Migrant domestic workers and the right to a private and family life

Abstract

Domestic workers are mainly women, are disproportionately from ethnic minorities and/or international migrants, and are vulnerable to mistreatment, often receiving inadequate protection from labour legislation. This article addresses ways in which the conditions faced by migrant domestic workers can prevent their enjoyment of the right to private and family life. It argues that the focus on this right is illuminating as it allows for the incorporation of issues that are not usually within the remit of labour law into the discussion of working rights, such as access to family reunification, as well as providing for a different perspective on the question of limits on working time – a core labour right that is often denied to domestic workers. These issues are analysed by addressing a case study each from Latin America and Europe, namely Chile and the UK. The article considers impediments to realising the right to private and family life stemming both from the literal border – the operation of immigration controls and visa conditions – and from the figurative border which exists between domestic work and other types of work, reflected in the conflation of domestic workers with family members and stemming from the public/private sphere divide.

1. Introduction

Domestic work plays a very important role in the global economy ¹ and accounts for a substantial proportion of women’s employment: statistics of the International Labour Organisation (‘ILO’) from 2011 showed that of all women in paid employment worldwide, 7.5% were domestic workers. ² An increase in domestic work has arisen as growing care needs combine with the retreat of the public sector from providing relevant services and an ongoing failure to distribute caring work more equally between genders. ³ Despite the central role domestic workers play in responding to these needs, their work is devalued and they are often subject to mistreatment. They are particularly vulnerable to ‘humiliation, abuse, violence, exploitation and trafficking’, ⁴ which is often exacerbated by their ‘explicit exclusion or lower degree of protection’ from labour legislation. ⁵ Convention 189 on decent work for domestic workers (‘C-189’), adopted by the ILO in June 2011, contains the most inclusive scheme to date for the protection of domestic workers, ⁶ and acknowledges the tendency to undervalue and fail to recognise domestic work. ⁷

This article addresses ways in which the conditions faced by migrant domestic workers can prevent their enjoyment of the right to private and family life, with reference to case studies from Latin America and Europe, namely Chile and the UK. Latin America is of interest for the topic of domestic workers’ rights for numerous reasons, including the prevalence of domestic work in the region – an estimated 37% of the world’s domestic workers are based in the continent, ⁸ which hosts around 9% of the global population – and comparatively high levels of ratification of C-189. ⁹ In the case study country, Chile, ratification has been accompanied by significant recent legislative reform, ¹⁰ and there is substantial migration into the domestic work sector. ¹¹ Within Europe, the focus is on the UK which, like most European countries, has not ratified C-189, ¹² and which formally excludes some domestic workers from rights that extend to other sectors, including working hours limits and in some cases the minimum wage. It also has a restrictive immigration regime for the mainly migrant workers in this sector. This article discusses the legislative position in terms of both immigration and labour law in each country, and considers how human rights standards can be used to critique the exclusion of migrant domestic workers from rights that may apply to workers in other sectors and/ or those working in the country of their citizenship.

As noted above, the article focuses on the right to private and family life. This is a valuable framework for addressing domestic workers’ rights because it allows for the incorporation of issues that are not always viewed as being within the remit of labour law, such as family reunification, as well as a refocussing of priorities within others, such as working time. It can also provide a counterweight to an over-emphasis within some current approaches to labour regulation on the most extreme forms of labour abuses such as slavery and forced labour, ¹³ shifting the focus to situations which fall short of this but still interfere with rights, including unlimited and undefined working hours leaving a worker insufficient time to spend with her family and long term separation from them. ¹⁴ Through the right to private and family life, a justiciable civil right, it is thus possible to incorporate demands for other entitlements which are often assumed to be social rights with limited enforceability. ¹⁵

After outlining relevant provisions and features of the right to private and family life in section two, section three discusses two key ways in which the status of domestic workers can act as a bar to the realisation of these rights. First, it looks at the status of migrants and the impact of the literal border, including immigration controls and visa conditions. It argues that that these restrictions amount to a direct barrier to the fulfilment of rights, for example by increasing workers’ dependency on employers. It then addresses the impact of the ‘figurative’ border that exists between domestic work and other types of work, and the manifestation of this border in the mis-conceptualisation of the domestic worker as a family member. This section also explores the intersection of these two categories of border and the specific vulnerability this can create for migrant women in domestic work.

The two subsequent sections analyse specific aspects of the conditions of domestic work against the framework of the right to private and family life. The first such aspect, explored in section four, is working time, an area which is particularly difficult to regulate for domestic workers. It is argued that the different standards that apply to domestic workers relate to the operation of borders, particularly the figurative border which designates domestic work as a gendered activity which is not ‘real’ work. Against this background, this article argues that excessive working hours should be viewed as interfering with the right to private and family life such that any justification for allowing such hours to be worked must be closely scrutinised. Section five then addresses an issue that is more self-evidently related to the literal border, namely limits to family reunification and long-term separation between migrant workers and family members as a result. Emphasising the systematic nature of this separation in the context of the demand for migrant labour in receiving countries, and the serious harm it can cause, the article argues that greater weight should be placed on the right to private and family life as opposed to State sovereignty and immigration control.

