Protecting and Promoting the Human Rights of Migrant Domestic Workers in an Irregular Situation Cover Photos

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Behind closed doors Protecting and promoting the human rights of migrant domestic workers in an irregular situation Cover photos:

New York and Geneva, 2015 NOTE

The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries.

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Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a figure indicates a reference to a United Nations document.

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Foreword...... VII

Introduction...... 1

I. PROTECTION PROVIDED BY INTERNATIONAL HUMAN RIGHTS LAW...... 8

II. VULNERABILITY OF MIGRANTS IN AN IRREGULAR SITUATION...... 12

III. SPECIFIC RISKS FACED BY MIGRANT WOMEN AND GIRLS...... 15

IV. HUMAN RIGHTS CHALLENGES FACED BY MIGRANT DOMESTIC WORKERS IN AN IRREGULAR SITUATION...... 18 A. Violations of dignity...... 18 B. Lack of access to health care and health services...... 21 C. Limitations on the right to family life...... 22 D. Inadequate housing, food, water and sanitation...... 23 E. Restrictions on freedom of movement; social and physical isolation...... 23 F. Labour exploitation and slavery-like practices, such as forced labour and debt bondage...... 26 G. Detention and deportation...... 27 H. Gaps in legal protection, lack of access to redress and compensation...... 28

V. SEEKING A SOLUTION: RETURN AND REINTEGRATION OR REGULARIZATION...... 32

VI. A CALL TO ACTION...... 37

Selected Bibliography...... 38

© ILO/ G. Palazzo G. ILO/ © © ILO/ M. Rimando M. ILO/ © © ILO/ J. Maillard J. ILO/ © V Acknowledgements and disclaimer This publication has been prepared by the Office of the United Nations High Commis- sioner for Human Rights (OHCHR) in the context of the Global Action Programme on Migrant Domestic Workers and their Families. The Global Action Programme is imple- mented by the International Labour Organization (ILO) in collaboration with OHCHR, the United Nations Entity for Gender Equality and the Empowerment of Women (UN- Women), the International Domestic Workers’ Network, the International Trade Union Confederation and the Confederation of Indonesia Prosperity Trade Union. This publication has been produced with the financial assistance of the European Union. The views expressed herein can in no way be taken to reflect the official opinion of the European Union.

*Boxes in green in the publication contain practical examples of actions, legislation, agreements, policies or other measures put in place by States or other stakeholders that are considered good or promising practice.

VI Protecting and promoting the human rights of migrant domestic workers in an irregular situation

Foreword Around the world more than 50 million people, many of them women, are domestic workers. Of these, a significant number are migrants, including migrants who are in an irregular situation. The work they do is invaluable. Among a myriad other tasks, domestic workers clean, iron clothes, cook, garden, provide home health care, drive, and take care of children and older persons. This is necessary work, but work that often goes unnoticed, particularly when it is undertaken by irregular migrants who work unseen behind closed doors. In fact, labour legislation in several countries does not even recognize domestic work and often excludes domestic workers from access to rights and protections that are enjoyed by other categories of workers. Domestic workers often lack access to rights, to justice and to protection both as women and as migrants, creating an environment that often leads to serious human rights abuse. The situation of migrant domestic workers in an irregular situation is even more vulnerable. They are disproportionately subjected to human rights abuse, violations which often occur inside homes, where those responsible are able to operate with impunity and where victims are unseen and unprotected. The pattern of human rights abuses is similar all over the world. Migrant domestic workers in an irregular situation face exploitative working conditions and discrimination, they lack access to basic economic, social and cultural rights and are exposed to sexual and gender-based violence. If they live in their workplace, they can be forcibly confined, lack privacy, be deprived of food and sleep, and are often prohibited from contacting their families and friends. In some countries they are subject to invasive medical tests and can be fired if they become pregnant. Very often, domestic workers are not permitted to marry. Moreover, if they flee abuse, they may be detained for lacking documents and may be denied access to social or health services or legal remedies. At risk of xenophobia and violence in the community as well as in the workplace, many may be afraid to report their suffering to the police or other authorities for fear of deportation. This publication sheds light on the often hidden experience of irregular migrant domestic workers, and challenges Governments to take appropriate protective measures. It emphasizes that migrant domestic workers, regardless of whether they are male or female, children or adults, in a regular or irregular situation, are entitled to all fundamental human rights, without discrimination of any kind. The publication is illustrated by the experiences of two women who have lived the abuse and uncertainty that is documented here, and I express my gratitude to Marcela and Maryfe for their courage in sharing their stories. Their names and some identifying details of their stories have been altered for their protection.

Zeid Ra’ad Al Hussein High Commissioner for Human Rights

VII VIII © ILO/ K. Cassidy Protecting and promoting the human rights of migrant domestic workers in an irregular situation

grants who are in an irregular situation2. Introduction Compelled to live in the shadows due to their status as a domestic worker as well Across the world, at least 52.6 million as an irregular migrant, many are at risk people are domestic workers1. Although of being exploited, ill-treated and denied these women, men and children carry out their dignity as human beings. a wide variety of essential tasks cleaning, ironing, gardening, cooking, driving, caring for children and older persons in 2 Migrants in an irregular situation are persons who private households – what they do is not are not authorized to enter, to stay and to engage in a remunerated activity in a transit or destination always considered “work”. country. See Economic, Social and Cultural Rights of Migrants in an Irregular Situation (United Nations Migrants make up a substantial propor- publication, Sales No. E.14.XIV.4), introduction. tion of all domestic workers, including mi- Note that this publication will generally use the terms irregular migrant domestic worker (or “irregular migrant” as a shorthand) or migrant domestic worker in an irregular situation. While the term “undocumented” migrant domestic worker is also 1 This estimate is deliberately conservative. The used, it should be noted that irregular migrants true number is likely to be close to 100 million. may possess documents such as passports, visas See: ILO, Domestic workers across the world: or even residence permits, but that these will not be Global and regional statistics and the extent of the correct documents required by the immigration legal protection (2013), p. 2. regulations of the country in which they are living.

Figure I. Who is a migrant domestic worker in an irregular situation?

1 INTERNATIONAL MIGRATION AND Nor is it any longer possible to clearly DOMESTIC WORK distinguish countries of origin from countries of destination and countries of transit. It is estimated that today some 232 mil- Many countries are both countries of lion people are international migrants, origin and destination, and many migrants about 3.2% of the world’s population. settle temporarily before moving to their Migration has numerous causes: migrants final destination, or remain for years in move to take up jobs; to reunite with fam- transit countries because they are unable ily and other social relations; to escape to move on to their intended destination. inequality, poverty, discrimination, human rights violations, conflict, environmental Worldwide 17-25 million degradation and violence. Migration migrant women are estimated to takes myriad forms and, temporarily or for long periods, migrants may become work in the domestic domestic workers at any point on their service sector. journey. Migrants will tend to use irregu- Source: International Domestic Workers’ lar channels when opportunities for regu- Network, “Domestic workers worldwide: lar migration are not available or are Summary of available statistical data and difficult to use. Globally, men and women estimates”, June 2010, p. 6. migrate in more or less equal numbers and about 48% of international migrants Migration for domestic work is triggered are women3. Domestic work remains a both by push factors (including social, traditionally feminized occupation and financial, environmental and cultural worldwide the vast majority of domestic factors, unemployment, conflict, domes- workers (83%) are women. tic violence, family concerns, personal ambitions, opportunities) that vary from A wide range of factors influence pat- one individual to another, as well as by terns of migration, including geography, demand in countries of destination. historical and cultural ties, and the poros- ity of borders. In recent years, interna- In countries whose population is ageing, tional migration patterns have changed a rising demand for care workers is often sharpened by insufficient numbers of na- significantly. International migrants 4 increasingly tend to move within rather tional workers . Further, growing econo- than between regions; movement within mies that employ more women generate the global South has become as signifi- demand for cleaners, housekeepers and cant as movement from South to North. childminders, tasks that have traditionally been taken on by women. Income differentials allow families with moderate incomes to pay for domestic help at rates 3 United Nations, Department of Economic and Social Affairs, International Migration Report that still attract migrants. 2013 (2013), p. 7. However international migrants are often segregated into gender- specific work streams. In Italy, for example, 85% of the immigrants from Cape Verde are women, most of whom work as domestic 4 For example, the number of people in the workers, whereas 96% of immigrants from United States who will need long-term care is Senegal are men, most of whom work as expected to double from 13 to 27 million by street vendors. Hein de Haas, “The myth of 2050. UN-Women and International Trade invasion: Irregular migration from West Africa Union Confederation (ITUC), Domestic Workers to the Maghreb and the European Union”, Count Too: Implementing Protections for International Migration Institute, 2007, p. 22. Domestic Workers (2013). 2 Protecting and promoting the human rights of migrant domestic workers in an irregular situation

Figure II. What does a domestic worker do?

