The Appellant in this case requested that there be no reporting of any details that could identify her or her former employers, even though they have already been used in the public domain in the past. In this article, she is identified as M. and the respondent is identified as Mrs A.
The story, as reported by the Employment Tribunal which later heard the case, is unfortunately common. M., a Nigerian girl in her early teens, had been working as a domestic worker for two years when she was offered the opportunity to travel to the United Kingdom to look after the A. family’s children. She was promised that she would be paid £50 a month and attend school in the UK. She accepted the offer, especially as she wanted the opportunity to go to school. To get a visa and a passport, she told the authorities that she was planning to visit her grandmother, lying about her name and age.
M. lived with the A. family about one and a half year, during which she looked after three young children aged 5, 4 and 3, feeding, cleaning and dressing them, as well as cleaning the house and washing the dishes. Contrary to what she had been promised, she was not paid for her work and did not go to school. She suffered serious physical abuse and it is unclear whether she ever left the house alone.
In the words of the Employment Tribunal, M.’s irregular migration status in the UK gave the A. family “power and control over [her] by threatening that if she was noticed by the authorities then she would likely be imprisoned”. When M. was found in a supermarket car park, after having finally been thrown out of the house, she was afraid of the police and very worried about what might happen to her because of her migration status.
Trafficking for labour exploitation
M.’s case seems to fall squarely within the UK definition of trafficking. According to the Employment Tribunal, M.’s arrival in the UK was arranged by the A. family. Once in the UK, she was reportedly subjected to both threats and deception to induce her to work. Her young age and lack of resources, friends and family in the UK increased her vulnerability and dependence in her relationship with the A. family.
In fact, there are remarkable similarities between M.’s case and the 2005 case of Siliadin v. France, in which the European Court of Human Rights found that a Togolese girl was held in servitude in violation of Article 4 of the European Convention on Human Rights (ECHR).
The presence of indicators of trafficking for labour exploitation and domestic servitude should have pushed the UK authorities to start a criminal investigation into M.’s case, as required under international human rights law (see: ECtHR, C.N. v The United Kingdom, judgment, para69). Instead, there is no mention of criminal investigations into M.’s complaints in the Employment Tribunal’s decision.
In view of the gravity of the crimes possibly suffered by M., the silence of the Employment Tribunal on the trafficking and labour exploitation aspects of her case is deafening. The Tribunal found that M. performed “a function similar to that of an au pair”, ignoring that she was underage, unpaid, in an irregular migration status and not allowed to pursue education.
Of course, it can be argued that it is not for an Employment Tribunal to consider the criminal aspects of a case before it. Let’s consider, then, what should have been the Tribunal’s main concern: compensation.
No compensation for irregular migrants?
Article 13 of the European Convention on Human Rights guarantees the right to an effective remedy to all those whose rights under the Convention are violated. A specific right to compensation and legal redress for victims of trafficking is guaranteed, among others, under Article 15.3 and 15.4 of the Council of Europe Convention on Action against Trafficking in Human Beings, which the UK ratified in December 2008.
Despite these obligations, the Employment Tribunal held that, as M. knew that she was not legally allowed to work in the UK, her contract of employment was illegal, with the result that she could not bring claims for unfair dismissal, breach of contract, unpaid wages and unpaid holiday pay. The Tribunal applied what is known as “illegality doctrine” or “illegality defence”, whereby courts can refuse to enforce obligations arising from an illegal deal.
Acknowledging that M.’s case was “probably one of the saddest case that has come before this Tribunal”, however, the Employment Tribunal decided that her dismissal was an act of unlawful direct racial discrimination and awarded her £6,000 for injury to feelings. These findings were initially confirmed in appeal. The Court of Appeal (Civil Division), on the other hand, applied again the “illegality defence” to reject M.’s claim and refuse any compensation.
The “illegality defence” and human rights
The Court of Appeal’s decision is currently under review before the UK Supreme Court. Unless it is quashed, irregular migrant workers who are victims of labour exploitation, trafficking for labour exploitation, servitude and slavery would be unable to obtain compensation from UK employment courts on either contractual or discrimination grounds.
In a 2009 consultation paper on The Illegality Defence, the UK Law Commission recommended that the courts should apply the “illegality defence” only after a consideration of when this is justified on the basis of the policies that underlie it, including “furthering the purpose of the rule which the illegal conduct has infringed” (para 8.3). In the case of individuals in an irregular migration situation, the purpose of the rule infringed would be the regulation of migration flows. While this is a legitimate purpose, states’ discretion in the adoption and enforcement of migration policies is limited by their obligations under international human rights law.
As the Law Commission itself put it,
“any national rules on illegality must comply with the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) as incorporated into UK domestic legislation by the Human Rights Act 1988” (para 3.90).
“if, and to the extent that [the application of the illegality defence in a contractual context] might [infringe any rights protected by the ECHR], it is quite clear that the defence would have to be applied flexibly in order to satisfy the requirement of legitimacy and proportionality” (para 3.95).
In M.’s case, as well as in all other cases of labour exploitation and trafficking of irregular migrant workers, national rules on illegality should not apply when their application would result in a violation of the right to remedy under Article 13 of the ECHR. The irregular status of migrant workers who become victims of trafficking and exploitation cannot stop them from obtaining justice from UK courts.
How to cite this article:
Francesca Pizzutelli, “M., or how the UK can fail victims of trafficking and forced labour”, The Rights Angle, https://therightsangle.wordpress.com/, 5 April 2013.