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The last 10 years have been extremely challenging for migrant domestic workers in the UK, following changes to the UK Overseas Domestic Worker visa. As of 2012, this visa effectively ties domestic workers to the employer with whom they arrived in the country. It remains in force despite evidence that it facilitates abuse and exploitation, and the dynamic and sustained campaigning effort for reform by civil society, organisations of domestic workers and their supporters.
Domestic work is a valuable and undervalued profession. The great majority of domestic workers are women, who are employed in private homes to do various household tasks that have traditionally been viewed as women’s work, such as cleaning, childcare and cooking. There are many reasons why domestic workers are a vulnerable group of workers, such as the fact that they are employed in private homes away from the public eye and that they are often migrant workers who may not have networks of support in the host country. There are also legal rules that exclude them from important protections, which we have previously discussed on this blog, e.g. here and here. In the UK, domestic workers are primarily migrant women from non-European countries, particularly the Philippines and other countries in South and Southeast Asia, the Middle East and Africa.
Our concern in this piece is with the immigration rules in the UK. Until 1998, when migrant domestic workers arrived lawfully in the country accompanying an employer, they entered under a concession that tied them to this employer. Their residency status was lawful for as long as the employer with whom they arrived employed them, with the result that the employer gained important means to control them. As against this, the original Overseas Domestic Worker (ODW) visa as introduced in 1998 was the outcome of a successful campaign by domestic workers, trade unions and other civil society organisations that supported them. Under this visa, a domestic worker could accompany a foreign national who entered the country for a period of six or 12 months. The worker could apply for their dependents to be allowed to join them in the UK and, after five years, could apply for settlement (although UK Border Agency data showed that less than 5 per cent of domestic workers who entered under an ODW visa went on to settle in the country). Crucially, even though the domestic worker had entered the country with a specific employer, the worker was not tied to that employer. The worker could not change work sector, which was a limitation of the pre-2012 scheme, but otherwise, the route had many advantages over both the pre-1998 and post-2012 situation. The Draft International Labour Organisation Multilateral Framework on Labour Migration of 2005 and the UN Special Rapporteur on the Human Rights of Migrants cited the 1998 ODW visa as best practice.
2. The 2012 visa scheme
In 2012, the UK Government substantially amended the ODW visa so that it did not permit domestic workers to change employer. Domestic workers’ residency status was lawful only for as long as the employer with whom they entered employed them, to a maximum of six months. The six-month period is not renewable and the post-2012 visa does not allow for family reunification (i.e. for workers to bring dependent family members to join them) or provide a route to settlement.
Organisations on the rights of domestic workers were very vocal in opposing these regressive changes at the time, explaining that tying a worker to a specific employer is a recipe for abuse. The concern was that the workers would either be fearful to leave exploitative employment relations because they would not want to become undocumented or that if they left, their undocumented status would trap them in badly paid and exploitative work. When the 2012 regime was introduced, the Government acknowledged that ‘the [overseas domestic worker] routes can at times result in the import of abusive employer/employee relationships to the UK’ (Statement by Home Secretary Theresa May, Written Ministerial Statements, 29 February 2012, Col. 35WS). The Government therefore included some safeguards (that the employment relationship is in existence for at least 12 months before arrival; that there is strong evidence for the existence of the relationship; that written terms and conditions are agreed between the employer and the worker before entry in the UK; that information is given to the workers by UK authorities, before they arrive, on their rights and avenues for help while they are in the country). These policies had been in place before 2012, and had been previously criticised (see e.g. here). About 20,000 ODW visas are issued each year, according to statistics provided by the Home Office.
Kalayaan, the main UK-based NGO specialising in the labour rights of migrant domestic workers, regularly publishes information on the treatment of the workers by their employers. Two years after the new visa was put in place the organisation’s briefings showed that workers registered with the NGO who entered the UK on the 2012 visa reported significantly worse treatment than those that were not tied to their employer during the same period of time but under the previous regime. More precisely, they found that migrant domestic workers with a visa that ties them to their employers were twice as likely to report having being physically abused than those who were not so tied; that almost three quarters of workers who were tied to the employer were not allowed to leave the house unsupervised, which is again a significantly larger number than workers under a non-tied visa; that 65% of the domestic workers did not have their own rooms; that the majority work more than 16 hours a day; and that a greater number of them than previously were assessed as more susceptible to human trafficking. These patterns were confirmed in subsequent years: the abuse reported by workers under the tied visa is consistently higher than the abuse reported by other workers. International human rights monitoring bodies such as the UN Special Rapporteur on violence against women highlighted the problems of the visa for domestic workers.
