Modern Slavery Bill: Cleaning up the mess of the UK government’s restrictive immigration regime for migrant domestic workers

A draft Modern Slavery Bill is currently going through the UK Houses of Parliament. One of the proposed provisions to be added to the Bill relates to the immigration regime for migrant domestic workers entering the UK with their foreign employers. This proposal is a result of the continual opposition raised by NGOs and academics to the current visa regime on the grounds that it excessively restricts domestic workers and exposes them to exploitation. This post examines the effects of this immigration regime, as well as the impact that a clause contained in the Bill would have on the situation of migrant domestic workers.

In April 2012, the UK passed a new immigration regime for domestic workers. Under the current visa, domestic workers, excluding those who had already been granted a visa prior to the 2012 immigration changes, can only enter the UK if accompanied by their overseas employer or the employer’s family. Workers are required to leave the UK when their employer leaves, and at most six months after their arrival. In contrast to the previous immigration regime introduced in 1998, the new rules prevent domestic workers from changing employers while in the UK.[1]

Despite the opposition raised against the new immigration regime, the government maintains that this change is necessary to ‘(…) ensure that Britain continues to attract the brightest and the best workers who will make a strong contribution to…[the] economy and society’.[2] Ironically, one of the stated intended effects of this visa has been the protection of workers from exploitation.[3] Nevertheless, both logic and an examination of reports on the situation of domestic workers contradict such an assertion and indicate that the current visa promotes an environment of exploitation. As domestic workers are not allowed to change employers, any attempt to leave and change employers will result in the worker becoming undocumented and exposed to the risk of detention and deportation. Hence, this regime ‘ties’ workers to a named employer.

While such a provision may prove inconsequential for domestic workers who enjoy good employment relationships where their rights are upheld and in which they are able to uphold their bargaining power, this proves problematic when one considers situations of exploitative employers. In such cases, this provision exacerbates the already vulnerable position in which migrant domestic workers find themselves, due to factors such as their hidden working environment and the atypical, often paternalistic, relationship created between them and their employers. This visa regime enables fears of arrest and deportation to emerge and hinders the workers’ ability to flee and report an abusive situation. Accordingly, if workers are exposed to labour and other violations, including conditions amounting to forced labour, servitude or slavery, they often stay and endure the abuse, in order to retain their legal status. If workers do choose to leave, then the risks of exploitation are heightened, as employers often exploit their undocumented, and thus precarious, status as an excuse for not respecting any of their labour rights.

Importantly, the provision of ‘tying’ the worker to a named employer can potentially give the latter a false sense of ownership over the domestic worker. Conscious of the powerful imbalance, employers often create unfavourable working conditions, including derisory wages, no days off, no freedom to leave the premises, and excessive working hours.[4] Therefore, such a provision can not only trap workers into a continuum of exploitation in the case of already exploitative employment relationships, but it may also facilitate employers’ failings to uphold the workers’ labour protections due to the latter’s lack of bargaining power.

The risks affiliated with this visa regime have been confirmed in Kalayaan’s 2014 report.[5] The report found that there were twice as many cases of physical abuse under the current visa, in comparison to those under the 1998 visa that allowed domestic workers to change employers (16% and 8%). Furthermore, while 43% of the workers under the old visa reported never being allowed to leave the house unaccompanied, under the current visa, that number was 71%. As to working hours, 53% of the workers under the current visa reported working more than 16 hours a day compared to 32% of those previously, and 60% of those on the tied visa reported being paid less than £50 a week, while previously the number was 36%.[6]

The effects of this visa are in clear contradiction with the principles and objectives enshrined in the ILO Convention on Decent Work for Domestic Workers.[7] This ground-breaking instrument attempts to eliminate the differential treatment evidenced in a great number of countries towards domestic workers, where this form of employment is placed in the informal economy and not protected by national labour laws. It thus extends provisions such as health and safety,[8] working hours[9] and payments[10] to domestic workers. Importantly, it obliges States to take measures to eliminate all forms of forced and compulsory labour[11] and to ensure that domestic workers have effective access to courts and tribunals.[12] Despite the importance of this instrument, the UK chose to abstain from voting in June 2011. This failing was exacerbated when the government introduced the current immigration regime for domestic workers. Not only has the UK refused to adopt an international instrument that would ensure and enhance the protections available to domestic workers but, through the new visa regime, made it almost impossible, due to the imbalance of power created, for the rights enshrined in the ILO Convention to be respected.

This restricted immigration regime can lead to situations more hazardous than labour law violations, amounting to forced labour, servitude or slavery. As the Joint Committee on the Draft Modern Slavery Bill has noted, these ‘(…) policy changes have unintentionally strengthened the hand of the slave master against the victim of slavery.’[13] These apprehensions, led to the proposal of adding a clause in the Modern Slavery Bill, addressing the immigration regime for domestic workers. The proposed clause aims at reinstating the right of domestic workers to change employers, as well as to renew their visa for a period of up to 12 months.[14] This clause partly reflects the immigration regime applicable to domestic workers prior to the 2012 changes,[15] described by the UN Human Rights Council as best practice.[16]

The fact that a proposal has been made for such a clause to be addressed under the Bill demonstrates the gravity of the situation. Nevertheless, at both the Committee and Report Stage of the HC, this clause was rejected. Frustratingly, at the Committee Stage, the vote for this clause resulted in a tie, and it was only the Chair’s casting vote that led to the clause’s withdrawal.[17] While the tie and submissions in favour of this clause gave hope of reconsideration at the House of Lords’ reading of the Bill, the clause was withdrawn at the Committee stage.[18] The Lords stated that this issue will be reconsidered at the Report Stage, thus it remains to be seen whether any positive steps will be taken to remove domestic workers from this vulnerable position.