MIGRANT DOMESTIC WORKERS IN of domestic workers in general are hard AN IRREGULAR SITUATION to come by because much domestic work is informal and is not reported as Around 10-15% of all international employment in many countries. Secondly, migrants, or some 30 million people, are irregular migrants are not registered in in an irregular situation. However, the na- their countries of employment and are ture of irregular migration is such that it is not included in official statistics either. In difficult to establish reliable figures. Most addition, for evident reasons, migrants migration around the world is organized are reluctant to provide information that informally by migrants themselves and would reveal their irregular status to of- many migrants find domestic employment ficials. Lack of information is one reason through family or personal connections, why the proportion of domestic workers before or after they migrate. who are irregular migrants is likely to be underestimated. Globally, there are no accurate data on the number of migrant domestic workers who are in an irregular situation. In the first place, accurate data on the number

3 irregularly.5 In the United States, it is esti- Generally, migrant domestic workers mated that at least 21% of migrants who are at heightened risk of certain forms work in the care sector are undocument- of exploitation and abuse. At the ed.6 It is also estimated that there are at heart of their vulnerability is isolation least 1 million undocumented migrant and dependence, which can include domestic workers in Europe and around the following elements: the isolation 1.2 million in Asia.7 of life in a foreign land and often in a foreign language, far away from These estimates suggest that millions of family; lack of basic support systems migrant domestic workers across the and unfamiliarity with the culture and world are in an irregular situation. Com- national labour and migration laws; pared to other sectors, domestic work is and dependence on the job and easily accessible to irregular migrants employer because of migration-related and does not necessarily require specific debt, legal status, practices of employ- qualifications. ers restricting their freedom to leave The majority of migrants in an irregu- the workplace, the simple fact that the lar situation have entered the country migrants’ workplace may also be their regularly and only subsequently fall into only shelter and the reliance of family an irregular situation either consciously members back home on remittances or owing to circumstances that he or she sent back from the domestic work. may not be aware of or cannot control. Women migrant domestic workers Many enter into a state of irregularity face additional risks related to their owing to unreasonably restrictive or gender, including gender-based overly complicated immigration laws and violence. These risks and vulner- procedures. In some countries, employers abilities are further aggravated for must sponsor migrant domestic workers migrant domestic workers who are and domestic workers may fall into a non-documented or in an irregular state of irregularity simply because their situation, not least because they often employer has failed to renew their labour risk deportation if they contact State or residence permit, or because, having authorities to seek protection from an fled an abusive employer, they are no abusive employer. longer sponsored. Source: Committee on the Rights of Migrant Workers, general comment No. 1 (2011) on migrant domestic workers, para. 7.

5 This figure is extrapolated from data in Despite these difficulties, estimates are Migrant Domestic Workers in Focus: an ILO Newsletter, No. 2 (Oct. 2013–Feb. 2014), available for some countries. In Spain, p. 3; and Joaquín Arango, Magdalena Díaz it is calculated that around 30% of the Gorfinkiel and Djaouida Moualhi, “Promover 660,000 domestic workers in the country la integración de las trabajadoras y los trabajadores domésticos migrantes en España”, in 2012 were women migrants working ILO International Migration Paper No. 114 (16 September 2013), p. 13. 6 Institute for Women’s Policy Research, Increasing pathways to legal status for immigrant in-home care workers (2013), p. 13. 7 UN-Women and ITUC, Domestic Workers Count Too, p. 52. 4 Protecting and promoting the human rights of migrant domestic workers in an irregular situation

Many migrant domestic workers are deceived during recruitment about the Prompted by the number of reported nature of their job, working conditions, cases of abuse of Kenyan migrant pay, living conditions, the identity of their workers employed in the Middle East, employer, their migration status, or their Kenya has developed a new law right to end the working relationship and on Private Recruitment Agencies to return home. These practices can cause improve their regulation of recruitment recruited migrants to fall into an irregular agencies. The country is currently situation. Some migrants will have little involved in bilateral dialogues with option but to accept abusive working several major countries of destination, and living conditions in order to survive, and has already signed an agreement particularly if they have been forced into with Qatar. An agreement with Saudi debt in order to migrate. Recruitment Arabia is under way. practices may also obscure the exact Source: ILO, “Protecting the rights of status of domestic workers, who may be migrant domestic workers”, Briefing Note recruited under a sponsorship pro- No. 4, pp. 2-3. gramme but end up working irregularly for a different employer. In Lebanon, a Code of Conduct, launched in June 2013, provides guidance to recruiting agencies on how Cambodian migrant domestic to promote and protect the rights of migrant domestic workers in the coun- workers must labour in Malaysia try. Developed in consultation with the without a salary for six to seven Middle East Office of OHCHR and months to repay loans, along ILO, it was drafted jointly by the Leba- with the exorbitant recruitment nese Ministry of Labour, the Syndicate of Owners of Recruitment Agencies and training fees. in Lebanon and Caritas Lebanon’s Source: Human Rights Watch, They Deceived Migrant Centre. The Code’s principles Us at Every Step: Abuse of Cambodian include: transparency in business Domestic Workers Migrating to Malaysia operations; provision of information (November 2011), pp. 11-12. to workers about their conditions of employment in Lebanon; verifica-

tion of workers’ qualifications; and Abusive recruitment practices are more prohibition of recruitment of underage likely to occur when recruitment is inad- workers. equately regulated by national laws and law enforcement authorities. Source: OHCHR, “Lebanon: a code of conduct to recruit migrant domestic workers”, news release, 29 July 2013. Available from www. ohchr.org/EN/NewsEvents/Pages/ LebanonCodeOfConduct.aspx.

5 Following reports of serious and repeated human rights violations against migrant In Nepal, local research institutions, domestic workers, countries have occa- in partnership with international sionally banned their nationals from mi- organizations, undertook a situational grating to certain countries. For instance, and policy analysis of Nepali women the Philippines banned migration to Leba- migrant workers, including domestic non in 2006, and both the Philippines workers. The evidence generated by and Ethiopia banned migration to Jordan that initiative contributed to the deci- in 2008. However, such bans have often sion to lift the ban on Nepali women proved unsuccessful and may create an migrant workers, including domestic additional pathway into irregular status. workers, migrating to the countries In the example above, many Filipino and of the Gulf and also contributed to Ethiopian nationals used irregular chan- the adoption by the Government of nels to travel to Lebanon and Jordan to Nepal of the Foreign Employment work, since they were unable to migrate Act (2007), which includes gender- through regular channels8. sensitive provisions. Source: “Promotion and protection of human rights, including ways and 8 Open Society Foundation, “Breaking the means to promote the human rights of isolation: Access to information and media migrants: Report of the Secretary-General” among migrant domestic workers in Jordan and (A/70/259), para. 75. Lebanon”, Research Report (2014), p. 10.

6 © ILO/ B. Patel Protecting and promoting the human rights of migrant domestic workers in an irregular situation

Marcela’s story would complain. It was never good enough. Sometimes she came back Marcela was born in Brazil. In May from work and started screaming at 2006, at the age of 52, she travelled to visit her daughter, who was an irregular me and the children if she didn’t like migrant worker, in order to see her new something.” grand-child. Marcela travelled on a tour- When Marcela fell ill, she would continue ist visa that allowed her to stay for three to work because her employer expected months but not to work. her to. She didn’t know that even though While she was visiting, her daughter she was undocumented she was entitled was faced with the prospect of losing to health care in her country of employ- her job as her employer wanted her to ment. She felt she had little option but to come back to work. So in order to help keep on working. “Without papers,” she her daughter, who had a newborn baby says, “you can’t get a prescription from to care for, Marcela agreed to take on the doctor that says you have to rest.” her daughter’s job and become a live-in domestic worker in an irregular situation. “I knew nothing about the country, I could not speak a word of the “I sacrificed not seeing my husband language. I was obliged to accept the and the rest of my family for long conditions, because I could not find periods of time, also hoping to secure other work. I was scared of the police, a better pension for us. I saw this because I didn’t have papers. My [job] as an opportunity.” employer would tell me not to open For three years, Marcela worked seven the door to anyone because I was days a week, taking care of two small working illegally.” children as well as shopping, cooking, cleaning and ironing. She worked from In 2009, Marcela applied for regulariza- 7 a.m. to 8 p.m., with short breaks and tion and obtained a temporary residence only had Saturday evening off along permit. Thanks to a promise of work from with a couple of hours on Sunday her daughter’s new employer (a domestic afternoon. She made only 1,000 dollars worker agency), she obtained a tempo- a month, which she knew was far less rary residence permit after three months. than other domestic workers who had a She now works 8 hours a day with permit. She had her own small bed- regular breaks and time off, and is happy room. Often she would iron clothes at to pay her social security and pension night there because she didn’t have time contributions. during the day. “For me today it’s good. I was lucky to “Sometimes the husband would tell get help. I know that for some girls it’s me: Marcela, go up to your room, it’s not like that. I’m more relaxed. I pay late, and you’ve worked enough. But my taxes and everything. I’m paid, my employer would never tell me this. and I’m going to get a pension; so Even though I did what I thought was everything is good for me.” a great job, she was never happy and

7 human rights treaties9. Member States of I. PROTECTION the United Nations are bound by these human rights principles set out in the Dec- PROVIDED BY laration and elaborated in the nine core instruments, and are obliged to make INTERNATIONAL sure that everyone under their jurisdiction enjoys these rights. States have duties to HUMAN RIGHTS respect, protect and fulfil human rights. LAW

The Universal Declaration of Human 9 International Convention on the Elimination of Rights affirms that “all human beings All Forms of Racial Discrimination, International are born free and equal in dignity and Covenant on Civil and Political Rights, International Covenant on Economic, Social and rights”. The comprehensive framework of Cultural Rights, Convention on the Elimination international human rights law and stand- of All Forms of Discrimination against Women, ards is directed at ensuring the enjoyment Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, by all of all human rights. Accordingly, Convention on the Rights of the Child, every person must have access to the International Convention on the Protection of fundamental human rights set out in the the Rights of All Migrant Workers and Members of Their Families, International Convention for Declaration and the nine core international the Protection of All Persons from Enforced Disappearance, and Convention on the Rights of Persons with Disabilities.

