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Migrants in an irregular situation employed in

domestic work

Fundamental rights challenges for the European Union

Ludovica Banfi

16th Metropolis ConferenceAzores Islands, 12-16 September 2011

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The FRA

Independent Agency of the European Union - 168/2007

Objective: To provide EU institutions and Member States with assistance and expertise on fundamental rights issues, when implementing EU law

Tasks: Data collection & research – awareness raising Geographical scope: European Union Areas of activity: Multi-annual Framework + requests from the

European Parliament, Council or Commission

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The mandate of FRA

a) racism, xenophobia and related intolerance;

b) discrimination based on sex, race or ethnic origin, religion or belief, disability, age or sexual orientation and against persons belonging to minorities and any combination of these grounds (multiple discrimination);

c) compensation of victims;

d) the rights of the child, including the protection of children;

e) asylum, immigration and integration of migrants;

f) visa and border control;

g) participation of the EU citizens in the Union's democratic functioning;

h) information society and, in particular, respect for private life and protection of personal data; and

i) access to efficient and independent justice.

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Background to the research

This report is part of a more comprehensive project on the rigths of migrants in an irregular situation that includes:

1. Comparative report on rights of irregular migrants in the 10 EU

2. Access to healthcare for migrants in an irregular condition (launch 11 October 2011)

3. Rights of migrant domestic workers in an irregular condition (launch June 2011)

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Aims

Understand and assess enjoyment of rights among irregular migrant workers in the European MSs from a socio-legal perspective

Contribute to the UN Convention on the rights of domestic workers (adopted in June 2011)

(call for reasonable hours of work, weekly rest of at least 24 consecutive hours, a limit on in-kind payment, clear information on terms and conditions of employment, as well as respect of the rights associated with employment, including the freedom of association and the right to collective bargaining)

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Methodology

Desk legal research Qualitative research: semi structured interviews 10 EU countries covered: Belgium, France,

Germany, Greece, Hungary, Ireland, Italy, Poland, Spain and Sweden

Wide range of interviewees: irregular migrants (72); trade unions and NGOs (46)

Irregular migrants from 27 different countries Many channels of recruitment

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Gap between demand and supply

There is a clear gap in the domestic sector and many European countries fill it through migrant workforce

In some countries there are specific quotas reserved to migrant domestic and care workers e.g. Italy, Ireland (until 2009)

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Labour migration mechanisms for domestic workers for 3rd country nationals

EU MSs Legal migration options Comments

Belgium General work permit system

Work permit B for one year; preference given to the nationals of new EU Member States and countries with bilateral agreements.

France General work permit system

Preference given to the nationals of new EU Member States; bilateral migration agreements with African countries usually do not cover domestic work.

Germany NoRecruitment scheme for household help (Haushaltshilfen) limited to migrant workers from new EU Member States.

Greece General work permit system

Domestic work can be included among the established migration quota.

Hungary General work permit system

Domestic workers in home care and nursing services are mainly ethnic Hungarians from Romania for whom transition measures limiting access to the labour market were lifted in 2009.

Ireland Indirectly part of the permit system

Work permits were never issued for the category of domestic work in Ireland, but specifically for carers, child carers, childminders, and other categories. However, since 1 June 2009, no new work permits can be issued for these categories. Exisiting permits for care are eligible for renewal.

Italy Quota for domestic workersSpecific quota for domestic workers established from 2005 onwards.

Poland General work permit system

Facilitated access to labour market since 2007 for non-EU citizens from Ukraine, Moldova and Russia (employer declarations instead of work permits). Domestic workers can benefit from this system.

Spain Quarterly catalogue of shortage occupations

The ‘Catálogo de Ocupaciones de Difícil Cobertura’ has been published quarterly since 2005 and contains a list of jobs that may be filled by foreign workers.

Sweden General work permit system

Domestic workers can in principle apply for a permit under the general system in place.

