Monday, July 30, 2012

Migrant domestic workers and EU migration law

(Part 1 of a 2-part series; Part 2 is here) 

Here at University College Cork, we recently launched an Irish Research Council funded Senior Fellowship project on migrant domestic workers and European Union Migration law regimes. (You can follow us on Facebook here!) The project examines the intersections of migration law regimes with evolving human rights standards on domestic work, and on the rights of migrant workers.
This blog series has two parts. In this first part today, I examine some of the recent developments in international law relating to migrant domestic workers (of which there are several). In the second part, posted by my colleague, Dr Clíodhna Murphy, will examine the changes recently introduced to the overseas domestic worker regime in the United Kingdom. As she'll explain, these changes have rolled back significant reforms secured through domestic workers’ activism over the last decade.

Recent developments
It is now just over one year since the adoption of the landmark International Labour Organisation Convention on Decent Work for Domestic Workers. Uruguay has become the first country to ratify, and just two ratifications are needed to ensure that the Convention enters into force. A number of states have indicated their intention to sign and ratify, including the Philippines, Norway, Belgium, Brazil, Peru and Namibia.  An extensive advocacy campaign is under way in the Philippines to urge the government to ratify and trigger entry into force of the Convention before the end of July. Details on the campaign are available here.
Human rights law has somewhat belatedly begun to address the structured inequalities and exclusions that structure the domain of domestic work.
According to the ILO, domestic workers remain unprotected by labour laws in around 40% of the world’s countries. Often they are excluded from labour and social protections extended to other workers as a matter of right. Recent standard-setting initiatives have attempted to address this gap, and so have included the adoption of the ILO Convention, as well as a General Recommendation (no. 26) from CEDAW on Women Migrant Workers and a first General Comment from the Committee on Migrant Workers and their Families.
The ILO Convention is intended to mark a transition from paternalistic conceptions of ‘good employers acting out of a sense of noblesse oblige’, to respect for domestic workers' labour rights. The Convention seeks to extend core labour rights concerning fair terms of employment and decent working conditions to the realm of domestic work. Against the background of this ‘justice cascade’, however, migration laws continue to limit the promise of human rights law. States remain reluctant to acknowledge the ‘dissensus’ that arises between ‘border norms’ (to borrow Linda Bosniak’s words) and human rights law.
The Siliadin, Rantsev and Osman cases before the European Court of Human Rights, and the pending cases of Kawogo, CN and O.G.O. (all against the UK), drawing on Article 4 ECHR (prohibiting slavery, servitude and forced labour), highlight the nexus between immigration laws, migration status and vulnerability to exploitation. The emerging body of positive obligations jurisprudence under the ECHR, specifically in relation to Article 4, could potentially extend to the sphere of immigration law itself.

In Rantsev, the European Court of Human Rights (right) concluded that the Cypriot government had failed to meet its positive obligations under the Convention by not regulating the ‘cabaret artiste’ industry, by maintaining a visa regime for cabaret artistes that did not provide effective protection against trafficking, and by failing to carry out an effective investigation into the death of Oxana Rantsev.
 On this reading of Article 4, destination states such as the UK may be complicit in breaches of the ECHR by continuing to operate immigration schemes that significantly increase the vulnerability of migrant domestic workers.
This nexus is recognised in CEDAW’s General Recommendation no.26 on Women Migrant Workers, which notes that while states parties are entitled to control their borders and regulate migration, they must do so ‘in full compliance’ with their international obligations. Those obligations include ‘the promotion of safe migration procedures and the obligation to respect, protect and fulfil the human rights of women throughout the migration cycle.’
The Migrant Workers Committee, in its General Comment on Migrant Domestic Workers, specifically addresses states’ obligations to ensure access to regular migration status and safe migration routes, and points to the increased vulnerability of domestic workers who are dependent on the sponsorship of a specific employer for the continuing legality of their presence. Any such arrangement, the Committee notes, can ‘unduly restrict’ liberty of movement and increase exploitation and abuse, ‘including in conditions of forced labour or servitude.’
The ILO convention mentions migration only briefly in Article 8, where the need for agreement on terms and conditions of work prior to the worker’s departure from her country of origin, is highlighted. While insistence on such predeparture agreements is useful, in practice, we know that such conditions are rarely enforced.
The difficulties that arise in accessing legal remedies, even where available, is specifically highlighted by the CEDAW Committee, which has noted that migrant domestic workers are ‘scarcely ever out of sight of their employers’ and so may face difficulties even registering with their embassies or filing complaints.
For many migrant domestic workers in an irregular situation, access to legal remedies remains illusory. Despite the Advisory Opinion of the Inter-American Court of Human Rights, asserting the rights of undocumented migrants to equal treatment, in many jurisdictions (including Ireland and the UK), ‘knowing’ participation in an irregular employment relationship will exclude access to a legal remedy. (The UK courts have just recently applied this common law rule to a case alleging racial discrimination, for example  – whether the claimed remedy was not dependant on the existence of a valid contract of employment.)
In addition, the absence of a ‘firewall’ in many jurisdictions between immigration laws and employment / social security or other human rights protections, means that punitive immigration controls continue to function as limits to human rights.
An emerging issue signalled by the EU Fundamental Rights Agency is the use of au-pair recruitment pathways to facilitate employment of migrant domestic workers.  Again, the expansion of such recruitment highlights the continuing care deficits in many parts of Europe and the contracting out by family units of such care in the absence of adequate welfare state supports. The willingness of states to enact exclusions and exceptions from generally applicable work place norms was evident also in negotiations on the ILO Convention. Significant differences emerged in the drafting process of the ILO Convention on the categorisation of au-pairs as domestic workers, with several participants, including the EU and some NGO representatives, taking the position that au-pairs should be excluded from the scope of the Convention. Ultimately, the wording of Articles 1 and 2 of the Convention leave it open to States Parties to chose to exclude the category of au-pairs or other workers from the Convention’s scope, revealing yet again the willingness of states to contract out of decent work standards.
A key issue, not addressed in the evolving human rights standards on migrant workers, is the wider issue of care policy, and state supports (or lack of) for caring work. As Kerry Rittich notes, the transformations that are taking place within households and at work in recent years, are not isolated phenomena.  Rather, they can be understood as a consequence of a larger set of governance projects that are devolving more risk and responsibility on to individuals and households, ‘both creating and normalizing a world of more precarious work’. The private ordering that secures the completion of domestic work returns the functions of care-taking and reproductive labour to the private, domestic sphere, beyond the tests of justice and rights, reinforcing the ‘autonomy myth’ that continues to shape migration laws and policy.
A second issue to note is the continued significance of diplomatic immunity, highlighted in a recent report from the German Institute of Human Rights on domestic workers in diplomatic households.  Domestic workers in diplomatic households face a double jeopardy risk, as domestic workers and as rights holders likely to be faced with immunity claims. The public/private divide in such cases strikes twice.

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