2. The right to a private and family life

The right to private and family life is included within civil and political rights instruments at the international and regional level, as discussed in the first part of this section. It also has a wider significance in that it may encompass other social rights that might otherwise have a more limited scope for justiciability and enforceability. ¹⁶

2.1 Main instruments and scope of the right

This article addresses three guises of the right to private and family life: the right to private life contained in Article 17 of the ICCPR, ¹⁷ an international treaty adjudicated by the UN Human Rights Committee (‘HRC’); the right to privacy in Article 11 of the Inter-American Convention on Human Rights (‘ACHR’), ¹⁸ a regional Convention enforced by the Inter-American Court of Human Rights (‘IACtHR’); and Article 8 of the European Convention on Human Rights (‘ECHR’) ¹⁹ enforced by the European Court of Human Rights (‘ECtHR’). Each ‘version’ of the right entails protection of privacy/private life, family, home and correspondence, immediately suggesting protection against arbitrary action by the State such as searches of the home, separation of children from their parents and reviews of correspondence, where these are arbitrary and/or unlawful. The jurisprudence of the HRC and the two regional Courts demonstrates that the scope of the right extends beyond these issues to include subject matter as diverse as reputation, reproductive rights and the treatment of prisoners, as well as surveillance and searches of the home. ²⁰ The ECtHR has gone furthest in making the provision a ‘blanket clause’ for interference with aspects of individual lives not covered elsewhere, while the HRC and Inter-American system have been a little more circumspect. ²¹ Nonetheless, the right to private and family life is quite expansive in all three systems; the IACtHR has recently referred approvingly to the ‘broad terms’ of interpretation of the right by regional courts. ²²

2.2 Human rights and private employers

While the State can and does play a role in enabling violations of workers’ rights, ²³ the most immediate cause of violations in domestic work is the private employer. It is well known that human rights law principally addresses States' obligations; in relation to the private sphere, it traditionally aimed at securing a field of non-interference. ²⁴ However, since the late 1970s, human rights law has shifted towards having increasing, albeit indirect, effects in relation to non-State actors. The HRC has referred to the need to adopt ‘legislative and other measures to give effect to the prohibition against […] interferences and attacks’ on privacy. ²⁵ There have been a number of IACtHR judgments requiring the criminalisation of human rights violations, ²⁶ for example in Velásquez Rodríguez v Honduras, where the Court emphasised the requirement to ‘prevent, investigate and punish’ any breaches. ²⁷

In the European system, the ‘positive obligation’ creates a duty on States to punish violations by non-State individuals, ²⁸ which involves taking steps to allow the exercise of rights as well as refraining from repressive action. ²⁹ In Marckx v Belgium, the ECtHR held that the right to respect for private and family life, home and correspondence contained in Article 8(1) ECHR ‘does not merely compel the State to abstain from’ interference and that ‘in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective “respect” for family life’. ³⁰ Subsequent case law has reiterated this with a view to guaranteeing ‘not rights that are theoretical or illusory but rights that are practical and effective’. ³¹

2.3 Proportionality

Privacy is not an absolute right, and the private sphere is not immune from any interference, but specifically from arbitrary interference. ³² Arbitrariness has been described in the IACtHR as manifesting ‘elements of injustice, unpredictability and unreasonableness’ while a non-arbitrary interference is based on the criteria of ‘legality, legitimate aim, suitability, necessity and proportionality’. ³³ In weighing an interference on the right to private life with the protection of another right, ³⁴ it is necessary to analyse: ‘(i) the level of harm to one of the rights at stake […] (ii) the importance of ensuring the contrary right, and (iii) whether ensuring the latter justifies restricting the former’. ³⁵

Relatedly, Article 8(2) ECHR stipulates a series of potential grounds that may be relied on for justifying interference. As well as pursuing one of the ‘legitimate aims’ in Article 8(2), any interference must be ‘in accordance with the law,’ i.e. it must have ‘some basis in domestic law,’ ³⁶ and must be ‘necessary in a democratic society’. ³⁷ This requires that it ‘corresponds to a pressing social need and […] is proportionate to the legitimate aim pursued’. ³⁸ In this regard, the question of whether less restrictive measures could have been used to achieve the same aim may be relevant, although the role of this test varies between cases. ³⁹ The restriction must represent ‘a net gain, when the reduction in enjoyment of rights is weighed against the level of realisation of the aim’. ⁴⁰ It is therefore argued below that, where aspects of domestic workers’ conditions interfere with the right to private and family life, it will be necessary to assess this interference with regard to the proportionality test, addressing whether or not restrictions have a legitimate aim and are proportionate to it. This creates a challenge to a number of exclusions that exist and are taken for granted in labour and immigration law.

3. The domestic worker’s status as a constraint on the right to a private and family life

Having set out the key provisions of the right to private and family life, this section turns to look at ways in which the status of migrant domestic workers acts as a constraining feature in relation to their rights by creating vulnerability and dependence. It then moves on to the impacts of the figurative border, including the mis-conceptualisation of the domestic worker as akin to ‘a member of the family’, linking this to the public/private sphere divide, which marginalises women and their work.

