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

Document

Cited authorities 14

Cited in

Published date	01 December 2019
Author	Natalie Sedacca
Date	01 December 2019
DOI	10.1177/0924051919884754
Subject Matter	Articles

Article

Migrant domestic workers

and the right to a private

and family life

Natalie Sedacca

University College London, UK

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.

Keywords

domestic workers, labour, migration, private life, family life

1. Introduction

Domestic work plays a very important role in the global economy

and accounts for a substantial

proportion of women’s employment: statistics of the International Labour Organisation (‘ILO’)

Corresponding author:

Natalie Sedacca, PhD Candidate and Teaching Fellow, Faculty of Laws, University College London, Bentham House, 8

Endsleigh Gardens, London WC1H 0EG, UK.

E-mail: natalie.sedacca@ucl.ac.uk

1. International Labour Conference (100th Session) C189: Convention Concerning Decent Work for Domestic Workers

(Geneva 2011) preamble.

Netherlands Quarterly of Human Rights

2019, Vol. 37(4) 288–310

ªThe Author(s) 2019

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/0924051919884754

journals.sagepub.com/home/nqh

NQHR

from 2011 showed that of all women in paid employment worldwide, 7.5%were domestic

workers.

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.

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’,

which is

often exacerbated by their ‘explicit exclusion or lower degree of protection’ from labour legisla-

tion.

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,

and

acknowledges the tendency to undervalue and fail to recognise domestic work.

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,

which hosts

around 9%of the global population – and comparatively high levels of ratification of C-189.

In the

case study country, Chile, rati fication has been accompanied by significant rec ent legislative

reform,

and there is substantial migration into the domestic work sector.

Within Europe, the

focus is on the UK which, like most European countries, has not ratified C-189,

and which

2. International Labour Organisation (‘ILO’), ‘Global and Regional Estimates on Domestic Workers - Domestic Work

Policy Brief 4’ (2011) 7

publication/wcms_155951.pdf> accessed 17 October 2019.

3. See, for example, Barbara Ehrenreich and Arlie Russell Hochschild, ‘Introduction’ in Barbara Ehrenreich and Arlie

Russell Hochschild (eds), Global woman: nannies, maids and sex workers in the new economy (Granta Books 2003) 8–

9; Nancy Fraser, ‘Crisis of Care? On the Social-Reproductive Contradictions of Contemporary Capitalism’ in Tithi

Bhattacharya (ed), Social Reproduction Theory: Remapping Class, Recentering Oppression (Pluto Press 2017) 32–33.

4. Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, ‘Unprotected

Work, Invisible Exploitation: Trafficking for the Purpose of Domestic Servitude’ (Organisation for Security and

Cooperation in Europe 2010) 10.

5. Virginia Mantouvalou, ‘Human Rights for the Precarious Workers: The Legislative Precariousness of Domestic Labor’

(2012) 34 Comparative Labor Law & Policy Journal 133, 133.

6. Lisa Rodgers, Labour Law, Vulnerability and the Regulation of Precarious Work (Edward Elgar Publishing 2016) 166.

7. ILO (n 2), preamble.

8. ILO Regional Office for Latin America and the Caribbean, ‘2015 Overview Latin America and the Caribbean’ (2015).

9. Of the 29 countries that have ratified C-189 since it was passed, 16 are in Latin America and the Caribbean - ILO,

‘Ratifications of C189 - Domestic Workers Convention, 2011 (No. 189)

p¼NORMLEXPUB:11300:0::NO::P11300_INSTRUMENT_ID:2551460> accessed 16 October 2019. This is of a

total of 33 countries in the region. The Convention is due to enter into force for Grenada on 12 November 2019 and for

Peru on 26 November 2019, and is already in force in the other 14 countries at the time of writing.

10. Ley No 20.786 - Modifica la Jornada, Descanso y Composici ´on de la Remuneraci´on de los Trabajdores de Casa

Particular, y Prohib´e La Exigencia de Uniforme en Lugares P´

ublicos (Law 20.786, Amending the Working Day, Rest

and Composition of Remuneration of Domestic Workers, and Prohibiting the Requirement for Uniform in Public

Places) Chile 2014 - hereafter ’Law 20.786’. Some provisions Law of 20.786 were implemented on 1 January 2015 and

others on 21 / 23 November 2015. Citations from Spanish are the author’s own translation unless otherwise stated.

11. Marie-Jos´e Tayah, ‘Decent Work for Migrant Domestic Workers: Moving the Agenda Forward’ (ILO 2016) 30.

12. Out of a total of 50 countries in Europe, only eight have ratified, with the Convention due to come into force in Sweden

on 4 April 2020 and already in force at the time of writing in seven other European countries - ILO, ‘C-189 Ratifi-

cations’ (n 9).

Sedacca 289

formally excludes some domestic wo rkers 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 reunifica-

tion, 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,

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.

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.

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’ depen-

dency 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.

Sectionfivethenaddressesanissuethatismoreself-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

13. Virginia Mantouvalou, ‘Legal Construction of Structures of Exploitation’ in Hugh Collins, Gillian Lester and Virginia

Mantouvalou (eds), Philosophical foundations of labour law (OUP 2018) 188–9.

14. She/her is used throughout on the basis that a clear majority of domestic workers are women.

15. An example of such an incorporation is Sidabras and Dziautas v Lithuania App nos 50421/08 and 56213/08 (ECtHR,

23 September 2015), discussed further in the section on working time (section 4).

290 Netherlands Quarterly of Human Rights 37(4)

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.

