Case study 1
Rowena enters the UK in January 2016 with the standard period of leave applicable to her category of worker. She is employed to work as a domestic worker for the Libyan Embassy. She leaves in January 2017. In the absence of any application to change her status, what are her rights to change employer and continue to work, if any? What are the constraints on such rights?
Extension of leave to remain as a domestic worker entering post 2012.
The Immigration Rules expressly limit an extension to up to six months (for a domestic worker in a private household).
We don’t know whether there is a practice of extending beyond this period.
There is an ability to re-apply to entry clearance, subject to the requirement that there is no intention to come to UK for ‘frequent or successive visits’.
How to apply
Form FLR (IR) and guidance:
The fee is £993 for a postal application.
(Please double check the current form and fee on the Home Office website.)
Domestic workers and trafficking
There is now a right to apply, once in receipt of a positive conclusive grounds decision, for a period of leave. Leave will be granted (or renewed) for up to two years.
See paragraph 159I of the Immigration Rules
There is no need to show that you are in employment (as under old rules for pre 2012 entrants)
You do need to show that you can be supported and accommodated without reference to public funds. There is no specified evidence for this requirement.
Case study 2
Antonia entered the UK in 2006 on a pre-2012 domestic worker visa. She received a positive conclusive grounds decision in 2012 and was awarded a residence permit. She has had successive periods of residence since that date in order to enable her to pursue an employment tribunal claim which has been going through the levels of appeal. However, now her employment tribunal is over and she has received compensation.
She wishes to renew her leave to remain as a domestic worker who has been trafficked, what should she do?
How to apply
Form FLR (IR) for applications under paragraph 159I:
There is no application fee for an application made by a domestic worker applying under para 159I (See Schedule 2, section 2, Table 9, section 9.11:
Legal aid is available to assist a person with the application if they have a positive reasonable or conclusive grounds decision.
(Please double check current forms and fees on the Home Office website.)
Extension of leave while in the NRM
From 6 October 2016, if a person is given a positive reasonable grounds decision within the NRM while they have valid leave to remain, their leave is automatically extended until 28 days after a conclusive grounds decision is made (See the The Immigration (Variation of Leave) Order 2016).
Ayesha is a widow from a poor background; she cannot read or write in any language. She went to the Middle East as a domestic worker. Five years ago, her employers told her that she had to accompany them when they moved to the UK. She later learned that she entered on a six month visitor visa. She was promised good wages and easy work caring for a young child.
However, when she arrived, she was told to work as a maid. She worked seven days a week getting up early and going to bed late. She was not allowed to leave the house. Her employers told her that if she left she would be arrested and imprisoned. Her employers threatened her with a beating if she asked about her wages. She does not know how much she was paid as her employers told her that they sent money to her brother back home and she cannot get her brother to tell her how much money was paid.
Two years ago she escaped from the household with the help of the driver. Six months ago she was granted asylum but about the same time was refused a conclusive grounds decision under the National Referral Mechanism.
She is scared of her former employers but desperate for money to support her child back home.
What are the issues with her getting compensation from the employers?
1. Is she eligible for legal aid?
Unlike in immigration, legal aid for victims of trafficking in compensation claims is not limited to those with a positive NRM decision. On these facts, it is strongly arguable that Ayesha is a victim of trafficking and is thus eligible. She was in a position of vulnerability. She was deceived as to her work and pay. She was threatened with denunciation to the authorities. Her movements were restricted. She suffered onerous working hours and (it is assumed) very poor pay.
However, it would be wise to obtain some corroboration. Consider obtaining a letter from a specialist trafficking organisation – a First Responder would be ideal – setting out the reasons why Ayesha is a victim. Also record on your file the reasons you consider her a victim, with reference to the ILO indicators. If she is not challenging the negative conclusive grounds decision by way of judicial review, this should be noted, with her reasons.
2. Is she in time to bring a claim and is any time limit about to expire?
It can be very difficult to advise a victim effectively about the complexities and challenges of a claim if the matter is urgent because a time limit is about to expire.
Ayesha is significantly out of time for an Employment Tribunal claim because an application must be made to ACAS within three months less one day of termination; she is over a year and a half late. Tribunals have a power to extend time and it would be worth exploring why she did not consider compensation earlier. However, there is a significant risk that a tribunal would refuse to consider her claim on time grounds.
However, she is in time for a High or County Court claim. Time limits run from the first unlawful act in the UK – which is five years ago. Time limits under both contract claims and protection from harassment claims are six years, so she has in effect a year to start her claim. She will need a legal aid certificate to cover a High Court claim, so an application should be made as soon as practicable.
3. Is illegality an issue?
You will need to establish her immigration status, which should be a matter of record following the immigration claim. If she was working for three years on a visitor visa, she was working illegally. However, this is not necessarily a bar to a successful claim. The law on illegal workers has evolved considerably in favour of workers over the last few years.