3.1 The domestic worker as ‘migrant’: migration control and denial of rights

More than 17% of domestic workers worldwide are international migrants, ⁴¹ which is significantly higher than the estimated 3.4% of the world’s inhabitants that have migrated from their country of origin. ⁴² Working in a country where one is not a citizen can often pose challenges for the realisation of rights. This is particularly the case for those migrants who are dependent on employers for their visas or are undocumented, which can make it difficult to enforce the rights to which individuals are formally entitled, for example by deterring migrants from seeking remedies for breaches. ⁴³

In Chile, labour migration into the domestic work sector is mainly from elsewhere in the region, particularly Peru, Bolivia, Ecuador and Colombia. ⁴⁴ The overarching framework for immigration is Decree Law 1094/1975, which addresses matters such as entry, residence permits, immigration control and deportation. ⁴⁵ The types of visa generally available for migrant workers before naturalisation are: visa subject to contract of work; temporary visa; and visa of permanent residence, in ascending order of the level of rights attached. ⁴⁶ To secure the initial visa subject to contract, a contract and sponsorship by an employer are needed, while two full years of work with the same employer are needed to meet residency requirements, meaning that precarious roles and positions are often accepted by migrants. ⁴⁷

These requirements are modified in some cases by the application of a residence agreement implemented in 2009 by the regional trading bloc, ‘El Mercado Común del Sur’ (‘MERCOSUR’) ⁴⁸ of which Chile is an associate rather than a full member. The agreement gives citizens migrating between member and associate countries the right to live and work for two years in a host State on certain conditions (Article 4) and thereafter potentially the possibility to convert this temporary residency to a permanent one (Article 5). However, Chile has only applied the agreement administratively rather than through legislation, making a one-year renewable MERCOSUR visa available to citizens from Brazil, Uruguay, Paraguay, Argentina and Bolivia only. ⁴⁹ Consequently, many migrant domestic workers including from within the region remain subject to national immigration law and in particular the requirements for visas subject to contract. In relation to domestic workers, Fernández notes that these stipulations create a position ‘where their labour rights and negotiating capacities may be “put on hold” or postponed in order to obtain residency’. ⁵⁰ Therefore, the dependence of visas on employers can present a serious challenge to the realisation of rights.

This challenge is even more pronounced in the UK context, where domestic workers are mainly from the Philippines, India and Indonesia ⁵¹ and are subject to a specific visa scheme for the sector. Changes made in 2012 led to the two forms of visa available to non-EU migrant domestic workers – Overseas Domestic Worker (‘ODW’) and diplomatic visas – being tied to a particular employer, ⁵² with the former generally being granted only for a non-renewable six-month period. ⁵³ The tie between the visa and the employer makes it much more difficult for a worker to enforce her rights at work or to leave employment if conditions are poor. An independent review of these visa agreements in 2015 noted that being unable to change employer leads to a lack of bargaining power, a sense of ‘being “owned” by an employer, or at least being trapped,’ and the risk of creating a large class of undocumented workers who lack legal protection. ⁵⁴ Minor changes introduced in 2016 allow workers on an ODW visa to change employer during the initial six-month validity period, ⁵⁵ but this is not sufficient to address the problems the post-2012 regime poses, given the likely difficulty a domestic worker leaving her workplace will have with finding a new employer that will take her for the months or even weeks remaining on her visa. ⁵⁶

This restrictive framework is a direct barrier to the fulfilment of human and labour rights. The employer is given an inordinate level of control if the worker’s very right to be present in the country ‘is a personal favour which may be withdrawn at the employer’s whim by non-renewal’. ⁵⁷ As Anderson has noted, ‘[t]he power of the state is often used to enforce a workers’ (sic) dependence on her employer and to institutionalise master/mistress servant relations, so the worker may be subject to her employer 24 hours a day’. ⁵⁸ In addition, the ever present threat of becoming undocumented and the severe consequences this carries, particularly in the European/UK context, ⁵⁹ further increases vulnerability. The case of Siliadin v France, in which the treatment of a migrant domestic worker was found to amount to servitude and therefore to a breach of Article 4 ECHR, is an example of how irregular status contributes to vulnerability: the applicant’s work was, in effect, forced as a result of her being ‘unlawfully present in French territory and in fear of arrest’; a fear ‘nurtured’ by her employers. ⁶⁰ Likewise, in Chowdhury and Others v Greece, concerning Bangladeshi migrants working in Greece, the applicants’ awareness that their irregular status could lead to their arrest, detention and/or deportation dissuaded them from leaving and was taken advantage of by the employer, thus creating a situation of forced labour since they could not be seen to ‘offer themselves to work voluntarily’. ⁶¹ These cases illustrate how migration regimes can ‘constitute structures that create vulnerability of migrant workers to exploitation’ ⁶² and play a direct role in hindering the realisation of rights.

3.2 The domestic worker as ‘family member’ of the employing family

Having discussed the impact of the literal border, this sub-section turns to the figurative border that separates domestic work from other forms of labour, manifested in the full or partial exclusion of domestic workers from employment rights granted to other parts of the labour force in many jurisdictions. ⁶³ It focuses particularly on the view of domestic workers as akin to members of the employing family, which has been noted in many accounts of domestic work. ⁶⁴ This idea is related to the understanding of domestic work as taking place within the ‘private sphere’: a sphere which, since industrialisation, is viewed as strictly separate from the public sphere of economic exchange. ⁶⁵ With the end of the subsistence economy, productive and reproductive activities came to be distinguished on a gendered basis, with value deemed to arise only from ‘production-for-market,’ while reproductive activities ‘began to be considered as valueless from an economic viewpoint and even ceased to be considered as work’. ⁶⁶