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,

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’),

a regional Convention enforced by the Inter-American Court of

Human Rights (‘IACtHR’); and Article 8 of the European Convention on Human Rights

(‘ECHR’)

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, reproduc-

tive rights and the treatment of prisoners, as well as surveillance and searches of the home.

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.

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.

16. For example, the right to work has been read into Article 8 ECHR. See eg Sidabras and Dziautas v Lithuania (n 15). As

noted in subsequent commentary: ‘what would traditionally have been classified as a social right, the right to work,

played a significant role in the Court’s decision’ - Virginia Mantouvalou, ‘Work and Private Life: Sidabras and

Dziautas v Lithuania’ (2005) 30 European Law Review 573, 579.

17. UN, ‘International Covenant on Civil and Political Rights (Adopted 16 December 1966, Entered into Force 23 March

1976) 999 UNTS 171 (ICCPR)’. Also of relevance is Article 23 on protection of the family.

18. Organization of American States, ‘American Convention on Human Rights, Nov 22, 1969, OASTS No 36, 1144 UNTS

123 (ACHR)’.

19. Council of Europe, ‘European Convention on Human Rights - Convention for the Protection of Human Rights and

Fundamental Freedoms - Rome, 4.XI.1950 (ECHR)’.

20. Lucas Lixinski, ‘Comparative International Human Rights Law: An Analysis of the Right to Private and Family Life

across Human Rights ‘‘Jurisdictions’’’(2014) 32 Nordic Journal of Human Rights 99, 104.

21. ibid 107.

22. Artavia Murillo et al (‘in vitro fertilization’) v Costa Rica - Judgment of November 28, 2012 (Preliminary objections,

merits, reparations and costs) (IACtHR) para 143; referring to the right as articulated in Tysiac v Poland Application

no 5410/03 (ECtHR, 24 September 2007) para 107.

Sedacca 291

2.2 Human rights and private employers

While the State can and does play a role in enabling violations of workers’ rights,

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.

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.

There have been a number of

IACtHR judgments requiring the criminalisation of human rights violations,

for example in

Vel ´

asquez Rodrı

´guez v Honduras, where the Court emphasised the requirement to ‘prevent, inves-

tigate and punish’ any breaches.

In the European system, the ‘positive obligation’ creates a duty on States to punish violations by

non-State individuals,

which involves taking steps to allow the exercise of rights as well as

refraining from repressive action.

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’.

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’.

2.3 Proportionality

Privacy is not an absolute right, and the private sphere is not immune from any interference, but

specifically from arbitrar y interference.

Arbitrariness has been descri bed 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 propor-

tionality’.

In weighing an interference on the right to private life with the protection of another

23. E.g. as a result of migration regimes. See Mantouvalou (n 13) 198.

24. Ronagh JA McQuigg, ‘Domestic Violence as a Human Rights Issue: Rumor v. Italy’ (2015) 26 European Journal of

International Law 1009, 1016.

25. UNHCHR, ‘General Comment No. 16: Article 17 (Right to Privacy) - 32nd Session of the Human Rights Committee

(8 April 1988) - UN Doc HRI/GEN/1/Rev.9 (Vol. I)’ para 1.

26. Mykola Sorochinsky, ‘Prosecuting Torturers, Protecting ‘‘Child Molesters’’: Towards a Power Balance Model of

Criminal Process for International Human Rights Law’ (2009) 31 Michigan Journal of International Law 157, 194–9.

27. Vel´asquez Rodr´ıguez v Honduras 1988 (Inter-American Court of Human Rights) para 134, 166 - my emphasis.

However, criminal law remedies are not the only way to apply human rights law in relation to third parties and the

IACtHR has been criticised for over-reliance on these. See e.g. Fr´ed´eric M´egret and Jean-Paul S Calder´on, ‘The Move

Towards a Victim-Centric Concept of the Criminal Law and the ‘‘Criminalization’’of Inter-American Human Rights

Law: A Case of Human Rights Law Devouring Itself?’ in Yves Haeck, Oswaldo Ruiz-Chiriboga and Clara Burbano

Herrera (eds), The Inter-American Court of Human Rights: theory and practice, present and future (Intersentia 2015).

28. Sorochinsky (n 26) 182–3.

29. Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford University Press 2008) 3.

30. Marckx v Belgium Application no 6833/74 (ECtHR, 13 June 1979) para 31.

31. Tysiac v Poland (n 22) para 107-113.

32. See Article 17 ICCPR and Article 11(2) ACHR.

33. Inter-American Commission on Human Rights, ‘Merits Report No. 85/10, Case No. 12,361, Gretel Artavia Murillo

et al. v. Costa Rica’ (2010) paras 86, 88, 89.

292 Netherlands Quarterly of Human Rights 37(4)

right,

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’.

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,’

and must be ‘necessary in a democratic society’.

This requires that it ‘corresponds to a pressing

social need and [ ...] is proportionate to the legitimate aim pursued’.

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.

The restriction must represent ‘a net gain,

when the reduction in enjoyment of rights is weighed against the level of realisation of the aim’.

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 propor-

tionate 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 sectio n 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,

which is signifi-

cantly higher than the estimated 3.4%of the world’s inhabitants that have migrated from their

country of origin.

