This blog post presents some key findings and initial analysis of an empirical study on the impact of differential permission to work on migrant domestic workers in the UK. The study sought to address the effect of the denial of permission to work to some domestic workers who have been identified as potential victims of slavery / trafficking and are waiting for a final decision on their status. It demonstrates how some individuals within this group are denied permission to work as a result of factors related to timing that are outside their control. This can result in them being made destitute, reliant on community support and/or pushed into informal work, and being unable to fulfil the purpose for which they have travelled to the UK. The situation of these workers has implications for the human right to work, and reform to the system is needed if the right is to be protected.

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Image by pascalhelmer from Pixabay

Background

Domestic work worldwide tends to be given inadequate recognition and is mainly carried out by women and girls, who are often migrants and / or from disadvantaged communities. Workers in this sector are often denied employment rights to which those in other sectors within the same jurisdiction are entitled and are often subject to abuses of human / labour rights.

In the UK, domestic workers, who mainly migrate from non-EU countries such as the Philippines, India and Indonesia, are not only excluded from a number of employment rights that apply to other sectors (such as limits on working time and health and safety protections), but are also subject to a very restrictive visa regime. There are two types of visa available  – the Overseas Domestic Worker (‘ODW’) visa to work for a private individual and valid for a maximum of 6 months and a Tier 5 (Temporary Worker International Agreement) visa, valid for 24 months to work for a diplomat. Following changes made in 2016, domestic workers are permitted to change employers, but only whilst their visa remains valid.

The only exception that allows for workers to be granted an extension of their leave relates to domestic workers who are identified as (potential) victims of human trafficking and ‘modern slavery,’ a term which is used to cover slavery, servitude and forced or compulsory labour. It is this group of particularly vulnerable workers that our research addresses.

The National Referral Mechanism (NRM)

The process for identifying victims of trafficking and slavery in the UK works through a body called the National Referral Mechanism, to which a number of organisations including Kalayaan and other NGOs as well as statutory bodies can make referrals. Once a referral is made, there are two stages to the identification process. The first is the Reasonable Grounds Decision, which is supposed to be made within five working days from receipt of a referral. At this stage the decision maker has to be satisfied that they ‘suspect but cannot prove’ the individual is a potential victim. If positive, the person is entitled to a 45 day ‘reflection and recovery’ period while awaiting the second and final decision on their claim to be a victim. This is referred to as the Conclusive Grounds decision, the test for which is whether on the balance of probabilities there are sufficient grounds for accepting an individual is a victim. Published guidance for decision makers provides this decision should be made as soon as possible after 45 days. However of decisions made in 2018 for Kalayaan’s clients, the average time spent waiting was 2 years. Domestic workers who are conclusively found to be a victim and not granted discretionary leave to remain on account of their individual circumstances can apply for further leave to remain as a domestic worker for a maximum of 2 years.

While workers are in between these two decisions (referred to below as ‘workers in the NRM’), based on Article 3 of the Immigration (Variation of Leave) Order 2016, SI 2016 No. 948 the variation of their leave depends on their status at the date when the first decision was made. Accompanying Home Office guidance confirms that the extension of leave also applies to the extension of permission to work, so the position is as follows:

  • If the worker’s initial six-month visa was still valid at the date of the Reasonable Grounds Decision, they will have the right to work until 28 days after the Conclusive Decision is made.
  • If the worker’s initial six-month visa has expired by the date of the Reasonable Grounds Decision, they do not have the right to work while they wait for a Conclusive Grounds Decision.

The result of this differentiation is to create a class of individuals who are in the UK legally, and must remain here for their trafficking claim to be determined, but are prohibited from working.

The research study

Our research looks at the experience of 21 Filipino migrant domestic workers in the NRM, of whom 10 did not have permission to work while waiting for a final outcome because their initial visa had expired at the date of the Reasonable Grounds Decision. The interviews were carried out at Kalayaan’s offices by Natalie Sedacca, acting as research volunteer, with a member of Kalayaan staff and / or a Tagalog interpreter present where needed. All interviewees’ names have been changed to protect identities.

All those interviewed had migrated abroad to work in order to help family members in the Philippines, of whom eight were solely financially responsible for relatives. Each of these interviewees had made the decision to escape the employer that brought them to the UK, giving a mixture of the following reasons: psychological abuse (13); lack of food and drink (13); lack of sleep and / or rest breaks (12); physical abuse (eight); forced to work excessive hours (seven); excessive work demands (five); reductions, delays or non-payment of wages (six); lack of privacy or inadequate living arrangements (three); lack of freedom (two); threats of sexual abuse (one) and work not being in line with what was stated in the contract (one).

