Domestic workers dressed as suffragettes protest outside the Houses of Parliament on International Women's Day 2015, calling for an amendment to the Modern Slavery Bill, which will allow domestic workers to change employers once in the UK. Dominic Lipinski/Press Association. All Rights Reserved.
Kate Roberts currently heads the Human Trafficking Foundation. She has over 10 years’ experience in anti-trafficking work. Much of this was time was spent delivering direct support and casework as well as leading on policy at Kalayaan, a UK charity which works with migrant domestic workers in the UK, many of whom have been trafficked. Kate has an in-depth knowledge of the UK’s anti-trafficking and anti-slavery measures from her work as a first responder to the UK’s National Referral Mechanism (2009-2016), and as a founder member of the Anti-Trafficking Monitoring Group. Kate has used this experience to influence anti-trafficking policy and awareness raising. Kate has given evidence to several parliamentary inquiries, including at all stages of the modern slavery bill. Kate was still a community advocate at Kalayaan when this interview was recorded in late 2015.
Scene 1 Kate Roberts traces the gradual and contingent use by Kalayaan of anti-trafficking discourse to further workers’ rights for Overseas Domestic Workers (ODW).
Scene 2 Roberts outlines the legal and policy framework for the employment of migrant domestic workers in the UK pre-1998, from 1998 to 2012 and from 2012 through the passage of the MSA. Since the interview however, James Ewin, an independent barrister, submitted his report ‘Independent Review of the Overseas Domestic Workers Visa in December 2015’ wherein he recommended that ODWs be allowed to stay in the UK for two years during which period they be given the right to change employers. Lord Hylton, a supporter of domestic workers rights and Labour Peer Lord Rosser tabled an amendment to the Immigration Bill 2016 which gave effect to the main recommendations of the Ewins’ review which was passed in the House of Lords but later defeated in the Commons. ODWs now only have the right to change employers during their initial six month visa. Kalayaan claims that domestic workers have been left in the dark by the Immigration Bill 2016, which received royal assent in May 2016 and is now the Immigration Act 2016.
Scene 3 Roberts reflects on Kalayaan’s strategy leading up to the MSA – their demands were minimalist and focused on securing for the right to change employers for ODWs.
Scene 4 Roberts on how the MSA has put to bed the hope that it could prevent slavery; she also speaks to the dissonance between the MSA and a harsh immigration law regime. Note that the Immigration Bill was being negotiated at the time of interview (December 2015).
Scene 5 The struggle for ODWs’ rights of course goes beyond the MSA, as Roberts already made clear when reflecting on the immigration system. Here she calls for the UK to get the fundamentals right, and asks why the UK hasn’t signed and ratified ILO Convention 189 on Domestic Workers, 2011.
Scene 6 Roberts on a long-term strategy to further workers’ rights of ODWs.
Scene 7 The failed attempt to have the MSA recognise the rights of ODW to change their employers has caused labour activists to question the utility of the trafficking paradigm for workers’ rights. Labour lawyers like Judy Fudge and Kendra Strauss argue that the modern slavery lens has backfired as far as domestic workers are concerned. I asked Roberts what she thought of this argument; her answer is revealing.
PK: Kate, you’ve worked in this field of trafficking and modern slavery for many years now. Can you tell us a little bit about your experience in this area?
KR: I’ve worked at Kalayaan since 2005, but when i joined Kalayaan my perception was that I was joining a workers right organisation. As an organisation, our focus has always been on supporting domestic workers to have rights but also to be able to informed of those rights and to access them in practice.
The organisation didn’t frame itself as an anti-trafficking organisation, and we still don’t. We are primarily a workers rights organisation and we support all domestic workers to access their rights. We think its quite dangerous when you start saying that you have to be treated at least this badly before you can have any rights, because quite clearly if you start denying people rights their treatment worsens.
