Blocking their escape: forced labour Blocking their escape: forced labour and the abolition of the Overseas and the abolition of the Overseas

Domestic Workers visaDomestic Workers visa

Nick ClarkNick Clark

Working Lives Research InstituteWorking Lives Research Institute

Migrant domestic workers Migrant domestic workers

52,000 “domestic personnel” (LFS)52,000 “domestic personnel” (LFS)33,500 employees33,500 employeesexcludes “off the books”, undocumented, staff of excludes “off the books”, undocumented, staff of

contractors/agencies, au pairs (live-in carers?)contractors/agencies, au pairs (live-in carers?)10,100 MDWs admitted on visas (2009)10,100 MDWs admitted on visas (2009)6,600 granted visa renewals (2009)6,600 granted visa renewals (2009)5% apply for ILR5% apply for ILR

Overseas Domestic Worker Visa Overseas Domestic Worker Visa

18-65 , employed as a domestic worker for 18-65 , employed as a domestic worker for min. one year prior to applicationmin. one year prior to application

travel to UK in company of employertravel to UK in company of employer work full time as a domestic worker onlywork full time as a domestic worker only no recourse to public fundsno recourse to public funds up to 12 months (renewable)up to 12 months (renewable) can change employerscan change employers may apply for ILR after 5 yearsmay apply for ILR after 5 years

UK Government UK Government positionspositions

Visa: Visa: “I am... proposing to remove the route for domestic “I am... proposing to remove the route for domestic workers in private households, or reform it... by workers in private households, or reform it... by removing their right to switch employer and to settle removing their right to switch employer and to settle here. Their assignments should be strictly temporary” here. Their assignments should be strictly temporary” Theresa May Theresa May

Convention: Convention: “both the British government and the CBI “both the British government and the CBI spoke against the text (the only two negative speeches spoke against the text (the only two negative speeches in the entire debate). The government… on the spurious in the entire debate). The government… on the spurious grounds that the convention would 'criminalise the grounds that the convention would 'criminalise the elderly' because health and safety regulations (which elderly' because health and safety regulations (which are part of the criminal law) would have to be extended are part of the criminal law) would have to be extended to cover private homes”to cover private homes” TUC Report on ILO ConferenceTUC Report on ILO Conference

Government assertionsGovernment assertions

ILO Convention 2011ILO Convention 2011"The UK already provides comprehensive employment "The UK already provides comprehensive employment

and social protections to domestic workers and we do and social protections to domestic workers and we do not consider it appropriate or practical to extend criminal not consider it appropriate or practical to extend criminal health and safety law, including inspections, to private health and safety law, including inspections, to private households employing domestic workers."households employing domestic workers."

BIS Spokesman, BIS Spokesman, The Guardian The Guardian 15-6-1115-6-11

““like other workers, most domestic workers benefit from like other workers, most domestic workers benefit from the national minimum wage, statutory sick pay, paid the national minimum wage, statutory sick pay, paid annual leave and protection from discrimination and annual leave and protection from discrimination and unfair dismissal, as well as other protections.”unfair dismissal, as well as other protections.”

Ed Davey MP, BIS Minister, Westminster Hall 29-6-11

Government assertionsGovernment assertions

Employment Related Settlement:Employment Related Settlement: ““the National Referral Mechanism (NRM) for identifying the National Referral Mechanism (NRM) for identifying

victims of trafficking was established victims of trafficking was established [in April 2009[in April 2009]],, which provides a mechanism for responding to which provides a mechanism for responding to exploitation of overseas domestic workers” exploitation of overseas domestic workers”

““there is suspicion that the [ODW Visa] route enables there is suspicion that the [ODW Visa] route enables people to be brought here to be abused or exploited people to be brought here to be abused or exploited while on UK soil.”while on UK soil.”

Consultation paper on Employment Related Settlement, Consultation paper on Employment Related Settlement, UKBA, June 2011UKBA, June 2011

SourcesSources

Responses to Forced Labour in EuropeResponses to Forced Labour in EuropeJoseph Rowntree FoundationJoseph Rowntree Foundation

Migrant Domestic Workers Employment Migrant Domestic Workers Employment RightsRights

Nuffield FoundationNuffield Foundation

JRF Forced Labour programmeJRF Forced Labour programme

Domestic work & forced Domestic work & forced labour in Europelabour in Europe

ECHR cases: Kawogo (UK) & Siliadin (Fr)ECHR cases: Kawogo (UK) & Siliadin (Fr) ““no charges… brought under section 4 of the no charges… brought under section 4 of the

Immigration and Asylum (Treatment of Claimants) Act Immigration and Asylum (Treatment of Claimants) Act 2004. The reason given was that “essentially they [the 2004. The reason given was that “essentially they [the Dhanjis] did not commit the cross-border element.”” Dhanjis] did not commit the cross-border element.”” (ECHR Statement of Facts June 2010)(ECHR Statement of Facts June 2010)

““carrying out household tasks and looking after children carrying out household tasks and looking after children throughout the day could not by themselves constitute throughout the day could not by themselves constitute working conditions incompatible with human dignity, this working conditions incompatible with human dignity, this being the lot of many mothers” being the lot of many mothers” (Versailles Court of (Versailles Court of Appeal 2003Appeal 2003););

Domestic work & forced Domestic work & forced labour in Europelabour in Europe

Sector Country studies mentioning FL (n=9)

Domestic service 8

Construction 7

Agriculture 6

HoRECa 5

Forced labour indicatorsForced labour indicatorsadapted from Scott adapted from Scott et al, et al, JRF forthcomingJRF forthcoming