The ensuing division of labour meant that women were tied to reproductive work and simultaneously heightened their dependence on men. ⁶⁷ In the context of this divide, tasks which take place in the private sphere are, at best, viewed as unskilled work, and at worst, not really work at all. ⁶⁸ Child care and other domestic work therefore appear as a private responsibility and a gendered, nurturing activity that should not be performed for economic reward ⁶⁹ and that would be undermined by financial compensation. ⁷⁰ The idea of domestic workers as akin to family members allows for the conflation of domestic work, particularly where ‘live-in’, with work that would be performed for free by women in the household for their own families. ⁷¹ This presentation of the worker tends to mask a deeply unequal relationship, ⁷² which mirrors the dependency of servants in earlier eras. ⁷³ This includes the category of ‘menial servant’ which existed from around the fifteenth century in English law and entailed ‘a private, personal relationship with their masters,’ ⁷⁴ and the ‘culture of servitude’ in Chile, in which subordination of workers to employers is viewed as normal, as a relic of colonialism. ⁷⁵

In the UK today, the idea of the worker as a family member is directly reinforced via legislation designed to dis-apply the national minimum wage from ‘work relating to the family household’ – where, inter alia, the worker lives at their employer’s family home and is treated as a member of that family ‘in particular as regards to the provision of living accommodation and meals and the sharing of tasks and leisure activities’. ⁷⁶ Despite this originally being envisaged as applying to au pairs, ⁷⁷ the provision has been used to deny protections for domestic workers in very different circumstances. In Jose & Others v Julio & Others ⁷⁸ three migrant domestic workers argued, unsuccessfully, that the family worker exemption should not apply to them. Notably, the Employment Appeal Tribunal judgment found that being invited to take part in family activities outside the scope of work (even if the worker declined) reinforced the view that the worker was treated as a family member. ⁷⁹ In the unsuccessful appeal by two of the Claimants, the Court of Appeal noted that one claimant having spent time with the employing family’s children ‘beyond the scope of her duties’ was a factor in favour of the exemption applying. ⁸⁰ In other sectors, employees spending additional time beyond their duties would not generally be used to reduce their wage entitlement – if anything, it should be seen to reflect dedication to the role and perhaps attract to overtime payments. But here, the extra time spent was assumed to reflect emotional ties to the family – reflecting the elision of domestic work with unpaid labour performed by women in the family and the devaluation this entails, as discussed above.

By contrast, legislative changes made in Chile, even before the ratification of C-189, have the potential to counteract the devaluation of domestic work to some degree. Law 20.279 of 2008 provided that domestic workers be paid 75% of the minimum wage, rising to 83% in 2009, 92% in 2010 and 100% in 2011. ⁸¹ Subsequently, Law 20.336 of 2009 included stipulations on rest, including a day off for live-in domestic workers, ⁸² and reconfirmed the existing right to have bank holidays or a day off in lieu. ⁸³ Further bills in 2011 and 2012 sought to progress the earlier changes. ⁸⁴ However, a 2014 report noted how the historical master-servant relationship continued to be reproduced, including via discourses treating domestic workers as family members, ⁸⁵ which underscores the scale of the challenge involved in changing such longstanding views. Thereafter, Law 20.786 (in force from 2015, details above) has made more wide-ranging reforms, including limits on the working day, conditions on payments in kind and preventing the employer unilaterally reducing remuneration following reduced working days or an increase in rest days, as detailed below. Although the regime brings domestic workers’ rights closer to those in other sectors than previously, certain inequalities remain, as discussed in the section on working time below – and migration regimes remain a constraining factor.

3.3 Interaction between literal and figurative borders

Even in contexts like Chile where steps have been taken to formalise and equalise the situation of domestic workers, there are countervailing factors arising from migration status which can act to ingrain the idea of a family relationship. An empirical study of upper class employers in Chile demonstrated how the perceived loving and caring nature of Filipino and Peruvian domestic workers is contrasted with a perception that their Chilean counterparts are too knowledgeable about their rights and do not have the same submissiveness. ⁸⁶ In this sense, ‘[t]he otherness of migrant women – filtered by the host society, and influenced by state legislations and programmes – is commodified and converted into servitude’. ⁸⁷ The status of being ‘other’ and the operation of migration regimes can therefore be seen to counteract the impact of legislative reform on equalising and formalising status of domestic workers: dependency on the employing family and lesser ability to complain or assert rights reinforce status as a subservient quasi-family member. This is an example of the interaction between the literal border and the gendered, figurative border which separates domestic work from other forms of labour interacting to prevent the realisation of rights, and contributes to the extreme vulnerability of migrant domestic workers.

It is also important to note that migration regimes do not have universal impacts but rather affect different categories of migrants in different ways. State intervention on migration is not just about restricting numbers but also relates to preconceptions about which types of work are valuable, and are therefore ‘reflexive of social ideas and relations about gender, labour and nation’. ⁸⁸ Where – as in the UK case – specific visa schemes apply to domestic workers which afford them lesser rights, this is a reflection of such a stratification, which must be understood based on the gendered nature of the work. This demonstrates the negative impact on domestic workers of ‘the intersectional construction of gendered, racialized and class-based representations of care and domestic tasks’. ⁸⁹

4. Conditions of domestic work as an interference with the right to private and family life: Working time

Having set out two broad constraining factors on the rights of migrant domestic workers in the form of the literal and figurative borders, this section and the next turn to specific areas in which the conditions of domestic workers can interfere with their right to private and family life. This section focuses on working time, which is self-evidently of relevance to labour rights but is not as often considered as a human rights issue, and argues that conceptualising working time through the right to private and family life framework is useful to addressing deficiencies in the current dominant approach. It first considers the respective positions in the UK and Chile bearing in mind the general difficulty in regulating domestic workers’ hours. Then, it addresses the impact of C-189 with specific reference to Chile, before arguing that excessive hours should be viewed as a breach of the right to private and family life.