We began engaging more in the rhetoric around trafficking and slavery, and we were cautious of doing so, in around 2006. It was really when other people started to engage. I remember Klara Skrivankova of Anti-Slavery International coming and meeting with some of our workers for her UK country report on trafficking. She just came on a normal day and met some of the workers in the centre, and she said ‘everyone I have met today has been trafficked’.
And again our stance was a bit like, well, it does not really make a difference to the workers whether or not they’ve been trafficked because there’s no legislation in place. In 2006, the then government first told us of their plans to remove rights from domestic workers. That was following the introduction of the points-based system for immigration, and so we obviously needed to respond to that.
It was very effective to do so at that time, because 2006 was the bicentenary of the abolition of the trans-Atlantic slave trade. At that time the government was talking about signing and ratifying the Council of Europe Convention on Action against Trafficking in Human Beings. Both parties were falling over themselves to condemn trafficking, but no one was interested in workers rights, and particularly migrants workers rights. So engaging with the anti-trafficking debate was basically a lever to open the door for the conversations we wanted to have about workers rights.
PK: It seems that overseas domestic workers have long been centric to the migration policy of both major political parties in the UK. Can you tell us a little bit about how the regulatory regime relating to overseas domestic workers has shifted over time?
KR: What we have now got is basically a chattel visa where workers are brought to the UK for the purpose of someone else. They are brought here for the benefit of their employer. They themselves have no rights. It’s all about the person they are accompanying.
Prior to 1998, overseas domestic workers were basically brought to the UK under a concession. They would get a stamp in their passport just saying ‘permission to work with’, naming the employer, and there were never any issues until the worker ran away. Then their status would be very unclear and they would be the ones criminalised for having no status in the UK and wouldn’t be able to access any kind of redress for any mistreatment they have suffered.
Structural change was only possible if there was a legal framework for domestic workers, and that meant recognition as workers in the immigration rules. Kalayaan was set up by domestic workers to evidence the need for and to put for that change in 1998, when the then government introduced the overseas domestic workers visa – the original overseas domestic workers visa, which has been cited as best policy by organisations including the ILO.
It was by no means a lenient visa. The restrictions on the visa are that the worker has to be accompanying an employer for whom they’ve worked for at least 12 months before entering the UK; they have no recourse to public funds; and they have to be in full-time, continuous employment as a domestic worker in a private household. So the domestic worker could change their employer, but they would have to find another job quickly because they have no recourse to public funds.
So there were definite issues with that visa, but generally it worked well. We felt that with awareness-raising, there was an awful lot we could do by building on this framework to allow domestic workers to access their rights in practice. Then, as you know, on 6 April 2012 that was all effectively removed with the introduction of the current ‘tied’ overseas domestic worker visa – a visa which is limited to maximum of six months and the sponsoring employer is named on the worker’s visa.
Prior to 2012 the majority did come and leave with their employers. Presumably many domestic workers were fine, and a minority who needed to escape were able to. Post 2012 we only know what is reported to us by workers who come to Kalayaan. Between April 2012 and the end of March 2015, we saw 519 new workers, so we are seeing a tiny proportion. But what those workers reported to us, was that those who are tied are definitely seeing an increase in abuse, particularly restrictions of freedom. This cannot be coincidence.
PK: When the modern slavery bill was announced, was was your advocacy plan at Kalayaan?
KR: We wanted to highlight that if the bill went through as it was in draft, there was going to be a massive gap and it undermined the bill. We had a regime in place which is similar to that which we have criticised in countries such as those of the Middle East. Basically the way we put it is, this doesn’t need to be primary legislation – just change the immigration rules. But if you are refusing to change the immigration rules then you do need to deal with it in the Modern Slavery Bill, because as it stands, you are undermining your own aims, or own stated aims.