Including such a clause in the Bill will undoubtedly have a positive impact both in principle and in practice. The mere acknowledgment that a restrictive immigration regime may generate conditions of exploitation amounting to, what is referred to in the Bill, as ‘modern slavery’ questions entrenched views that human trafficking, forced labour, servitude and slavery are practices relating only to undocumented individuals, and not economic migrants arriving under legal immigration routes. Importantly it will pass the message, posited by the Immigration Law Practitioners’ Association that ‘[t]he way to protect people against exploitation is to give them more choices, not fewer.’[19] Specifically, a State must not add to the already vulnerable position domestic workers find themselves in, through restrictive visa regimes. On the contrary, States should equip workers with rights and the freedom to seek better working conditions and to be protected from forced labour, servitude and slavery.

On a practical level, such a clause will revert the situation of migrant domestic workers to that prior to the 2012 immigration changes, allowing them once again to change employers while in the UK. The importance of this element cannot be overstated. Removing the dependency of workers for their legal status on employers could give them their voice back to speak up when their labour rights are being violated, as well as the courage to leave when being exploited. While it is accepted that this change will not eliminate all instances of exploitation, such a clause will at a minimum eliminate the institutionalisation of the abuse and exploitation occurring currently.[20]

While the inclusion of such a clause is vital, one must remember that these immigration rules need not be changed through the protracted process of the passage of a Bill. The government can reinstate the old regime almost automatically by laying the proposed changes before Parliament.[21] In fact, working concurrently on reversing the immigration regime independently to the Modern Slavery Bill is essential in order to demonstrate that abuse and exploitation that may not reach the level of forced labour, servitude or slavery, will not be tolerated.

It remains to be seen what will happen in the remaining stages of the passage of the Modern Slavery Bill. One can however hope that even if the clause on migrant domestic workers is rejected by both Houses, the calls to reinstate the old immigration regime will persuade the government, that the time has now come to amend a regime that facilitates and enhances exploitation, allowing the UK once again to declare itself a proponent of human rights.

[1] M. Gower, ‘Immigration: migrant domestic workers’, House of Commons Library, Home Affairs Section, SN/HA/4786, 20 March 2012, p.7

[2] Home Office, ‘Impact Assessment Changes to Tier 5 of the Points Based System and Overseas Domestic Worker routes of entry’, IAHO0053, 15 March 2012, pp. 29-30, p.7 retrieved 29/12/14 <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/117958/impact-assessment.pdf

[3] Ibid.

[4] Human Rights Watch, As If I Am Not Human: Abuses Against Asian Domestic Workers in Saudi Arabia (U.S.A. 2008) pp. 64-65

[5] Kalayaan is a UK-based NGO working to provide practical advice and support to migrant domestic workers in the UK.

[6] Kalayaan, ‘Still enslaved: The migrant domestic workers who are trapped by the immigration rules’ April 2014, retrieved 5/1/15 <http://www.kalayaan.org.uk/wp-content/uploads/2014/09/tied-visa-20141.pdf&gt;

[7] ILO C189- Domestic Workers Convention, 2011 (N. 189), Convention concerning decent work for domestic workers, 100th ILC Session, Geneva, 16 Jun 2011, (Entry into force: 05 Sep 2013)

[8] Ibid. Article 13

[9] Ibid. Article 10

[10] Ibid. Article 11, 12

[11] Ibid. Article 3

[12] Ibid. Article 16

[13] Draft Modern Slavery Bill Joint Committee, Draft Modern Slavery Bill, 2013-2014, HL 166, HC 1019, para 5

[14] Modern Slavery Bill Deb 14 October 2014, col. 498

[15] Immigration Rules, Part 5, HC 395 of 1993-4 as amended by CM 5597 of 22 August 2002

[16] UN Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, Addendum: Mission to the United Kingdom of Great Britain and Northern Ireland, 16 March 2010, para 60, U.N Doc A/HRC/14/30/Add. 3

[17] Modern Slavery Bill Deb 14 October 2014, col.503; HC Deb 4 November 2014, Vol. 587 col. 780

[18] Modern Slavery Bill HL Deb 10 December 2014, col. 1872

[19] Immigration Law Practitioners’ Association, ‘Briefing for Modern Slavery Bill, House of Lords’ Committee Stage, for Amendment 94 on overseas domestic workers’, 7 December 2014

[20] Report of the Joint Committee on the Draft Modern Slavery Bill, Session 2013-2014, HL Paper 166, HC 1019, para 225

[21] See for example: Written Statement to Parliament, ‘Immigration (employment-related settlement, overseas domestic workers, Tier 5 of the points-based system and visitors)’ 29 February 2012, retrieved 23/11/14 <https://www.gov.uk/government/speeches/immigration-employment-related-settlement-overseas-domestic-workers-tier-5-of-the-points-based-system-and-visitors-wms>

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