23 June 2010

FOURTH SECTION

Application no. 56921/09 by Elizabeth KAWOGO against the United Kingdom lodged on 14 October 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Elizabeth Kawogo , is a Tanzanian national who was born in 1982 and lives in Harrow , England . Sh e is represented before the Court by Mr D. Azami , a lawyer practising at the Brent Community Law Centre in London .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background

The applicant began working at the age of 13 and started working as a domestic help when she was 18 years old. She only speaks Swahili. The applicant started working for Mrs Alibhai in a domestic capacity in Dar ‑ es ‑ Salaam, Tanzania when she was 21 years old. Mrs Alibhai is a British citizen resident in Tanzania . The applicant was paid 65,000 Tanzanian Schillings (around 28.50 GBP) per month by Mrs Alibhai while working for her in Tanzania .

On 16 July 2006 the applicant arrived in the United Kingdom on a domestic worker visa (valid until 5 November 2006) as the employee of Mrs Alibhai who planned to have an operation in the United Kingdom . The applicant was told that she would be paid and that she would stay in the United Kingdom for three months. Under the terms of the domestic work visa, the applicant was to work for Mrs Alibhai and to return to Tanzania with her when she left unless changes were authorised. Moreover, under the terms of the visa, proper employment conditions were required to be observed.

Mrs Alibhai did not have the operation and returned to Tanzania on 30 July 2006. The applicant was left with Mrs Alibhai ' s parents, Mr and Mrs Dhanji (“the Dhanjis ”). This was not in accordance with the terms of the applicant ' s domestic work visa. The applicant believes that at some stage her passport was passed from Mrs Alibhai , who had retained it, to the Dhanjis .

The applicant was told by Mrs Alibhai that she would have to work for up to a year to repay the cost of her flight. When the applicant was not paid, she asked to be returned to Tanzania but was told that she would not be allowed to return until July 2007.

2. The applicant ' s forced labour

The applicant was required to carry out domestic work, including cleaning and gardening, for the Dhanjis as well as personal care for Mrs Dhanji . The applicant worked every day from 7 am until 10.30 pm. She was obliged to sleep on a mattress on the kitchen floor. She was not permitted to use the same eating utensils as Mr and Mrs Dhanji . Her only personal items were soap, toothpaste and a toothbrush.

The applicant was not permitted to leave the house on her own at all initially and was then later only allowed to go to church. She was never paid any wages. During the period worked by the applicant, the minimum wage payable in respect of work in the United Kingdom was 4.25 GBP until 1 October 2006, 4.45 GBP until 15 November 2006 and 5.35 GBP until 20 May 2007. She was sometimes taken to the houses of other relations to work on demand without payment and was required to work even when sick.

The applicant was not working in accordance with the terms of her visa and was therefore not authorised to work and was liable to be removed from the United Kingdom for breach of her terms of stay.

3. The applicant ' s escape

On 20 May 2007 the applicant escaped with the assistance of a Swahili speaking friend who she had met at church and the Chairperson of the Tanzanian Women ' s Association, Mrs Kilumanga .

On 12 June 2007 the applicant, accompanied by Mrs Kilumanga , went to the Tanzanian High Commission. When called to a meeting by the Tanzanian High Commissioner to discuss the applicant ' s working conditions, the Dhanjis threatened to report the applicant ' s illegal status. They returned the applicant ' s passport only when it was requested by the Tanzanian High Commissioner. They also photocopied her passport and copied a letter referring to her unauthorised stay to the United Kingdom Border Agency.

4. The applicant ' s first report to the police

On 19 June 2007 the applicant went to the Brent Community Law Centre and reported the situation to Colindale Police Station on 22 June 2007, accompanied again by Mrs Kilumanga . The police officer they spoke to, PC (Police Constable) Giorgi , did not investigate the applicant ' s complaints concerning her forced labour as a crime, but rather considered it a civil matter and suggested that they contact the Tanzanian High Commission and the Citizens Advice Bureau.

5. The applicant ' s claim to the Employment Tribunal

On 30 July 2007 the applicant brought a claim against the Dhanjis . She complained of racial discrimination in that she had been treated less favourably than a British person would have been treated. She also claimed that she was not given a written contract of employment, or wage slips and complained of breaches of the Working Time Regulations 1998. Finally, she complained that she had not been paid any wages.

6. The applicant ' s second report to the police

On 29 January 2008 the applicant ' s representative emailed PC Giorgi who responded on 14 February 2008. PC Giorgi confirmed that the applicant had attended Colindale Police Station but stated that there was little the police could do as they considered it to be a civil matter.