8 Protecting and promoting the human rights of migrant domestic workers in an irregular situation

In addition, the eight fundamental ILO Domestic Workers Conven- Conventions of the International Labour tion, 2011 (No. 189) on decent Organization (ILO) as well as ILO Con- work for domestic workers ventions Nos. 97 and 143 address the protection of the labour rights of migrant The Convention was adopted in workers10. Recent ILO Convention No. June 2011 and entered into force in 189 provides additional standards on September 2013. Combined with decent conditions of work for domestic Recommendation No. 201 on Domes- workers. tic Workers, ILO Convention No. 189 establishes a set of norms and standards for the effective promotion and protection of the rights of domestic workers, whether they are nationals or non-nationals. ILO Convention No. 189 applies to all domestic workers, including migrants (art. 2.1), and has provisions that address the situation of migrant domestic workers. It states that migrant domestic workers should receive, before departure, a written contract that they can understand and that is enforceable in the country of employment (art. 8). It encour- ages States parties to collaborate to ensure the effective application of the Convention to migrant domestic workers (art. 8.3). It calls on States to regulate recruitment of domestic workers by private employment agencies (art. 15). It also calls on States to conclude bilateral, regional or multilateral agreements to prevent abuses and fraudulent practices in © ILO/ G. Palazzo the recruitment, placement and employment of migrant domestic workers. Article 15.1 (e) further states that 10 The eight fundamental ILO Conventions are: fees charged by private employment the Freedom of Association and Protection of agencies should not be deducted the Right to Organize Convention, 1948 (No. 87); the Right to Organize and Collective from the remuneration of domestic Bargaining Convention, 1949 (No. 98); the workers. Forced Labour Convention, 1930 (No. 29); the Abolition of Forced Labour Convention, 1957 (No. 105); the Minimum Age Convention, 1973 (No. 138); the Worst Forms of Child Labour Convention, 1999 (No. 182); the Equal Remuneration Convention, 1951 (No. 100); and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). 9 Migrant domestic workers in an irregu- eliminate the conditions and attitudes that lar situation are also protected under cause or perpetuate de facto discrimina- a number of regional instruments and tion. Migrant women domestic workers mechanisms, including the European who are in an irregular situation are Convention on Human Rights, the Euro- particularly at risk of discrimination on pean Social Charter, the Inter-American multiple, often overlapping, grounds Convention on Human Rights, the African based on sex and gender as well as due Charter on Human and Peoples’ Rights, to their nationality, migratory status, sec- and the Arab Charter on Human Rights. tor of work and frequently also based on their race and social status. ALL HUMAN RIGHTS FOR ALL All migrant domestic workers in an MIGRANT DOMESTIC WORKERS irregular situation are entitled to protection from torture or other cruel, inhuman The fundamental principle of non-discrim- or degrading treatment or punishment, ination in international human rights law forced labour, slavery and trafficking. requires that any difference of treatment Cases of repeated and serious abuse by (between nationals and non-nationals or employers or other private individuals, between different groups of non-nation- including physical, sexual and psycho- als) must serve a legitimate objective, logical violence, arguably engage a and that any course of action that States State’s obligation to prevent such acts. take to achieve such an objective must States must also protect the right to life, to be proportionate and reasonable11. The family, to privacy, to freedom of thought, principle of non-discrimination applies conscience and religion, and to freedom to everyone, including migrant domestic of assembly of all persons. workers who are in an irregular situation. Migrant domestic workers are also The prohibition of discrimination covers protected against arbitrary arrest and de- both formal and substantive discrimina- tention. The international legal framework tion. This means that States have to establishes that administrative detention ensure that their constitution as well of migrants should be a last resort, and as domestic laws and policies do not should be prescribed by law and be discriminate on prohibited grounds, such necessary, reasonable and proportionate as race, religion or nationality, against in each case. Alternatives to the deten- migrant domestic workers. At the same tion of migrants in an irregular situation time, States are obliged to adopt neces- should be sought whenever possible and sary measures to prevent, diminish and the immigration detention of children should cease. All migrant domestic workers have the 11 Economic, Social and Cultural Rights of right to housing and to an adequate Migrants in an Irregular Situation, chap. I, sect. A. In certain circumstances, national legislation standard of living for themselves and may legitimately differentiate between migrants their family as an essential element of of different nationalities or States may negotiate human dignity. Migrant domestic workers specific additional protections for their migrants under bilateral agreements with host countries are also entitled to the highest attainable that may not be available to all migrants in standard of physical and mental health. the host country. However, such differential treatment would need to be justified under international human rights law and it should not result in human rights violations. 10 Protecting and promoting the human rights of migrant domestic workers in an irregular situation

States have the power to refuse All irregular migrant domestic workers to give irregular migrants access have the right to decent work and to just and favourable conditions of work, to their labour market. But as including fair and equal remuneration for long as such migrants are in fact equal work that allows a decent living working, they are entitled to for themselves and their family; safe and healthy working conditions; and rest, equal conditions of work, based leisure and reasonable limitation of work- on the principle of equality and ing hours and periodic holidays with pay. non-discrimination. They have the right to form and join trade unions and to social security, including Source: “Report of the Special Rapporteur social insurance. on the human rights of migrants, François Crépeau: labour exploitation of migrants” (A/ International human rights law also pro- HRC/26/35), para. 58. tects the right of irregular migrants to access justice, including the right to equality before the courts, to an effective remedy and to procedural guarantees.

© ILO/ M. Crozet 11 II. THE Irregular migration is not a crime Irregular migration may constitute an VULNERABILITY administrative offence, but it is not a crime against persons, property or OF MIGRANTS IN national security. However, in some countries, irregular entry or stay is AN IRREGULAR still criminalized. For what should be considered an administrative of- SITUATION fence, many undocumented migrants Migrants in an irregular situation are are nevertheless arrested, detained “invisible”. For the authorities of their and deported. The fact that irregular country of employment, they do not migrants need to conceal their identity exist; they are unrecorded in population from the authorities increases their statistics and other administrative data. insecurity and their exposure to abuse. This invisibility often makes it difficult for The Special Rapporteur notes with them to claim and enjoy their rights. The concern that irregular entry and stay misperceptions and myths that surround is considered a criminal offence in irregular migration can also contribute some countries. He wishes to stress to stigmatization and abuse. For exam- that irregular entry or stay should ple, it is often assumed that irregular never be considered criminal offences: migrants are a burden on the national they are not per se crimes against per- economy. In fact, they contribute to the sons, property or national security. It is economy and often pay taxes.12 important to emphasize that irregular migrants are not criminals per se and should not be treated as such. Source: “Report of the Special Rapporteur on the human rights of migrants, François Crépeau” (A/HRC/20/24), para. 13.

For obvious reasons, irregular migrants’ first fear is detection by the police. In seeking to evade detection they are rendered invisible in society, which can prevent them from accessing or enjoying rights to which they are entitled. Their need for anonymity is isolating; it cuts them off from their host society and 12 In the United States of America, various studies impedes their integration. If, in addition, have estimated that 50-70% of undocumented the staff of schools, hospitals or health immigrants currently pay personal income tax, using false social security or individual facilities are required to report undocu- tax identification numbers. See Institute on mented migrants to the authorities, then Taxation and Economy Policy, “Undocumented migrants will not use these facilities, which immigrants’ State and local tax contributions”, July 2013, p. 4. Available from www.itep.org/ deprives them of access to essential ser- pdf/undocumentedtaxes.pdf. 12 Protecting and promoting the human rights of migrant domestic workers in an irregular situation

vices such as education and health care. Being far away from home, often without If community police officers are expected their families, is a source of stress and to also carry out immigration functions, anxiety, reinforced by the challenges irregular migrants will not turn to them to associated with integrating into a new report crimes, including hate crimes. society. The support provided by informal networks, including those based on faith Migrants in an irregular or nationality, may partially meet this situation are more likely to need. Migrants are also more likely than face discrimination, exclusion, nationals to work in the informal economy, which may increase their economic exploitation and abuse at all insecurity and isolate them from main- stages of the migration process. stream human rights protection and ser- They often face prolonged vices. Migrants in an irregular situation are less likely to be aware of services, detention or ill-treatment, and including health care, social protection in some cases enslavement, and legal aid, that are available to them. rape or even murder. They are more likely to be targeted Some Governments sign bilateral by xenophobes and racists, agreements to protect their migrating victimized by unscrupulous domestic workers. employers and sexual predators, In February 2014, Saudi Arabia and and can easily fall prey to Indonesia signed a memorandum criminal traffickers and of understanding on the recruitment of domestic workers. More than 1.2 smugglers. Rendered vulnerable million Indonesians work in Saudi by their irregular status, these Arabia, many as domestic workers. men, women and children are The memorandum of understanding guaranteed that Indonesian workers often afraid or unable to seek would be paid via banks, be provided protection and relief from the online access to their work contracts authorities of countries of origin, and granted one day of holiday per transit or destination. week as well as leave entitlements and health insurance. The memoran- Source: Global Migration Group, Statement dum of understanding further affirmed on the human rights of migrants in an irregular that Indonesian domestic workers situation, 30 September 2010. were entitled to communicate with their embassy and access a 24-hour Migrants are likely to be unfamiliar with call centre if they needed help or national laws and the judicial system of needed to be repatriated. their country of employment, and may not Source: ‘Saudi Arabia moves to protect find it easy to obtain information about their rights of Indonesian maids’, BBC News, rights, notably when they are in an irregular 19 February 2014. Available from: http:// situation and do not speak local languages. www.bbc.com/news/world-middle- These factors all increase their exposure to east-26259326 abuse and human rights violations.