Deception by employer Deception by employer Non-payment of wages or illegal deductions Non-payment of wages or illegal deductions Threats of denunciationThreats of denunciation Breaches to, or lack of, contract Breaches to, or lack of, contract Psychological harm Psychological harm Excessive working hours (>50h week) Excessive working hours (>50h week) Payment below minimum wage Payment below minimum wage Crowded accommodation Crowded accommodation Confinement to the workplace/restrictions on movementConfinement to the workplace/restrictions on movement

Employment rights in UKEmployment rights in UK

Visa requirements (employed, NMW, statement of Visa requirements (employed, NMW, statement of terms)terms)

Working time: 48 hours does not applyWorking time: 48 hours does not apply Neil Carberry CBI, ref ILO Convention: Neil Carberry CBI, ref ILO Convention: “The proposed “The proposed

convention would undermine the principle of EU law that an convention would undermine the principle of EU law that an individual should be protected against being forced to work individual should be protected against being forced to work long hours but can choose to work longer if they wish.”long hours but can choose to work longer if they wish.”

Health & Safety: no inspections of private Health & Safety: no inspections of private householdshouseholds

National Minimum Wage: “family worker exceptionNational Minimum Wage: “family worker exception””

Family worker exceptionFamily worker exception

resident in family home of the employerresident in family home of the employer Not member of that family, but treated as such,Not member of that family, but treated as such,

provision of accommodation, meals provision of accommodation, meals sharing of tasks and leisure activitiessharing of tasks and leisure activities

No deduction or payment to employer for No deduction or payment to employer for accommodation or meals; accommodation or meals;

had the work been done by a member of the had the work been done by a member of the employer’s family, it would not be treated as employer’s family, it would not be treated as being performed under a worker’s contract or as being performed under a worker’s contract or as being work...being work...

Family worker exceptionFamily worker exception

““there was sharing of tasks, in particular cooking and clearing up there was sharing of tasks, in particular cooking and clearing up after meals. Otherwise the claimant did the bulk of the work. As after meals. Otherwise the claimant did the bulk of the work. As regards leisure activities the claimant shared these with the regards leisure activities the claimant shared these with the children to some extent.” children to some extent.” (extract from Tribunal judgement 2010). (extract from Tribunal judgement 2010).

““the fact that during the latter part of her time working for the the fact that during the latter part of her time working for the Respondents in the UK she herself withdrew more and more from Respondents in the UK she herself withdrew more and more from spending time with [the family] in our judgement is not relevant”spending time with [the family] in our judgement is not relevant” (extract from Tribunal judgement 2010). (extract from Tribunal judgement 2010).

““We do not consider that there is any lack of clarity about the way We do not consider that there is any lack of clarity about the way the NMW legislation applies to migrant domestic workers… NMW the NMW legislation applies to migrant domestic workers… NMW will be enforced if appropriate.”will be enforced if appropriate.” (E-mail to researchers from (E-mail to researchers from National Minimum Wage, Local Compliance dated 4 April 2011).National Minimum Wage, Local Compliance dated 4 April 2011).

Statements recovered Statements recovered from UKBAfrom UKBA

Hourly pay – UNITE survey

Based on reported hours worked

Manufacturing precarity through Manufacturing precarity through tax evasion tax evasion

16 interviewees mention problems with payslips16 interviewees mention problems with payslips ““I want to pay tax, because I want to be legal, don’t want I want to pay tax, because I want to be legal, don’t want

to be here illegal. I work here, everyone is paying tax, I to be here illegal. I work here, everyone is paying tax, I should pay the same. That’s why I applied my self-should pay the same. That’s why I applied my self-employed. If employer don’t want to pay, I will payemployed. If employer don’t want to pay, I will pay.” .” [Filipina, Female, 50-59, has ILR][Filipina, Female, 50-59, has ILR]

““I understand what they mean I understand what they mean [re part payment in cash] [re part payment in cash] because you know, they don't want to pay extra tax, you because you know, they don't want to pay extra tax, you know. I have agreed because, you know, there is no know. I have agreed because, you know, there is no choice.”choice.” [Filipina, Female, 30-39] [Filipina, Female, 30-39]

EscapeEscape

Kalayaan conclude that NRM not suitable – of 157 Kalayaan conclude that NRM not suitable – of 157 cases identified as having been trafficked, 102 chose cases identified as having been trafficked, 102 chose not to use the NRM, preferring to seek other not to use the NRM, preferring to seek other employment, even on an undocumented basis, because employment, even on an undocumented basis, because ““their overriding need in spite of their experiences was their overriding need in spite of their experiences was to support their families and pay off debts in their to support their families and pay off debts in their countries of origin” countries of origin” (Lalani, 2011).(Lalani, 2011).

““I am legal in this country – you are not the only I am legal in this country – you are not the only employeremployer”. Female, Filipina, 30-39.”. Female, Filipina, 30-39.

““Now I am not scared – I was scared but now I Now I am not scared – I was scared but now I understand, I can speak out.” understand, I can speak out.” Female, Moroccan, 40-49Female, Moroccan, 40-49

““Sometimes I get upset Sometimes I get upset [about low pay and [about low pay and unpaid hours of work]unpaid hours of work], but it is okay because I , but it is okay because I am waiting for my five years. Then I will be am waiting for my five years. Then I will be indefinite and then bye-bye”indefinite and then bye-bye” Female, Filipina, Female, Filipina, 30-3930-39

ConclusionsConclusions

MDWs experience multiple FL indicatorsMDWs experience multiple FL indicators Not currently protected by visa regime, Not currently protected by visa regime,

NMW, WTD or NRMNMW, WTD or NRM Most effective redress is capacity to Most effective redress is capacity to

change employers, while staying within change employers, while staying within the lawthe law

Removing visa will not remove the Removing visa will not remove the workers, simply their employment rightsworkers, simply their employment rights