On these facts, it seems likely that the court would not refuse her a remedy because she was working illegally. However, her witness statement must set out the facts carefully – how much was she involved with and aware of any illegality, the difference in power between her and the traffickers, etc.
Because she has already come to the attention of the authorities, any attempt by the traffickers to ‘denounce’ her to the authorities should not intimidate her, providing she is properly advised and supported. Further, it may prove valuable evidence.
4. Are the employers/traffickers good for the money?
Do they have assets in the jurisdiction against which she can enforce a judgment? Consider, doing land registry searches and/ or using legal aid to instruct an enquiry agent. It may be worth considering how settled they are in the UK. Are they likely to leave?
5. What claims to bring?
To date most compensation has come via the National Minimum Wage (NMW). She will need to quantify this claim. (The value of the claim will help decide whether to apply to the High or County Court.)
First, calculate the hours worked; probably the only evidence will be her own account but you will need a schedule of activities breaking down how she spent her day on tasks. Second, work out how much she was paid. Explore if her brother can provide any information or evidence, e.g. were transfers made into his bank account? If necessary, run the case on the basis that the claimant does not know how much she was paid and ask the employers/traffickers how much they paid and how they evidence it. The ATLEU spreadsheet can then be completed providing the total National Minimum Wage shortfall. Remember that the NMW wage changes at least once a year and to allow for the Accommodation Offset. Be ready for the employers to run the Family Worker defence.
Check if there was any written contract of employment as a fallback if the NMW claim fails. (This seems unlikely as she was brought in on a visitor visa, but should be checked.)
Non-money losses may be covered by a Protection from Harassment claim. This has the advantage that there is no need to link the harassment to a protected characteristic (such as race) as in the Employment Tribunal. Consider including the failure to pay the NMW/ a decent wage as an act of harassment, in case there is a problem with the NMW claim.
It may also be worth bringing a claim for restitutionary remedies and/or quantum meruit. These claims may permit a victim to recover compensation if the court finds that there was no contract, perhaps because of the level of abuse (although this is less likely on these facts). A legal aid certificate will allow a barrister to be instructed who can work to investigate all possibilities.
Finally, consider other claims. Remember that, unlike the Employment Tribunal, the High Court is not a creature of statute and therefore you have a far wider choice of claims to bring including false imprisonment, assault etc. Its jurisdiction in trafficking compensation claims is undeveloped.
6. Settling versus going to trial
If you have legal aid in place, your client has a very significant tactical advantage in a claim. Even if the employers/ traffickers win, they will not recover their costs, while your client (subject to a significant change in financial circumstances) is protected from a costs order.
It may prove possible to obtain a settlement relatively quickly in these circumstances; however, it may be only a small part of the total claim. Ayesha may need support in engaging with large sums of money – can she appreciate the difference to her between a settlement of say £50,000 and a possible court award of £250,000? If she wants the money quickly and without any possible problems with enforcement, a quick settlement may be what she chooses. It can be difficult to advise a client in these circumstances if you do not know how much the employer/trafficker can genuinely afford.
As she is scared of her employers, explore with Ayesha the mechanics of going to trial. Are her employers represented, i.e. will they cross-examine her themselves? What protection, such as screens, can the court offer her at hearing? Explore getting her support at trial, via volunteers, or community workers, or her friends.
Consider a professional mediation for settlement purposes. This can be arranged with the parties in separate rooms, with a central negotiating room for the representatives, so Ayesha would not need to see her employers/traffickers.
Housing and support
Pavel is a national of the Czech Republic. He was trafficked into the UK to work as a labourer on building sites in local authority A where he was forced to work over 12 hours each day. His wages were withheld and he was beaten by his traffickers to the extent that he suffered from broken ribs. He managed to escape with the aid of someone he met on the building site who took him to the police.
He was referred into the NRM and and given accommodation in a safe house. A decision was made that there were reasonable grounds decision for believing that he is a victim of trafficking. He made an application for asylum and was told to apply for s.95 support from the Home Office, which he did. He was then placed in Home Office accommodation in local authority B. While he was there, he was badly beaten up one night by a group of men coming out of the pub. His arm and nose were broken in the incident and he was hospitalised.
While in hospital, Pavel’s application for asylum was refused but a conclusive grounds decision was made finding that he is a victim of trafficking. He was granted discretionary leave to remain. He was told that he had to leave his accommodation so he went to stay with a friend he had met while in Home Office accommodation. His friend lived in Local Authority C. While there, Pavel was provided with some outreach support by an organisation assisting victims of trafficking which tried to refer him for counselling. After a couple of weeks, Pavel’s friend asked him to leave so Pavel slept by a disused railway line for a few nights before his support worker got in touch with him and told him to go to the town hall and ask for housing from local authority C.
