Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Migration for Employment Convention (Revised), 1949 (No. 97) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1951)

The Committee notes the observations dated 29 August 2012, of the Trade Union Congress (TUC), which were prepared in collaboration with Anti-Slavery International and Kalayaan, to the extent that they cover matters which relate to the application of the Convention.

Article 6 of the Convention. Equality of treatment – foreign domestic workers. The Committee notes that in its communication, the TUC draws particular attention to the working conditions of foreign domestic workers, including the fact that living and working in their employers’ homes makes them more vulnerable to abuse and non-respect of their rights. According to the TUC, the changes introduced on 6 April 2012 for overseas domestic workers, removing the fundamental safeguards of the Overseas Domestic Work Visa (ODW visa), including the right to change employer, are damaging to the protection of migrant domestic workers and increasing their vulnerability to abuse and unequal treatment. According to the TUC, the arrangement prior to 6 April 2012 under the ODW visa had been shown to work well and had been recognized internationally as an example of good practice. The TUC maintains that migrant workers, while theoretically enjoying equal treatment in respect of the matters set out in Article 6 of the Convention, are unable to access and enforce their employment rights in an effective manner in practice. According to the TUC, migrant domestic workers have no opportunity to pursue justice through the courts in the absence of the right to stay, and because of the absence of a residence permit allowing them to pursue compensation through the employment tribunals or civil courts. Referring to cases registered by Kalayaan, the TUC also draws attention to the heightened power imbalance between diplomatic domestic workers and their employers due to the status of the employer and the diplomatic immunity they are able to invoke, which makes domestic workers highly vulnerable to non-respect of employment rights and abuse, including payment below the national minimum wage, excessive working hours, psychological, physical and sexual abuse, withdrawal of passports and prohibition to leave the house unaccompanied. Further, the TUC challenges the effectiveness of certain protection measures put in place by the Government, namely requesting more evidence of an employee-employer relationship, requiring written terms and conditions of employment agreed to by the employer and the worker, and by providing translated information to domestic workers about their rights in the United Kingdom, as well as the possibility to contact the Pay and Work Rights Helpline for persons in need of employment advice.

The Committee notes that in 2008 the United Kingdom Border Agency (UKBA) introduced the Points-Based System (PBS) replacing over 80 previous economic migration “routes” with a 5-tier system. It also notes that on 6 April 2012 the Government introduced important changes regarding the employment of overseas domestic workers in the United Kingdom. The Committee notes that overseas domestic workers in diplomatic households are covered as “private servants in diplomatic households” under the PBS, Tier 5 (Temporary worker – international agreement) category. Migrant workers who applied for a visa in this capacity on or after 6 April 2012 can apply to extend their stay for a maximum of 12 months at a time, up to a total of five years or the length of their employer's posting, whichever is shorter. They cannot change employer during their stay but may sponsor dependants. Diplomatic domestic workers may only work in the household of the employer recorded on the certificate of sponsorship, and will not be able to apply for settlement in the United Kingdom. With regard to overseas domestic workers in private households – who are not included in the PBS – the Committee notes that under the new Immigration Rules (section 159A and 159B) these domestic workers will only be allowed entry into the United Kingdom to accompany their overseas employer on a visit to the United Kingdom for the time that the employer is in the country, or for six months, whichever is shorter. No extensions are allowed beyond this time. Overseas domestic workers may no longer change employer, sponsor dependants or apply for settlement in the United Kingdom from this route. For overseas domestic workers who have applied for an ODW visa before 6 April 2012, the former Immigration Rules continue to apply (sections 159EA and 159EB).

The Committee notes from the statistics published by the Home Office that for the year ending June 2012, there were 14,779 “out-of-country” visas and 4,384 “in-country” extensions of stay issued to overseas domestic workers in private households (making up, respectively, 14.1 per cent and 4.73 per cent of the total number of “out-of-country” visas and total “in-country” extensions issued); two “out-of-country” visas and five “in-country” extensions were issued to domestic workers in diplomatic households. Visas were also issued or extensions granted to dependants of these workers. The Committee requests the Government to reply to the observations made by the TUC and provide detailed information on the following:

• (i) The measures taken to enforce the application of the rights of overseas domestic workers regarding the matters set out in Article 6(1)(a)–(d) of the Convention including the relevant complaints procedures and mechanisms in place. Please also include information on the availability of and accessibility to legal aid and assistance for migrant workers. The Committee also requests the Government to provide information on the manner in which effective enforcement is being monitored, including information of any complaints received regarding non-respect of rights and their outcome for both the employer and the domestic worker.
• (ii) The specific procedure in place for both categories of overseas domestic workers who have left their employer because of abuse and who have filed a complaint with the competent authorities regarding unequal treatment with respect to any of the matters covered by Article 6 of the Convention, and any measures taken to reduce domestic workers’ dependence on their employer as this is an important aspect of ensuring that equal treatment is applied to migrant workers in practice.
• (iii) The measures taken to ensure that the rights under the national legislation as well as the available complaints procedures and mechanisms for redress are made known and are understood by migrant domestic workers.

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2014.]