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

34. The case in question referred to the right to life as the other right to be ‘balanced’ against privacy.

35. Artavia Murillo (n 22) para 274.

36. Leander v Sweden Application No 9248/81 (ECtHR, 26 March 1987) para 50.

37. Marta Otto, The Right to Privacy in Employment: A Comparative Analysis (Bloomsbury Publishing PLC 2016) 82.

38. Pretty v United Kingdom Application No 2346/02 (ECtHR, 29 April 2002) para 70.

39. Eva Brems and Laurens Lavrysen, ‘‘‘Don’t Use a Sledgehammer to Crack a Nut’’:Less Restrictive Means in the Case

Law of the European Court of Human Rights’ (2015) 15 Human Rights Law Review 139.

40. Julian Rivers, ‘Proportionality and Variable Intensity of Review’ (2006) 65 The Cambridge Law Journal 174, 181.

41. Tayah (n 11) 11.

42. UN Department of Economic and Social Affairs, ‘The International Migration Report 2017 (Highlights)’ (UN

Department of Economics and Social Affairs)

migration-report-2017.html> accessed 17 October 2019.

Sedacca 293

to which individuals are formallyentitled, for example by deterring migrants from seeking remedies

for breaches.

In Chile, labour migration into the domestic work sector is mainly from elsewhere in the region,

particularly Peru, Bolivia, Ecuador and Colombia.

The overarching framework for immigration is

DecreeLaw 1094/1975, whichaddresses matterssuch as entry, residencepermits, immigrationcontrol

and deportation.

The types of visa generallyavailable for migrant workersbefore naturalisationare:

visasubject to contract of work;temporary visa; and visa of permanentresidence, in ascendingorder of

the levelof rights attached.

To securethe initial visa subjectto contract, a contractand sponsorshipby

an employer are needed, while two full years of work with the same employer are needed to meet

residencyrequirements, meaning thatprecarious roles and positionsare often accepted by migrants.

These requirements are modified in some cases by the application of a residence agreement

implemented in 2009 by theregional trading bloc, ‘El Mercado Com´

un del Sur’ (‘MERCOSUR’)

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 adminis-

trativelyrather than through legislation,making a one-year renewable MERCOSURvisa available to

citizens fromBrazil, Uruguay, Paraguay, Argentinaand Bolivia only.

Consequently,many migrant

domestic workersincluding from withinthe region remain subject tonational immigration law andin

43. Committee on the Protection of the Rights of all Migrant Workers and Members of Their Families, ‘General Comment

No. 1 on Migrant Domestic Workers - UN Document CMW/C/GC/1’ (2011) para 17.

44. Centro de Documentaci ´on y Estudios, ‘Panorama Regional Sobre Trabajadoras Dom´esticas Migrantes En Am´erica

Latina (Regional Overview of Domestic Migrant Workers in Latin America)’ (2016) 25–6

publicacion/panorama-regional-sobre-trabajadoras-domesticas-migrantes-en-america-latina/> accessed 17 October

2019. The humanitarian crisis in Venezuela has also led sharply increased migration to Chile (among other countries)

in recent years. See Rocio Cara Labrador, ‘The Venezuelan Exodus’ (Council on Foreign Relations, 8 July 2019)

accessed 17 October 2019.

45. Regina Ingrid D´ıaz Tolosa, ‘A New Chilean Migration Act: An Approach to International Standards’ (2016) 54

International Migration 109, 11.

46. Luis Eduardo Thayer Correa and Carlos Salvatore Dur´an Migliardi, ‘Gobierno local y migrantes frente a frente: nudos

cr´ıticos y pol´ıticas para el reconocimiento (Local government and migrants face to face - critical nodes and policies for

recognition)’ (2015) Revista de CLAD 133

democracia/articulos/063-octubre-2015/gobie rno-local-y-migrantes-frente-a-frente-nudos-criticos-y-politicas-para- el

reconocimiento> accessed 17 October 2019. These categories are provided in this article as a broad guide, but this is a

complex and changeable area. There is currently a law reform project to make substantial amendments to migration

law, which was was approved by the Chamber of Deputies earlier this year - El Mostrador, ‘C´amara aprob´o y despach´o

al Senado proyecto de Ley de Migraciones (Chamber approved the migration law project and despatched it to the

Senate)’ (El Mostrador, 16 January 2019)

despacho-al-senado-proyecto-de-ley-de-migraciones/> accessed 17 October 2019.

47. Claudia Mora and Eduardo A Undurraga, ‘Racialisation of Immigrants at Work: Labour Mobility and Segmentation of

Peruvian Migrants in Chile’ (2013) 32 Bulletin of Latin American Research 294, 306.

48. The name of the trading bloc translates as ‘the common market of the South’ but it is commonly referred to by the name

MERCOSUR. For the residence agreement see: ‘AGREEMENT ON RESIDENCE FOR MERCOSUR MEMBER

STATES’ NATIONALS 2002 - Unofficial Translation from the Spanish Version Prepared by Diego Acosta and

Victoria Finn’.

49. International Organisation for Migration, ‘Evaluaci´on Del Acuerdo de Residencia Del MERCOSUR y Su Incidencia

En El Acceso a Derechos de Los Migrantes (Evaluation of the MERCOSUR Residence Agreement and Its Effect on

Migrants’ Access to Rights)’ (2018) 34–5. This MERCOSUR visa can only be granted from within Chilean territory -

ibid.

294 Netherlands Quarterly of Human Rights 37(4)

particular the requirements for visas subject to contract. In relation to domestic workers, Fern ´andez

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’.

Therefore, the d ependence 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

and are subject to a specific visa scheme for the sector.

Changes made in 2012 ledto the two forms of visa available to non-EU migrantdomestic workers –

Overseas Domestic Worker (‘ODW’) and diplomatic visas – being tied to a particular employer,

with the former generally being granted only for a non-renewable six-month period.

