Overseas domestic servants

Some domestic servants found themselves in the legal news recently. In one interesting case Ms Reyes, a Filipina, worked as a domestic servant in the UK for Mr and Mrs Al-Malki. Mr Al-Malki was a member of the diplomatic staff at the Saudi Arabian Embassy.

Ms Reyes claimed that she had been very badly treated by her employers and she consequently made a claim to the Employment Tribunal. The claim did not do very well at first, because the Tribunal and subsequently the courts held that Mr Al-Malki and his wife could claim diplomatic immunity and that thus Ms Reyes’ claim – how well-founded it might otherwise be – must therefore fail.

But undeterred she fought on and eventually the case reached the Supreme Court – the highest court in the UK. The Lady and Lords of the Supreme Court thought differently. The case hinged on the interpretation of the Vienna Convention on Diplomatic Relations 1961 and subsequent British legislation. Diplomatic immunity is not total and, in any case, Mr Al-Malki had left his diplomatic post, and this affected the potential immunity from legal actions. The Supreme Court decided that Mr and Mrs Al-Malki could not benefit from diplomatic immunity and thus found in Ms Reyes’ favour.

Ms Reyes had come to the UK on a Tier 5 visa, presumably an International Agreement “Private Servant in Diplomatic Household” visa. This is – as it sounds – a very specialised visa route.

Other parts of the immigration rules govern domestic servants, but in private households, not diplomatic ones – ie the “Domestic Worker in a Private Household” visa. This kind of visa enables a domestic servant to come to the UK and work for an employer in their household. They could be, for example, a nanny, a cook, or a butler.

This visa route was previously far more liberal but in 2012 it was tightened up and modified very considerably (as indeed has happened with so many visa routes in recent years). As previously, when they apply for a visa the domestic servant has to have already been working for the employer for at least 12 months – ie there has to be a “track record”. This is not a new requirement.

But under the old rules domestic servants could bring their family dependants with them and eventually acquire settlement. Sadly no longer. Nowadays they cannot bring dependants and they cannot acquire settlement. And now they can now only stay in the UK for up to six months, after which they should leave the UK. These are, very obviously, major changes in the basis of the rule.

And it is a bit more complicated than this. There is also now a requirement in the domestic worker immigration rules that the employer does not intend to stay in the UK for more than six months.

Of course the word “intend” is a rather loose one but if, for example, the employer is coming to the UK on a three-year working visa and the domestic worker applies for a visa to come with them to the UK so they can work in their household the domestic worker’s visa application looks decidedly weak. In such a situation it looks highly improbable that the employer is only intending to stay in the UK for six months or less and the domestic worker’s visa application is likely to suffer accordingly.

Evidently the Home Office has re-fashioned the rule in such a way that it only looks kindly on an application where both the employer and domestic servant are intending to come to the UK for a short period of no more than six months.

And it is still not quite simple as that either. There is yet another part of the rule to the effect that the domestic servant does not intend to live for extended periods in the United Kingdom through frequent or successive visits”. This sounds ominous, but vague. When considering this provision, as a starting point it is necessary to bear in mind that domestic worker X is firmly tied to employer Y, because of the “track record” requirement. So the domestic worker can only make an application in conjunction with the employer’s movements in and out of the UK.

It is thus not entirely easy to imagine a scenario where the domestic worker would seriously potentially infringe this principle, although perhaps it might be possible if the employer is continually switching homes and travelling in and out of the UK and the domestic worker is making a series of visa applications on this basis.

But the principle is vague in any case. Is there a “no more than six months within 12 months” rule, as in the case of visitors? (Visitors are not supposed to stay in the UK for more than six months in a 12-month period.)

No, according to the relevant Home Office guidance, there is no such rule. Every case has to be taken on its overall merits.

Faced with this rather nebulous and onerous situation, those who want to bring their overseas domestic servants with them to the UK are advised to take good legal advice.

No comments yet.

Leave a comment