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REGULARISATIONSRegularisation programmes targeting or expressly including domestic workers, 2002-2010, 10 EUMS

EUMS

Programme

Year Domestic workers regularised or total

applicationsFrance 2009-10 1800 applications (only

partly domestic workers)

Ireland 2009 n/a

Italy 20022009

2002: 316,000 regularised; 2009: 249.000 applications

Spain s 2005 Approx. 285,000 regularised

no regularisation targeting specifically irregular domestic sector took place in Belgium, Germany, Greece, Hungary, Poland and Sweden, although it is not unlikely that individuals performing domestic work were included in regularisation schemes adopted in Belgium, Germany, Greece and Sweden on humanitarian or other grounds

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From a migrant perspective, regularisations are valued as way to exit irregularity

Government are skeptical about regularisations programmes because they can encourage further irregular migration

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Topics adressed

1. Fair working conditions

2. Unjustified dismissal

3. Freedom of association and the right to collective bargaining

4. Access to justice

5. Family life related rights

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Fair working conditions

Right to fair pay Compensation for work accidents Right to sick leave Right to rest periods Right to decent lodging for live-in workers

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Fair working conditions: the legal framework

Legal framework for domestic workers: differs greatly

France, Italy and Spain have specific legal regimes for domestic workers

In principle, in all 10 countries reviewed, irregular residents does not nullify a person’s rights as a worker and the effects of labour law

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Right to fair pay

Legal findings: all 10 countries have minimum wages for domestic workers but in some

- payment part of the salary can be payment inkind

- lower remuneration for on call time e.g. night

Findings from the fieldwork:

- underpayment of salaries is very common; cases of non-payment

- additional tasks added at a laster stage are not accompanied by

increase of remuneration

- no payment of overtime

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Right to compensation for work accidents

In the 10 countries covered compensation for work injuries is usually paid by social insurance schemes.

Findings from the fieldwork: only some countries have established policies to facilitate accident insurance for migrants in an irregular situation e.g. in Germany irregular migrants can be insured under the employer’s name for 90 euros year- when migrants are not insured it is nearly impossible to obtain compensation in cases of work accidents

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Right to sick leave

Legal findings: In principle at national level migrants in an irregular situation

are entitled to paid sick leave e.g. Belgium, France, Germany in some countries not mentioned in the law e.g. Sweden

Findings from the fieldwork In practice though claiming this right is difficult and never done

and the sick leave means non payment In addition, in cases where the absence is prolonged, there is

a risk that replacement is found, which may result in job loss, thus informants work when sick

A few interviewees in Italy, Greece and Belgium mentioned they had been paid while sick

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Right to rest periods

Legal findings: all 10 countries have regulations on maximum working hours,

the remuneration of overtime e.g. Italy max hours live-in: 54 per week; 40 if live-out

But not all have provisions on rest periods

Findings from the fieldwork: great variety of working hours among respondents shorter hours for live-out workers working hours vs. on call hours paid holidays not available for live out workers and ‘on the days you work you have to earn also for the days that you do not work’

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Right to adequate accomodation for live-in workers

Legal findings: only in France, Italy, Germany and Ireland there are clear legal provisions for the living conditions of live-in domestic workers

Findings from the fieldwork: even where provisions exists, lodging conditions in practice may be still completely inadequate lodging conditions may interfere in the domestic worker’s private shere and overexpose women to risk of sexual harassment or abuse

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FRA’S RECOMMENDATIONS

Need for a legal framework applicable to all domestic workers, including those in an irregular situation would further legal clarity on issues such as minimum pay; maximum ceiling for in-kind payments; sick leave; compensation for work accidents and rest periods; adequate accomodation standards

Such legal framework should provide for inspection to the workplace of domestic workers to ensure decent working conditions

Employers should be made aware of the obligation to treat their workers in accordance with labour law standards

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Access to justice

Fundamental right because the enforcement of all other fundamental rights hinges upon it

In Belgium, Spain, France, Ireland, Germany and Italy migrants in an irregular situation are entitled to raise claims with the courts and access a procedure of reconciliation.

