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The au pair paradox and the refusal to allow domestic workers to accompany their employers to the UK

Posted by: Gherson Immigration

The UK immigration rules currently allow domestic workers to enter the UK in the course of their employment, albeit subject to fairly stringent requirements. 

The main constraint for domestic workers is the length of leave granted – which is a maximum of six months. This essentially allows families who are visiting the UK to bring their domestic worker with them for the duration of their visit.

This has caused significant problems for families wishing to relocate to the UK, bringing their domestic staff with them, only to discover this is not a possibility. This is especially difficult for those who wish to bring child care domestic staff with them, as this often involves individuals who have become part of the household and who are central to the children’s lives. Such domestic staff are unable to gain access to the UK in a permanent capacity in line with the family they work for.

Prior to 2012, families moving to the UK could be accompanied by domestic workers who could remain here. A large number of these domestic workers would eventually obtain indefinite leave to remain and either stay with the families they entered with or move to other families, often filling the role of carers for elderly residents or entering the nursing profession, working as carers in old age homes or providing families with trusted child minders so mothers could work. 

The ability of long term domestic workers to do this was brought to an end by a Home Secretary who was obsessed with reducing lawful immigration to fool the UK public into believing that she was “dealing with immigration”, whilst the subjects of illegal immigration and asylum applications were swept under the carpet. 

The abolition of this visa status has put further pressure on the NHS, especially in its role of caring for elderly citizens. This represents a loss of potential nursing staff, which is in critically short supply, and which is something to which domestic workers often gravitated. 

It is this same administration that sent home tens of thousands of foreign fee-paying students who wished to pursue additional degrees by the creation of the ridiculous concept of ‘continuing education’, which diminished the value of UK universities on the world scene and cost them tens of millions of pounds in lost revenue. All so that the public could be misled into believing that students going home were represented in the figures as immigrants leaving the UK. The students did not have the right to remain here in any event, but by limiting the time they could study here the Government created a regular turnover of departures which were misrepresented as immigrants departing the UK. The Government has now scrapped the continuing education rule so fee-paying foreign students can now pursue additional courses of their choice. Perhaps now the Government can consider overturning the prohibition on foreign domestic workers accompanying employers from abroad to the UK.

The domestic worker route currently only applies to non-EU/EEA nationals who wish to visit the UK in their capacity as a domestic worker, due to the fact that currently, and historically, EU/EEA domestic workers benefit from Freedom of Movement. 

Brexit now threatens to limit the ability of foreign domestic workers to enter the UK even further, with, as things stand, no specified route for EU/EEA domestic workers to use to come to the UK for their employment post-Brexit.  

Not only is this further restricting access to the UK for this group of migrants, but it also threatens to put considerable strain on UK working families where parents are presently able to pursue their careers as a direct result of EU/EEA au pairs and domestic workers being able to manage affordably the family’s child care needs, as well as acting as carers for the elderly, etc.

Although the EU/EEA Settlement Scheme is available to all EU/EEA nationals, it relies on continued residency. Pre-settled status grants the holder a period of five years of leave in the UK, whilst a subsequent application for settled status requires evidence of a continuous period of five years of UK residence in order to qualify (see our recent blogs on EU Settlement Scheme here, and here).

This threatens those EU/EEA au pairs and domestic workers who do not work for their employers throughout the entire year, as many often return to their home country for part of the year. In doing this, they risk breaking their continuous period of residence, should they hold pre-settled status, with no way of extending their grant of leave under this category. 

Eligibility for the EU Settlement Scheme also requires residency in the UK to be evidenced prior to the end of the Brexit transition period (31 December 2020). This will not be satisfied by any domestic worker wishing to work in the UK in this capacity but who is unable to provide such evidence prior to the end of this year. 

The failure of the UK’s post-Brexit immigration system, as it currently stands, to specifically include a route for European au pairs threatens to narrow significantly the ability of many working UK families of accessing affordable domestic help, while additionally further limiting entry to the UK for those migrants employed or seeking employment as au pairs or domestic workers in UK households.  

The prospect of the introduction of the UK’s new immigration system in 2021 therefore makes the outlook for non-UK domestic staff a bleak one, limiting the possibilities to being able to enter with their families for a visit to the UK only. As for potential host families in the UK, the option would be to hire resident domestic workers, which may simply be beyond the financial scope of many working families who currently rely on such support. 

The Home Office’s continued narrowing of domestic worker access to the UK may be criticised as short-sighted given the potential impact on the decision of migrant families whether to relocate to the UK for employment, and, post-Brexit, the impact on domestic families who may face a choice between child care and continuing a career. It is not fanciful to consider the potential negative impact on the UK economy, with workers being lost to various industries at a far higher rate than at present as a direct result of child care requirements. We are not at this point yet, and we must wait and see whether the Home Office offers any progressive solutions.

Gherson has a wealth of experience in all aspects of UK immigration law and has assisted many clients with their applications under the Home Office’s EU Settlement Scheme. If you have any specific questions or queries in respect of your particular circumstances, please do not hesitate to contact us.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2020

Spencer Bienvenue 

  Spencer Bienvenue

  Paralegal in our General Immigration Team


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