December 01 2023

Forced labour, and the law

Forced labour, and the law

Refugee child, Smithsonian

The recent case of three women found to have been held in Brixton as ‘slaves’ for 30 years, has been described by the MP Frank Field, chair of the Modern Slavery Bill evidence review, as the “tip of a rather large iceberg”. Pic is Refugee Child (Alternative Title: Spanish Refugee) by William H. Johnson and from Smithsonian American Art Museum from Flickr under creative comms licence.

  • The AIRE Centre has been involved in a number of cases before the ECHR around forced labour and trafficking, including Rantsev v Cyprus and Russia, and two cases involving the UK, Kawagoo v UK, and CN v UK.

A report on forced labour in the UK, published this month by the Joseph Rowntree Foundation (JRF), found that the structure of the UK economy, with its light-touch regulation of business and its heavy hand on immigration, has created a low-paid segment of the workforce that is susceptible to forced labour. Jean Allain, a professor of public international law at Queen’s University Belfast and one of the report’s authors said: “The government isn’t really monitoring the workplace in the UK… . While there are various agencies in the UK that are meant to monitor the workplace, you find in other countries there are many more.”

Domestic Workers in the UK
The UK offers a specific domestic worker visa for migrants coming to this country in order to work in their employers’ households. To be eligible, the migrant domestic worker must, among other requirements, have worked for the same employer for a minimum period of one year prior to coming to the UK.

The domestic worker immigration category was recognised by the 1998 Immigration Rules and each year, well over 10,000 domestic worker visas are issued, by the Foreign & Commonwealth Office. Approximately 5,000 domestic workers will also, annually, apply for further leave to remain to the UK Border Agency.

On the face of it, the visa provides crucial protection by allowing domestic workers to leave an abusive or exploitative employment relationship and stay in the UK to find alternative full-time employment in a private household. It also provides recognition of the migrant’s worker status and consequent entitlement to basic protection under UK employment law, including the possibility of redress before an employment tribunal. However such protections are often illusory.

Forced labour in the UK
An increasing number of cases are now being seen where migrant domestic workers have, upon entering the UK, been forced into exploitative work amounting to forced labour, servitude and in a small minority of cases extreme forms of treatment that approach slavery, that is, where the individual is ‘reduc[ed] to the status of an “object”’ (Siliadin v France).

Many workers describe the relationship with their employer deteriorating on arrival in the UK – marked by an increase in work (24 hours a day, seven days a week and permanently on call) and control.

Control is achieved by employers withholding migrant domestic workers passports, locking workers inside the house and/or only allowing them out in the employer’s company. Almost all workers report that contact with anyone outside of the house is prohibited, with many not even being allowed to answer the door or put the rubbish out to ensure there is no contact with the outside. They are routinely prevented from communicating with their families by phone.

Language barriers, ignorance of human and employment rights and the means of asserting them in the UK compound this physical isolation.Many workers have had little or no education; are illiterate in their own language and/or do not speak sufficient English to communicate their situation to outsiders. Moreover, migrant domestic workers often come from states outside the Council of Europe, where Council of Europe standards do not apply and where they have often learnt to fear the police and other authorities; often they are unaware of what remedies exist to challenge their treatment or even that they are victims of rights violations.

In addition to confiscating ID, workers will often suffer repetitive physical and psychological abuse at the hands of employers. Threats will be made against family members in countries of origin. Employers will also routinely tell workers that they are ‘illegal’, and should they run away, dire consequences will arise if they are caught by the police. Such threats often match the experiences and the reputation of the police in the worker’s own country or where they might have previously worked. The fear is compounded by the employer controlling what information, if any, they are given about the UK.

The complexity of these cases is particularly visible in the emotional attachment that can exist between the worker and various members of the family and the ensuing guilt involved in escaping. Migrant domestic workers will, in any event, have no ‘recourse to public funds’ as a condition of their leave to enter or remain in the UK, therefore access to any accommodation outside of a private household is often impossible.

The low levels of reporting and referral, are down to a number of factors, not least that, for the majority of domestic workers, there is often great pressure to start earning money in order to send it home. There also seems to be a level of reluctance in migrant domestic workers to believe in the protection offered by the police or authorities. In part, this is down to the strong associations held by members of migrant communities between police, immigration crime and deportation – a view exacerbated by the experiences of some of those who have managed to seek such outside assistance.

In theory there is a support structure for victims of trafficking and forced labour, but accessing this support is often extremely difficult. Reporting forced labour does not, it seems, necessarily lead to any kind of special treatment. At worst, the ethnicity of the victim can actually provoke questions around immigration status, and lead to the police initiating an investigation into immigration offences, rather than the crime of forced labour. This can dramatically affect the course of any investigation, including which team and with what training, expertise, and ability to assist the victim, picks up the case, if at all.

The UK’s obligations under domestic and ECHR law
There are, of course, long-standing criminal offences of false imprisonment, kidnapping, assault, battery, blackmail and harassment, all of which might be relevant to someone in this situation. Section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 created the new offence of trafficking people for exploitation. Exploitation is defined as, amongst other things, being the “victim of behaviour that contravenes Article 4 of the Human Rights Convention”.

In Siliadin v France, Rantsev v Cyprus and Russia, the European Court confirmed that Article 4, imposes a positive obligation on Member States to effectively penalise and prosecute any act aimed at enslaving someone. In a similar way to Article 2 and 3, the Court also held that where Member State’s authorities were aware, or ought to have been aware, that an individual had been enslaved, or was at real or immediate risk of being enslaved, that Member States also have an ‘operational duty’. Crucially, these included that ‘States are not permitted to leave…a victim of an Article 4 violation unprotected or to return her to a situation of trafficking and exploitation’ and a duty to investigate where there is a credible suspicion that an individual’s Article 4 rights have been violated.

So, the Court’s jurisprudence on Article 4 is clear, whether it is trafficking or forced labour, it is not enough simply to have legislation and administrative provisions, domestic remedies must be “effective” in practice as well as in law. Recently, in C v UK, the Court criticized the defective legislation in the UK which, they felt, had hindered a proper investigation of a forced labour complaint, though section 71 of the Coroners and Justice Act 2009 now fills the gap which the Court held had existed in UK law before then.

How can UK legislation be more made more effective?
In relation to the domestic worker visa regime, certain measures, if applied generically, would reduce the risk of Article 4 violations in specific cases.

Recipients of such visas should be given direct information on their rights in the UK and access to services in the form of leaflets in their own language either on collection of their entry clearance endorsement (i.e. at a British diplomatic post abroad, where migrant domestic workers are usually interviewed, though often, in a perfunctory fashion) or at the port of entry. This would make it easier for victims of forced labour to get assistance and pursue criminal and civil remedies.

The UK authorities need to meet fully their obligations under Article 12 of the Council of Europe Convention on Action against Trafficking in Human Beings and to provide adequate accommodation and counselling to victims of forced labour. The police – notably the front-line officers who will be a victim’s point of first contact – must be sufficiently trained in identifying victims of treatment contrary to Article 4, or at least able to refer the case to staff capable of providing that support. Likewise, stereotypical views (such that lawyers or doctors do not subject people to forced labour), as well as failures to take into account the power imbalance inherent in the relationships between victims of forced labour and/or trafficking, need to be addressed.

Finally in cross-border trafficking cases, the Court in Rantsev found that the obligation to investigate a trafficking offence fell on both States in which the offence took place and included a duty to cooperate. These duties and obligations, in terms of the country from which the domestic worker was brought to the UK, and where clear information on the perpetrator is available, should be equally applicable to forced labour cases.