In practice though a number of obstacles often denies this right in practice, starting from the fear of being reported to immigration authorities

Specific vulnerability of domestic workers employed by diplomats

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Obstacles for accessing justice

Fear of expulsion

Insecurity of residence during procedures

Lack of proof

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Fear of expulsion Access is better guaranteed where labour justice procedures

are indipendent of the immigration enforcement system From the research it emerges that the risk of being reported to

immigration authorities was low in Spain, Ireland, Sweden and France

in Italy, Greece and Belgium, these guarantees do not exist Germany: reporting obligations in place but labour courts,

unlike other courts, are not required to pass information on to the registry offices

Most trade unions mostly rely on informal conflict mediation and reconciliation with employers to enforce the rights of migrants while avoiding the risk of expulsion

But court cases with media coverage encourage other migrants to seek redress

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Insecurity of residence during procedures

A crucial point for effective remedies is the entitlement to residence permits and protection from expulsion during labour procedures

After expulsion it is very difficult to initiate or continue justice procedures from abroad

migrants are mostly neither protected from expulsion nor entitled to a legal residence permit during the civil labour court procedure

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Lack of proof

The lack of contract typical of relationships in the domestic work sector makes it difficult for employees to prove their actual employment relationship and breaches of their rights

In private homes there are no witnesses to abuses and work related violations

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Victims of serious crimes

several cases of verbal assault, some cases of physical and sexual violence by the employer

I was beaten by my employer. She scratched my back and ripped my t-shirt

She took my bag, tipped it out on the stairs and she was hitting me with single things

For example, one companion who was here illegally, he abused her sexually. If she didn’t, without going to bed with her, he would not give her any work

Criminal acts not reported to the police due to fear of expulsion– victims leave abusive employers without seeking redress

-> Effective protection of rights for victims of crimes of forced labour and servitude is a particularly relevant issue for domestic workers

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Victims of serious crimes: a two tiered system in place?

In all 10 EU Member States legal frameworks and protection systems have been recently developed in the context of measures against trafficking of human beings.

some NGO representatives raised the problem of a two-tiered justice system for trafficked victims of forced labour on the one hand, and other victims subject to same type of inhuman treatment without a trafficking connection: no protection measures against expulsion available during a criminal justice procedure against their exploiters

Relevance of Employers Sanctions Directive (2009):

1. it obliges the MSs to define the conditions under which they may grant the permits of limited duration to third country nationals who are victims of particularly exploitative working conditions

2. But it is limited to individuals who collaborate with the justice system

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Importance of legal assistance

Importance of legal assistance, especially for those without means to pay a lawyer

Fieldwork finding: migrants ask legal redress mainly for unpaid wages and unfair dismissal (Spain, Germany, Ireland, Belgium, Sweden and Italy)

migrants rights association seem to provide more legal services for migrants in an irregular situation than those offered by trade unions

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FRA’S RECCOMENDATIONS

Practical obstacles, such as reporting duties or practices by redress institutions (labour inspectors, courts, etc), which may prevent irregular migrants to report violations should be removed.

Building on the Employers Sanctions Directive, effective mechanisms should allow irregular migrants to lodge complaints against abusive employers e.g. trade unions and NGOs should be entitled to initiate legal proceedings on behalf of the migrant without the need of revealing his/her contact details, in order to protect him/her from removal during the procedure.

Finally, trade unions, NGOs and equality bodies should be supported to undertake awareness-raising and reach-out activities to irregular migrants employed in domestic work.

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Situations of irregularity ar a potential source of fundamental rights violation and should be avoided including with the introduction of targeted legal migration programmes

Where migrants are used to fill the gap between labour marked needs and the available workforce in the domestic work sector, this should not expose them to risks of abuse or exploitation

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Engaging stakeholder with research findings

how can we make maximum use of the ESD provisions to promote access to justice for irregular migrants who have been exploited at work?

what are the most important changes to labour court procedures that would need to be made in order to reduce the risk of irregular migrants being removed when they seek justice?

how can the effectiveness of labour inspectors in identifying abusive and/or exploitative cases concerning migrant workers in an irregular situation be enhanced?

How to encourage trade unions to work for irregular migrants

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Thank you for your attention!

fra.europa.eu