13 Their motives for migrating (such as Their fear of detection, detention or depor- poverty, domestic violence, conflict) may tation also exposes them to exploitation, further increase migrants’ risk of abuse. notably by employers but also by others They may lack the means to go home or such as landlords. The asymmetrical work feel that they cannot return. To make the relationship between employers and mi- journey to the country of destination, many grant workers is even more evident when migrants borrow money and acquire debts migrant workers depend on their employ- they must reimburse. Migrants typically ers for their work permit and residence also send money home, which provides a permit. In such circumstances, migrants vital lifeline to their families. For some, the are vulnerable because they need to work shame of not having made a success of and earn money, and because they are themselves in the country of employment unable to seek another job. Dependence prevents their return. As a consequence, depresses their bargaining power and many migrants end up in vulnerable and their vulnerability is increased by the fact dependent situations, unable to return that they may be unable to access essen- home and at high risk of exploitation. tial public services. © ILO/ G. Palazzo

14 Protecting and promoting the human rights of migrant domestic workers in an irregular situation

III. SPECIFIC RISKS forms of abuse they suffer and the consequences thereof. To FACED BY MIGRANT understand the specific ways WOMEN AND GIRLS in which women are impacted, female migration should be studied from the perspective of WOMEN MIGRANT DOMESTIC WORKERS gender inequality, traditional female roles, a gendered labour For women who migrate freely, migration market, the universal prevalence can be empowering. They can acquire or increase their autonomy and inde- of gender-based violence and pendence, including financial independ- the worldwide feminization of ence, and acquire new skills. However poverty and labour migration. migration can also increase the risks of Source: Committee on the Elimination of exploitation and abuse that women face Discrimination against Women, general because of their gender. Notably when recommendation No. 26 (2008) on women they are in an irregular situation, women migrant workers, para. 5. are at risk of exploitation and abuse, including physical and sexual abuse, food and sleep deprivation, and harassment In general, migrant women face many of by their employers. the same human rights violations as migrant men, but also face additional risks Under international human rights law, all because of their sex, including physi- women, including migrant women, have cal violence, and sexual harassment a right to be free from sex- and gender- and abuse. The link between domestic based discrimination. The Convention on work, migrant women and gender-based the Elimination of Discrimination against Women requires States parties to take violence is frequently made, and women all appropriate measures without delay migrant domestic workers are one of to eliminate all forms of discrimination the groups most exposed to physical against women and to ensure that they and sexual violence. Several reports will be able to exercise and enjoy de jure give appalling examples of physical and de facto rights on an equal basis and psychological abuse, including with men in all fields. verbal abuse (harsh insults, threats, belittlement), often accompanied by Although both men and women physical abuse (including slaps, pulled migrate, migration is not a hair, poked eyes, kicks in the stomach, pinching or holding hot objects against gender-neutral phenomenon. the skin) and psychological intimidation. The position of female migrants Some domestic workers report being is different from that of male thrown down stairs or stabbed with knives; or beaten with wooden planks, migrants in terms of legal tree branches, broomsticks, iron bars migration channels, the sectors and wires, even for small “errors” in into which they migrate, the their work.

15 Women migrant domestic workers in As mentioned above, domestic work is an irregular situation are also at risk of traditionally a highly feminized occupa- being physically and sexually abused by tion, regarded by many as “women’s officials when they are arrested, detained work” that does not require qualifica- or deported. Women who experience tions. The tasks it involves (such as or make complaints about violence and cleaning, cooking, caring for children ill-treatment against them, especially or the elderly) are regarded by some as migrant women who are in an irregular degrading and dirty. Women migrants situation, must often overcome financial who work as domestic workers are not and administrative obstacles before they always considered workers with human can obtain protection, psychological rights, but as helpers or family members assistance, counselling, medication or who are dependent on the charity of the access support programmes. family that they live with.

In October 2013, during the United In Spain, irregular migrant women Nations General Assembly’s High-lev- who are victims of physical violence el Dialogue on International Migration have access to emergency accom- and Development, States unanimously modation and police protection as adopted a Declaration that recog- soon as they lodge a complaint. For nized “that women and girls account instance, the Madrid City Council for almost half of all international operates a care service for domestic migrants at the global level, and the violence. A specialized intervention need to address the special situation model for survivors of gender-based and vulnerability of migrant women violence operating within municipal and girls by, inter alia, incorporating social services, it is open 24 hours a a gender perspective into policies and day, 365 days a year. With a free strengthening national laws, institu- phone service, it provides immedi- tions and programmes to combat ate assistance, legal information and gender-based violence, including support, psychological help, and trafficking in persons and discrimina- emergency short-stay accommodation. tion against women and girls”. The Staffed by a multidisciplinary team of General Assembly emphasized in this police and gender-based violence spe- regard the need to establish appro- cialists, it coordinates with municipal priate measures for the protection of and privately run support services in women migrant workers in all sectors, the city. including those involved in domestic Source: Platform for International work. Cooperation on Undocumented Migrants, Source: Declaration of the High-level Strategies to End Double Violence Dialogue on International Migration and Against Undocumented Women: Development, General Assembly resolution Protecting Rights and Ensuring Justice 68/4, paras. 11-12. (2012), p. 84.

16 Protecting and promoting the human rights of migrant domestic workers in an irregular situation

CHILD MIGRANT DOMESTIC WORKERS tation and from performing hazardous or harmful work or work that interferes with It was estimated in 2008 that over 15.5 a child’s right to education. International million children aged between 5 and 17 labour law has also guided that children years were engaged worldwide in domes- under 15 years of age should not be em- tic work and that 73% were girls.13 While ployed.14 States are required to ensure that more recent data have not been collected, the best interest of the child is the primary there is every reason to believe that a consideration for all action taken in regard significant number of children continue to to children. be employed as domestic workers, and of this number several would be migrants. When they work as domestic workers, children are vulnerable to all the human The Convention on the Rights of the Child rights violations and abuses risked by adult protects all children from economic exploi- workers but, because they are children, these violations and abuses assume particular gravity. Child domestic workers may be 13 ILO International Programme on the Elimination exposed to dangerous and toxic substances of Child Labour, Ending Child Labour in or undertake dangerous tasks. They are Domestic Work and Protecting Young Workers from Abusive Working Conditions (ILO, 2013), particularly at risk of being subjected to p. 20. Available from www.ilo.org/public/ forms of slavery such as forced labour and libdoc/ilo/2013/113B09_111_engl.pdf. servitude. Migrant children can be particularly exposed to physical, psychological and sexual violence. Their conditions of life and work are often inhumane: they may be allocated substandard sleeping areas, asked to work as much or even more than adults, paid less than adults or not paid at all. Child migrant domestic workers are often children who have migrated alone un- accompanied by parents or other caregiv- ers and who as a consequence generally lack support. Their situation of isolation and vulnerability prevents them from enjoying other human rights such as the rights to education and to leisure and play.

14 ILO Convention No. 138 on the minimum age for admission to employment (1975) notes that developing countries are entitled to initially specify a minimum age of 14 years, but that they © ILO/ M. Crozet must regularly consider raising the minimum age. 17 IV. HUMAN RIGHTS Even if certain protections for migrant domestic workers are provided under CHALLENGES national laws, there is often a gap between protections enjoyed by such FACED BY MIGRANT workers in law and in practice. Some of the practical obstacles faced relate DOMESTIC to the “hidden” nature of domestic work and factors preventing or WORKERS IN deterring migrant domestic workers from claiming their rights. A range of AN IRREGULAR factors constitutive of domestic work itself, and even more so, of domestic SITUATION work performed by migrants, hides abuses from view, and makes detec- The nature of domestic work lends itself to tion of protection needs difficult. (a) certain forms of abuse, which can more workplaces are unseen, behind closed easily take place unnoticed and with doors and out of the public eye; (b) impunity in private households. domestic work is commonly part of the informal labour market, where work As domestic work is most frequently car- and workers are unregistered; (c) the ried out in private households, it is often physical and social isolation of work- less regulated, or not regulated at all, ers blocks individual and collective let alone monitored and inspected. This action; (d) the large number of work- situation can be exploited by abusive em- places, their geographical spread ployers. Domestic workers who live with and national privacy laws complicates their employers are particularly at risk of effective inspections and monitoring isolation and abuse, and if they are in an by labour departments. irregular situation their lives may be even more clandestine. Source: Committee on the Rights of Migrant Workers, general comment No. 1 (2011), paras. 25-26.