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 2015noted that being unable to changeemployer leads to a lack of bargainingpower,

a sense of ‘being‘‘owned’’by an employer, or at least beingtrapped,’ and the risk of creatinga large

class of undocumented workers who lack legal protection.

Minor changesintroduced in 2016 allow

workers on an ODWvisa to change employer during theinitial six-month validityperiod,

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.

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’.

As Anderson has noted, ‘[t]he power of the state is often used to enforce a workers’ (sic) depen-

dence on her employer and to institutionalise master/mistress servant relations, so the worker may

be subject to her employer 24 hours a day’.

In addition, the ever present threat of becoming

undocumented and the severe consequences this carries, particularly in the European/UK con-

text,

further increases vulnerability. The case of Siliadin v France, in which the treatment of a

50. Rosario Fern´andez, ‘Commodification of Domestic Labour, the Culture of Servitude and the Making of the Chilean

Nation’ (2018) 43 O

¨sterreichische Zeitschrift fu

¨r Soziologie 49, 52.

51. UK Border Agency, ‘Employment Related Settlement, Tier 5 and Overseas Domestic Workers - A Consultation’

(2011).

52. Virginia Mantouvalou, ‘‘‘Am I Free Now?’’ Overseas Domestic Workers in Slavery’ (2015) 42 Journal of Law and

Society 329, 336.

53. Home Office, ‘Immigration Rules (UK) - Updated 21 January 2019’, R159B. Those on diplomatic visas can apply to

extend their stay for 24 months at a time, up to a total of 5 or 6 years, but still without a route to settlement for those last

granted entry clearance after 6 April 2012 - Home Office, ‘Tier 5 (Temporary Worker) of the Points-Based System -

Version 19.0 - 8 March 2019’ 18, 26. On the limited exceptions to the non-renewability of the six month period for the

ODW visa, see discussion in section 5.1 below.

54. James Ewins, ‘Independent Review of the Overseas Domestic Worker Visa’ (gov.uk, 2015) 22

government/uploads/system/uploads/attachment_data/file/486532/ODWV_Review_-_ Final_Report__6_11_15_.pdf>

accessed 30 September 2019.

55. Melanie Gower, ‘Calls to Change Overseas Domestic Worker Visa Conditions’ (2016) House of Commons Library

Briefing Paper 4786 12–15.

56. ibid 20–22.

57. Bridget Anderson, Doing the Dirty Work?: The Global Politics of Domestic Labour (Zed 2000) 176–7.

58. ibid 196.

59. On the general situation in Europe see Norbert Cyrus, ‘Being Illegal in Europe: Strategies and Policies for Fairer

Treatment of Migrant Domestic Workers’ in Helma Lutz (ed), Migration and Domestic Work: A European Perspective

Sedacca 295

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.

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 dep ortation 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’.

These cases illustrate how migration regimes can

‘constitute structures that create vulnerability of migrant workers to exploitation’

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.

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.

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.

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’.

on a Global Theme (Ashgate 2008) 189. The situation in the UK is particularly stark, with a series of measures

introduced as part of the government’s ‘hostile environment’ strategy enforcing the denial of work, rental accom-

modation, health and other public services to undocumented migrants, as well as facilitating their detention and

deportation - Liberty, ‘A Guide to the Hostile Environment’ (2018). The intention is ‘to make life intolerable for

undocumented migrants so as to force them to leave’ - Sarah Keenan, ‘A Border In Every Street’ (The Disorder Of

Things, 29 June 2017) accessed 17 October

2019. By contrast, the non-criminalisation of undocumented migration has been identified as one of three key prin-

ciples guiding the South American approach to migration. See Diego Acosta, The National versus the Foreigner in

South America: 200 Years of Migration and Citizenship Law (Cambridge University Press 2018) 3.

60. Siliadin v France (2006) Application No 73316/01 (43 EHRR 16) paras 118-9.

61. Chowdury and Others v Greece Application No 21884/15 (ECtHR, 30 March 2017) paras 95-99.

62. Mantouvalou, ‘Legal Construction of Structures of Exploitation’ (n 13) 198. This issue is discussed further in the next

section.

63. Mantouvalou, ‘Human Rights for the Precarious Workers’ (n 5) 133.

64. See eg Einat Albin and Virginia Mantouvalou, ‘The ILO Convention on Domestic Workers: From the Shadows to the

Light’ (2012) 41 Industrial Law Journal 67, 68; Maria Kontos, ‘Negotiating the Social Citizenship Rights of Migrant

Domestic Workers: The Right to Family Reunification and a Family Life in Policies and Debates’ (2013) 39 Journal of

Ethnic and Migration Studies 409, 410.

65. Susan B Boyd (ed), Challenging the Public/Private Divide: Feminism, Law, and Public Policy (University of Toronto

Press 1997) 8; Sandra Fredman and Judy Fudge, ‘The Contract of Employment and Gendered Work’ in Mark

Freedland (ed), The contract of employment (Oxford University Press 2016) 232.

66. Silvia Federici, Caliban And The Witch: Women, the Body and Primitive Accumulation (2nd edn, Autonomedia 2014)

74–75.

296 Netherlands Quarterly of Human Rights 37(4)

The ensuing division of labour meant that women were tied to reproductive work and simul-

taneously heightened their dependence on men.

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.

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

and that would

be undermined by financial compensati on.

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.

This presentation

of the worker tends to mask a deeply unequal relationship,

which mirrors the dependency of

servants in earlier eras.

