1. Introduction
1. The feminisation of migration in the globalised world
has brought about a change in the gender patterns of migration:
whereas women have in the past tended to migrate as accompanying
spouses and family members, the current trends show that more and
more women are migrating independently. New migratory flows are
no longer male-dominated. By and large women migrate out of necessity,
due to economic need, climate change and war. There is, however,
a growing demand for female labour and new social needs have created
a demand for services which only immigrant women are prepared to
fulfil.
2. Migration brings both gains and losses for women. They often
fall prey to exploitation, but they may also gain independence,
respect, and the awareness that they have power over their lives.
Migrant women would be more likely to achieve these gains if policies
were in place that promote their rights and that acknowledge their
unique experience.
3. The current political context of curbed migration flows into
Europe, increasing anti-immigrant sentiments and the introduction
of economic austerity measures in many Council of Europe member
states, are anything but conducive to the enhanced protection of
rights of migrants in general and migrant women in particular. The current
cuts in funding risk having a long-term negative impact on the employment
of migrant women, their access to rights and services, and their
chances for integration in general. Your rapporteur is therefore convinced
that now is a crucial moment to remind governments of member states
of the need to keep legal migration channels open, to recognise
the work and contribution of migrant women to society, to guarantee
the increased protection of the rights of those who are most vulnerable
to abuse, and to empower them to take control of their lives.
4. The Parliamentary Assembly has repeatedly emphasised the need
for and proposed measures to promote the integration of migrant
women in European societies,
as
well as to protect migrant women from domestic violence.
This
memorandum sets out to highlight that, as well as paying attention
to migrant women when they are victims of abuse and crime, there
is an urgent need to deal with a broader spectrum of human rights
protection that would enable the empowerment of migrant women in
and outside the work place.
5. In the chapters that follow, your rapporteur will look at
the challenges for migrant women in the labour market and propose
policies to reinforce their protection. The memorandum highlights,
in particular, the difficulties faced by domestic and care workers,
both in regular and irregular situations, and those experienced by
migrant women who enter their host country as spouses but who may
seek employment in their new place of residence and thus become
part of the migrant labour force.
It
examines the situation of newly arrived women who do not have the
nationality of the host country, although acknowledging that second
or third generation migrant women may also face discrimination in
the labour market.
6. This memorandum is largely based on the information shared
at the hearing on the subject organised by the Committee on Migration,
Refugees and Population on 7 December 2010 in Paris. Your rapporteur wishes
to thank experts of the United Nations Committee on the Protection
of the Rights of all Migrant Workers and Members of Their Families,
the European Women’s Lobby (EWL), the International Organization
for Migration (IOM), the Platform for International Cooperation
on Undocumented Migrants (PICUM) and KULU – Women and Development
(Denmark) for their contributions to the preparation of this report.
7. In the course of preparing this report the rapporteur undertook
a fact-finding visit to London from 8 to 10 February 2011, where
she held meetings with grassroots women’s organisations, relevant
NGOs, government bodies, parliamentarians and trade union representatives.
The various concerns raised at these meetings will be used throughout
this report in order to illustrate general trends in Europe, without
intending to pinpoint the United Kingdom in particular. The rapporteur
is grateful to the London office of the International Organization for
Migration and the United Kingdom delegation secretariat for facilitating
the meetings and thanks all the interlocutors for feeding information
into this report.
2. The occupational profile of migrant
women in the labour market
8. Like male migrant workers, the large majority of
women migrant workers are increasingly single, aged between 20 and
40, with at least secondary education, and occupy low-skilled jobs
at the bottom of the occupational hierarchy, are often shunned by
local women because of low incomes, inferior working conditions and
limited job prospects and security.
9. Worldwide, fewer women migrate into highly skilled sectors
than men, even if their numbers are increasing. One of the main
reasons for this is that women’s education tends to be concentrated
in the humanities and social disciplines that qualify them for professions
such as teaching, health and social work. The highly skilled women
are predominately engaged as employees of transnational companies
or international institutions in information technology-related
occupations or other highly specialised professions such as doctors.
10. Studies of worldwide migration show that female labour migration
is concentrated in a few female-dominated occupations associated
with traditional gender roles. The demand is increasing mainly in
low-skilled jobs such as domestic work (including cleaning and childcare),
hotel cleaners and waitresses, as well as in skilled occupations
such as nurses and other health care workers. They are found in
retail sales and in labour-intensive manufacturing, often being
severely exploited in sweatshops.
Significant numbers of migrant
women are also involved in prostitution and the sex industry – some
of them involuntarily through trafficking for sexual exploitation.
11. Whereas nursing and other health care services are socially
valued and provide women with opportunities for temporary or permanent
regular migration along with higher wages, conditions of work or increased
professional development opportunities, this is not the case for
most other occupational fields where female labour is predominant.
Many of these jobs are not registered, or if they are, they still
offer worse working conditions for migrant women than for local
counterparts: short-term contracts without opportunity of renewal; low
wages; long working hours; and physically demanding jobs.