A. VIOLATIONS OF DIGNITY

Migrant domestic workers are often treated with disrespect. Attitudes towards them may be condescending and abusive. They may be insulted, shouted at, beaten, deprived of food or drink, or experience other forms of harassment or ill-treatment, or psychological and physical abuse, that deny their dignity as human beings. © ILO/ M. Crozet

18 Protecting and promoting the human rights of migrant domestic workers in an irregular situation

spread, employers are likely to behave Migrant domestic workers’ right to in even more inappropriate or abusive privacy is often violated; their corre- ways. Media reports can also reinforce spondence is opened, their telephone xenophobic attitudes and beliefs, such as calls are monitored, their rooms newspaper reports that use discriminatory are searched. The invasion of their and insulting language about migrants, privacy is a form of harassment that targeting in particular those who are in violates their dignity and strengthens an irregular situation. the perception of inferiority or lack of respect. All these abuses strengthen the dominant/submissive relationship Go to […] a 1970s mall in central Sin- between employer and the migrant gapore, and you will find five levels of domestic worker. brightly lit rooms and galleries called Source: Report of the Special Rapporteur “Homekeeper” and “Budget Maid”. on the human rights of migrants (E/ Inside these rooms, dozens of women CN.4/2004/76), para. 28. sit in a listless, artificial silence. They nod respectfully as you enter, and Demeaning or degrading treatment some watch closely as you speak to is a particularly insidious form of staff. You might take one home with abuse. Aggressively delivered orders, you - for two years, or longer. The shouting and constant belittling criti- women, domestic workers, come from cism contain an underlying threat of Indonesia, the Philippines, and Myan- violence or may be seen as violent. mar. They sit beneath garish signs and Abuse may also include withholding posters, testifying to their friendliness of food, not allowing the worker the and industriousness, or advertising freedom to prepare her own food “super promo” rates and “special and relying on “handouts” from the discounts”. [...] [The] executive direc- mistress of the house, which may be tor of the Humanitarian Organisation leftovers from the family meal. There of Migration Economics (HOME), have been cases where locks were put a migrant workers advocacy group on refrigerators and in one case an based in Singapore, said that some alarm was installed. Employees may agencies market their domestic work- be belittled on a daily basis, such as ers like “commodities”. He adds that name-calling (Hmara, or “donkey” is racial stereotypes are sometimes used the most common term used). Some- in transactions with patrons. “Some times, names are changed to suit the of the stereotypes include Filipinos as employer. ‘smarter’, Indonesians as ‘less bright’ Source: United Nations Research Institute and Burmese as ‘sweet-natured and for Social Development, “Migrant workers compliant’.” and xenophobia in the Middle East” (UNRISD/PPICC2/03/2). Source: Michael Malay, “Buy a discount maid at Singapore’s malls”, Al Jazeera, 27 June 2014. Available from Such abusive behaviour seeks to hu- www.aljazeera.com. miliate and dehumanize the migrant, to affirm his or her inferiority or punish him or her. Where racism, xenophobia and discrimination against migrants are wide- 19 20 © ILO/ M. Crozet Protecting and promoting the human rights of migrant domestic workers in an irregular situation

In extreme cases, employers have abused Domestic work may cause specific health migrant domestic workers to the point problems linked to domestic tasks or that their punishments or mental coercion overwork. Where working conditions amount to degrading or inhuman treat- are insecure or oppressive, anxiety and ment, or even torture. depression may be an issue. The health of migrant domestic workers may also be B. LACK OF ACCESS TO HEALTH undermined if they are malnourished or exposed to unhygienic environments and CARE AND HEALTH SERVICES living conditions. In some countries irregular migrant Even when they are sick, irregular mi- workers are legally excluded, partly or grant domestic workers may not receive completely, from health care and health care and may be obliged or compelled services; they may be permitted to obtain to work. Following work accidents, they only emergency medical care, for exam- are often denied the right to see a doctor ple. Even where they are legally entitled and receive necessary and appropriate to full health coverage, however, their medication or medical treatment. They access may be limited in practice: many may also face dismissal if they are ill for avoid using public and private health fa- any length of time. cilities for fear of arrest and deportation; others cannot afford the cost of treatment or cannot produce required documents In Argentina, Migration Law No. (insurance, a work permit, an identifica- 25.971 (art. 8) grants all migrants, tion card). In addition, many migrant irrespective of their status, access to workers lack information about the health social assistance and health care. system in their country of employment The law explicitly states that health and their entitlements with respect to it. authorities shall provide migrants with Irregular migrant workers who work in pri- guidance and counselling on regulari- vate households may additionally be pre- zation procedures. vented from accessing health care because In the Plurinational State of Bolivia, they cannot leave the house or because Migration Law No. 370 (art. 12) their employer withholds permission. states that migrants shall exercise and Every domestic worker has enjoy the right to health and sexual and reproductive rights. the right to a safe and healthy In Uruguay, Migration Law (No. working environment. Each 18.250) guarantees all migrants and Member shall take [...] effective their families access to health, labour, measures, with due regard for social security, housing and education the specific characteristics of on an equal footing with nationals (art. 8). Their irregular status does not domestic work, to ensure the limit migrants’ access to justice and occupational safety and health of health facilities. Health authorities are domestic workers. expected to provide migrants with information on how to regularize their Source: ILO Domestic Workers Convention status in the country. No. 189, article 13 (1).

21 Women migrant domestic workers in an They may be asked to entrust their child irregular situation are often unable to en- to someone else, or accept deductions joy their sexual and reproductive health from their pay for childcare. It can be rights, either because they are denied extremely difficult for domestic workers to these rights formally or because they care for their own children while con- fear arrest and deportation. In countries tinuing to work, especially if their duties where irregular migrants have access include complicated hours or night shifts. only to emergency health care, women When they are in an irregular situation, migrant domestic workers are excluded they may not receive public maternal and from preventive sexual and reproductive child benefits, and their children may not health services, such as periodic smear be able to use public childcare facilities. tests to identify cervical cancer. Migrant They may have to send their children domestic workers may be denied gynae- away to live with family members or rely cological care and are often unable to for support on other migrant women. access essential obstetric services. Women who are in an irregular situation Pregnancy tests can be imposed on may be unable to register the birth of migrant domestic workers in the course their child in the country of employment. of their employment, causing women who are pregnant to seek abortions that The Committee further are unsafe, especially in countries that recommends the adoption of criminalize abortion, or to lose their jobs. legislative, administrative and A domestic worker who is dismissed for other measures guaranteeing being pregnant may end up homeless and at risk of further abuse. Some preg- access to social security and nant migrant women have been charged other labour benefits, including with having “illegal sexual relationships” paid maternity leave, for female when they became pregnant after rape and are held in detention centres in domestic workers and migrant deplorable conditions pending their workers in the informal and deportation. rural sectors. Source: Committee on the Elimination of C. LIMITATIONS ON THE RIGHT TO Discrimination against Women, Concluding FAMILY LIFE observations: El Salvador (CEDAW/C/SLV/ CO/7), para. 32. Migrant women domestic workers may have limited or no access to maternity Separation from their partners and leave, even unpaid, and may have to children who have stayed behind in the continue working until they give birth. country of origin can be a very difficult During pregnancy or once their child is emotional burden, particularly because born, they are at risk of being dismissed irregular migrants will not usually be able and having to leave their employer’s to travel to visit their family back home. house, sometimes with nowhere to go. If Among women migrant workers, such they remain in their employer’s service, separation is one of the principal causes they may be expected to work very soon of mental health problems (anxiety, head- after delivery. aches, insomnia, stress, depression).