On 1 April 2008, the applicant ' s representative replied, asking why the retention of the applicant ' s passport and her forced enslavement had not been pursued as a criminal matter. No response was received to this email.

7. The Employment Tribunal ' s Judgment

On 7 and 8 August 2008 an Employment Tribunal heard the applicant ' s claim.

On 2 September 2008 the Employment Tribunal issued its judgment. It found the Dhanjis ' claims that the applicant was at all times a guest in their house and treated like a family member to be “highly incredible”. To the contrary, the applicant : “ ... was extremely poorly treated, she was exceptionally vulnerable by reason of her age, background, language and immigration status” and “was physically neglected and put in a state of fear.” The Tribunal further concluded that:

“...her (the applicant ' s) dignity was wholly undermined by the treatment she experienced at the hands of the Respondents ( ' the Dhanjis ' ) when she was treated without any respect at all. The situation she found herself in was brought to an end only by virtue of the fact that she escaped.”

The Employment Tribunal deemed the applicant ' s assertion that she had been treated as a slave to be “an uncomfortable but fairly apt de script ion”. The applicant had been led to believe that she would be paid for her work, but had never in fact been paid. Moreover, she had been the victim of direct race discrimination as the fact that she was a black African from Tanzania was one of the reasons why the Dhanjis thought they could treat her the way that they did. The Tribunal had no doubt that the Dhanjis ' actions in reporting the applicant to the Border Agency showed that they had intended that she should be removed from the United Kingdom before any claim could be made against them.

The Employment Tribunal awarded the applicant 58,585.80 GBP against the Dhanjis for unpaid wages, holiday pay, failure to provide employment particulars, non-pecuniary damage, failure to comply with the statutory grievance procedure and interest. However, that award has not yet been paid to the applicant and it is believed that the Dhanjis have since left the United Kingdom .

8. The applicant ' s third report to the police

On 10 February 2009 the applicant ' s representative again wrote to Colindale Police Station, requesting that the matter be investigated and prosecuted. In that letter, the applicant ' s representative informed the police that the Dhanjis were in the United Kingdom and provided what was believed to be their temporary address in the United Kingdom . The applicant ' s representative referred, inter alia , to Article 4 of the Convention and to national legislation criminalising trafficking for forced labour.

On 26 February 2009 DS (Detective Sergeant) Brookes of Colindale Police Station contacted the Brent Community Law Centre to say that a criminal investigation into the matter would be conducted.

On or around 17 March 2009 DC (Detective Constable) Clarke of Harrow Police Station interviewed the applicant. The applicant understands that, following that interview, Mr Dhanji was arrested and released on police bail. Both Mr and Mrs Dhanji were subsequently interviewed by the police.

On 19 May 2009 DC Clarke informed the applicant ' s representative that no charges would be brought under section 4 of the Immigration and Asylum (Treatment of Claimants) Act 2004. The reason given was that “essentially they [the Dhanjis ] did not commit the cross-border element.” DC Clarke stated that the Crown Prosecution Service (CPS) was, notwithstanding, considering issuing an International Arrest Warrant for Mrs Alibhai .

On 22 May 2009 DC Clarke confirmed that there would be no charges brought against the Dhanjis . Reference was also made to Mrs Alibhai being out of the jurisdiction.

On 22 June 2009 the applicant ' s representative requested from the police the reason for the decision not to proceed with any prosecution or further action.

On 25 August 2009 the applicant ' s representative wrote to the CPS requesting reasons for the decision not to prosecute and requesting case documentation.

On 29 September 2009 the CPS stated that there was insufficient evidence to suggest any criminality on the part of Mr and Mrs Dhanji .

The applicant has subsequently developed tuberculosis.

B. Rele vant domestic law and practice and international material

1. Domestic Law

The Asylum and Immigration (Treatment of Claimants) Act 2004 (“the 2004 Act”) came into force on 1 December 2004. Section 4 of the 2004 Act makes it a criminal offence to arrange or facilitate the arrival of a person within the United Kingdom for the purposes of forced labour exploitation; or to arrange or facilitate travel within the United Kingdom of a person in respect of whom it is believed that such an offence has been committed.

However, the 2004 Act requires the perpetrator to be the person who “arranges or facilitates the arrival of a person in the United Kingdom ” for the purposes of forced labour exploitation. The perpetrator is not guilty of the offence unless: (a) he or she is involved in arranging or facilitating the arrival in the United Kingdom of the person who is to be subjected to servitude or forced labour, and unless they arrange the arrival expressly for that purpose; or (b) they arrange or facilitate the movement of a victim for that purpose within the United Kingdom believing that such an offence has already been committed by another. Merely establishing that a person has been subjected to forced labour or servitude, and identifying the person who has subjected them to that forced labour or servitude would not be sufficient to make out the elements of this offence.