12. Unemployment and underemployment are more prevalent among
migrant women than among native-born women, and more prevalent still
than among native men. Studies show that, especially in the “old” migrant-receiving
countries, there is very low labour-force participation among migrant
women during their initial years in the host country, when compared
to native-born women. Even after six to ten years in the country,
the labour force participation rates of migrant women in the Netherlands,
Belgium, France and the United Kingdom are still at least 15 percentage
points lower than those of native-born women.
A significant number of migrant and
refugee women with high education levels are employed in low-skill
sectors of the economy.
13. Employment among migrant women varies, however, from country
to country and disparities between members of the same ethnic group
can be observed depending on the host country, and between the different ethnic
groups in the same host country. Studies attribute the variations
in employment of migrant women less to their cultural baggage than
to the characteristic features of mainstream society, such as attitudes
towards the participation of women in the labour market and national
employment patterns.
14. Nevertheless, many traditional ethnic communities do not expect
women to work and therefore formal employment means working in the
familiar environment of the ethnic economy or around childcare responsibilities.
Your rapporteur was informed that in Great Britain many ethnic minority
women were subjected to excessive control by their spouses and other
family members when they found employment outside the community
environment, often resulting in salaries being taken away and departure
and arrival times being carefully scrutinised.
15. Much of the work done by migrant women is temporary in nature.
The large majority of women do not migrate with the aim of permanent
settlement; their primary aim is to support their families back
home over a period of time, and then to return. Sending a family
member to study or to work overseas is often a costly project for
the whole extended family and the desired length of stay depends
on returns on this investment. For instance, South-East Asian and
Indian care workers and nurses pay some £3 000 to £5 000 in agency
fees in order to get a work permit in the United Kingdom, compared
to a monthly average salary of £60 for a nurse in the country of
origin.
Circular
migration would be the desired option for many women migrant workers,
which would allow them to return to their families at regular intervals.
The benefit for both employers and workers is increasingly seen
with migrant workers from the new European Union countries. In some
sectors in the United Kingdom, such as care work, catering or cleaning,
the “new” migrant workers from the European Union member states
are said to be ousting the more traditional overseas migrant communities
because of more flexible immigration regulations.
3. The challenges and difficulties faced by migrant
women in the labour market
16. Migration often liberates women and leads to significant
gains in their autonomy, income, levels of empowerment and education.
However, it can also result in downward job mobility, “deskilling”
and reorientation away from paid work and towards the domestic sphere,
and at the extreme end, in physical abuse, trafficking and exploitation.
17. The scope of this report does not allow a thorough elaboration
of all the barriers and difficulties that migrant women face in
the labour market. Your rapporteur therefore identifies a few most
pressing issues that she considers to necessitate particular attention
by the Council of Europe and its member states.
3.1. Limited legal channels for migration
18. Notwithstanding the large number of women migrating
on their own seeking labour, women are under-represented in the
legal inflows of migrants into most industrialised countries. Since
legal recruitment efforts continue to target highly skilled male-dominated
occupations, such as information technology workers and temporary
migrant workers’ schemes comprising semi-skilled and unskilled workers
for male-dominated occupations such as construction or agriculture,
women’s opportunities to migrate legally continue to be more limited
than those of men. Migration policies are not openly biased by gender,
but in some countries restrictions have been imposed on admission
of migrants for female-dominated occupations.
19. For instance, under the points-based system in the United
Kingdom, restrictions have been recently placed on bringing in carers,
despite the growing ageing population and the demand for carers,
which is expected to double in the next fifteen years. Given that
in 2009 78% of applicants to this category were women, it may be
said that these restrictions disproportionately affect women migrant
workers. This channel remains currently open to senior carers only,
on condition that they can prove that they earn £7.80 net per hour,
an amount which is considered excessive by the trade unions and
professional organisations.
20. Despite a growing demand for domestic workers, especially
in the “older” member states of the Council of Europe, few legal
avenues have been opened to meet this demand with appropriate recruitment
or protection mechanisms. And yet, the advantages of opening the
domestic labour market to migrant women are many. First, it would
prevent many of them from getting trapped in irregular, exploitative
and/or trafficking situations.
Secondly, the demand for domestic
and care workers is there, and it is unlikely that this trend will
reverse in the foreseeable future. Thirdly, a regular migration
status can reduce the social cost of women’s migration by allowing
them to return to visit their families more often, earn more money
and therefore send more remittances, and more confidently plan for
their return home.
21. There are some positive examples of good practices, including
the Canadian “Live-in Caregiver Programme” (introduced in 2003),
which allows legal entry to migrants willing to work as care workers
in private households. It provides a standardised working contract,
allows for a change of employer and the possibility to acquire permanent
resident status only after two years.
22. Other countries have different approaches, such as the establishment
of annual quotas for women migrant domestic workers in Italy or
regularisation schemes in Greece, Italy and Spain. Experience shows
that women have largely benefited from these schemes. On the other
hand, in some instances, work permits provided under these regularisation
schemes consider workers temporary and do not permit them to bring
in family members. In other cases, applying for family reunification
to bring in spouses and children is difficult because of their labour
market position and greater difficulty in accumulating the necessary
income and access to housing.