4.1 Provisions on working time

Working time is a difficult and controversial area to regulate for domestic workers: ⁹⁰ half of the countries examined in a 2010 ILO study permitted longer hours for domestic workers than those in other sectors. ⁹¹ These difficulties reflect the assumption that live-in domestic workers should always be ready to deal with their employer’s requirements, ⁹² or the ‘boundarilessness’ of domestic workers’ time. ⁹³ The hesitancy to regulate working time is related to the presentation of the domestic worker as part of the family: ⁹⁴ as noted above, tasks are seen as being inherent to women and conflated with unpaid labour in the home, making regulation seem inappropriate and obscuring the recognition of additional time spent with members of the employing family as overtime.

The UK is an example in which a highly unequal position regarding working time for domestic work is formalised. Regulation 19 of the Working Time Regulations excludes workers ‘employed as a domestic servant in a private household’ from a number of its key provisions: the maximum average working week of 48 hours (Regs 4(1) and 4(2)); limits of 40 hours/eight hours per day for workers aged 15-17 (Regs 5A(1) and (4)); and restrictions on night work in Regulations 6 and 7. ⁹⁵ These restrictions may be seen as compatible with EU law on the basis of a Directive describing workers as including ‘any person employed by an employer, including trainees and apprentices but excluding domestic servants’, ⁹⁶ although arguably this provision should be limited to the scope of that particular Directive, namely health and safety at work. ⁹⁷ In any event, the result is stark: other than provisions on modern slavery, ⁹⁸ there are few legal obstacles to a domestic worker being expected to work an unlimited number of hours. This issue has been compounded by the new restrictive visa conditions, which appear to have increased hours worked: in research conducted by the migrant domestic worker organisation Kalayaan in 2013, 45% of those surveyed who were working under the pre-2012 non-tied visas had no days off; 100% of those surveyed on new tied visas had no days off. ⁹⁹ Another study of migrant workers on the new-style visas who had escaped their original employers found that they had been working 12-20 hours per day. ¹⁰⁰

In Chile, the position on working time is more favourable to domestic workers than in the UK, but there are still some inequalities. In the case of live-out workers, the Labour Code as modified by Law 20.786 provides for a usual maximum of 45 hours weekly, completed over a maximum of six days, a maximum of 12 hours between the start and finish of work each day, and weekly rest governed by the same norms as other workers. ¹⁰¹ By contrast, there is no set timetable for live-in domestic workers, who are normally expected to have a total of 12 hours’ daily rest, including nine continuous hours between days, plus weekly rest on Sundays and additional provisions for rest on Saturdays and public holidays. ¹⁰² This leaves the possibility that they will be expected to work during the 12 hours of rest, reflecting a resistance to define hours as precisely as for other sectors. ¹⁰³ Since Peruvian domestic workers are much more likely than Chileans to ‘live-in’ (44.7% compared to 12.4%), ¹⁰⁴ these longer hours will disproportionately affect migrant workers.

Even for live-out workers, the limitation of the working week to 45 hours is supplemented by a provision allowing an extra 15 hours to be agreed between the parties, ¹⁰⁵ which could lead in practice to 10-12 hour days being routinely worked. ¹⁰⁶ The extent to which migrant workers are actually able to take the rest days they are entitled to depends on a series of factors: the length of time they have worked in Chile, knowledge of the law and the ability to negotiate and regional contexts. ¹⁰⁷ Again, then, there is an overlap between the way the figurative border operates to create the expectation of availability to work extra hours, and the literal border of migratory status.

4.2 Working time and ILO Convention 189

C-189 is ‘arguably the most important event’ in the field of domestic workers’ rights globally, covering a range of themes including working time, rest, overtime, collective bargaining, social security and health and safety. ¹⁰⁸ Blackett, who was directly involved in the process leading to the adoption of C-189, has noted the significance of this process for the direct involvement of domestic workers’ organisations and human rights NGOs, for establishing the principle that ‘[d]omestic workers had a substantive equality right to be meaningfully included in labor law’, and for the important role played by an understanding of domestic workers’ rights as human rights. ¹⁰⁹

On the issue of working time, Article 10(1) of C-189 requires that each Member takes ‘measures towards ensuring equal treatment between domestic workers and workers generally in relation to normal hours of work, overtime compensation, periods of daily and weekly rest and paid annual leave in accordance with national laws, regulations or collective agreements, taking into account the special characteristics of domestic work’ (emphases added). This is not as strong as the original proposed wording, which required ‘measures to ensure that the normal hours of work, overtime compensation, methods of daily rest and paid annual leave of domestic workers are not less favourable than those applicable to other wage earners’ without reference to special characteristics. ¹¹⁰ Article 10(2) specifies a weekly rest period of 24 hours, but nothing to limit daily hours.

