How to identify whether a migrant domestic worker is a victim of modern slavery?

The domestic worker route is a common trafficking route and below we look at how to identify whether a domestic worker is a victim of modern slavery. Domestic workers who live overseas can apply for a visa to visit the UK for up to six months with their employer as an overseas domestic worker. They must live outside the UK, work as a domestic worker in a private household, have worked for their employer for at least a year and meet other eligibility requirements.

Some domestic workers might have arrived via irregular means, for example through an agent that has promised them work in the UK. Other migrant domestic workers might have entered the UK by regular means and/or have leave to remain in the UK under a different route.

Domestic workers include cleaners, chauffeurs, cooks, those providing personal care for the employer and their family and nannies. They could enter employment willingly but find themselves working for long hours with little or no pay and living in poor conditions. Domestic workers themselves might not recognise that they are being exploited.

Even if a domestic worker is a victim of modern slavery, they are not always recognised as such by the National Referral Mechanism competent authority, which is the identification body that is part of the Home Office. So it is important to know if a person meets the modern slavery definition and how to challenge a negative decision.

Modern slavery definition

Modern slavery encompasses human trafficking and slavery, servitude and forced or compulsory labour, as set out in the Modern Slavery Statutory Guidance published by the Home Office.

Article 4 of the European Convention on Human Rights prohibits slavery and forced labour. Trafficking falls within Article 4.

Trafficking

The definition of trafficking is taken from the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (under Article 4) for which there must be an ‘act’, a ‘means’ and it must be ‘for the purpose of exploitation’.

For a migrant domestic worker to meet the definition of trafficking they will need to have been subject to an act, such as being ‘transported’ or ‘recruited’. This must have been achieved by ‘means’ such as threats, fraud, deception or another form of coercion such as the abuse of power or of a position of vulnerability. It must be for the purpose of exploitation, which includes servitude.

It is irrelevant if a victim of trafficking consents to the actual or intended exploitation, where they have been subject to the means.

The Home Office will often make a general decision as to whether a person is believed to be a victim of modern slavery at the initial ‘reasonable grounds’ stage or the further ‘conclusive grounds’ stage. However, the Home Office should be considering separately whether the person meets the definition of trafficking, servitude or forced labour. This was confirmed in the case of R (NM) v The Secretary of State for the Home Department [2017] EWHC 2798 (Admin).

Even if a migrant domestic worker does not meet the definition of trafficking, they could still be a victim of servitude or forced labour, and therefore recognised as a victim of modern slavery.

Servitude

As set out in the Home Office Modern Slavery Statutory Guidance ‘servitude’ is an ‘aggravated’ form of forced or compulsory labour. The fundamental distinguishing feature is in the victim feeling that their condition is permanent and that the situation is unlikely to change.

Domestic servitude is defined in the guidance as often involving people working in a household where they are ill-treated, humiliated, subjected to exhausting working hours, forced to live and work under unbearable conditions and forced to work for little or no pay. As acknowledged in the guidance, it is often very difficult for them to leave their employers and seek help because abusive employers create physical and psychological obstacles by. For example abusive employers can instill fear in the domestic slave by threatening them with further abuse, threatening to report them to the Home Office or by withholding their passport.

Forced labour

A domestic worker who does not appear to have been trafficked, or subject to servitude, could still be a victim of forced or compulsory labour. This is defined in the UN Forced Labour Convention 1930 and has two basic components: the means, “under the menace of penalty”, and as a result of the means an individual provides the service, such as domestic service. The person must not have offered themselves “voluntarily”. Therefore, consent is a factor.

Firstly, on the issue of “menace of penalty”, as the Home Office guidance itself recognises, ‘penalty’ can mean subtler forms of a psychological nature “such as threats to denounce victims to the police or immigration authorities when their employment status is illegal”.

Secondly, in showing that they had not offered themselves voluntarily, this would be met in a situation where they had no viable alternative such as where they might be made homeless. This is the case for many migrant domestic workers who find themselves in exploitative situations.

Conclusion

If a migrant domestic worker meets the definition of modern slavery and receives a negative reasonable grounds or conclusive grounds decision it is important to challenge this by requesting a reconsideration or applying for judicial review. A migrant domestic worker who is recognised as a victim of modern slavery could be entitled to permission to stay on this basis.