‘Sometimes they spit on my face, they kick me, sometimes they grab me by the hair.’  (Stephanie)

‘I only get to sleep between two to three hours a day… I only get to eat one meal a day.’ (Christina)

The arbitrariness of the factors determining permission to work

Our interviews demonstrated that there are a number of reasons for a delay in receiving the Reasonable Grounds decision, which are generally outside the control of the domestic workers, including:

Lack of information and support– it was evident that information about rights and available support was not being routinely issued as part of the process of applying for a visa. Therefore, most do not know where to get help from after they escape: only two of the 21 interviewees indicated being aware of where to get advice and assistance on their situation in the UK when they decided to escape, one of whom indicated that the information leaflet had been issued to her when she applied for her visa abroad. Nine interviewees indicated that they approached strangers or community members they had not known before fleeing their original employer, six that they relied on contacts made in person after arriving in the UK, and three on contacts they met online after arriving in the UK.

‘Because I walked in the street and I meet one person in the street, a Filipina and I talked to her that I run away and that I have I don’t have nothing to place to stay. She said if you want you stay with me and you look after my kid because she has work as well. Then I agreed that. Because I have nothing to stay I don’t have place to stay that’ (Elena)

Given the lack of clarity, it is understandable that many delay leaving until either they are no longer able to bear the experience, or they have managed to make at least some kind of contact that may assist them following escape. On average (of those for whom dates were known) interviewees escaped 29 days after they arrived in the UK; the lowest was three days and the longest was 110.

The need to obtain visa information – the majority of the interviewees (16) did not have possession of their passport when they fled their trafficker (in the other five cases, some were able to retrieve passports after their arrival without the employer’s knowledge). Of those 16 without their passport, 12 also did not have a copy of their visa, and therefore had to seek confirmation of the expiry date by other routes such as a Subject Access Request under the Data Protection Act 1998. Of those in respect of whom dates are known, it took between 14 and 129 days for this information to be received, with the average being 48 days.

Impact of denial of the right to work

The denial of the right to work has an impact over an extended period, because there is often a long delay in receiving a Conclusive Grounds Decision. Those interviewed had been waiting to date for the following lengths of time, which are already extensive in some cases, and are without any indication of when a final decision will be received.

Waiting time to date Permission to work No permission to work
0 – 3 months 3 1
3 – 6 months 2 3
6 – 12 months 4 5
Over 12 months 2 1

In the meantime, being denied permission to work has a serious impact in many respects:

Destitution – all ten interviewees prohibited from working were receiving £35 weekly support which is made available through Salvation Army sub-contractors such as Hestia (as were three of those with the right to work). Some indicated that the money was not enough to live on and / or described the need to rely on community networks and friends for financial support.

‘It’s, it’s very difficult… My friend knows my situation so um my friends are willing to help… It’s very difficult… even personal goods of a woman.  If I had an income then I wouldn’t have to keep asking for things like food.’ (Marina)

Informal working – of the interviewees without permission to work, five mentioned some type of informal work, in one case as a manicurist on an ad hoc basis, with the other four performing some kind of domestic work. Three of the four reported working for people they were staying with, of whom one was not paid at all and the other two reported being paid £100 – £120 per week. All three stated that they were working every day.

‘They don’t force me to work but I will to wake up early, seven like this… if I see something to clean like this like toilet I have to.. even they don’t ask me to, but I’m shy, I’m ashamed because my free accommodation, free food like this, so I should be work.’ (Natasha)

The experience of interviewees in this group shows how, without permission to work, they can be pushed into situations which are degrading, exploitative and without defined leisure time.

Contrast with those with permission to work – those with permission to work tended to have jobs with more stable and fixed hours, and generally better pay. That said, even in some cases where an individual has permission to work, lack of clarity on the letter that is issued by the Home Office at the point when the Reasonable Grounds decision is made can lead to confusion. This can lead to employers being unwilling to hire, for example because they were not satisfied that victims did have permission to work in the absence of a biometric card or immigration status document.

‘Sometimes when I apply the work, sometimes I’m rejection for the employer because of my situation. The employers are all so afraid that they might incur a penalty if they take me on’ (Katalina)

Of the 11 with the right to work, two were live-in domestic workers and the rest were live out. All had at least a day off per week with three working every weekday plus one day of the weekend. Seven reported an hourly rate of £10  per hour or above, while two received less than £7 per hour (this was calculated based on weekly rates where an hourly rate was not given); the latter two received outreach support because of the difficulty in finding work.

Psychological impacts of lacking the right to work – interviewees without permission to work variously expressed being upset and sad (six); frustrated and bored (six); being worried, stressed and anxious (four); feeling hopeless (one); feeling jealous of others who were working (one) and being unable to afford basic items (one).