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,’

and the ‘culture of servitude’ in Chile, in which subordination of workers to employers

is viewed as normal, as a relic of colonialism.

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’.

Despite this originally being envisaged as applying to au

pairs,

the provision has been used to deny protections for domestic workers in very different

circumstances. In Jose & Others v Julio & Others

three migrant domestic workers argued ,

unsuccessfully, that the family worker exemption should not apply to them. Notably, the Employ-

ment 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.

In the unsuccessful appeal by two of the Claimants, the Court of Appeal noted

67. ibid 75.

68. Lydia JB Hayes, Stories of Care: A Labour of Law: Gender and Class at Work (Palgrave, Macmillan Education 2017)

52, 81; Lourdes Peroni, ‘The Borders That Disadvantage Migrant Women in Enjoying Human Rights’ (2018) 36

Netherlands Quarterly of Human Rights 93, 14.

69. Hayes (n 68) 26.

70. Katherine Teghtsoonian, ‘Who Pays for Caring for Children? Public Policy and the Devaluation of Women’s Work’ in

Boyd (n 65) 117.

71. Rosie Cox, ‘Gendered Work and Migration Regimes’ in Liam Leonard (ed), Transnational migration, gender and

rights (Emerald 2012) 45–6.

72. Merike Blofield, Care Work and Class: Domestic Workers’ Struggle for Equal Rights in Latin America (Penn State

University Press 2012) 16–17.

73. Cox (n 71) 46.

74. Einat Albin, ‘From ‘‘DomesticServant’’ to ’’Domestic Worker’’’in Judy Fudge, Shae McCrystal and Kamala Sankaran

(eds), Challenging the legal boundaries of work regulation (Hart Publishing 2012) 234.

75. Fern´andez (n 50) 52.

76. This was originally contained in Regulation 2(2) of the Minimum Wage Regulations 1999, which was repealed by the

National Minimum Wage Regulations 2015, SI 2015/621 and replaced by its s57(3).

77. This is shown in the Parliamentary debates. See Lord Sainsbury of Turville, HL Deb 02 March 1999, vol 597, col 1621-

32. In addition, the government’s own information website suggests that the exemption is only applicable to au pairs -

‘Employing Someone to Work in Your Home: Au Pairs - GOV.UK’

au-pairs> accessed 17 October 2019.

78. Julio & Others v Jose & Others [2012] ICR 487 (EAT).

79. ibid para 37.

Sedacca 297

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.

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.

Subsequently, Law 20.336 of 2009 included stipulations on rest,

including a day off for live-in domestic workers,

and reconfirmed the existing right to have

bank holidays or a day off in lieu.

Further bills in 2011 and 2012 sought to progress the earlier

changes.

However, a 2014 report noted how the historical master-servant relationship continued

to be reproduced, including via discourses treating domestic workers as family members,

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 unilat-

erally reducing remuneration fo llowing reduced working days or an increase in rest days, as

detailed below. Although the regime brings domesti c 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.

In this sense, ‘[t]he otherness of

80. Nambalat v Taher and another; Chamsi-Pasha and others v Udin [2012] EWCA Civ 1249 [2013] ICR 1024 (CA) para

19. There is an ongoing challenge to the legality of the family worker exemption, which has been referred back to the

Employment Tribunal - Puthenveettil v Alexander & George & Secretary of State for Business, Energy and Industrial

Strategy - UKEAT/0165/17/DM and UKEAT/0166/17/DM.

81. Lidia Casas and Helena Olea, ‘Trabajadoras de Casa Particular – Invizibiladas y Discriminadas (Domestic Workers -

Made Invisible and Discriminated Against)’ in Centro de Derechos Humanos (ed), Informe Anual sobre Derechos

Humanos in Chile 2014 (Annual Report on human rights in Chile 2014) (Ediciones Universidad Diego Portales 2014)

150.

82. Ley No 20.336 - Modifica el Art´ıculo de C´odigo del Trabajo, relativo al Descanso Semanal de los Trabajadores de Casa

Particular (Law 20.336 modifying Article 50 of the Labour Code relative to weekly rest of domestic workers) Chile

2009.

83. Casas and Olea (n 81) 150.

84. Lorena Poblete, ‘The Influence of the ILO Domestic Workers Convention in Argentina, Chile and Paraguay’ (2018) 34

International Journal of Comparative Labour Law and Industrial Relations 177, 187.

85. Casas and Olea (n 81) 116.

86. Fern´andez (n 50) 57.

298 Netherlands Quarterly of Human Rights 37(4)

migrant women – filtered by the host society , and influenced by state legisla tions and pro-

grammes – is commodified and converted into servitude’.

The status of being ‘other’ and

the operation of migration regimes can therefore be seen to counteract the impact of legis-

lative 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 sub-

servient 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’.

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 st ratification, 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 representa-

tions of care and domestic tasks’.

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:

half of the

countries examined in a 2010 ILO study permitted longer hours for domestic workers than those in

87. ibid.

88. Eleonore Kofman and Parvati Raghuram, Gendered Migrations and Global Social Reproduction (Palgrave Macmillan

2015) 130–1.

89. Silke Neunsinger, Elise van Nederveen Meerkerk and Dirk Hoerder (eds), Towards a Global History of Domestic and

Caregiving Workers (Brill 2015). Cited in Daniela Cherubini, Giulia Garofalo Geymonat and Sabrina Marchetti,

‘Global Rights and Local Struggles. The Case of the ILO Convention n.189 on Domestic Work’ (2019) 11 Parteci-

pazione e Conflitto 717, 719.