Pavel went to the town hall and was interviewed briefly by a housing officer. Pavel gives the housing officer a copy of his residence permit and conclusive grounds decision. He tells the housing officer about the places where he has stayed in the UK and the fact that he has been sleeping by a disused railway line. The housing officer tells him that local authority C cannot help him and that he will have to go to local authority A or B to get assistance. Pavel returns to sleeping by the railway line.
Q. Should local authority C have housed Pavel?
Yes. If a local housing authority has reason to believe that an applicant may be homeless or threatened with homelessness, it is under a duty to make inquiries to determine whether the applicant is eligible for assistance. In this case, the decision to tell Pavel to apply to the other local authorities is unlawful.
Q. Is Pavel eligible for interim accommodation?
Yes. It is strongly arguable in this case that there is a duty to ensure that interim accommodation is available to Pavel. He has told the housing officer that he is sleeping by the disused railway line indicating that he is homeless. He shown the housing officer with his residence permit indicating that he is eligible for assistance. He has also shown his conclusive grounds decision indicating that he is vulnerable as a result of his trafficking experiences.
Q. What steps should now be taken?
The only remedy for Pavel now is judicial review although often a pre-action letter may persuade a local authority to house him while it makes enquiries into his homelessness application.
Pavel comes to see you and tells you that he is suffering from panic attacks. You advise him to register with a GP in order to get the help he needs. Pavel starts his counselling sessions in local authority C and he sees his counsellor for an hour every fortnight. Local authority C makes a decision that Pavel is eligible for assistance but decides to refer his case to local authority B because Pavel has a local connection there. Local authority B agrees to accept the referral and offers Pavel accommodation in the same area where he was attacked outside the pub.
You cannot get in touch with him for a few days but when you do, he tells you that he has gone back to stay by the disused railway line. He would rather stay there than go back to local authority B.
An expert psychologist diagnoses Pavel with having symptoms consistent with PTSD and a major depressive disorder. She sets out the reasons why she believes his mental health would deteriorate if he was provided with accommodation in local authority B. This is because of the trauma he suffered whilst there and because of the support he is currently receiving from his support worker and counsellor in local authority C.
The review officer decides that a full duty is owed as Pavel has a local connection with local authority C due to a special circumstance. Pavel is provided with a room in temporary accommodation in a three-bedroom house where he has to share a bathroom and a kitchen.
The house is next door to a pub which is very rowdy. Pavel has seen a couple of fights take place outside the pub and his panic attacks are getting worse.
Pavel’s discretionary leave to remain expires and is not renewed. He receives a letter from the housing benefit office saying he is ineligible for housing benefit. Pavel does not understand the letter. He then receives a notice to quit the accommodation for failure to pay the rent. He comes to see you after he has been evicted from the property by bailiffs. He tells you that he has not been able to work because of his panic attacks and no one will give him a job. He does not want to return to the Czech Republic. His parents are dead and he does not have any siblings. He does not have anything to return to.
Q. What should you do to get Pavel back into safe accommodation after you find out he’s been sleeping by the railway again?
Possible steps to take include:
- Apply for a review of the decision and ask for some time to submit further evidence
Consider asking the counsellor whether they would be prepared to provide a supporting letter
- Consider whether to instruct a psychologist/psychiatrist to assess Pavel. As well as being able to comment on whether the client has a condition such as Post-traumatic stress disorder and is vulnerable to re-trafficking, the psychologist/psychiatrist may also be able to comment on whether or not any mental health conditions are likely to be exacerbated by being made to live in local authority B’s area.
Q. What arguments could you put forward to challenge Pavel’s accommodation in the three bedroom house?
- Issues suitability of accommodation
- Convention and Directive
- General suitability issues
Children and young people
Zin is a 15 year male from Vietnam. He was trafficked to the UK for cannabis cultivation. Eventually he managed to escape and approached a nail bar asking for help and work. The nail bar owner took Zin to a solicitor who referred him to the local authority.
Zin was subsequently placed in foster care. He is scared and fears return to Vietnam. He was told by his trafficker he owed a lot of money to him.
Should Zin be referred to the NRM?
Zin being under 18 years of age is a child. Child trafficking is child abuse. Zin should be referred to the NRM as a suspected child victim of human trafficking. No consent is required from Zin.
Who should refer him?
The referral should be made by the local authority who can act as first responders.
Should Zin claim asylum?
Prima facie it appears Zin has a claim to asylum; however before being advised to make a claim for asylum Zin should seek legal advice about asylum and his options. He is likely to be eligible for legal aid representation. Should he wish to claim asylum, best practice dictates he is accompanied to all Home Office appointments by his legal representative, responsible adult and independent interpreter if required.
If Zin is found to be a victim of trafficking further to the NRM and is issued with a positive conclusive grounds decision, will he get a residence permit?
We would argue that all children in this situation should be issued with a residence permit and qualifies as such owing to their particular circumstances as a child. Safeguarding supports such a position as does the aims of the Convention itself.