International

The appellant was employed as a domestic worker by the respondents, a Saudi Arabian diplomatic agent and his wife, in the UK. The appellant alleges that she is a victim of trafficking. The appellant brought claims against the respondents, for direct and indirect race discrimination, unlawful deductions from wages (failure to pay the national minimum wage), and breach of the Working Time Regulations. The respondents claim diplomatic immunity. On appeal, the Employment Appeal Tribunal upheld the claim to immunity, holding that the activity of employing a domestic worker was not within the scope of the functions as a diplomat. Secondly, the assertion of diplomatic immunity in the present case was not in breach of article 6 of the ECHR. Thirdly, the ET's jurisdiction, being statutory, did not extend to the investigation of trafficking and therefore the claim based on article 4 of the ECHR would be rejected. The Supreme Court conducted a hearing from 15-17 May 2017. 

This case concerned the Austrian authorities’ investigation into an allegation of human trafficking. The applicants, two Filipino nationals, who had gone to work as maids or au pairs the United Arab Emirates, alleged that their employers had taken their passports away from them and exploited them. They claimed that this treatment had continued during a short stay in Vienna where their employers had taken them and where they had eventually managed to escape. Following a criminal complaint filed by the applicants against their employers in Austria, the authorities found that they did not have jurisdiction over the alleged offences committed abroad and decided to discontinue the investigation into the applicants’ case concerning the events in Austria.

The Court found that the Austrian authorities had complied with their duty to protect the applicants as (potential) victims of human trafficking and held that there had been no violation of Article 4 (prohibition of forced labour) and no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It notably noted that there had been no obligation under the Convention to investigate the applicants’ recruitment in the Philippines or their alleged exploitation in the United Arab Emirates, as States are not required under Article 4 of the Convention to provide for universal jurisdiction over trafficking offences committed abroad. Turning to the events in Austria, the Court concluded that the authorities had taken all steps which could have reasonably been expected in the situation. The applicants, supported by a government-funded NGO, had been interviewed by specially trained police officers, had been granted residence and work permits in order to regularise their stay in Austria, and a personal data disclosure ban had been imposed for their protection.

(Subject to appeal to Court of Appeal)

The Tribunal dismissed claims by a Nigerian it found to have been mistreated when she worked for the respondents as a domestic worker. It held that such treatment did not amount to direct discrimination on the ground of the claimant’s Nigerian origin, but that it resulted from her vulnerability in circumstances where vulnerability was not an attribute particular to any racial group and was not indissociably linked with migrant status

The case involved a child being transported to the UK and exploited for domestic servitude. Home Office guidance in its treatment of historic victims of trafficking was erroneous in excluding them from the category of persons to be treated as victims for certain purposes but not for others at a particular stage and entitled to appropriate assistance and support under the Council of Europe Convention on Action Against Trafficking in Human Beings. However, the level of assistance and support required would depend on a historic victim’s current needs and would be reduced or exhausted in accordance with those needs.

W, a Chinese national, was trafficked to work as domestic servant in several countries to pay off her debt. In dismissing the application for judicial review, the Court found that the state had procedural obligations to take protective measures and to investigate trafficking. The requirement to investigate potential trafficking was aimed at identifying and punishing traffickers; it did not depend on a complaint from the victim. Therefore, the minimum standard of investigation of potential trafficking was not relevant to the competent authority’s investigation of victim status, and there was no basis for imputing the standards required by one to the other.

The Appeal Court confirmed the decision of an Employment Tribunal in holding that an Indonesian domestic worker’s contract of employment, entered into freely and voluntarily, was illegal from the outset as she did not have the right to work in the UK. It had also been correct to refuse to consider whether her employment claims fell within the scope of the European Convention on Action against Trafficking in Human Beings because there were no elements of “recruitment, transportation et cetera of the Claimant by means of the threat, or use of force or other forms of coercion, of abduction, and almost certainly of fraud” and the appropriate “exploitation” as defined under the law. 

The case concerned allegations of children held in servitude or forced or compulsory labour and the Court analysed the obligations of the state as including a positive obligation to criminalise and effectively punish acts of slavery, servitude or forced or compulsory labour.

In deciding whether C.N. and V. were victims of servitude or forced or compulsory labour, the European Court of Human Rights reiterated the meaning of ‘forced or compulsory labour’ under Article 4(2) to mean “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.” The Court held that “any work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily is not necessarily forced or compulsory labour under Article 4 of the Convention. It is appropriate to take into account, among other things, the nature and volume of activity. These circumstances distinguish work amounting to "forced labour" which could reasonably be required in respect of mutual family assistance or cohabitation.” As for concept of the ‘menace of any penalty’, the Court stated that the notion of ‘penalty’ is to be understood in a broad sense, including a psychological aspect, such as the threat of being sent back to the applicant’s country in this case. 

A Ugandan national who was assisted in travelling to the UK was subsequently forced into domestic servitude. The Court found a violation of the prohibition of slavery, forced labor and servitude (Article 4 ECHR) and breaches of investigative duty under Article 4 following similar judgments in Siliadin v. France (2005); Rantsev v. Cyprus and Russia (2010); and C.N. and V. v. France (2012).

The Court also noted that “domestic servitude is a specific offence, distinct from trafficking and exploitation, which involves a complex set of dynamics, involving both overt and more subtle forms of coercion, to force compliance. A thorough investigation into complaints of such conduct therefore requires an understanding of the many subtle ways an individual can fall under the control of another.” 

A 15-year-old girl from Togo had been held in servitude and the European Court of Human Rights found that there has been a violation of France’s positive obligations under the prohibition of slavery and forced labour, because French law had not afforded her specific and effective protection. Court noted that although the elements in the proper sense of ’forced and compulsory labour’ and ’slavery’ in this case were not there, facts show that she was in an equivalent situation in terms of seriousness of the threat and the deprivation of her personal autonomy. 

This case involves a Filipina woman who was trafficked to Australia, facilitated by a sham marriage, and forced to work as a domestic servant under slave-like conditions. The decision by the Court of Appeal expanded the application of the relevant offences to forms of trafficking in persons beyond exploitation in the commercial sex industry. 

 

Domestic

The applicants in this case were convicted of trafficking two mainlanders to Australia on a flight from Hong Kong to Sydney. The High Court referred to its previous judgments in upholding that “the offences such as these are very serious. They involve the exploitation of persons on the Mainland, for substantial sums, exploitation which is no doubt financially crippling to the emigrant and his or her family and which puts the emigrant at continuing risk. Beyond that, and importantly, the offences deliberately seek not only to undermine Hong Kong’s laws but also the immigrations laws of other jurisdictions, and to enable persons to travel on aircraft when they are not authorized to do so. It hardly needs to be emphasized that conduct of this kind is to be treated by our courts with a firm hand, not least when air security and international immigration controls carry an importance greater than ever before.