The amendments which we ended up supporting asked for far less because we were trying to be practical. Really just the minimum that domestic workers really needed to not be in the situation where their abuse was being facilitated by their immigration status, was simply the right to change employers and to apply to renew the visa – it really wasn’t asking for very much. We came really close to winning it. In the committee stage in the Commons it was tied, then we lost to the chair. It won in the Lords, but was overturned again in the Commons and both parliamentary committees made strong recommendations that the rights of domestic workers needs to be reinstated as did the evidence review conducted by Frank Field.
PK: If we go directly to the Modern Slavery Act, we have section 53 of the act, which deals with domestic workers. Tell us a bit about this section, explain it to us. There were many amendments, many iterations of this provision that lead up to its eventual passage.
KR: Section 53 was what we were left with, basically, after the Commons overturned the amendment tabled by Lord Hylton, which would have just given the minimal rights of allowing domestic workers to change employer and apply to renew their visa. In our view, first of all it comes too late. It only deals with domestic workers who have positive conclusive grounds decisions – nothing in the way of prevention. It basically leaves a visa regime in place which has been recognised to have facilitated trafficking.
Migrant workers gather for a rally across from the Houses of Parliament, in central London, Sunday, Sept. 4, 2011. Lefteris Pitarakis/Press Association. All Rights Reserved.
Section 53 was only laid down in the immigration rules on 17 September, so we have not really seen it coming to practice yet. I do think there is a risk now that we have our act, and thus the idea of addressing and preventing slavery is just put to bed – ‘well, we’ve done that’. Particularly with a very hostile immigration bill going through parliament at the moment (note: this bill has now been enacted, as of 12 May 2016), and things like the criminalisation of illegal working directly flying in the face of a lot of what the modern slavery bill was trying to achieve, in terms of prevention and also compensation for victims – as I said we didn’t get what we wanted, but even more broadly there is a lot of work to be done to make sure it meaningful in practice.
PK: Are there models for regulating domestic work that actually prevent labour abuse?
KR: In the UK we now have a model contract which the government introduced during the passage of the modern slavery bill again to say ‘look at this amazing contract’, but it’s not really worth the paper it’s written on if the worker can’t enforce it. The independent anti-slavery commissioner was recently quoted in the Evening Standard talking about spot checks – you know, inspection would be really good but domestic workers have to have a rights base and be informed of their rights base or they won’t disclose abuse.
There are lots of models, but I do think we have to get the fundamentals right first because everything else is just doomed to fail. Why we haven’t signed and ratified the ILO convention 189 on domestic workers is a very good question, particularly given that in 2011 one of our reasons for abstaining was that we had such a good protective visa in place for domestic workers in the UK, which the government swiftly went on to remove. Ratifying 189 would do much for the fundamentals of domestic workers.
PK: What high-impact strategies might Kalayaan be pursuing, and that you think other NGOs and academics could support in campaigning for the rights of domestic workers?
KR: We will continue to evidence what is happening. We will continue to work with lawyers to take legal cases to support domestic workers and challenge the law where is not protecting. We will continue to put pressure internationally, particularly around ILO convention 189 on decent work for domestic workers. We will continue to work with the media to do awareness rising to show the absurdity of taking workers and turning them into victims.
PK: So you started out as a workers rights organisation and then considered using the discourse of trafficking in the hopes of furthering domestic workers rights. If you were to do it again, would you have taken on this double-edged sword – something that has ultimately undermined domestic workers rights?
KR: I personally would. I don’t think it has undermined domestic workers rights. I think had we not done it, domestic workers would have lost their rights in by 2008. So minimum we won rights for four years of workers. I just don’t think there would be any focus on domestic workers politically if we talked about migrants rights alone. As I say, we continue to talk about workers rights, but we have to use trafficking as a way in both politically and in terms of legal obligations. So i don’t think it has undermined domestic workers, but I think domestic workers would have had their rights removed anyway because of the immigration obsession. It just would have happened sooner and the government would be less uncomfortable about it.
Listen to Kate Roberts' full interview for many more insights into the struggle to restore rights to domestic workers in the UK.
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