Academic research has also examined the effects of the visa on this group of workers. A series of interviews of migrant domestic workers who came to the UK after 2012 confirmed the pattern (Mantouvalou, 2015). The interviews showed that domestic workers under the UK ODW visa are exploited, living and working in appalling conditions, and abused. Moreover, they often become undocumented because they escaped abusive employers. With no legal avenue to change employer, domestic workers who escape become trapped in this way in ongoing cycles of exploitation by employers who are aware of their legal status as undocumented workers.
The story of Ella (one of Mantouvalou’s interviews – not her real name), originally from the Philippines, exemplifies the effects of the visa on domestic workers. Ella migrated to work in Qatar, under a kafala visa, and came to the UK accompanying her employers under a UK ODW visa. While in the UK, she worked day and night as a domestic worker, cared for one of her employers who had serious health issues and the family’s youngest child, and slept in the storage room. She was paid about £200 per month. The employers did not give her food and she was very hungry, so she left them after a few days in London. By leaving them, she became undocumented because of her visa conditions. She had four young children back home, and she needed to continue working to support them, which is why she could not return to the Philippines. After leaving her employers in the UK, she started looking for other work as a domestic worker. She found some part-time jobs, but they were always underpaid, and often employers offered hourly pay that was below the national minimum wage: ‘Sometimes if you have an interview and you tell [the prospective employers] that you don’t have papers, they take advantage of you and they give you a small salary’, she said in her interview. When the employers were away on holidays, they did not pay her. She also had some health issues but did not go to the doctor because she was undocumented.
3. Modern Slavery?
The ODW visa became a central political issue during the passing of the UK Modern Slavery Act 2015. Campaigners, academics, and other supporters of domestic workers argued that if the Government were indeed committed to tackling the worst forms of labour exploitation, they should change the visa that made workers so vulnerable to exploitation. While Theresa May was expressing publicly her strong commitment to tackling the most serious forms of exploitation, described as ‘modern slavery’, there was strong resistance to changing the ODW visa even though there was ample evidence of such exploitation. Despite campaigning and political pressure from some circles, in the context of ‘hostile environment’ policies and the move to a ‘points-based’ system that prioritises the immigration of high paid and professionalised workers and wrongly designates domestic workers as ‘low skilled,’ the changes to the visa have been limited and ineffective.
One of the most notable developments was a Report commissioned by the Government and produced by James Ewins QC. This documented the problems of the post-2012 ODW visa, and asked among other things that domestic workers have an unconditional right to change employer, and a right to stay in the country for up to 2.5 years. Even though the Government had promised that they would implement Ewins’ recommendations, this did not happen. Since 2016, domestic workers have an unconditional right to change employer only during the six months of the duration of the visa, but without a right to extend the visa. It is not difficult to understand that this cannot make a difference to workers. It is very unlikely for someone to employ a domestic worker for a period of, say, two or three months only (that are remaining on their visa). Having only six months in the country also makes it incredibly difficult to access justice through the courts, and gives little scope for workers to join trade unions or other self-help organisations.
There are very limited exceptions where it is possible to extend the visa beyond the initial six-month period, which only apply to (potential) victims of human trafficking or modern slavery. Workers who are in the process of being recognised as victims of trafficking and whose visa expires before entering the process frequently end up in destitution because they have no right to work, as detailed in Sedacca and Sharp’s report for Kalayaan, Dignity not Destitution. Domestic workers who are conclusively recognised as victims of human trafficking, through the National Referral Mechanism, do not receive automatic leave to remain, but can apply as a survivor of trafficking to stay in the UK for up to two years. Yet this route has shortcomings too – it only allows work as a domestic worker in a private or diplomatic household, and like the main ODW visa, carries no right to settlement or to bring family members, and is issued with ‘No Recourse to Public Funds,’ thus preventing the holder, a recognised slavery survivor, from claiming benefits. This is contrary to a recommendation in Ewins’ report that in situations extreme enough to lead to an individual being recognised as a survivor of trafficking, ‘recourse to public funds is plainly appropriate as victims may well require more than another job to aid their recovery’ (para 112).
If those recognised as trafficking survivors do not fit, or have exhausted, the limited routes allowing them to remain, they may still be deported and placed at a real risk of re-trafficking, namely a risk of being trafficked again after they have exited the situation. In this way, their ordeal starts all over again. Alongside the fear of deportation that these workers experience, which makes them reluctant to contact the authorities, the challenges in being recognised as a victim of trafficking and the limited options even for those that do, and the fact that some will not have the right to work during the lengthy process of waiting, also make this change unsatisfactory.
