We are delighted to welcome this post from Dr. Fulvia Staiano, Irish Research Council Post-doctoral Researcher based at the CCJHR, UCC.
In September 2015, the Migrant Rights Centre Ireland (MRCI) published a report entitled Migrant Workers in the Home Care Sector: Preparing for the Elder Boom in Ireland. The report describes the current state of the home care sector in Ireland and predicts an impending “elder boom” which will increase the demand for migrant domestic workers in the care and domestic work sector. Although Ireland has the fastest-ageing population in Europe, recent cuts to the Health Service Executive home care supports made this option expensive, fostering an informal care sector increasingly filled by migrant workers.
Despite this situation, Irish immigration law has become increasingly restrictive. From 2009, the issue of residence permits for the purpose of being employed as a domestic worker or carer in Ireland started to be increasingly limited. This process ultimately resulted in the inclusion of domestic workers among ineligible categories by the 2015 Employment Permits Regulations.
Predictably, the current impossibility to enter Ireland with an employment permit for the purpose of carrying out domestic or care work has not curbed the demand for workers in this sector. In this respect, the Report highlights how “an inevitable outcome of the absence of government labour migration policy in this area is a home care sector populated by informal and irregular workers – students and undocumented migrants”. At the same time, existing regulations on health services for the elderly (such as the Health Act 2007 or the 2012 National Standards for Safer Better Healthcare) do not apply to home care, which thus remains a widely unregulated sector in Ireland.
The retreat of law from the sector of domestic and care work is particularly worrisome for migrant workers. Demanding working hours, low pay, and difficult working conditions are often experienced by all workers in this sector regardless of nationality. Migrant care workers, however, run a particularly high risk of suffering from exploitation, abuse and discrimination. This was highlighted by both the MRCI and the Fundamental Rights Agency, which lists “activities of households as employers” as the fourth sector most at risk of exploitation in Europe. The same report places this sector at the top of the list for Ireland.
The Irish case is not at all unique in Europe. The exclusion of domestic work from general labour protections and the imposition of links with employers within labour migration law are recurring issues among EU Member States. For example in the UK section 57 of the National Minimum Wage Regulations 2015 allows employers to pay less than minimum wage to domestic workers who are “not a member of that family, but [are] treated as such.” In Spain the Preamble of Real Decreto 1620/2011 states that the specific features of domestic work “justify the need for a different regulation than that of the common labour relationship”.
The legally-imposed dependence on employers in domestic immigration law is visible in both first-entry visa schemes and regularisation procedures. The UK Overseas Domestic Workers visa scheme, for instance, was reformed in 2012 so as to remove the possibility for visa holders of settling in the country by extending their stay and sponsoring family reunification. It also prevents migrants holding such visas to change employer. Despite the Government’s statement whereby such limitations offered “the biggest protection” against employers’ abuse, it appears that the prohibition on changing employer de facto presents domestic workers with the impossible choice of either enduring abusive and exploitative situations or jeopardising their residence status and risking expulsion. A similarly dangerous link between the regularity of domestic workers’ residence and continuous work for a specific employer was established in the past by an Italian regularisation procedure for domestic workers employed in the informal sector. In particular, law 102/2009 granted control to employers over the commencement and the continuation of the regularisation procedure, exposing domestic workers to blackmail by employers and discouraging them from reporting violence, abuse, sexual harassment or labour exploitation.
Against this background, it is worth noting that the European Court of Human Rights’ jurisprudence concerning the exploitation of domestic work has so far exclusively concerned extreme cases such as slavery and domestic servitude. Since its landmark judgment of Siliadin v. France, the ECtHR has identified positive state obligations under Article 4 of the ECHR which relate to the criminalisation of slavery, servitude and forced labour as well as their effective enforcement.
This commendable incursion of human rights law in the private realm of the household can be seen as a positive first step towards the protection of migrant domestic workers’ rights under the ECHR. However, this judgment and the following case law (C.N. v. the United Kingdom, C.N. and V. v. France and Kawogo v. the United Kingdom) reveal an exclusive focus on criminal law provisions, disregarding the broader issue of normative triggers to labour exploitation within other areas of domestic law. In Rantsev v. Cyprus and Russia, where the ECtHR found Cyprus in breach of Article 4 of the ECHR for putting in place a so-called “artiste visa” regime which, due to the strong control granted to employers over the employees’ migration status as well as living and working conditions, exposed foreign women to trafficking for the purpose of sexual exploitation.
The ECtHR case law also shows a clear focus on civil rights violations, without offering cues as to state obligations in relation to socio-economic rights. However, such a perspective is crucial for migrant domestic workers, because it relates to the more common forms of “everyday” exploitation experienced as a consequence of the described lack of legal protections in both labour and immigration law. Since the judgment in Airey v. Ireland the ECtHR has shown openness to examine claims related to socio-economic rights, including to a certain extent labour rights, but unfortunately to date it is not possible to identify meaningful examples of cross-fertilisation in respect to migrant workers’ claims in this field. This is particularly regretful in light of the low ratification rate among EU Member States of the 2011 ILO Domestic Workers Convention – which has yet to be acknowledged by the ECtHR.
In the light of the potential 5.5 million jobs in the Personal and Household Services Sectors predicted by the European Commission – a significant portion of which will be fulfilled by migrant women – the issue of the protection of domestic and care workers’ socio-economic rights is only destined to acquire relevance. In this respect, bridging the gap between the current focus of European human rights law on domestic servitude and migrant domestic workers’ need for legal protections in relation to “everyday” exploitation appears to be crucial.