Migrant domestic workers in immigration law: human rights implications of current changes in the UK by Dr Cliodhna Murphy

Clíodhna Murphy is a postdoctoral fellow on the IRCHSS-funded Senior Fellowship project “Migrant Domestic Workers and Migration Law Regimes in the EU: exploring the limits of rights protections”.

The rights and immigration status of migrant domestic workers have long been on the political agenda in the UK, where there is a long campaigning history associated with migrant domestic workers’ rights. From 1998 to 2012 the UK Immigration Rules provided for a specific visa for migrant domestic workers in private households (the overseas domestic worker visa) which allowed such workers to change employer, bring their dependents to the UK and eventually settle as long-term residents and citizens. On 29 February 2012, following a consultation process, it was announced that fundamental changes would be introduced to the visa which will remove these benefits and confine entry to the UK as an “overseas domestic worker” in a private household to a maximum period of six months. This blog post examines this process of law reform and the justifications offered for changing the law.

From 2002 until 2012, following a long campaign by the Waling-Waling and Kalayaan migrant workers’ associations, the Immigration Rules provided for a specific status for migrant domestic workers working in private households by way of the overseas domestic worker visa (ODW visa). The standalone and specific nature of the ODW visa recognised domestic work as a distinct employment sector, but one which is subject to the same employment protections as any other sector. The ODW visa was initially granted for a period of up to twelve months, which could be extended for twelve months at a time. Similar to the situation pertaining to other types of work visa, dependents could apply to go with the migrant domestic worker to the UK or to join them there.  Migrant domestic workers also had a pathway to long-term residence, as they could qualify for “indefinite leave to remain” if they met the criteria laid down in Immigration Rule 159G.

According to research conducted by Kalayaan, the portability of the ODW visa played a crucial role in enabling migrant domestic workers to escape from abusive employers, in facilitating them in negotiating fairer terms and conditions and remaining visible in the UK while continuing to support their families by continuing to send remittances home and in facilitating the pursuit of legal remedies against their employers. This arguably helps to reduce the incidence of trafficking and forced labour among migrant domestic workers. This view was endorsed in 2009 by the Home Affairs Select Committee on Human Trafficking in the UK. The United Nations Special Rapporteur on the Human Rights of Migrants further reinforced this view in noting the effectiveness of visa protections in the UK in facilitating the escape of migrant workers from exploitative and abusive situations and suggesting that the protections be extended to cover those domestic workers employed by diplomats.

Notwithstanding the innovative nature of the ODW visa and its undoubted advantages in reducing the degree of vulnerability of such workers, it was announced in February 2012 that the government would introduce changes to the overseas domestic worker routes to align these categories wit wider migration policy. The Immigration Rules are to be amended to provide that ODWs in private households will only be permitted to accompany and work for visitors. They must leave the UK with the visitor, or after a maximum of six months. They may not extend their stay, switch employer, sponsor dependants or settle here. The changes to the Immigration Rules were laid before the Parliament on 15 March and will come into effect on 6 April 2012. There will be no change in the legal status or position of those who entered the UK in the ODW category prior to 6 April 2012. While, in theory, a resolution of disapproval passed by either House of Parliament within 40 days could result in amendments to the planned changes, such a resolution is unlikely.

The rationale offered by the government (as set out in its consultation paper of June 2011 for the proposed changes is marked by the characterisation of domestic work as low skilled work of little value, which UK immigration policy should not be encouraging. The stated general rationale for the proposed ‘reforms’ as part of immigration policy as a whole is to reduce net migration by increasing the numbers of migrants who leave after their initial stay, in order to get to a position where “Britain will continue to attract the brightest and best workers, who will make a strong contribution to our economy and society during their stay, then return home”. Another strand of the government’s argument is that overseas domestic workers are taking British jobs in the context of high levels of unemployment in the UK.

The proposals were strongly resisted by Kalayaan (among other organisations), who argued that the modifications would remove crucial protections and risk creating an underclass of workers susceptible to bonded labour. The campaign against the proposed changes was ultimately unsuccessful.

While the effects in practice of the specific amendments to the Immigration Rules and the modifications of the ODW visa remain to be seen, they will certainly result in a more precarious position for migrant domestic workers within the UK. This provides an important example of the role played by immigration law in placing migrant domestic workers in a situation of vulnerability to abuse and exploitation.