‘Of course I feel so worried, and sometimes I feel sad like that… and hoping the result is good like that, all the time. I just pray to god. I don’t have any bad intention here in this country, just to earn money so that I can go back to the Philippines, so that I have children depending on me’ (Elsa)

Impact on family – the feelings above are closely linked to worry over the financial situation of families, which was expressed by all interviewees who lacked permission to work (bearing in mind, as noted above, that all had migrated abroad for the purpose of supporting family). A number referred to particular money problems caused to families: debt (seven); inability to afford education and related costs (three); and inability to afford housing / bills (one).

‘It’s been extremely difficult for them, as my parents are ill, my children are not in school because I haven’t been able to send money… If there is money then yes they can go to a doctor but if there is no money… because we live in the mountains… so it’s very hard, very expensive to seek medical treatment.’ (Nicky)

Conversely, those that had permission to work indicated that they were happy about having the opportunity to continue with the purpose they had travelled here for, and in some cases the relief felt by their families:

‘The decision of the Home Office that I am allowed to work… helped me to find, earn the money, and I sent to my daughter in the Philippines, so I can support the studying until now… I thankful for that.’ (Lisa)

‘When I told them that I have a paper that I am allowed to work here, so now the fear I felt before is just like turned, it’s just like they don’t feel any worry, and they are comfortable now that I am secure.’ (Josefina)

It is therefore evident that permission to work brings a number of benefits including a greater opportunity for decent-paid work with regulated hours and continued capacity for supporting family members.

Human rights implications

As noted above, the differential granting of permission to work creates a class of individuals who are in the country legally but are prohibited from working. This potentially raises a number of issues related to the human right to work, particularly given the serious impact of this treatment and the arbitrary basis for the distinction as shown by the research. The extent to which the right to work applies to migrants in international law is a complex issue which cannot be discussed in full here, but some provisions can be briefly mentioned. 

The human right to work is stated primarily in socio-economic instruments such as the International Covenant on Economic, Social and Cultural Rights, which provides at Article 6 that state parties ‘recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.’ Likewise, the right to work is protected in Article 1 of the European Social Charter, and a related right has also been ‘read in’ to the European Convention on Human Rights in cases such as Sidabras and Džiautas v Lithuania [2004] ECHR 395.

A General Comment by the UN Committee on Economic, Social and Cultural Rights states that ‘The labour market must be open to everyone under the jurisdiction of States parties (para 12b)’ whereas the differential positions in the regime for domestic workers in the NRM specifically exclude some workers. It also requires states to take ‘the requisite measures, legislative or otherwise, to reduce to the fullest extent possible the number of workers outside the formal economy, workers who as a result of that situation have no protection’ (para 10). The impact of the legislation on this group runs directly contrary to this, given that these individuals are pushed into the informal economy because the legislation prevents them working.

The harsh impacts on those individuals who are denied permission to work, and the comparison with their counterparts, underscores the importance of the right to work, both in the sense of protection against interference in being able to take up employment, and the right to decent work.

 Proposals for a system that protects the right to work

 On the basis of our findings, it is evident that there is a need to reform the system. The changes that should be made include, first, that all migrant domestic workers attending the Visa Application Centre, where their visa to enter the UK is processed, should be seen physically, separately from their employer. During this appointment, they should receive verbal and written information in a language they can understand informing them of their rights in the UK, including where to get assistance from should they suffer abuse. Secondly, and crucially, all migrant workers who receive a positive Reasonable Grounds Decision from the NRM must be granted permission to work while they await a Conclusive Decision. This would prevent the current situation in which some workers fall into destitution and at risk of exploitation, enabling them to support themselves and their families and improving their mental health. Third, to address the problems that can arise even in respect of those who have permission to work, the Reasonable Grounds Notifications must state in clear and unambiguous language that permission to work is valid until 28 days after the Conclusive Grounds Decision is made. And finally, all victims should be given realistic timescales as to when they can expect a Conclusive Grounds Decision and periodically be kept updated and informed if this timescale cannot be kept to.

This blog post is published in advance of the full report by Kalayaan and further academic work by Natalie Sedacca based on its findings.

Natalie Photo 2018

 

Natalie Sedacca is a PhD Candidate and Teaching Fellow at UCL, Faculty of Laws. Her research focuses on the intersection between labour rights and human rights in relation to domestic workers.

 

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Avril Sharp is a Policy and Casework Officer at Kalayaan, providing direct advice and support to domestic workers. She is also leading on Kalayaan’s policy and campaign work to better improve the conditions and protections of domestic workers in the UK.

 

 

(Suggested citation: N Sedacca and A Sharp, ‘Dignity, not destitution: the impact of differential rights to work for migrant domestic workers’, UK Labour Law Blog, 12 April 2019, available at https://wordpress.com/view/uklabourlawblog.com)

 

Posted by natalies18

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