Domestic workers who do not meet the stringent and often arbitrary conditions that would allow for a visa extension become undocumented and face the policies collectively termed the ‘hostile environment.’ This is a series of legal provisions arising mainly from the Immigration Acts of 2014 and 2016, rebranded after the Windrush scandal as the ‘compliant environment’ but without changes of substance, which makes society at large responsible for enforcing immigration control. The measures aim to make life in the UK unviable for those with irregular immigration status by preventing access to decent work, housing, healthcare, education, and family life. A key example is the new criminal offence of ‘illegal working’ in s34 Immigration Act 2016, committed when a person subject to immigration control works knowing or having reason to believe that their immigration status does not allow this. As noted by Davies, this shows a ‘lack of concern… for the wellbeing of migrant workers’ by making it impossible to enforce even the most basic rights such as to receive remuneration for work completed. Worse still, domestic workers will often find themselves in this situation because of the strict limitations of the ODW visa system and the lack of possibilities for extension – exemplifying how state laws and policies push workers into irregular status.
In summary, the combination of a harsh visa system with limited extension possibilities and the ‘hostile environment’ for those who lose status mean that even domestic workers who are exploited or abused will be very reluctant to leave their employer for fear of deportation. The ‘protection gap’ that the current policies create means workers who suffer labour law violations but do not meet the criteria to be recognised as survivors of trafficking are left without protection. Those who leave may be trapped in exploitation and destitution, and even those who are recognised as victims of trafficking may be re-trafficked. In addition, the post-2016 changes have not addressed the lack of a route to settlement or the denial of rights to family reunification, which is highly problematic in leaving families separated and reflecting the devaluation of domestic work as a sector.
4. Government intransigence in the face of a mounting case for change
The COVID-19 pandemic that began over two years ago has thrown the problems caused by a hostile immigration system into even sharper relief. The many domestic workers who lost their jobs without notice or reasons, for example because an employer’s financial situation changed, found themselves in breach of their visa conditions that require full-time work and therefore at severe risk of becoming undocumented. The idea of finding a new role for the limited time remaining on their visa was particularly unviable during lockdown, when it was unclear whether domestic work fell within the definition of ‘essential’ sectors permitted to continue in-person work and many were hesitant to have additional people in their home. Where domestic workers lost their jobs, the ‘No Recourse to Public Funds’ condition alongside a lack of coverage from other schemes left them without any source of income.
The lack of rights or labour mobility driven by the visa regime has meant many domestic workers are being pressured to remain in or accept abusive and dangerous employment. Consider a worker quoted in the Independent who contracted Covid in January 2021 after working at a wedding that took place in flagrant breach of lockdown rules: ‘If I had my documents, of course I would not be doing this kind of job.’ Undocumented migrants, including domestic workers, have also been fearful of attending hospital even when suffering with serious Covid symptoms or otherwise requiring healthcare, because this may lead to their data being passed to the Home Office and therefore to their detention or deportation.
Domestic workers and organisations advocating for them have continued to make the case for change. In early 2021, a petition calling for the reinstatement of the pre-2012 ODW visa organised by Kalayaan and the Voice of Domestic Workers received over 12,700 signatures, demonstrating a surge of public concern over the exploitative conditions facilitated by the current arrangements. Yet the Government replied indicating their refusal to reinstate the original visa terms, stating that they would expect visa holders to arrange to leave the UK after six months and failing to engage with the evidence of vulnerability fuelled by these conditions. In focusing on the available process for victims of modern slavery, the Government’s response ignored both the situation of workers who do not meet the high threshold for being recognised as a victim, and the limits of the protection even for those who do. Since this refusal, Kalayaan have written to the Secretary of State for the Home Department and the Ministers for Immigration and Safeguarding in March 2021 and December 2021, explaining in detail why the current protections are inadequate. Three UN special rapporteurs – with mandates on contemporary forms of slavery, on the human rights of migrants, and on trafficking – have expressed similar concerns, highlighting the difficulty of securing decent work with little time left on a non-renewable visa, and the barrier to access to justice that this represents. To date, there has been no change in the Government’s position.