In the Chilean example, although C-189 has been ratified, live-in domestic workers can be allowed to work longer hours than those in other sectors. This reflects a tension in the position – on one hand, by calling for limits C-189 and the process leading to its agreement ‘challenged any assumption that the boundarilessness of domestic workers’ time should be normalized’, ¹¹¹ yet on the other, the reference to the ‘special characteristics’ of domestic work arguably legitimates a degree of inequality. This is not intended to downplay the value of C-189 and its ratification – clearly, the legal position in Chile has improved, in particular with regards to the days off at the weekend that apply even in the case of live-out workers. ¹¹² However, the limitations also suggest that further changes may be needed beyond those explicitly required by C-189 in order for the right to private and family life to be fulfilled, and that much depends on the ratification process and how the requirements are interpreted. ¹¹³

In addition, the background to the approach to working time in C-189 is pertinent to the themes discussed here. A number of comments made in the ILO session leading up to C-189’s adoption reflect the view that domestic workers’ entitlement to rest time should be curtailed because they are (apparently) not constantly engaged in tasks throughout their time at work. ¹¹⁴ These arguments have their basis in the assumption that limits to working time exist solely or mainly because of the effort of performing the work itself, rather than a need to ensure time for activities outside of the employer’s home and their work, be they related to family relationships or otherwise. ¹¹⁵ They can also be seen to relate to the view of the domestic worker as akin to a member of the employing family, as discussed above, such that additional time spent in the employer’s household is not necessarily viewed as work.

4.3 Working time and the right to private and family life

In contrast to the perspective critiqued above, an approach based on the right to private and family life is helpful as it centres the claim that limits to working time exist in order to have time to lead one’s private life and carry out activities – whether family-related or otherwise – that are separate from work. It consequently underscores the need for proper rest periods whether or not the working day consists of back-to-back tasks, and time which can be spent away from the employer’s household. For example, if there is no set limit to the working day at all, or even if only a 12-hour continuous free period is guaranteed, it will be difficult to combine the role with caregiving or other significant non-work activities.

Within human rights law, limits on working time have been addressed as a separate social right – for example in Article 7(d) International Covenant on Economic, Social and Cultural Rights (ICESCR) ¹¹⁶ on the right to ‘rest, leisure and reasonable limitation of working hours and periodic holidays with pay’ and Article 2(1) of the revised European Social Charter (‘ESC’) ¹¹⁷ on ‘reasonable daily and weekly working hours’. Yet the issue can also be viewed as within the remit of the right to private and family life, on the basis that excessive working hours leave inadequate time to lead one’s private life and spend time with family. Relatedly, as noted above, other broadly social rights such as the right to work have been read into Article 8 ECHR. ¹¹⁸ In the Inter-American system, social rights have been found to apply directly based on Article 26 ACHR and the indivisibility of rights. ¹¹⁹ Viewing the issue of working time as a breach of the right to private and family life has the advantage of bringing the matter within the justiciable sphere of the civil and political rights Treaties. ¹²⁰ A focus on working hours through the concept of the right to private and family life can also counteract an over-emphasis within some current approaches to labour regulation that ‘focuses on extreme forms of abuse, while remaining silent on, or even reproducing conditions that lead to more subtle forms of injustice at work’. ¹²¹

Further, if unregulated and excessive hours are accepted as an interference with the right to private and family life, their imposition, or the failure to put in place measures to prevent them, needs to be justified with reference to the proportionality test. ¹²² It is questionable whether any of the ‘legitimate aims’ in Article 8(2) would apply to the justification of excessive working hours. It could potentially be argued that ‘the economic well-being of the country’ is relevant in the sense that those who employ a domestic worker may be dependent on these hours to be able to fulfil their own duties. This, however, is a problematic argument, and it is difficult to see how it could meet the proportionality criterion if the flexibility comes entirely at the domestic worker’s expense. The private and family life of domestic workers should not be ‘jeopardised by the drive to sustain the family life of the dominant party to the wage-work bargain’. ¹²³

Another purported justification for the long hours worked by domestic workers is that they allow women into the workforce; ¹²⁴ in an interview, a Chilean ex minister stated that limiting the working day was difficult because this would be at the expense of other women who worked. ¹²⁵ Again, however, it cannot be justifiable for the labour market participation of some women to come at the expense of other women ¹²⁶ – specifically, expecting poorer and often immigrant and/or ethnic minority women to work unrestricted hours cannot be a proportionate way to meet the aim of women’s increased labour market participation. There are other means that could be used by the State to support women’s participation in the workforce, such as the provision of public services, which would be less restrictive in relation to human rights.

Providing for stricter limits on working hours for domestic workers in line with those in other sectors is therefore a necessary step in addressing inequality, but it may not be a sufficient one. Those working away from their families also need the option of working some longer weeks and then spending extended periods travelling home, ¹²⁷ as an alternative to family reunification. This demonstrates the salience of the ILO maxim that domestic work is both ‘work like any other and work like no other’. ¹²⁸ It is work like any other in the sense that domestic workers need limits on the hours worked in order to be able to partake in life outside of work. But it is also work like no other given, for example, the very high incidence of workers who live away from their families and therefore need special provisions in order to be able to secure the right to private life and the hesitancy to limit hours based on a designation as ‘part of the family’. It also shows how particular adjustments may be necessary in response to disadvantages caused by borders, both literal and figurative.