90. Blofield (n 72) 65, 131.

Sedacca 299

other sectors.

These difficulties reflect the assumption that live-i n domestic workers should

always be ready to deal with their employer’s requirements,

or the ‘boundarilessness’ of domes-

tic workers’ time.

The hesitancy to regulate working time is related to the presentation of the

domestic worker as part of the family:

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.

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’,

although arguably this provision should be limited to the scope of

that particular Directive, namely health and safety at work.

In any event, the result is stark: other

than provisions on modern slavery,

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.

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

91. ILO, ‘Report IV(1) - Decent Work for Domestic Workers - 99th Session of the International Labour Conference’

(2010) 49.

92. Lorena Poblete, ‘The ILO Domestic Workers Convention and Regulatory Reforms in Argentina, Chile and Paraguay.

A Comparative Study of Working Time and Remuneration Regulations’ (2018) 157 International Labour Review

435, 446. Poblete refers to this as a widespread belief in Latin America, but the lack of working time limits in the UK

suggests that it also applies beyond the individual region.

93. Adelle Blackett, ‘The Decent Work for Domestic Workers Convention and Recommendation, 2011’ (2012) 106

American Journal of International Law 778, 784.

94. This point is made in relation to the regime in Greece by Pothiti Hantzaroula, ‘Perceptions of Work in Albanian

Immigrants’ Testimonies and the Structure of Domestic Work in Greece’ in Lutz (n 59) 65.

95. SI 1998/1833, which applies in England, Scotland and Wales. For Northern Ireland, the equivalent is Regulation 23 of

the Working Time Regulations (Northern Ireland) 2016, SI 2016/49 and the disapplied regulations in that case are 4(1)

and (2), 6(1) and (4), 7(1) (2) and (6), 9(1), (2) and (6).

96. Council Directive (EC) 89/391 on the introduction of measures to encourage improvements in the safety and health of

workers at work [1989] OJ L 183 1989 art 3(a).

97. Dorothee Frings, ‘Transnational Domestic Work and Right to Family Life in International and European Law’ in

Maria Kontos and Glenda Tibe Bonifacio (eds), Migrant domestic workers and family life: international perspectives

(Palgrave Macmillan 2015) 29.

98. On which see Virginia Mantouvalou, ‘The UK Modern Slavery Act 2015 Three Years On’ (2018) 81 Modern Law

Review 1017.

99. Kalayaan, ‘Slavery by Another Name: The Tied Migrant Domestic Worker Visa’ (2013) 4

uk/documents/Slavery%20by%20a%20new%20name-%20Briefing%207.5.13.pdf> accessed 17 October 2019.

100. Mantouvalou, ‘Am I Free Now?’ (n 52) 341.

300 Netherlands Quarterly of Human Rights 37(4)

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 ‘mea-

sures 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,takinginto

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,

101. C´odigo del Trabajo - Edici´on actualizada al 2 de mayo de 2019 - (Labour Code of Chile, updated version at 2 May

2019), Article 149, 150.

102. ibid.

103. Fern´andez (n 50) 55.

104. Centro de Documentaci´on y Estudios (n 44) 42. Peruvians have been the largest nationality within Chile’s migrant

domestic workers although it is unclear at the time of writing whether this has changed with increased migration from

Venezuela.

105. Labour Code of Chile (n101) Article 149.

106. Poblete (n 92) 448.

107. Casas and Olea (n 81) 135. This report is referring to an earlier law on working time, Law 20.336 (n 82), but it could

be anticipated that similar issues might arise under the 2014 legislation.

108. Cherubini, Geymonat and Marchetti (n 89) 718.

109. Adelle Blackett, Everyday Transgressions: Domestic Workers’ Transnational Challenge to International Labor Law

(Cornell University Press 2019) 20–34, quote on 22.

Sedacca 301

overtime compensation, methods of daily rest and paid annual leaveof domestic workers are not less

favourable than those applicable to other wage earners’ without reference to special characteris-

tics.

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 caregiv-

ing or other significant non-work activities.

110. See ILO, ‘Report IV(2) - Decent Work for Domestic Workers - 99th Session of the International Labour Conference’

(2010) 419, emphasis added.

111. Blackett (n 109) 117.

112. On the importance of introducing rest days see ibid 62, discussing an ethnographic study by Andall.

113. For example, on the extent to which the ratification is a top-down process or one which involves domestic workers’

organisations – on which see Cherubini, Geymonat and Marchetti (n 89).

114. ILO, ‘Report IV(2) 99th Session’ (n 110) 152–4.

115. Deirdre McCann, ‘The Role of Work/Family Discourse in Strengthening Traditional Working Time Laws: Some

Lessons from the on-Call Work Debate Work, Family and the Law’ (2005) 23 Law in Context: A Socio-Legal Journal

127, 133.

302 Netherlands Quarterly of Human Rights 37(4)

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 ‘rea-

sonable 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

116. UN, ‘International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), UN Doc. A/6316

(1966); 993 UNTS 3 (16/12/1996)’.

117. Council of Europe, ‘European Social Charter (Revised)’, 3 May 1996, ETS 163.

118. See eg Sidabras and Dziautas v Lithuania (n 15). As noted in subsequent commentary: ‘what would traditionally have

been classified as a social right, the right to work, played a significant role in the Court’s decision’ - Mantouvalou,

‘Work and Private Life’ (n 16) 579. The reading of social and economic rights into the ECHR has been described as

the ‘integrated approach’ to interpretation - Virginia Mantouvalou, ‘Labour Rights in the European Convention on

Human Rights: An Intellectual Justification for an Integrated Approach to Interpretation’ (2013) 13 Human Rights

Law Review 529, 536–541.

