Many of those who are trafficked into the UK or within the UK may have been brought here for the purpose of domestic work. Domestic workers can enter the UK, lawfully, on an Overseas Domestic Worker (ODW) visa or on a diplomatic visa under Tier 5 of the points-based system. In both cases, the visa application will have been sponsored by the person’s employer. These provisions are in parts 5 and 6A of the Immigration Rules, respectively. Some 17,000 -19,000 such visas are granted yearly.
Others will have come to the UK unlawfully, often entering the UK on a visit or other visa which their trafficker has procured for them.
In this section, we look at the position of domestic workers who have applied to come to the UK lawfully as domestic workers under the Immigration Rules.
There have been many changes to the lawful domestic worker routes in the last few years, in part due to the Home Office Office’s awareness that many of those coming under these routes have been unlawfully exploited in the UK. Following the Rule changes brought in on 6 April 2012, a domestic worker in a private household can now remain in the UK for no more than six months, to accompany a visitor to the UK; and a diplomatic domestic worker can remain in the UK in this role for no more than five years.
Those entering from 6 April 2012 cannot apply for settlement. Those who entered before that date may still be able to apply for indefinite leave to remain after completing five years in the UK in this category (and meeting the other requirements of the rules, see further below).
As an anti-trafficking measure, domestic workers lawfully resident in the UK are entitled to change employers, whether they came under the old or new provisions, but cannot usually extend their stay to do so or by doing so.
Extensions of stay for domestic workers who are victims of trafficking
An overseas domestic worker who might be a victim of trafficking can be referred into the NRM.
Kalayaan, a very well-respected charity advising domestic workers in the UK, are first responders under the NRM. If the domestic worker has not yet been referred into the NRM, refer them to Kalayaan who will ensure that their referral is well evidenced and argued.
If the domestic worker has existing leave when they receive their positive reasonable grounds decision, their visa will be extended automatically (so they can carry on working as a domestic worker) until 28 days after they are sent the conclusive grounds decision. This provision sits in The Immigration (Variation of Leave) Order 2016.
If a domestic worker is then found to be a victim of trafficking (i.e. gets a positive conclusive grounds decision) they can apply for further leave to remain for up to two years to work as a domestic worker in the UK. This provision is at para 159I (in Part 5) of the Immigration Rules. They do not have to show they have a job at the point when they apply, but they do have to show they can financially support and accommodate themselves without using public funds. If the leave is granted, they will only be allowed to work as a domestic worker and will not be allowed to access public funds.
Domestic workers, information at entry clearance, post-entry information meeting and Article 4, ECHR
Knowing that they are susceptible to trafficking, it used to be stated Home Office policy that an information leaflet should be given to overseas domestic workers applying for entry clearance to ensure they knew their rights in the UK. The policy was announced in the House of Lords on 28 December 1990. This policy was then incorporated into the Immigration Directorate Instructions (IDI) (Home Office staff guidance) which stated:
‘Applications for entry clearance from domestic workers are subject to a set procedure. They will be interviewed on their own, at least on their first application, to establish that they understand the terms and conditions of the employment and that they are willing to go to the United Kingdom. If their application is successful, they will be given an information leaflet explaining their rights under the United Kingdom’s criminal and employment laws – further information about the leaflets is available below.’
For more on this policy, look at the judgment in EK referred to below. This policy is crucial. The idea is that the information should equip workers to enforce their rights after entry if they suffer abuse and/or unlawful exploitation, which is known to be common. However, research by Kalayaan showed that this requirement was and remains systematically flouted.
The instructions above were withdrawn at some stage, and the policy no longer appears anywhere in Home Office guidance, but we understand it remains policy to provide the leaflet. Its absence from the policy documents makes it no less essential.
This failure to implement government policy on giving information to overseas domestic workers represents a substantial weakness in the mechanisms for protecting overseas domestic workers. Although these workers have substantial immigration rights as well as rights under UK employment law (for example, daily and weekly rest and annual leave) they are often not aware of these rights, and therefore, not able to enforce them.
The case of EK (Article 4 ECHR: Anti-Trafficking Convention) Tanzania  UKUT 00313 (IAC) established that the failure to provide information at entry clearance, in breach of Home Office policy, amounts to a breach of Article 4 European Convention of Human Rights. In some cases, this will have caused substantial loss: in EK, it was linked causally to the appellant developing tuberculosis and not obtaining treatment, causing substantial and permanent damage to her lungs. Note the possibility of damages claims arising from this and consider appropriate referrals to compensation.
Following the Ewins report, published on 17 December 2015, the government said they would again arrange meetings for ODWs arriving in the UK to inform them of their rights (See, for example, parliament.uk/business/publications/written-questions-answers-statements/written-statement/Lords/2016-03-07/HLWS568/).
At the time of writing, no such meetings have been organised and, following a failed tender process, no contractor is yet in place to organise them. Where a domestic worker has been prejudiced by the government’s failure to inform them of their rights either pre- or post-entry, this may well breach their human rights under Article 4, ECHR. That might be relevant to their immigration situation, as in EK (probably argued in tandem with Article 8, private life rights), and to their right to compensation.
Overseas Domestic Workers pre 5 April 2012
It is worth noting that different rules applied for those who arrived on visas where the application was made under the old ODW rules, ie before 5 April 2012. The provisions of para 159A of the Immigration Rules still apply and provide for indefinite leave to remain after five years of continuous employment.
Advice to ODW visa applicants and sponsors:
Home Office guidance:
This link provides guidance on the domestic workers in private households provisions of the Rules, and on domestic workers who are victims of slavery or human trafficking.
Kalayaan works with migrant domestic workers in the UK to improve and to help them access their rights. The immigration rights section of their website provides detailed information on the various domestic worker routes, including information on extending visas, and changing employers.
The Voice of Domestic Workers is a self-help grass-roots organisation made up of multi-national migrant domestic workers in the UK. It aims to empower migrant domestic workers to stand up and voice their opposition to any discrimination, inequality, slavery and all forms of abuse.
This review, published in December 2015 (author James Ewins), assesses how the rules for the admission of overseas domestic workers are effective in protecting them from abuse and exploitation (with some recommendations for changes, some of which have been implemented).