22 Protecting and promoting the human rights of migrant domestic workers in an irregular situation

D. INADEQUATE HOUSING, FOOD, E. RESTRICTIONS ON FREEDOM OF WATER AND SANITATION MOVEMENT; SOCIAL AND PHYSICAL ISOLATION Live-in migrant domestic workers in an irregular situation are often totally depend- Some employers of live-in domestic work- ent on their employer to provide food, ers restrict their employees’ freedom of water, accommodation and sanitation. movement and hence their ability to meet Employers can deprive such migrants of friends and maintain social contacts. food and water, or force them to live in Domestic workers may be refused permis- unsanitary or unsafe conditions. sion to leave the house or are locked in; International standards provide that the their phone calls may be monitored or right to housing should not be interpreted they may not be allowed to own a mobile narrowly in terms of shelter (meaning phone. just the provision of walls and a roof) but understood to imply an entitlement to live in security, peace and dignity, Employers of domestic workers in a with adequate privacy and adequate variety of countries use remarkably space. Yet migrant domestic workers similar techniques to control and con- are forced to sleep in kitchens, storage fine their employees, ranging from lim- rooms, hallways and corridors, or they iting their ability to contact family and may be compelled to sleep in the room friends, confiscating passports and of the child they are caring for. Migrant immigration documents, to forced con- domestic workers may not have space to finement in the household. Employers, store their personal affairs, access to a agents, and even governments often lockable bathroom and toilet, or opportu- defend these practices as necessary to nities to be alone. Some women migrant protect the employer’s household, the domestic workers are victims of physical privacy of the family, and the per- or sexual violence because they have to sonal security of the domestic worker, share their room with other employees or and to prevent workers from running cannot lock the door to their room. away. Arbitrary denial of freedom of movement and association is abusive Live-in domestic workers also face dis- in its own right, and […] dramatically crimination or abuse with regard to food increases the vulnerability of domestic and water. Some receive food that is workers to economic exploitation, insufficient in quantity or nutritional value, forced labor, intimidation, and sexual or is not in accordance with their cultural violence and harassment. or religious values. Others are expected to eat the leftovers from their employer’s Source: Human Rights Watch, Swept Under the Rug: Abuses against Domestic Workers meals, or are not allowed to sit at the Around the World (July 2006), p. 73. table to eat, or are forced to eat on the floor. Many live-in domestic workers are not able to buy and to cook their own food and therefore cannot choose how or what they eat.

23 © ILO/ G. Palazzo

Migrants who work as domestic work- for live-in domestic workers, which ers in South Africa are covered by include respect for their privacy. They South African laws regulating domestic regulate recruitment agencies and work. A labour court decision has also indicate the respective responsibilities recognized that non-national domestic of recruiters and employers. workers who lack a valid work permit The Commission on Conciliation, Medi- in South Africa have the right to fair ation and Arbitration oversees disputes labour practices and are fully protected that arise under the Labour Rights Act by the Labour Rights Act and the Basic and deals with issues of unfair treatment Conditions of Employment Act. and unfair dismissal. The Commission Both these laws offer comprehensive also has a wider education mandate protection to domestic workers, includ- and makes use of radio and road ing migrants in an irregular situation. shows to inform workers of their rights. They affirm the right to form and join Its procedure is accessible to domestic trade unions, make provision for mini- workers, including irregular migrants, mum and overtime pay and employ- who can easily lodge complaints. ment benefits, and regulate hours of Source: Solidarity Center and United States work, leave, remuneration and termina- Agency for International Development, tion, as well as workplace inspections. “Domestic workers and socio-economic They set out criteria of decent housing rights: A South African case study”, 2013.

24 Protecting and promoting the human rights of migrant domestic workers in an irregular situation

For migrant domestic workers in an The Democratic Organization of Mi- irregular situation, social networks are a vital source of solidarity and informa- grant Workers in Morocco is the first tion. Such networks are almost always trade union of undocumented workers informal, including national or hometown in Africa. It is an independent section organizations and religious associations. of the Democratic Organization of In cases of grave abuse, social networks Labour (Organisation démocratique can help domestic worker to escape from du travail), and is directly managed their situation and also provide assis- by migrants. Its objectives are to: tance. For migrant domestic workers who defend the rights of migrant workers have little time to rest and relax, such of all origins living in the country, networks provide vital support. raise awareness on the precarious situation of undocumented workers, promote the rights to education, social The Migrant Rights Centre Ireland security, equal pay and equal working (MRCI) set up a Domestic Workers Ac- conditions; demand regularization of tion Group, which brings together migrant domestic workers in vulnerable undocumented workers; and promote and isolated situations, and empow- the integration of migrants in Moroc- ers them through peer support and can society. solidarity. The group has over 300 Source: African, Caribbean and Pacific members, most of whom are women, Observatory on Migration, “The evidence and is at the forefront of efforts to fight behind the picture: Irregular migration for the rights and dignity of workers in ACP countries and the global South”, employed in Irish private homes. Background note, 2014, p. 21. Source: MRCI statement, Committee on the The Senegalese and Mauritanian Rights of Migrant Workers, Day of general labour confederations (Confédération discussion on workplace exploitation Nationale des Travailleurs Sénégalais and workplace protection, 7 April 2014. and Confédération Générale des Tra- Available from www.ohchr.org/Documents/ vailleurs de Mauritanie) have signed HRBodies/CMW/Discussions/2014/ MigrantRightsCentreIreland.doc. a mutual cooperation agreement to ensure that violations of migrant domestic workers’ rights are followed Social and physical isolation can exacer- up and supported. bate health problems (stress, anxiety and Source: ILO, “Protecting the rights of depression) and make it even harder for migrant domestic workers”, Briefing Note the migrant to access health and other No. 4, p. 5. services. Migrants in an irregular situation are The right of migrants in an irregular situ- allowed to join and/or form trade ation to form or join trade unions is not unions in all of the EU Member States always recognized in national law. For studied. isolated migrants, the ability to bargain collectively, and find support and as- Source: European Union Agency for sistance, is very important. Trades unions Fundamental Rights (FRA), Migrants in an can represent migrant domestic workers irregular situation employed in domestic in mediation procedures or labour courts, work: Fundamental rights challenges for and can provide support and advice if the European Union and its Member States (2011), p. 35. their rights are violated. 25 F. LABOUR EXPLOITATION AND In 2006, Uruguay also recognized SLAVERY-LIKE PRACTICES, SUCH that domestic workers should have AS FORCED LABOUR AND DEBT equal right to labour protection and BONDAGE social security rights, including a limit to working hours, weekly and nightly Forced labour is the term used by the rest, minimum wages and the right to international community to denote situ- insurance benefits for unemployment ations in which the persons involved – and health coverage. In Uruguay, women and men, girls and boys – are migrant domestic workers have the made to work against their free will, same rights as national domestic coerced by their recruiter or employer, workers. for example through violence or threats of violence, or by more subtle means such Source: “Promotion and protection as accumulated debt, retention of identity of human rights, including ways and papers or threats of denunciation to means to promote the human rights of 15 migrants: Report of the Secretary-General” immigration authorities. Unfortunately, (A/70/259), para. 54. labour exploitation of migrant domestic workers, especially those who are in an irregular situation, is widespread in all Migrant domestic workers are commonly regions of the world. Migrants may be expected to work excessive hours. This asked to work excessive hours without demand is often aggravated by refusal rest; they may not be paid or may have to pay for these hours, or to pay at a fair arbitrary sums deducted from their pay; rate. Requests for salary increases or fair they may be forced to work in hazard- pay will often result in employers sacking ous and dangerous conditions; may be the irregular worker, who generally is not refused sick leave or denied compen- able to challenge the dismissal. sation following an accident; may be dismissed without justification; or they may have their passports confiscated by In Qatar, Amnesty International their employers. interviewed 14 women who said they worked at least 15 hours a day, seven days a week, amounting to average working weeks of more than 100 hours. Source: Amnesty International, My Sleep is My Break: Exploitation of Migrant Domestic Workers in Qatar (2014), p. 28.

In London, Human Rights Watch interviewed overseas migrant domestic workers who were on call 24 hours a day, 7 days a week, and who worked between 15 and 17 hours a day. Source: Human Rights Watch, Hidden Away: Abuses against Migrant Domestic 15 ILO, “2012 Global estimate of forced labour: Workers in the UK (2014). Executive Summary”. 26 Protecting and promoting the human rights of migrant domestic workers in an irregular situation

Migrants can be coerced to work through countries, either voluntarily or by being the use or threat of violence, but also forcibly deported. They may be detained such means as debt bondage, retention in appalling conditions and for long of identity papers or threats of denuncia- periods of time prior to being deported. tion to immigration authorities. Forced Migrant women and children are often labour is an absolute violation of funda- not detained separately from men or mental human rights and is considered a unrelated adults respectively, and migrants crime in most national legal systems. are often detained together with persons In practice, nevertheless, migrants in an who have been convicted of crimes. In irregular situation who are victims of detention, migrants’ physical and psycho- forced labour may be prevented from, logical health tends to deteriorate and ac- or face difficulties in, lodging or pursu- cess to health services is likely to be poor. ing a complaint. This may be owing to Pregnant women or women with babies their situation (if they are confined to the and children rarely receive special care. house, for example, or their employer Detention centres tend to be run by police has retained their documents) or to pro- or prison authorities or private security cedures that do not allow them to bring companies, often without appropriate complaints, or do not protect them from training in the human rights of migrants or expulsion while their case is processed. in the provision of health services.

It is estimated that 60-70% of Ethio- pian women migrating to take up domestic work abroad do so irregularly. Many Ethiopian women working in domestic service in the Middle East face severe abuses, including physical and sexual assault, denial of salary, sleep deprivation, withholding of passports, confinement, and murder. Many are also driven to despair and experience psychological problems, with some committing suicide. Source: United States Department of State, 2012 Trafficking in Persons Report - Ethiopia (19 June 2012). Available from www. refworld.org/docid/4fe30ccb32.html.

