Judgment of the Supreme Court is handed down today in the case of Reyes and Suryadi v Al Malki and Al Malki. Ms Reyes and Ms Suryadi were brought to the UK to work successively within the household of a Saudi Arabian diplomat. Both claimed they were paid grossly less than they were promised, and grossly less than the national minimum wage. They also claimed that they were subjected to unacceptable living and working conditions and were discriminated against and subjected to harassment on the grounds of their race. They were both determined by Home Office to be victims of trafficking. The appeal was pursued on the assumed basis that they were victims of trafficking, although no factual findings were made to this effect.
The Judgment of the Supreme Court
The Supreme Court found (5:0) that a diplomat who employed a domestic worker could not be said to have acted within their “official functions” with the result that the Saudi diplomat defendants in the case had lost any immunity from suit the moment they ceased to be in post. A majority of the court (3:2) also indicated that they saw real substance in the argument that the employment of an overseas domestic worker, where the conditions of her employment amounted to trafficking, amounted to a commercial activity exercised by a diplomatic outside his official functions. It would follow from this argument that immunity should not stop a trafficked worker bringing a claim against her diplomat employers even while they remain in post. However, while of strong persuasive effect, this part of the Judgment will not be formally binding on lower courts.
Emmy Gibbs of ATLEU said:
“These appeals are hugely significant. Overseas domestic workers working in diplomatic households and embassies are exceptionally vulnerable to exploitation and abuse including trafficking. We would urge the government to take the lead in the international community and press for an amendment to the Vienna Convention on Diplomatic Relations putting the matter of immunity in these circumstances beyond doubt. In the meantime the government must ensure that all domestic workers entering the UK for service with diplomats are formally employed by State Embassies rather than individual diplomats as a condition of their visas being granted. A State will enjoy no immunity in such circumstances given the Supreme Court’s separate ruling in the case of Benkharbouche v Sudan and Janah v Libya also handed down today.”
Ms Cherrylyn Reyes said:
“I am delighted that the Supreme Court agrees that I can take my claim against the Al Malkis. I know there are lots of other domestic workers who have suffered like me and I am delighted that they will be able to use this case to get redress, and that they will not have to wait as long as I have done.”
Notes for Editors
ATLEU is a specialist charity providing legal representation to victims of trafficking and labour exploitation. We help victims to obtain safety, recovery and redress.
ATLEU’s policy recommendations
ATLEU urges the government to take the lead in the international community and press for an amendment to the Vienna Convention on Diplomatic Relations putting the matter of immunity in these circumstances beyond doubt.
In the meantime the government must ensure that all domestic workers entering the UK for service with diplomats are formally employed by State Embassies rather than individual diplomats as a condition of their visas being granted. A State will enjoy no immunity in such circumstances given the Supreme Court’s separate ruling in the case of Benkharbouche v Sudan and Janah v Libya also handed down today.
Overseas domestic workers
Each year, 16-17,000 "potentially vulnerable" domestic workers are given entry clearance to the UK. Of these, some 200-300 annually are employed by diplomats or within foreign embassies. In 2003-2011, approximately 76% of these workers were women. They are characteristically required to carry out a range of tasks including cleaning, cooking, providing childcare and laundry services. Male domestic workers are often brought to the UK as drivers, cooks and as private security guards.
Domestic workers predominantly originate from Africa and Asia, especially the Philippines, India and Indonesia (78% between 1994-2006). The majority of workers enter the UK from a country that is not their country of origin, in particular from Saudi Arabia, Bahrain, Oman, Qatar, and UAE.
Many of these workers work under a "kafala" arrangement, which is widespread in the Gulf region. "Kafala" legally ties migrant workers to their employers so the workers are not permitted to leave their jobs or the country without their employer's permission. In this way, it bears the features of modern slavery. That exploitative arrangement is being exported from the Gulf to the UK.
The United Nations Special Rapporteur on contemporary forms of slavery has stated:
“Owing to [their] vulnerabilities, domestic workers are often subject to unfair and exploitative labour practices. Some are paid way below minimum wage standards or not at all, while others are confronted with the arbitrary deduction or withholding of wages. Many domestic workers are expected to live with their employers, yet are only offered substandard or degrading living conditions. Live-in workers might be expected to work 16-18 hours a day, be always on call and forego regular rest days and vacation. They frequently face restrictions on their freedom of communication and movement. Physical, emotional and sexual abuse is also common.”
James Ewins QC, the Government-appointed independent reviewer of the arrangements for the Overseas Domestic Worker Visa, confirms that this description applies equally to overseas domestic workers in the UK. He notes that the lives of overseas domestic workers currently exist "in the relative shadows"; that overseas domestic workers are "universally acknowledged to be in a position of special vulnerability" (the reasons for this including employment in an "informal economy" and employment by diplomatic agents) and that given that the exploitation of domestic workers is "hidden abuse", akin to domestic violence and child abuse, "what is currently seen and known is highly unlikely to be the full extent of the abuse. In reality ... it is more likely to be 'the tip of the iceberg".
Specific examples of the abuse of domestic workers cited by Mr Ewins in his report include physical and sexual violence, threats, psychological, emotional and verbal violence, isolation, food deprivation, sleep deprivation, denial of private life and intimacy, excessive working hours, confiscation of identity documents, non-payment of wages or grossly inadequate wages, no access to health or medical care, limited freedom of movement, threat of deportation, and assertions by the employer of their impunity.
As noted by Ewins, workers employed by diplomats are especially vulnerable, not least because employers will claim immunity from criminal and civil law. In the experience of Kalayaan, an NGO that supports abused migrant workers, incidents of trafficking are higher in diplomatic households due to perceived immunity.
Kalayaan encounters several trafficking cases each year involving diplomats who transport workers to the UK and illegally exploit them. Often their identity documents are confiscated and they are not permitted to leave the diplomat's house. They are, as is internationally recognised, "modern slaves." Since Kalayaan only encounters individuals who have managed to get in touch with the organisation, it is reasonable to infer that the numbers of people who are victims of human trafficking held in diplomatic premises is higher.
Solicitor for the Claimants