During the Parliamentary process for the Nationality and Borders Bill, Kalayaan and the Voice of Domestic Workers secured a debate in the House of Lords on Amendment 70A, tabled by Lord Bishop of Bristol and supported by Baroness Lister, Baroness Hamwee and Lord Alton. The amendment would have restored rights to change employer, renew the visa, apply for leave to remain for spouses and children under 18, and be granted indefinite leave to remain after five continuous years of residence where still in employment. A joint briefing explained in depth why the 2016 reforms were inadequate to prevent abuse and at odds with the Government’s stated commitment to preventing modern slavery and tackling gendered forms of violence. The debate was due to take place on 8 March 2022 – International Women’s Day – but the amendment was withdrawn.
In the meantime, developments in other labour migration sectors have further underscored the inadequacy of short-term, non-renewable regimes like the current ODW visa. On the one hand, the Government’s December 2021 evaluation of the seasonal workers’ pilot scheme for the agricultural sector, a similarly time-limited scheme with restricted labour mobility, showed many shortcomings in work conditions. This included allegations of unfair treatment by farm managers, failure to provide legally required health and safety equipment, and poor quality accommodation, echoing problems identified in earlier research by Focus on Labour Exploitation and Fife Migrants’ Forum. The cracks in the scheme have been further exposed since Russia’s invasion of Ukraine, with the many Ukrainians working on the seasonal worker visa blocked from bringing family members who need to flee the catastrophic war. These families’ reports of being treated as ‘second class citizens’ amount to a particularly stark example of the everyday injustice faced by workers on time-limited schemes without rights to family reunification, including the ODW visa.
Conversely, also in December 2021, the Government announced the extension of the Health and Care Visa scheme to cover social care workers, care assistants and home care workers, for a 12-month period in response to difficulties recruiting to the sector that were highlighted by the Covid pandemic. This visa has clear advantages over the ODW scheme: it can be extended; carries a route to settlement; and allows for family reunification. Yet since the route is only available to those with a minimum annual salary of £20,480 and above, it remains to be seen how many care workers will qualify for it. The domestic work sector overlaps in numerous ways with care work, particularly home-based care, as both are feminised sectors where the work is undervalued, with long hours and low pay. Yet in other ways, it is distinct – it encompasses a broader set of tasks such as cooking and cleaning as well as care, and relations are frequently informal, with a lack of recognition of domestic workers as workers. The extension of the Health and Care visa to (at least some) care workers poses the question of why the same relatively decent conditions cannot be offered more broadly, including to the equally crucial domestic work sector.
5. Conclusion: the time to act is now
For ten years, the restricted ODW visa has trapped workers in cycles of exploitation. Domestic workers and their supporters have fought hard and have achieved a lot during this decade. But there is still a lot to be done. A mounting body of evidence shows how the changes made in 2016 have been inadequate to address the restrictions: they apply only to workers recognised as survivors of human trafficking, but do nothing to address the broader conditions that normalise exploitation across the sector. Such a policy strategy is also at odds with the Government’s stated aims to prevent trafficking and slavery and to tackle gendered forms of violence against women and girls. Earlier this month, the Government finally agreed to remove an exemption that had led to some live-in domestic workers being paid below the minimum wage. This is a vital step, for which organisations advocating for domestic workers, au pairs, nannies and care workers including Kalayaan have long advocated, but its effects are likely to be incomplete without corresponding reform to the visa scheme. For as long as domestic workers have no viable route to change employers and extend their visas, they will continue to face a stark choice between accepting exploitative conditions of work and leaving at the risk of becoming undocumented. It is long past time for the government to act to remedy the source of this abuse.
About the authors:
Virginia Mantouvalou is Professor of Human Rights and Labour Law at UCL Faculty of Laws and a trustee for the migrant domestic worker charity Kalayaan. Restrictive visa schemes, such as the UK ODW visa, are part of her project funded by a British Academy Mid-Career fellowship. Her monograph Structures of Injustice, Workers’ Rights and Human Rights will be published by OUP.
Natalie Sedacca is a Lecturer in Law at the University of Exeter and a trustee for the migrant domestic worker charity Kalayaan, and completed her PhD at UCL in 2021. Natalie’s research focuses on human rights and labour law, with a particular interest in the rights of domestic workers and in issues of gender and migration.
The authors are very grateful to Avril Sharp of Kalayaan for comments on a draft.
(Suggested citation: V Mantouvalou and N Sedacca, ‘Trapped in Cycles of Exploitation: The UK Overseas Domestic Worker Visa 10 Years On,’ UK Labour Law Blog, 6 April 2022, available at https://uklabourlawblog.com/)