G. DETENTION AND DEPORTATION

Irregular migrant domestic workers who have been identified by the authorities of the country of destination will usually be expected to return to their home

27 © ILO/ M. Crozet the use of excessive force and unneces- Some States have applied alterna- sary restraint techniques and the adminis- tive measures to detention for ir- tration of non-medically justified sedatives regular migrants, with some explicitly and other medications. Of great concern acknowledging that particularly is the death of migrants during forced vulnerable groups, such as children, returns, owing primarily to the treat- should not be detained. In Spain, ment they are subjected to while being the immigration detention of children returned. is prohibited by law; such children are to be referred to services for the protection of minors and may H. GAPS IN LEGAL PROTECTION, be detained only with their parents LACK OF ACCESS TO REDRESS AND in facilities that are appropriate for COMPENSATION families. The legal system in many countries All European Union countries, except does not provide adequate protection for Cyprus and Malta, have legis- for irregular migrant domestic workers. lated that alternatives to detention Often this is because domestic work must be pursued prior to any decision is not considered formal work and for detention. The 2004 immigration domestic workers (whether they are law of the Bolivarian Republic of nationals or foreigners) are not covered Venezuela prohibits detention and by the general national legislation provides several alternatives that may that protects workers’ rights. In other be adopted within a deportation pro- countries, domestic work is regulated cedure, including reporting regularly and some protection is available (with to the competent authority, settling in respect to minimum wages, hours of a given locality during the administra- work and paid leave, for example), but tive procedure and providing a finan- the legislation discriminates against do- cial security guarantee (for which the mestic workers because it does not offer migrant’s economic condition must be them the same level of protection that taken into account). other workers enjoy. Migrants may also Source: “Promotion and protection be excluded from protection because of human rights, including ways and of their nationality or their migration means to promote the human rights of status. National laws often exclude migrants: Report of the Secretary-General” migrants in an irregular situation, ex- (A/68/292), paras. 77 and 79. plicitly or by omission. As a result, they are often unable to access or enjoy Both during detention and deportation, essential services or social protection. irregular migrant domestic workers, especially women, are at particular risk of physical and sexual violence. Irregular migrants often endure collective expul- sions and forced returns, which are arbitrary and can lead to further multiple human rights violations. Concerns have been raised about the treatment of migrants during forced returns, including

28 Protecting and promoting the human rights of migrant domestic workers in an irregular situation

on freedom of movement, association The New York Domestic Workers’ and expression). Bill of Rights In addition, they face obstacles that are In 2000, domestic workers in New specific to their irregular situation. Fear York, United States, formed the New of expulsion often deters irregular mi- York Domestic Workers Justice Coali- grants from lodging complaints against tion. With the United States National an abusive employer. In some cases, Domestic Workers Alliance, Employ- employers play on these fears by threat- ers for Justice and other groups, it ening to denounce them – and fear is campaigned for eight years for a Do- well-founded wherever judicial or other mestic Workers’ Bill of Rights. The Bill public officials are obliged to report became law on 29 November 2010, irregular migrants to the immigration and guarantees for domestic workers: authorities. The effect is to cause many 1. A normal work day of 8 hours; a irregular migrants to choose to endure work week of 40 hours for live-out abusive conditions. domestic workers and 44 hours for live-in domestic workers. A general climate of 2. The minimum wage of workers criminalisation of irregular in New York State (currently US$ immigrants combined with the 8.75 per hour). fear and risk of being arrested 3. Overtime pay of 1.5 times the and expelled may further fuel worker’s regular wage. 4. One rest day in each calendar the belief, including among the week, which (where possible) victims themselves, that migrants should coincide with the worker’s in an irregular situation do not day of worship. have any rights. This complex of 5. Three paid days off after one year fear and insecurity, produced by of employment. the illegal situation, dissuades The Bill prohibits workplace discrimination and sexual harassment. It ap- migrants from seeking redress. plies to all domestic workers, includ- Many instead prefer to leave ing irregular migrants. abusive employers and not to seek redress. Migrant domestic workers in an irregular As many interviewees from situation find it difficult to access legal remedies when their rights are violated. Poland, Germany, Sweden, France First of all, they face the same obstacles and Ireland said, the price for that all migrant workers face (unfa- claiming their rights – deportation miliarity with national laws and judicial systems, unfamiliarity with local languag- – “would be too high”. es, inappropriate or inadequate legal Source: FRA, Migrants in an irregular situation assistance) and that all domestic workers employed in domestic work, p. 42. face (gaps in legal protection, restrictions

29 In the absence of mechanisms that In Bahrain, the embassies of the provide protection to migrants who bring Philippines and India provide shelter complaints, it is extremely difficult for to female migrant domestic workers migrant domestic workers in an irregular who have had problems with their situation to initiate or pursue a complaint employer. against an employer or abuser. While the case is being settled, they are likely to Source: E/CN.4/2004/76, para. 61. need permits, and access to temporary accommodation and social services, especially if the complaint involves Nor can migrants in an irregular situa- sexual abuse or violence. Victims of tion easily access the justice system if serious criminal offences such as forced they cannot produce evidence of a work labour, slavery or physical or sexual relationship with their employer or prove violence can be granted a temporary their conditions of work. Salaries are residence permit that allows them to often paid in cash, without a paper trail. remain in the country of employment In private households, there are often no while their case is heard. However, witnesses of abuse. In many countries, conditions may be attached (willingness no provision exists for labour inspections to collaborate with the police) and these of private households and, even when often do not allow the complainant to a law is in place, such inspections are work. In some countries, investigations extremely difficult to carry out. are systematically dropped if the complainant leaves the country. © ILO/ L. Uhlenhaut

30 Protecting and promoting the human rights of migrant domestic workers in an irregular situation

As labour inspectors are unable to In its concluding observations to the enter private homes in Lebanon, social Government of the Philippines in workers have been appointed to moni- 2009, the Committee on the Rights of tor the conditions of domestic workers. Migrant Workers expressed concerns Labour inspectors have been given about the incidence of abuse and ex- specialized training courses to assist ploitation of Filipino workers abroad, them in monitoring the implementation especially women. The Committee of laws and regulations concerning made detailed recommendations for decent work, including for domestic their protection. For example, it asked workers. the Government of the Philippines In Peru, under the Ministry of Labour to “[negotiate] more secure employ- and Employment, labour inspectors ment opportunities and terms and are mandated to investigate domestic conditions for women in vulnerable workplaces. Inspectors carried out 152 sectors through bilateral agreements inspections with regard to domestic in those countries where discrimina- workers from April to December 2014. tory treatment and abuse are more frequent” and to “increase dissemina- Source: “Promotion and protection tion channels to increase awareness of human rights, including ways and means to promote the human rights of among migrant workers, especially migrants: Report of the Secretary-General” women in domestic service, on the (A/70/259), paras. 65-66. available mechanisms for bringing complaints against employers and so that all abuses, including ill-treatment, Direct or indirect discrimination against be investigated and punished”. It foreigners in judicial proceedings as well reiterated these recommendations in as corruption (for instance, when the 2014. The Committee has clarified the police or judicial officials collude with obligations of countries that promote employers against their migrant employ- institutionalized migration, by inviting ees) are some of the other obstacles them to regulate the industry and that impede migrant domestic workers apply human rights standards, rather from seeking and obtaining redress in than consider economic and develop- cases of abuse. Courts can discriminate ment aspects alone. against irregular migrants when they do not enforce contracts in which one of the In response, the Government of the parties is known to be in an irregular Philippines passed a Migrant Work- situation. This allows employers to ignore ers and Overseas Filipinos Act, which their contractual obligations such as pay- improved the protection offered to Fili- ment of salaries. pino migrant workers abroad, raised awareness of poor or fraudulent It is also an obligation of countries of recruitment practices, and increased origin to protect their nationals who work the number of consular staff available abroad, notably by providing effective to assist and protect Filipino migrants consular services and mechanisms for re- in other countries. ceiving complaints from migrant workers Source: CMW/C/PHL/CO/1. in embassies and consulates.

31 workers may be obliged to renounce a V. SEEKING part or all of their entitlements, including unpaid salaries. While abroad, they may A SOLUTION: not have contributed to their own country’s pension and unemployment schemes RETURN AND either and as a result may benefit from REINTEGRATION OR neither system.

