Hogan J’s decision of last week in Hussein v The Labour Court  IEHC 364 (31 August 2012) http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/3f2a0cfdd0d10ccd80257a6b004e2e1b?OpenDocument turned the spotlight on limitations to access to employment rights and entitlements for irregular migrants. The judgment, which has been the subject of analysis by Liam Thornton http://www.humanrights.ie/index.php/2012/08/31/irregular-migrant-workers-and-employment-rights-in-ireland/ and Darius Whelan http://irishlawblog.blogspot.ie/2012/09/migrant-worker-case-in-high-court.html, holds that undocumented workers are barred from enforcing employment rights as they do not have a valid contract of employment – their contract of employment being ‘substantively illegal in the absence of the appropriate employment permit’. In this context, it seems timely to draw attention to another specific group of migrant workers whose access to employment rights is effectively blocked by operation of law – migrant domestic workers employed in diplomatic households.
Previous guest blogs on Human Rights in Ireland (posted by me http://www.humanrights.ie/index.php/2012/04/02/murphy-on-migrant-domestic-workers-in-immigration-law/ as well as by Catherine Kenny http://www.humanrights.ie/index.php/2012/01/27/guest-post-on-migrant-domestic-workers-and-migration-law-in-the-eu/) have highlighted the vulnerability of migrant domestic workers generally. This vulnerability is associated with the isolated nature of the work they perform in the private home, gendered conceptions of productive and reproductive work and the often precarious migration status of such workers. Among migrant domestic workers, diplomatic domestic workers are perhaps the most vulnerable to abuse and exploitation, with this attributable to two factors: (1) their dependence on the employer for employment and migration status, and (2) the law of diplomatic immunity.
Dependence on diplomatic employer for employment and migration status
As a general rule, the special immigration status of domestic workers is dependent on the continuation of the employment relationship and their employer’s stay in the host country and therefore does not allow them to switch their employer, meaning that once the employment relationship has ended the domestic worker loses her/his right to
stay and work in the host state’s territory. In Ireland, no regulated system exists for the entry of diplomatic migrant domestic workers and the Migrant Rights Centre of Ireland has noted http://www.dfa.ie/uploads/documents/Political%20Division/Forum%202010/written%20contribution%20migrant%20rights%20centre%20ireland%202010.pdf that there are no clear guidelines on how the visa system operates in respect of domestic workers employed by diplomats.
The second element that increases the precarious position of the migrant domestic worker is the immunity which may be afforded to the employer by the 1961 Vienna Convention on Diplomatic Relations http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf (as incorporated into Irish law by the Diplomatic Relations and Immunities Act 1967 http://www.irishstatutebook.ie/1967/en/act/pub/0008/sched1.html#sched1). Article 31 is the key provision of the 1961 Convention in this respect. It provides that diplomatic agents shall enjoy immunity from the criminal jurisdiction of the receiving State. He or she also enjoys immunity from its civil and administrative jurisdiction, subject to certain limited exceptions, including that in Article 31(1)(c) relating to “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions”.
It seems that this exception contained in Article 31(1)(c) does not include ordinary contracts incidental to life in the receiving state, such as a contract for domestic services. In Tabion v Mufti http://openjurist.org/73/f3d/535/tabion-v-mufti, the US Court of Appeals, 4th Circuit, concluded:
Day-to-day living services such as dry cleaning or domestic help were not meant to be treated as outside a diplomat’s official functions. Because these services are incidental to daily life, diplomats are to be immune from disputes arising out of them.
The relationship between a diplomat and their ‘private servant’ (to use the terminology of the 1961 Convention) is thus not generally interpreted as involving any element of a “professional or commercial activity” and thus is not exempt from the scope of immunity. This interpretative approach reflects the classic difficulty encountered by domestic workers seeking to enforce their rights: the lack of recognition of the economic value of their work and the consequent confinement of the employment relationship to the seemingly impregnable ‘private sphere’. The inviolability of the private sphere of the diplomat is reinforced by the provisions of Articles 29 and 30, which render the diplomat’s person, private residence, papers and correspondence and property inviolable. The privileges and immunities enjoyed by diplomats under the 1961 Convention are also extended to a diplomat’s spouse and minor children (Article 36).
It appears from US and UK case law that a domestic worker’s best chance of bringing a claim for legal redress is when the diplomat is no longer in post. The level of immunity granted under Article 39 of the 1961 Convention to a diplomat whose term has expired is more limited than that granted to a diplomat still in post. Courts in the UK (Wokuri v Kassam http://www.employmentcasesupdate.co.uk/site.aspx?i=ed11426) and the US (Baoanan v Baja and Swarna v Al Awadi) have held that former diplomats may not have residual immunity in respect of their conduct in the employment of a domestic worker. The analysis will depend on the circumstances of the employment, in determining whether the employment relationship falls outside of the sphere of protected activity covering the ‘official functions’ of the diplomat. The UK High Court in Wokuri distinguished Tabion as it concerned the scope of immunity to be afforded a sitting diplomat and the proper interpretation to be given to the exception for ‘commercial activity’. The residual immunity to be afforded a former diplomat, the Court noted, was less.
While the specific issues outlined above have not yet come before the Irish courts, there are numerous examples http://www.irishtimes.com/newspaper/ireland/2011/1121/1224307907495.html of cases in which diplomats have claimed immunity in respect of legal action taken to protect the rights of their domestic workers. In 2009, the Rights Commissioner Service declared that it had no jurisdiction to hear a worker’s complaint of employment law violations (including failure to pay the minimum wage) when the then South African ambassador Priscilla Jana invoked immunity. The case was settled before it reached the appeal stage in the Labour Court. In 2010, the embassy of the Philippines in Ireland boycotted a rights hearing at the Labour Relations Commission in which a domestic worker who was employed by the embassy alleged that her employment rights had been violated and that she had not been paid the minimum wage.
In the circumstances where the employer cannot be sanctioned due to their immunity, diplomatic domestic workers’ right of access to justice is rendered impotent and make it impossible for such workers to enjoy their right to protection against unfair dismissal and rights relating to employment conditions and remuneration. The intersection of the legal regulation of the immigration and the diplomatic systems thus moulds diplomatic domestic workers into a position of subordination and susceptibility to exploitation which is anathema to rights protection.