119. Lagos del Campo v Peru - Sentencia de 31 Agosto de 2017 (Judgment of 31 August 2017) (IACtHR), para 141 - 145.

120. Compared to the position at international and European levels, the Inter-American system has generally treated

categories of rights in a more holistic way - M´onica Feria Tinta, ‘Justicability of Economic, Social and Cultural Rights

in the Inter-American System of Protection of Human Rights: Beyond Traditional Paradigms and Notions’ (2007) 29

Human Rights Quarterly 431, 435–6. Nonetheless, criticisms remain as to the Inter-American system’s normative

treatment of economic, social and cultural rights - Par Engstrom and Courtney Hillebrecht, ‘Institutional Change and

the Inter-American Human Rights System’ (2018) 22 The International Journal of Human Rights 1111, 1117.

121. Mantouvalou, ‘Legal Construction of Structures of Exploitation’ (n 13) 188–9.

122. As outlined in section 2.3. The discussion here focuses on the ECHR test, since this entails a specific set of potential

justifications in Article 8(2).

123. Deirdre McCann and Jill Murray, ‘Prompting Formalisation Through Labour Market Regulation: A ‘‘Framed

Flexibility’’ Model for Domestic Work’ (2014) 43 Industrial Law Journal 319, 331.

Sedacca 303

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 pa rticipation in the workforce, such as the provision of p ublic

services, which would be less restrictive in relation to human rights.

Providing for stricter limits on working hours for domest ic 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 – t he impact of migration contro ls – 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

whichisexpectedtobeperformedbywomen.The large scale migration that result entails ‘a

124. In Article 8(2) terms this would probably amount to a subset of the ‘economic wellbeing of the country’ justification.

125. Casas and Olea (n 81) 134.

126. ibid.

127. Frings (n 97) 37–45.

128. ILO, ‘Report IV(1) 99th Session’ (n 91).

129. Corina Courtis and Mar´ıa In´es Pacecca, ‘Domestic Work and International Migration in Latin America: Exploring

Trajectories of Regional Migrant Women in Domestic Service in Argentina’ (2014) 46 Women’s Studies Interna-

tional Forum 24, 24.

130. Ehrenreich and Hochschild (n 3) 8–9.

304 Netherlands Quarterly of Human Rights 37(4)

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, manydomestic workers followeda ‘life cycle’ pattern of getting

married laterin 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 beforehaving

children.

133

In this context,the availability of family reunification as an option becomes increasingly

important, but thisis 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 con ditions 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

131. ibid 4, 8–9.

132. Arlie Russell Hochschild, ‘Love and Gold’ in Ehrenreich and Hochschild (n 3) 21–23.

133. Raffaella Sarti, ‘The Globalisation of Domestic Service - An Historical Perspective’ in Lutz (n 59) 91.

134. The UK has opted out of the EU Family Reunification Directive 2003/86/EC which provides rights to family

reunification for certain family members who are third country nationals - European Union Committee, ‘The EU’s

Global Approach to Migration and Mobility - APPENDIX 4: THE UK’S PARTICIPATION IN EU ASYLUM AND

IMMIGRATION MEASURES’

accessed 17 October 2019.

135. Home Office, ‘Immigration Rules (UK) - Updated 21 January 2019’ (n 53), R159I-J.

136. Umut Erel and Tracey Reynolds, ‘Introduction: Migrant Mothers Challenging Racialized Citizenship’ (2018) 41

Ethnic and Racial Studies 1, 10. Sirriyeh argues that the limits continue a pattern of restrictions on familyreunification

while also signifying a shift to ‘a more explicit focus on class and income’ - AlaSirriyeh, ‘‘‘All You Need Is Love and

£18,600’’: Class and the New UK Family Migration Rules’ (2015) 35 Critical Social Policy 228, 232–3.

137. Tayah (n 11) 38.

138. Latinamerica Press, ‘Chile: The Ordeal Of Migrants’ (Eurasia Review, 26 June 2017)

com/26062017-chile-the-ordeal-of-migrants/> accessed 17 October 2019.

139. Acosta (n 59) 154. For citizens of the relevant states as discussed above there are specific provisions in the MER-

COSUR Residence Agreement – Article 9(2) ‘MERCOSUR RESIDENCE AGREEMENT 2002 - Unofficial

Translation by Diego Acosta and Victoria Finn’ (n 48).

Sedacca 305

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, howeve r, 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

140. Carolina Stefoni, ‘Transformaciones Sociales a Partir de Nuevos Procesos Migratorios (Social Transformation from

New Migratory Processes)’ in Luis Garc´ıa-Corrochano and others, Generacio

´ndedi

alogo Chile-Peru

´Peru

´-Chile.

Documento 4. Aspectos migratorios. (Generating a dialogue Chile-Peru Peru-Chile. Document 4. Migratory

developments.) (Konrad Adenauer Stiftung 2013) 18.

141. ibid.

142. ibid.

143. Aumeeruddy-Cziffra et al v Mauritius (35/78) para 9.2.(b) 2 (i) 2 cited in Sarah Joseph and Melissa Castan, The

International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (3rd edn, Oxford University

Press 2013) 545.