REGULARIZATION The Government of Indonesia and NGO representatives have attempted RETURN AND REINTEGRATION to establish monitoring systems to screen returning migrant workers, to Return and reintegration can be a difficult inform them of their rights, and to iden- process for returning migrants. Migrant tify those needing medical attention. domestic workers in an irregular situa- Source: “Report of the Special Rapporteur tion may not have chosen freely to return on the human rights of migrants, Jorge home; they may have been deported or Bustamante: Mission to Indonesia (A/ returning home might have been the only HRC/4/24/Add.3), para. 28. way to escape an abusive employer. In such cases, returning migrants may not Sri Lanka has created an insurance have planned their return and reintegra- and pension scheme for returning tion in their countries and communities migrant workers who have registered of origin. They may still be indebted, in the scheme. perhaps to smugglers or recruiting agents Source: Committee on the Rights in their country of origin, or to family of Migrant Workers, Concluding members or neighbours. They may feel observations: Sri Lanka (CMW/C/LKA/ that they have failed in their goal to CO/1), para. 11 financially support their family and often suffer from feelings of guilt. If they have been detained in harsh conditions before On return, migrant domestic workers may their return or have suffered abuse, they have difficulty in finding employment. may be traumatized. Many suffer from Their working experience abroad may depression, exhaustion and other physi- not necessarily be recognized and their cal and mental illnesses upon their return. vocational certifications may be out- Unfortunately, they do not always find of- dated. They may have difficulties finding ficial systems in place which allow for the long-term and adequate housing, includ- durable social and cultural reintegration ing because they sold or mortgaged their of migrants who are returning home. houses in order to finance their migration, and be forced to rely on the charity For evident reasons, many irregular of family or friends. migrant domestic workers do not accumu- late pensions or other benefits. Those that do may find on return that such benefits REGULARIZATION cannot fully be transferred. Unless agree- Regularization is one of the most effective ments exist between their countries of forms of protection for migrant domestic origin and employment, migrant domestic workers in an irregular situation, and 32 Protecting and promoting the human rights of migrant domestic workers in an irregular situation

human rights experts have affirmed thus contributing to the society in which that migrants who have had their status they live.16 regularized are able to enjoy a more secure and dignified life. The Commit- tee on the Rights of Migrant Workers Some 500,000 irregular third-country has accordingly recalled, in its general nationals employed in domestic work comment No. 2 (2013) on the rights of have been regularised since 2002 in migrant workers in an irregular situation Italy and Spain. and members of their families, that “regu- Source: FRA, Migrants in an irregular larization is the most effective measure situation employed in domestic work, p. to address the extreme vulnerability of 19. migrant workers and members of their families in an irregular situation. States parties should therefore consider policies, In some countries, regularization including regularization programmes, for programmes grant residence and work avoiding or resolving situations whereby permits to migrants on an individual ba- migrant workers and members of their sis, taking into consideration criteria such families are in, or are at risk of falling as the applicant’s employment record, into, an irregular situation” (para. 16). length of stay in the country of employ- The Special Rapporteur on the human ment, family links and knowledge of the rights of migrants has asked States to language of the country of employment. consider regularizing migrants who have lived in a country for a long time, or who came as infants, or who are working and 16 A/HRC/26/35, para. 58. © ILO/ G. Palazzo

33 it is hard as a mother to see your children Maryfe’s story in need. So I decided I had to go abroad again. I have lived here for the last six years. I have worked as a nanny, a cleaner, a On 9 March 2006 I went to Dubai to housekeeper, a baby-sitter and a carer work as a nanny. The work was tough. I for an elderly woman. I am “undocument- was on call most of the time. I only slept ed”; I do not have a permit to live and four hours a night as I would have to work in this country. This is my story. accompany my employer and her child out until late at night. The salary was low I come from a poor family in the Philip- and I didn’t have a day off. pines. I studied up to high school and then I quit my studies to work as a street In August 2008 the family I was working seller. I got married very early, when I for came to this country on holiday and was 17, and quickly had four children. brought me with them. Outside the hotel I needed to support my children and one day I got talking to a Filipina who care for my sick father, and my husband told me that she would help me run away was not much help. I learned that if I from my employer. That night I couldn’t went abroad I could earn more money sleep. I weighed up my duty as a mother for my children and my family. In 2004 to provide my children with a better life I decided to look for work outside the against the fact that it would be many Philippines. years before I could see my children again. That night I called my family and On 2 October 2004 I went to Hong told them I would not see them any more Kong, having had a video interview with for many years. It was one of the most a Hong Kong-based recruitment agency. difficult decisions I have ever made. I When I got there I was given two jobs to miss my children every day. do by my employer ; I had to care for her disabled child in one house and in the I have had a few jobs since then in this other I had to look after her bedridden fa- country. I have worked with a family ther. It was hard work, and my employer looking after their three children and was always angry with me. She called even though I loved the children, I found me names. She even held a knife to my it hard to work there. I worked 12 hours throat and threatened to kill me. One day a day for five and half days a week. I had enough and told her that I wanted My employer and I argued constantly. to break my contract and return home. She wanted me to come with them on She got very angry and called the police their holidays in another country so that and told them that I had stolen HK$ 400 I could look after the children. She didn’t from her. They searched my luggage and understand that I did not have papers, I even strip searched me. I will never forget can’t leave this country and I can’t risk that. Even though they agreed with me getting caught. I got acute hypertension. that I hadn’t stolen anything the police But I felt that I couldn’t leave the job be- told me that I would have to leave Hong cause I needed the money. Finally it got Kong as I had broken my contract. too much and I quit. So, scared from this experience, I went For one month I was without steady work back to the Philippines and started sell- and I worried constantly about money. ing in the market again. But I made little My children and my extended family rely money and my children were growing up; on the money that I send them from here. 34 Protecting and promoting the human rights of migrant domestic workers in an irregular situation

Everyone at home thinks that because I the street and send you back to your am working in this country that I should country. But now I know that they will be able to send them back lots of money. only catch you if you get in trouble. So They don’t know how expensive it is every month I buy a transport ticket, here, and how good work is difficult to and make sure that I don’t get in trouble find. Then, four years ago I found work with the police. I never fight with anyone with a family as a nanny and house- because I don’t want them to call the keeper, and this is where I am working police. A few years ago my friend was today. I also work part-time during the suddenly dismissed by her employer evenings and weekends cleaning houses without any notice. When she went to her and looking after an elderly woman. I employer to ask for her remaining salary am happy at work, but I miss my children and a reasonable notice period she was and family. threatened by her employer’s husband that he would call the police and tell I worry too about my health. I have them that she didn’t have papers. We all chronic hypertension and am on daily advised her to just keep quiet and look medication. I have regular appointments for another job. What would she gain with the doctor through a special scheme by fighting or trying to get an expensive set up by the public hospital here. My lawyer through the trade union? doctor writes on the prescription how much I can afford to pay – when I first It is not worth it to get into trouble when started going I was told to pay 5 dollars, you are undocumented. You shouldn’t then they changed it to 10 dollars, and draw attention to yourself. This is the real- now I have been told to pay 20 dollars. ity of my life. I don’t know why it has increased, no one has explained this to me. Recently I had an agonizing pain in my tooth and I didn’t know what to do. I have never been to the dentist in all the years I have been in this city. It is too expensive. I don’t have health insurance, and every time I need medical treatment I worry that I will not be able to afford to pay the bill. When I first arrived here I shared a small studio apartment with three other women and paid a share of the rent to the one woman who had a permit and was able to rent the apartment. Now I live with my boyfriend who is also a migrant but who has papers, and I pay him for the rent, food, internet and other expenses. It is difficult living without papers. I feel scared every time I see the police, even if it is only the transport inspectors. When I first came here I thought that they could just catch you as you were walking on

friends and associates, or practise their VI. A CALL TO religion. Afraid to complain for fear of arrest, detention and deportation, many ACTION live in anonymity and isolation. Migrant domestic workers face many Despite the fact that they do crucial legal and practical obstacles to the enjoy- work, such as caring for children and ment of their human rights. Those that are the elderly, cooking, cleaning, running in an irregular situation rarely have easy households, and enabling other women and effective access to services and ben- to enter and remain in the workforce, efits, including social security and health migrant domestic workers in an irregular care. They also endure discrimination situation are often not regarded as work- and abusive work conditions and are of- ers. In the worst cases, they are not even ten unable to challenge their ill-treatment. considered to be fully human beings; or Women domestic workers, hidden away in the words of the Universal Declaration in private households, are frequently of Human Rights to be “free and equal in exposed to sexual and gender-based dignity and rights” (art. 1). violence and forced confinement. In some States have a particular duty to protect countries they are subject to invasive irregular migrant domestic workers, be- medical tests, can be fired if they become cause in certain respects they face excep- pregnant and are not permitted to marry. tional risks. More generally, migrants are If they flee abuse, they may face arbitrary entitled to the same rights that all people or prolonged detention. enjoy under international law. Migrant Domestic workers tend to live and work domestic workers make a distinct and in the shadows, and are often explicitly important contribution to society which excluded from the protection of domestic should be acknowledged and valued. labour laws. They may live in substand- It is time that the human rights of all mi- ard accommodation, with little privacy, grant domestic workers were protected, and are often unable to freely meet respected and fulfilled.

37 Selected Bibliography

Economic, Social and Cultural Rights of Migrants in an Irregular Situation (United Nations publication, Sales No. E.14.XIV.4). ILO, Domestic workers across the world: Global and regional statistics and the extent of legal protection, 2010. UN-Women and ITUC, Domestic Workers Count Too: Implementing Protections for Domestic Workers, 2013. European Union Agency for Fundamental Rights (FRA), Migrants in an irregular situation employed in domestic work: Fundamental rights challenges for the European Union and its Member States, 2011. Anti-Slavery International, “Home truth: Wellbeing and vulnerabilities of child domestic workers”, 2013. Human Rights Watch, “Decent work for domestic workers: The case for global labor standards”, 2009. International Council on Human Rights Policy, Irregular Migration, Migrant Smuggling and Human Rights: Towards Coherence, 2010. International Trade Union Confederation, Decent work, decent life for domestic workers, 2011.

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