5. Conditions of domestic work as an interference with the right to private and family life: Family reunification

After the previous discussion on working hours, this section addresses another issue, which is not always viewed as being within the remit of labour law: migrant domestic workers’ often limited access to family reunification rights – that is, the right for family members to join a migrant worker in the destination country – and resulting separation from family members. The issue of family reunification clearly relates to the literal border – the impact of migration controls – but the ‘figurative’ gendered border between domestic work and other forms of labour is also relevant in explaining why this has become an issue for so many domestic workers. The sharp increase in women’s migration in recent decades, often termed the ‘feminisation of migration,’ ¹²⁹ arises in the context of the demand created by women’s entry into the workforce without a corresponding increase in socialised services. ¹³⁰ This creates a demand specifically for labour which is expected to be performed by women. The large scale migration that result entails ‘a global transfer of the services associated with a wife’s traditional role – child care, home making, and sex – from poor countries to rich ones,’ ¹³¹ creating a situation where love becomes ‘a resource which is unfairly distributed’. ¹³²

Moreover, whereas in earlier eras, many domestic workers followed a ‘life cycle’ pattern of getting married later in life after serving while young, this is now far less common, and domestic workers are more likely to leave families behind or not become mothers at all if they start working before having children. ¹³³ In this context, the availability of family reunification as an option becomes increasingly important, but this is not necessarily reflected in the applicable legal provisions.

5.1 Family reunification provisions

In the UK, it is very difficult for domestic workers to access family reunification. ¹³⁴ As noted in section 3, the post-2012 regime generally provides only for a six month stay for those on ODW visas. There are limited exceptions to this, which only apply to those recognised as victims of modern slavery or human trafficking rather than being more generally available. They also usually only allow for a new visa for up to two years, with strict conditions including not taking up employment other than domestic work. ¹³⁵ As such, the system is set up to deter long or even medium-term residence, making family reunification much more difficult. Furthermore, the income threshold to allow family members to join a worker – £18,600 for a partner, plus an additional £3,800 for the first child and £2,400 for each further child – is inaccessible to most migrant women. ¹³⁶ This is particularly the case for domestic workers given the prevalence of low pay in the sector, ¹³⁷ the fact that even the minimum wage may not apply, and the very limited scope for moving into another occupation.

In Chile, although the situation is again not as stark as in the UK, access to family reunification is likewise not guaranteed: ¹³⁸ there is not a substantive right to family reunification under Decree 1094/1975, contrary to regional trends. ¹³⁹ Generally, it can be difficult to access for those who lack permanent residence, job stability or a place to live. ¹⁴⁰ These difficulties are offset to some extent ‘where migrants have a higher level of education, more stable work and better pay’ such as among Argentinian migrants. ¹⁴¹ In populations from Peru and Bolivia, however, whose migration is concentrated in more precarious sections of the labour market, the presence of minors is low, ¹⁴² suggesting obstacles to bringing children with them.

5.2 Family reunification and human rights law

While there is no general right to family reunification in human rights law, the right to private and family life in its various forms listed above is relevant. The HRC has held that ‘the exclusion of a person from a country where close members of his family are living can amount to an interference within the meaning of article 17’. ¹⁴³ In its General Comment 19 on Article 23 (protection of the family), it held that ‘The right to found a family implies, in principle, the possibility to procreate and live together’ which in turn ‘implies the adoption of appropriate measures…to ensure the unity or reunification of families, particularly when their members are separated for political, economic or similar reasons’. ¹⁴⁴

Before the ECtHR, findings of a breach of Article 8 based on denial of family reunification have been ‘few and far between,’ tending to arise only in exceptional circumstances and / or where a particular judge is sympathetic to migration concerns. ¹⁴⁵ The approach is reductive for various reasons, including the tendency to limit ‘family relations’ to the ‘nuclear family’ as conceived in Western Europe, ¹⁴⁶ and the prioritisation of State sovereignty over the human rights of migrants. ¹⁴⁷ By contrast, the IACtHR, when dealing with immigration and nationality related matters, has been generally more willing to apply scrutiny to put ‘human rights, including the human rights of migrants, at the start of its reasoning’ ¹⁴⁸ and has given significant weight to victims’ vulnerabilities. ¹⁴⁹

Once the denial of family reunification is recognised as potentially interfering with the right to private and family life, then in order to be justified, it must relate to a legitimate aim and be proportionate to that aim. The main aim of relevance to limiting family reunification is migration control. ¹⁵⁰ For example, in Alam and Khan v United Kingdom, ¹⁵¹ the first ECtHR case to deal with migration, the UK government’s argument that it possessed ‘the undoubted right to exclude all persons who are not citizens of the United Kingdom and colonies’ was influential in the court’s decision that there was no breach of Article 8 based on denying family reunification. ¹⁵² Yet there are good reasons to question the precedence often given to the aim of migration control. ¹⁵³ As Dembour notes, the assumption that the state’s power to control migration is ‘almost unfettered…a matter of well-established international law’ is both historically inaccurate given the recent nature of migration control and ‘problematic from a legal theory perspective’ as the general rule of law principle that requires constraint of state powers should apply to immigration. ¹⁵⁴