Sections 4 and 5 of the 2004 Act provide, as relevant:

“4. Trafficking people for exploitation

(1) A person commits an offence if he arranges or facilitates the arrival in the United Kingdom of an individual (the “passenger”) and—

(a) he intends to exploit the passenger in the United Kingdom or elsewhere, or

(b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere.

(2) A person commits an offence if he arranges or facilitates travel within the United Kingdom by an individual (the “passenger”) in respect of whom he believes that an offence under subsection (1) may have been committed and—

(a) he intends to exploit the passenger in the United Kingdom or elsewhere, or

(b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere.

(3) A person commits an offence if he arranges or facilitates the departure from the United Kingdom of an individual (the “passenger”) and—

(a) he intends to exploit the passenger outside the United Kingdom , or

(b) he believes that another person is likely to exploit the passenger outside the United Kingdom .

(4) For the purposes of this section a person is exploited if (and only if)—

(a) he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour),

...

(c) he is subjected to force, threats or deception designed to induce him—

( i ) to provide services of any kind,

(ii) to provide another person with benefits of any kind, or

(iii) to enable another person to acquire benefits of any kind, or

(d) he is requested or induced to undertake any activity, having been chosen as the subject of the request or inducement on the grounds that—

( i ) he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and

(ii) a person without the illness, disability, youth or family relationship would be likely to refuse the request or resist the inducement.

(5) A person guilty of an offence under this section shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 14 years, to a fine or to both, or

(b) on summary conviction, to imprisonment for a term not exceeding twelve months, to a fine not exceeding the statutory maximum or to both.

5. Section 4: supplemental

(1) Subsections (1) to (3) of section 4 apply to anything done—

(a) in the United Kingdom ,

(b) outside the United Kingdom by an individual to whom subsection (2) below applies, or

(c) outside the United Kingdom by a body incorporated under the law of a part of the United Kingdom .

(2) This subsection applies to—

(a) a British citizen,

(b) a British overseas territories citizen,

(c) a British National (Overseas),

(d) a British Overseas citizen,

(e) a person who is a British subject under the British Nationality Act 1981 (c. 61), and

(f) a British protected person within the meaning of that Act.”

On 12 November 2009 the Coroners and Justice Act 2009 received Royal Assent. Section 71 of the Coroners and Justice Act 2009 which came into force on 6 April 2010 provides the following:

“ 71 Slavery, servitude and forced or compulsory labour

(1) A person (D) commits an offence if—

(a) D holds another person in slavery or servitude and the circumstances are such that D knows or ought to know that the person is so held, or

(b) D requires another person to perform forced or compulsory labour and the circumstances are such that D knows or ought to know that the person is being required to perform such labour .

(2) In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention (which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour ).

(3) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceedi ng 14 years or a fine, or both.

(4) In this section—

“Human Rights Convention” means the Convention for the Protection of Human              Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4              November 1950;

“the relevant period” means—

(a) in relation to England and Wales , 12 months;

(b) in relation to Northern Ireland , 6 months.”

2. Relevant European and International Material

For relevant European and international treaties and materials, see Rantsev v. Cyprus and Russia , no. 25965/04 , §§ 137 - 174 , 7 January 2010 and Siliadin v. France , no. 73316/01, §§ 49 -51 , ECHR 2005 ‑ VII .

COMPLAINTS

The applicant complains under Article 4 of the Convention that she was subjected to domestic forced labour in the United Kingdom , which the authorities failed to adequately investigate and prosecute as a criminal offence and in respect of which they failed to provide adequate penalties.

She further complains that she had no effective remedy available to her, in breach of Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to servitude or forced labour within the meaning of Article 4 of the Convention whilst in the United Kingdom ?

2. If so, were adequate criminal penalties in place at the material time (see, in this regard, Siliadin v. France , no. 73316/01, § 112, ECHR 2005 ‑ VII and Rantsev v. Cyprus and Russia , no. 25965/04 , §§ 285-288, 7 January 2010 ) ? Did the domestic authorities fulfil their positive obligation under Article 4 of the Convention to investigate and prosecute the offences in question and to impose a deterrent punishment on those responsible?

3. Did the applicant have effective domestic remedies at her disposal as required by Article 13 of the Convention?