10 years in limbo: How Ochuko Dafiaghor took on the Home Office and won
Her case has been described variously as “absurd”, “extreme” and “unbelievable”, but for Ochuko Dafiaghor, it is all too real.
“My friend said we have to act this out in a movie,” she says, “otherwise no one will believe what has happened.”
Whip-smart and highly-educated, Dafiaghor was a care home manager in her adopted home town of Aberdeen when unfair dismissal cost her both her job and her right to live in the UK. What followed was 10 years of torment; a decade of poverty, insecurity, stress and loss, as she fought for her legal rights to stay in Scotland.
As a result, when her father fell ill, she was unable to return to Nigeria to see him; when he died, she could not travel for his funeral. When she ran out of money, she had to borrow from friends to pay bills and use food banks to eat.
Now, after finally winning indefinite leave to remain (ILR) after a protracted battle with the Home Office, she says the law must change to protect other migrant workers. And experts say her story must be heard to reveal the precarious conditions endured by overseas nationals in the UK. “It’s an important story,” says Dr Tom Montgomery of the University of Stirling. “It’s good that she’s telling it.”
“It’s utterly appalling,” says SNP Westminster leader Stephen Flynn, Dafiaghor’s MP. “It is a clear example of how the Home Office and its hostile environment treats people.”
“It is a really extreme case,” says Caitlin Boswell of the Joint Council for the Welfare of Immigrants (JCWI). “It reflects how the immigration system and the labour rights system are failing people and compounding the precariousness of their working and immigration status.”
“I always trusted the system,” Dafiaghor says. “I now know I was naive to trust the system. I thought it would give me justice, but now I know that’s not true.
“The things that have happened to me, the price I have paid is huge. I’m angry – what happened was very, very wrong. The only thing that would make meaning for me is if there’s change so more people don’t go through this.”
Dafiaghor, from Nigeria’s oil-rich Delta State, moved to Scotland’s oil capital from London when her then-husband joined Robert Gordon University. With a background in Nigeria’s banking sector and a masters degree in management from Northumbria University, she was looking for a position in finance in the north-east when an opportunity opened up with Community Integrated Care (CIC). She became a manager at a local care home, loved looking after people and saw a future in the sector before she was suspended then sacked in 2013 under the accusation that she’d left the centre with inadequate staffing. A subordinate had swapped a shift without telling her and, three years later, an employment tribunal found that Dafiaghor had been unfairly dismissed.
However, her visa was contingent on her employer and with the sacking, CIC had also pulled her sponsorship. Under the rules, she had just two months to secure another job despite now having an employment record that was wrongly sullied.
Soon Dafiaghor was not only out of a job, her permission to live in Scotland, or indeed anywhere else in the UK, had also been removed. In the years to come she would not only win her employment tribunal case, but when the Home Office refused to allow her to stay on, she would win three court challenges against the UK Government department – only for them to turn around and give her yet another refusal. The cycle of application, refusal and judicial review finally ended last month when the Home Office, rather than waiting on the outcome of yet another challenge by Dafiaghor’s solicitor, Gurpreet Singh Johal of SJK Solicitors, finally granted ILR.
In a final ruling, an immigration judge would find she had “suffered” due to “legal errors made in her case” which started with the “unlawful act of her former employer” and were then “compounded” by the Home Office. That two-month deadline to find another job, the judge said, was not based on a “practical real world view” and ignored the fact that other care providers would have been unlikely to take on a manager who had just been dismissed for misconduct and who had not yet cleared her name.
The case papers also reveal how a Home Office caseworker acknowledged Dafiaghor’s ill-treatment and lobbied decision-makers to use their discretion to grant her ILR in 2019. She had been in the UK so long by then, the notes said, that she would likely have already achieved citizenship, were it not for the loss of her visa. “The Home Office’s decision to curtail her leave” when challenging her unfair dismissal “has unfairly prejudiced her”.
“When case notes like that are revealed, it shows that there’s good people working within the system, but they are ultimately at the direction of policymakers and we know the Conservative government is completely hostile on immigration,” Flynn says.
“Ochuko was left in limbo. The impact that has had on her is huge and it’s at the door of the Home Office. I wish more members of the public knew how difficult and nasty the Home Office is – I think it would change a lot of people’s minds about immigration.”
Inward migration has been responsible for offsetting the gap between births and deaths in recent years, but National Records of Scotland (NRS) does not expect that to continue. The population is projected to hit 5.48 million within the next five years, then slip back to 5.39m by 2045, with Scotland the only UK nation set to see its headcount shrink. NRS says we’ll likely have a pension-age cohort that’s 21 per cent larger than that of today, with 22 per cent fewer children and a working-age group which is two per cent smaller.
Almost one in four businesses are currently experiencing labour shortages, according to Scottish Government estimates drawn from UK-wide work by the Office of National Statistics. Ministers in Holyrood, which lacks levers over immigration, have called for the devolution of those powers from Westminster in order to tackle these challenges. “We want people to want to work and live and contribute here; we need people to do that,” says Flynn. “The lack of people has a massive impact on communities in Scotland. We have this absurd situation where we don’t have enough people to pick the food in the fields.”