The IACtHR, while still stating that sovereignty is not transcended by the right to family life, ¹⁵⁵ appears less willing to give precedence to migration control over the human rights of the migrant and her family. In an Advisory Opinion, it reminded states of the need to promote family reunification in the case of unaccompanied or separated children, ¹⁵⁶ and found the margin of appreciation to be limited where parents were to be expelled from a country where children are legally residing or have a right to nationality given the state’s ‘obligation to weigh its legitimate interests against those of the family in the context of each specific case’. ¹⁵⁷ It also held in another Advisory Opinion that migration control must not limit equality and non-discrimination principles. ¹⁵⁸

In addition to critiquing the emphasis placed on sovereignty, it is important to recall that state intervention on migration is not just about restricting numbers but also relates to preconceptions about which types of work are valued. ¹⁵⁹ The impetus to tightly control conditions on domestic workers’ migration is based on the assumption that their work is ‘low-skilled’ and not economically valuable, which is itself a deeply gendered idea ¹⁶⁰ that stems from the elision of domestic work with unpaid labour performed by women in the family as discussed in section 3. If a core impact of border regimes is to make some individuals vulnerable to violations of their rights, ¹⁶¹ and this disproportionately impacts those whose work is devalued on a gendered basis, it must be questioned whether the implementation of these regimes can amount to a legitimate aim for the purpose of human rights law.

If, despite this, migration control is taken to be a legitimate aim, then, when conducting the proportionality exercise, it is necessary to factor in the serious harm caused by separation of families and the factors driving this systematic separation in the context of domestic work. Denial of family reunification entails a very intrusive interference, which can put severe limits on the type of family relationship a domestic worker is able to maintain ¹⁶² and tends to create ‘prolonged separation and a care deficit’ for children, whose care may have to be re-assigned to ‘members of the extended family or poorly paid local domestic workers’. ¹⁶³ The failure to see family reunification as within the remit of labour rights reflects what Gorfinkiel describes as a ‘utilitarian’ view of migration, in which ‘migrants are mainly regarded as workers, relegating other basic elements of their individual lives’. ¹⁶⁴ Conversely, viewing family life and work holistically as proposed by Kofman allows for an understanding of ‘the migrant caring subject within a broader perspective of the social reproduction of their own and other families’. ¹⁶⁵ The denial of family reunification has broad repercussions: the presence of children and their needs, e.g. for health and education, is an important mechanism in making migrants visible in public space. ¹⁶⁶ By contrast, diffuse families are a stark illustration of the separation caused by border regimes, which may be particularly difficult to navigate in the case of migrant mothers who would usually be the primary caregiver. ¹⁶⁷

An approach which centres the right to private and family life can help to tackle the ‘utilitarian’ and overly narrow view by insisting that, if a country’s labour market creates demand for migration into particular sectors, this must come with a responsibility towards those who enter the country as a result. Blackett has recently argued that, ‘[d]ecent work for domestic workers has to reject any starting assumption that care should come at the cost of rendering domestic workers – including domestic workers’ own care needs – invisible,’ criticising the lack of direct challenge to the centrality of temporary migration schemes. ¹⁶⁸ This is a key insight as regards family reunification: if schemes are created to fulfil a demand for migrant workers in this sector, but without associated conditions that allow for family reunification, then the overall impact is precisely such a denial of the worker’s own care needs. In turn, this failure reflects the devaluation of domestic work and thus the gendered border between it and other forms of work.

6. Conclusion

This article has examined a number of features of domestic workers' conditions in the context of the right to private and family life. It has analysed how two aspects of the status of migrant domestic workers amount to particularly constraining factors as regards fulfilment of these rights: the operation of border regimes, particularly as a result of visas that create dependence on the employer, and figurative borders whereby domestic work is separated from other types of labour through its location in the home and private sphere, exemplified by the conflation of domestic workers with family members. The article also analysed how these two features of the status of migrant domestic workers interact to intensify difficulties in the realisation of rights.

The article then went on to analyse two specific aspects of domestic workers’ conditions against the framework of the right to private and family life. The difficulties in regulating working time arise from the figurative border between domestic work and other forms of labour, which means that domestic work is devalued and conflated with the unpaid work of women in the family. In this context, regulation comes to be seen as inappropriate and domestic workers may be expected to work unrestricted hours in the interests of members of their employing family, including to support the participation of other women in the workforce. In response to this, the article has argued that, by basing limits on working time on the right to private and family life and thus focusing on the domestic worker’s need for sufficient time to lead her own private and family life, these purported justifications for the excessive and unregulated working hours can be exposed as unsustainable.

Finally, this article also addressed difficulties in accessing family reunification rights, which arise directly from the operation of the literal border but are exacerbated and made relevant by women’s increased labour migration in the context of the demand for domestic work – a manifestation of the figurative border whereby it is expected that such work is performed by women. It questioned the emphasis placed on immigration control given the role of border regimes in creating vulnerability to exploitation and hindering the realisation of rights, and their differential impact on individuals whose work is devalued on a gendered basis. To the extent that migration control is seen as a legitimate aim, it argued for a much greater focus on the domestic worker’s family life in conducting the proportionality test; rather than seeing State sovereignty as a prevailing factor that should easily allow other rights to be curtailed, the serious harm caused by the separation of families across borders should be factored into the proportionality test. Likewise, the figurative border that separates domestic work from other forms of labour and is therefore used to justify denying rights to domestic workers which apply to others must be fundamentally challenged.