Most domestic workers would prefer to be recognised as workers than labelled as trafficked, and ask to be empowered rather than rescued. But it is often necessary to plead their cases under the rubric of trafficking to secure their protection from exploitation. Cases involving domestic workers are often of considerable interest to those working on trafficking because the facts are frequently not in dispute and the focus is on the legal definitions.

So it was in R (Said Abdelmoneim Ahmed Saadawi v Secretary of State for the Home Department [2017] EWHC 3032 (Admin), where the court held that it was not irrational of the Secretary of State to have concluded that the claimant domestic worker was not a trafficked person. This conclusion is the result of a narrow focus on forced labour in the judgment, which is to be deprecated.

Meeting the criteria to be considered a trafficked person

The Secretary of State accepted in her “conclusive grounds” decision that Mr Saadawi was in the “position of vulnerability” required to satisfy the definition of trafficking set out in Article 4 of the Council of Europe Convention Against Trafficking in Human Beings, because he had been unable to find work in Egypt. He had therefore been unable to provide for his family, of which he was the eldest man. The recognition that the combination of poverty and responsibilities constitutes “vulnerability”, within the terms of the definition, is welcome.

It was accepted that the applicant satisfied the “movement” part of the trafficking definition in that he had been “recruited, transported, transferred and received” (paragraph 22 of the judgment) from Egypt to Qatar and then to the UK. The question was then whether he met the third and final part of the definition of trafficking: had he been moved, exploiting his position of vulnerability, for the purpose of exploitation?

The Secretary of State’s view was that he had not. She accepted that Mr Saadawi’s working conditions were “poor” and the wages “low”, but was not satisfied that the conditions met the definition of forced labour. Her guidance follows the definition of forced labour in Article 2 of the International Labour Organisation Convention No. 29: “all work or service which is exacted from any person under the menace of any penalty and for which the person has not offered himself voluntarily”.

This definition is the framework within which both the decision of the Secretary of State and the judgment are reasoned. The hunt is on either for a menace of penalty, or for the negation of Mr Saadawi’s free will. The Secretary of State, while properly accepting that fear of a penalty need not be of a physical threat, judged that there was nothing to stop Mr Saadawi from leaving his employment other than that he felt there to be no alternatives. This, she considered, was not enough to meet the definition.

It was argued on behalf of Mr Saadawi that he was constrained by the risk of being in the UK illegally if he did not cooperate with his employer but this was rejected on the evidence. The fear of being present illegally in the UK had not, the court found, guided his actions. Thus the focus was on whether he acted freely. Upper Tribunal Judge Marcus QC accurately summarised the resultant issue before the court as being whether “the finding of vulnerability should have been carried through to that on exploitation” (paragraph 31).

A narrow approach to exploitation

The finding on “vulnerability” (best read in this context as “powerlessness”) was that Mr Saadawi was poor and needed to provide for his family. What choice then did he have but to continue to work for the employer who required him to work from 6am to the early hours, who gave him no bed but left him to sleep on the floor, who did not pay over even his meagre wage of £140 a month for lengthy periods and who had, insultingly in that culture, struck him with a shoe? But, for the judge, that Mr Saadawi accepted the work willingly to help his family meant that it could not be regarded as forced labour.

This reasoning is reminiscent of Lord Denning’s obiter remarks in Southwark Borough Council v Williams [1971] 2 WLR 467:

“If homelessness were once admitted as a defence to trespass, no one’s house could be safe. Necessity would open a door no man could shut. .. So the courts must refuse to admit the plea of necessity to the hungry and the homeless: and trust that their distress will be relieved by the charitable and good”.

The free will necessary to commit a crime may be negated by a mental illness, but not by hunger or the need to provide for one’s family. Neither the judge nor the Secretary of State suggested an alternative course of action for Mr Saadawi. He was on the so-called “tied” domestic worker visa, valid only for six months and binding him to his employer. He had no prospect of finding alternative work. His employment was the only show in town. The alternative was to stop working for his employer and face an enforced removal at the expense of the Secretary of State.

The first case under Article 4 of the European Convention on Human Rights (prohibition of slavery and forced labour) was the case of a domestic worker, Silladin v France (application no. 73316/01). In that judgment, the European Court of Human Rights expended considerable energy on the fine distinctions between “slavery”, “servitude” and “forced and compulsory labour”.

It has not taken a similar approach in subsequent cases. In Rantsev v Cyprus and Russia (application no. 25965/04), the court considered it

“unnecessary to identify whether the treatment about which the applicant complains constitutes “slavery”, “servitude” or “forced and compulsory labour”. Instead, the Court considers that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention”.

When one considers the definition of trafficking in the Palermo Protocol and the Council of Europe Convention on action against trafficking in human beings it is hard to resist the conclusion that the finding of vulnerability should indeed have been carried through to the exploitation. Nowhere are sections 2 and 3 of the Modern Slavery Act 2015, which provide definitions of trafficking and of exploitation, cited in the judgment. Instead, it dives straight for the guidance.

Following the report of James Ewins (now QC) and fierce opposition in parliament during the passage of the Bill that became the Immigration Act 2016, the government changed the terms of the tied visa so that a domestic worker can change employers. The six-month duration of their visa is not, however, extended, rendering the ability to change employer meaningless. The domestic worker flees on reaching breaking point after a month or so, with no reference, and can offer his or her services to a new employer for only a few short months. Few job offers are forthcoming in such circumstances.

I am co-chair of the trustees of Kalayaan, which works tirelessly to empower domestic workers and to change the law so that they can escape the conditions Mr Saadawi suffered. Recent pictures of Libyan slave markets have perhaps reinforced the notion that any element of voluntarism vitiates the claim to be exploited. This is not the case. The reality of the paucity of choices for overseas domestic workers is that they see no option but to accept exploitative and harmful conditions of work. The formulaic judgment in this case is to be regretted.