers of workers on the tied visa coming to us for support and advice have dropped dramatically in comparison with those on the original visa in spite of the numbers of visas being issued remaining consistent. However, of the workers on the tied visa who registered at Kalayaan in the year since the tied visa was introduced, the reports of control and deprivation of autonomy or freedom have increased; for example all reported that they had no day off and 62% were paid no salary at all. It appears clear that the reason fewer domestic workers are coming to Kalayaan is either because are physically prevented from leaving, or they are too scared to leave as they have no money, documents and have been told by their employers that they are prohibited by the immigration rules from leaving them. Otherwise they have escaped and are too scared to approach Kalayaan for advice or have been told that help we can give them in practise under the new rules is now limited. The increase in abuse of migrant domestic workers (MDWs) in the UK with the removal of their protections provided by the original MDW visa correlates with the evidence that the treatment of MDWs in the UK improved with the introduction of the original ODW visa in 1998[1].

1. It is clear that the original ODW visa is a system which works well to prevent abuse as well as to provide important options for those who are abused in spite of these protections. The reinstating of MDWs rights does not fit within the Modern Slavery Bill but is an important non legislative measure which should take place urgently in order to prevent abuse including cases of slavery, servitude and trafficking among this particularly vulnerable group of migrants and to ensure that those who are abused are able to come forward and work with and receive the support of the authorities.

2. Kalayaan welcomes the interest of the Joint Committee on Modern Day Slavery in the impact of the tied ODW visa and the opportunity to give oral evidence on this matter twice[2]. To avoid repetition this written evidence will only summarise key points.

Restoration of the original Overseas Domestic Worker (ODW) visa

3. The original ODW visa has been recognised internationally as good practise including by the ILO[3] and the special Special Rapporteur on the Human Rights of Migrants[4] In view of the facts that there is so little evidence as to the situation of the majority of the MDWs who enter the UK further to their entering with their employers and that as a sector MDWs are recognised to be particularly vulnerable to abuse[5] to remove these protections in order to cut net migration to the UK[6] was completely disproportionate and has resulted in the UK introducing a system where workers are powerless to challenge or to leave their employers without breaching the immigration rules. As there is inevitably an unequal power relationship between migrant domestic workers and their employers and by its very nature the private household is hidden and unregulated the tying of migrant domestic workers to their employers has removed any remaining bargaining powers from domestic workers, including the most basic right to leave exploitative employment which has resulted in increased levels of control and abuse[7]and in some cases trafficking for domestic servitude and slavery.

4. The tied ODW visa has been described as objectifying domestic workers because of the way it treats them as a piece of the employers’ movable household, which ‘can be brought into the [UK] and can be treated by them according to their whims, without any accountability’[8]. A similar regime with a ‘binding’ (tying) policy of worker to employer in Israel was found by their High Court to be contrary to human dignity and unconstitutional (HCJ 4542/02 Kav LaOved v Government of Israel).

5. It is clear that simply ‘untying’ migrant domestic workers from their employers, for example by permitting MDWs to change employer, but without any option to renew the visa beyond six months, would make no difference in practise to migrant domestic workers. Migrant domestic workers are predominantly employed in work which includes care work and developing of trust and personal relationships. It is not realistic that anyone would employ a domestic worker to care for their children or elderly relatives with only a few months left on their visa. Nor would less than 6 months provide enough time to bring an employment claim for unpaid wages or similar or to support a criminal prosecution. Many migrant domestic workers we see at Kalayaan have paid substantial debts to agents to secure their first job overseas. They cannot consider returning home until these have been repaid.

6. Kalayaan believes that the option to apply for settlement as was permitted under the original ODW visa[9] is key to the provision of comprehensive protection to MDWs and that this provision has never been shown to have had a significant impact on net migration figures anyway[10]. Nor is it clear that the current tied visa regime will in any way reduce migration[11]. In any case settlement is by no means automatic for MDWs on the original visa, requiring 5 years of full time work as a domestic workers in the UK and the meeting of the English requirements, in contrast Canada has a visa for live in caregivers which permits applications for permanent residence after 24 months or 3,900 hours of full time authorised work[12].  We see many cases at Kalayaan where MDWs are made vulnerable year after year around the time of the renewal of their visa. In the months before their visa is due to expire they, and their employers’, know that they need to keep their jobs at all costs as without work they cannot apply to renew their visa and no other employer is likely to employ them with only a short period of leave remaining. Settlement eventually relieves them of this vulnerability.

7. Keeping migrant domestic workers indefinitely temporary and vulnerable would maintain a two tier workforce, one with fewer rights and bargaining power and forever vulnerable to exploitation or misfortune such as sickness or an accident preventing them from working. If the visa was limited to a certain number of years this would only postpone the point at which the worker became vulnerable.

8. As increasing numbers of trafficked individuals are identified and become eligible for support it is worth remembering that the original ODW visa, while providing vital protections to MDWs including those who had been trafficked, was of no cost to the state. Domestic workers could only enter the UK with an existing job in place and could only apply to renew their visa if there was an ongoing demand for their labour as a full time domestic worker in a private household. They had no recourse to public funds and paid all the costs associated with renewing their visas. The requirement to renew their visa annually provided an important opportunity to keep this hidden group of works visible and to scrutinise the terms of their employment and check for signs of abuse.  If more were done in the future to ensure that employers meet their obligations, both to their employees in terms of complying with UK labour law such as the National Minimum Wage (NMW) and to the state in terms of tax and NI contributions there could be a net gain. Andrew Boff, Conservative member of the GLA has stated that around £37 million is lost each year due to unpaid contributions resulting from the ODW visa[13]

Importance of confidentiality to support and identification

7. Kalayaan is gravely concerned by suggestions of a potential obligation to refer any victims we identify into either the NRM (even anonymously) or to share data (again even anonymously).

Kalayaan is keen for the scale of trafficking for domestic servitude on the ODW visa to be better understood and we publish anonymised data each year in our annual reports as well in briefings and reports. We also share our data with the ATMG and other agencies. However we see no need for this to become an obligation and are concerned that any statutory requirement placed upon us would be misunderstood by MDWs who need our help.

8. Already, since the introduction of the tied ODW visa, numbers of new registrations at Kalayaan have dropped from a regular figure of around 300 new registrations each year to just under 200 in the year 2012-13, and only 29 of these on the tied visa. As described above and elsewhere[14], abuse reported to us by those registering combined with a consistent number of visas issued to MDWs to enter the UK evidences that this not because treatment has improved (it has worsened) but at least in part because MDWs are too fearful to come to Kalayaan, knowing that in leaving their employer they have broken the law. We have believe that were rumours to spread about a statutory obligation to share data vulnerable domestic workers would be driven further underground and away from advice and support. We recently received a call from a gentleman who we understand to be vulnerable and who has twice before arranged to come and register at Kalayaan and not turned up. When again arranging a time he asked several times for reassurance we wouldn’t arrest him. Apparently someone had told him this would happen. It is likely he will not have the courage to come.

9. We have concerns about the structure and decision making of the NRM[15] and believe that it would be unethical for us to refer our (adult) clients into the NRM without their informed consent. Nor would we have the capacity to make an NRM referral for everyone we internally identify as trafficked.