Aberdeen is, Flynn says, an international city. Research carried out by Aberdeen City Council on migrant workers in 2017 found the authority had the third-highest total of National Insurance Number registrations to overseas migrants in Scotland, topped only by Edinburgh and Glasgow. Polish people were the largest group, followed by Romanians and Nigerians.
Non-UK nationals accounted for 7.5 per cent of total employment in Scotland in 2018, according to a Scottish Government paper. Ministers have called on the UK Government to “rethink” its post-Brexit immigration policy and the overall aim of reducing net migration to the UK, arguing that the Scottish Government should be allowed to develop its own Shortage Occupation List, which would give priority to those taking up particular jobs, and a visa pilot which would set lower minimum earnings thresholds for migrants, in recognition of Scottish rates of pay.
However, the Home Office, which was contacted for this article, said its system “works in the interest of the whole of the UK” and suggested the Scottish Government invests in infrastructure and jobs to tackle depopulation and sector-specific recruitment crises such as that facing social care.
“Scotland has a recruitment and retention crisis,” says work expert Montgomery, of the Stirling Management School, and while staffing from overseas has a role to play in solving these, there are questions around “the extent to which workers arriving know their rights and how to realise their rights”.
Migrant workers are less likely to be unionised, he says, and so can lack support when problems arise, and when a person’s residency is reliant on their employment “there are questions about the balance of power”. “They may be more reluctant to raise issues for fear of losing their residency,” he says, and the link between status and work may deter some people from going to less-populated areas, where there are fewer alternatives if the job ends.
Countries like Canada operate localised immigration schemes to fit the needs of individual territories, Montgomery says, and while the “current political climate” may make it “very difficult” to change the system, there are things the Scottish Government can do to improve the lot of the migrant workforce, such as “calling out bad practice and highlight best practice” in industry and embedding good pay and conditions in the principles of its Fair Work action plan.
“If migrant workers are looking at Scotland as a place where they have effective support mechanisms, it might make them more confident that they can work in Scotland and retain their residency if something goes wrong with an employer,” he says.
For Dafiaghor, those she speaks to in Nigeria have told her “they could never come to this country”, based on her experience. She exhausted her savings and racked up substantial debt while out of work. Now 49, she has lost a decade in which she’d planned to amass a decent pension and now worries about her future. “I had all my goals written down: by 47, I should have finished with corporate work and started a business of my own, buying and selling. I would have employed people; I would have created jobs.
“How did the government think I was going to survive? Even when a criminal is in prison, you feed the prisoner. There was no provision for me.
“It was so hard to fight back. If I’d known it was going to take a decade of my life, my decision might have been different.”
Solicitor Johal, a Labour member of West Dunbartonshire Council, says Dafiaghor’s fight is testament to her character, and thanks in part to the support of the Scottish Legal Aid Board, which he says provided support she may not have secured elsewhere. “Ochuko has been one of the smartest clients I have ever met,” he says. “She was fully aware of the rules, she was doing a lot of reading of the law. She would ask me, ‘Gurpreet, tell me how is this fair, how is it fair that the Home Office can violate my human rights?’ I had to explain ‘this is how immigration works, this is how they demean a lot of people, I’ll keep fighting for you’.
“I was like, thank God,” he says of the moment that her ILR was approved. “She’s been through a lot.”
CIC told Holyrood that “as a charity that exists to positively impact people’s lives, we empathise with Ms Dafiaghor’s situation”. “The decision to dismiss in 2013 was made in good faith but ultimately was found not to be correct,” a spokesperson said. “At every stage, we have supported the employment tribunal process, including fully compensating Ms Dafiaghor and taking any learnings from the case. We understand that separately, Ms Dafiaghor has experienced a lengthy dispute with the Home Office concerning her immigration status and we are pleased that this matter has now been positively resolved for her.”
But JCWI’s Boswell says that, broadly, those whose visas are contingent on their employers are “more vulnerable to exploitation”, with seasonal staff particularly exposed. “The government is treating workers as an economic commodity,” she says.
Roz Foyer, general secretary of the Scottish Trades Union Congress, wants the Scottish Government to use the full extent of its powers to “retain skills and boost our labour market”.
“Hindered by a Tory UK Government hell-bent on demonising them, we know migrant workers suffer the brunt of this unrelenting attack on their working rights, feeling disempowered and ostracised,” she says. “Women migrants in particular are less likely to be employed than UK counterparts, with cultural, language and educational barriers blocking their path.
“The Scottish Government, alongside our movement, can lead the way in organising migrant workers, helping to overcome these prejudicial attitudes from the UK Government which create a barrier for so many. Through the Fair Work Convention, the Scottish Government should make clear the rights of migrant workers, educate the workforce and uphold good standards throughout the labour market, creating tolerant, welcoming and diverse workplaces.”
At her home in Aberdeen's Kincorth area, Dafiaghor is almost ready to rebuild her life in Scotland. She’s preparing for the Isoko-Urhobo Community cultural day celebration at the local Hilton Convention Centre, which champions the music, dance, food and music that members have brought with them to the city. And she’s been in contact with course leaders about completing further qualifications in chartered banking. With characteristic dignity and determination, she is beginning to plan her future once again. “But first,” she says, “I need to take some time. I need to heal.”