144. UNHCHR, ‘General Comment No. 19: Article 23 (The Family) Protection of the Family, the Right to Marriage and

Equality of the Spouses - Adopted at the Thirty-Ninth Session of the Human Rights Committee, on 27 July 1990’, para

145. Marie-B´en´edicte Dembour, When Humans Become Migrants: Study of the European Court of Human Rights with an

Inter-American Counterpoint (Oxford University Press 2015) 119–20.

146. Lourdes Peroni, ‘Challenging Culturally Dominant Conceptions in Human Rights Law: The Cases of Property and

Family’ (2010) 4 Human Rights & International Legal Discourse 241, 251–6.

147. Dembour (n 145) 127–8. See further discussion below.

148. ibid 130–1, 153–4.

149. Belen Olmos Giupponi, ‘Assessing the Evolution of the Inter-American Court of Human Rights in the Protection of

Migrants’ Rights: Past, Present and Future’ (2017) 21 The International Journal of Human Rights 1477, 1487–8.

306 Netherlands Quarterly of Human Rights 37(4)

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

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 reuni-

fication in the case of unaccompanied or separated children,

156

and found the margin of apprecia-

tion 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 econom-

ically 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

150. This is not one of the specified aims under Article 8(2) so would have to be framed as a sub-set of one of them in the

ECtHR context.

151. Alam and Khan v The United Kingdom, Application No 2991/66 (1967) 24 Collect Decis Eur Comm Hum Rights 116.

152. Dembour (n 145) 105–6.

153. This has been recognised by the Council of Europe’s Human Rights Commissioner, who argues that making migration

control a top priority ‘risks stalling or even undermining integration efforts’ - Commissioner for Human Rights

Council of Europe, ‘Time for Europe to Get Migrant Integration Right’ (2016) 1.

154. Dembour (n 145) 97, 117–8, including citation of Schotel 2012:1. It could also be seen as a Eurocentric idea which

ignores quite different approaches, for example in South America - Acosta (n 59) 209–214.

155. Acosta (n 59) 154.

156. Inter-American Court of Human Rights, ‘Rights and Guarantees of Children in the Context of Migration and / or in

Need of International Protection - Advisory Opinion OC-21/14, August 19, 2014. Series A No.21’, para 164.

157. Giupponi (n 149) 1483.

158. Inter-American Court of Human Rights, ‘Juridical Condition and Rights of the Undocumented Migrants, Advisory

Opinion OC-18/03, September 17, 2003 (Ser. A) No. 18 (2003)’ para 172.

159. Kofman and Raghuram (n 88) 130–1.

160. Siobh´an Mullally and Cliodhna Murphy, ‘Migrant Domestic Workers in the UK: Enacting Exclusions, Exemptions,

and Rights’ (2014) 36 Human Rights Quarterly 397, 411.

161. Bridget Anderson, Nandita Sharma and Cynthia Wright, ‘Editorial: Why No Borders?’ (2009) 26 Refuge: Canada’s

Journal on Refugees 5, 6.

Sedacca 307

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

proportionalityexercise,itisnecessarytofactorintheseriousharmcausedbyseparationof

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 – invisib le,’ 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.

162. Maria Kontos and Glenda Tibe Bonifacio, ‘Introduction: Domestic and Care Work of Migrant Women and the Right

to Family Life’ in Kontos and Bonifacio (n 97) 4–5.

163. ILO, ‘Report IV(2) 99th Session’ (n 110) 10.

164. Magdalena Di ´az Gorfinkiel, ‘Family Rights in a Migratory Context: Whose Family Comes First?’ in Kontos and

Bonifacio (n 97) 130.

165. Eleonore Kofman, ‘Rethinking Care Through Social Reproduction: Articulating Circuits of Migration’ (2012) 19

Social Politics 142, 153.

166. Gul Ozyegin and Pierette Hondagneu-Sotelo, ‘Conclusion: Domestic Work, Migration and the New Gender Order in

Contemporary Europe’ in Lutz (n 59) 203.

167. Rhacel Salazar Parren

˜as, ‘Perpetually Foreign: Filipina Migrant Domestic Workers in Rome’ in Lutz (n 59) 110, 168;

Blackett (n 109) 3, 171.

168. Blackett (n 109) 3, 171.

308 Netherlands Quarterly of Human Rights 37(4)

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 mani-

festation 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.

Acknowledgements

This article is based on a paper given at a seminar on ‘Gender, Borders and Human Rights’ at the Faculty of

Law, Ghent University on 28 May 2018. Many thanks to the seminar participants for helpful comments on the

paper, to participants at the Durham Annual Postgraduate Conference 2018 and internal presentations at

University College London for feedback on similar papers, to Virginia Mantouvalou, Eva Brems and Lourdes

Peroni for detailed comments on earlier drafts of the written paper / article, and to the three anonymous

reviewers at the Netherlands Quarterly of Human Rights for their helpful feedback. All errors are my own.

Declaration of conflicting interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publi-

cation of this article.

Sedacca 309

Funding

The author disclosed receipt of the following financial support for the research, authorship, and/or publication

of this article: The author’s PhD is funded by the London Arts & Humanities Partnership and a UCL Faculty

of Laws Research Scholarship. The author’s expenses for attending the seminar mentioned above were paid

by the Ghent University Human Rights Centre.

310 Netherlands Quarterly of Human Rights 37(4)

To continue reading

Request your trial

Subscribers can access the reported version of this case.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a list of all the cited cases and legislation of a document.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a list of all the documents that have cited the case.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see the revised versions of legislation with amendments.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see any amendments made to the case.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a visualisation of a case and its relationships to other cases. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. You also get a useful overview of how the case was received.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

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

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users