23. All in all, limiting legal opportunities for crossing borders
for work when labour demand is there only creates incentives for
legal and illegal agents alike to take advantage of migrant women
seeking employment opportunities. Recruitment agencies operating
in countries of origin – even when working legally – often charge steep
fees for placement and travel. When working irregularly or without
government oversight, such agencies often charge fees that are close
to impossible to repay, trapping migrant women into conditions akin
to debt bondage. Finally, agents who are working in direct contravention
of national laws, facilitating women’s crossing of borders illegally,
may use coercion, force, or false promises, placing women in clandestine
domestic settings, illegal sex work, or exploitative sweatshops
– practices that amount to trafficking.
24. Your rapporteur recalls that the Assembly, in its
Resolution 1534 (2007) on
the situation of migrant workers in temporary employment agencies
(TEAs), called upon the member states to establish international co-operation
between labour inspection, police and border guards.
25. This being said, your rapporteur believes that host states
should recognise the labour market demand for female labour migration
and, accordingly, design policies to facilitate documented, legal
migration of women with the relevant qualifications or experience
as a measure to prevent the expansion of irregular migration as well
as exploitative and trafficking situations. They could envisage
introducing labour migration agreements including a 50%-50% quota
for men and women.
26. Countries of origin, on their part, should be encouraged to
create a single and effective system of information on jobs abroad,
making sure that an equal number of jobs for women migrants are
included. They should also strengthen monitoring of job recruitment
agencies and other agencies providing information on jobs abroad.
One way of doing this would be through creating a registry with
a database including a copy of the contract, the full address of
the recruitment agency, the name of the recruitment agent, the full
address of the employer and other useful information in case of
grievance. Countries concerned should also provide a sufficient
number of labour attachés in consulates or embassies in countries
of destination to deal with complaints and urgent needs of national
workers abroad.
27. Before their departure abroad, migrant women should receive
information on the dangers of human trafficking and exploitation,
as well as adequate information on whom to contact in case of emergency,
legal rights and other useful information, for example on cultural
differences.
3.2. Restrictions on the independent right to migrate
or to stay in the host country
28. Migrant women and girls have long been regarded mainly
as spouses and children outside the labour force, a consequence
of the arrival of male workers. Women arriving to rejoin their families
have therefore been regarded as dependents lacking personal status.
Over 20 countries in the world do not allow women to apply for passports
on their own, while others (including Myanmar, Saudi Arabia and
Swaziland) restrict the exit of women. Also the conditions in which
these women arrive in the host country do not usually predispose
them to work, learn the language of the host country or play an
active part in its society.
29. In most European Union member states, a woman who enters with
a family reunification or “spouse” visa has to wait many years to
be able to acquire a status autonomous and independent of her spouse.
If she is a victim of domestic violence during this period or if
she files for divorce, she is not entitled to a residence permit, nor
does she have access to shelters. Leaving an abusive relationship
would therefore mean becoming undocumented with very limited rights
and being at risk of deportation. This dissuades many women who
have suffered violence from making an official complaint. Linguistic
barriers, family pressure, isolation and cultural traditions are
additional problems which may prevent victims from making formal
complaints.
30. In the United Kingdom, for example, the spouses of citizens
and residents are subject to a two-year probationary period, at
the end of which it is up to the “sponsor” to request indefinite
leave to remain for the spouse. For many young spouses, their insecure
immigration status renders them extremely vulnerable to abusive
partners who sometimes exploit their position by subjecting them
to extreme forms of violence, imprisonment and domestic servitude,
usually with impunity. Many abusers know that these women cannot report
them to the authorities for fear of being sent back to their countries
of origin where, as a divorced or separated women, they are likely
to face persecution from the state and society.
31. In 2002, the United Kingdom Government introduced the “domestic
violence rule” in immigration law, which states that if a person
married or living with a settled partner can provide specific evidence
to demonstrate that she or he is a victim of domestic violence and
meets other conditions, she or he can remain in the United Kingdom
indefinitely. According to the United Kingdom Border Agency, about
1 500 women apply every year for indefinite leave to stay on these
grounds.
But
for a significant number of women, the existence of the “no recourse
to public funds” requirement in immigration and welfare law prevents
them from making use of the domestic violence rule because they
cannot access safe housing or benefits to escape domestic violence.
Women’s refuges often turn such women away because they cannot afford
to lose out on rental income and do not have the funds to provide
for living costs. The result is that these victims of domestic violence
are faced with a stark choice: leave and face destitution or stay
and risk their lives.
32. Similar situations apply to domestic workers and trafficked
women who escape violent employers and criminal groups. What is
common to all these women is that their immigration status is bound
to one “sponsor”, they often live in total isolation, have little
or no information where to turn for help, have limited or no access
to legal aid and are obliged to provide often difficult-to-obtain
evidence of being a victim of violence, which is often beyond their
capacities. Your rapporteur is stunned by the complexity of evidence
that sometimes needs to be provided by the applicant to prove her
case. Even for an educated migrant woman it would be very difficult
to complete applications without proper legal aid and consultancy,
on top of which exorbitant fees can be charged to lodge applications
if the victim is not destitute.
33. The Assembly has for the last fifteen years been recommending
that migrant women should be granted an autonomous right of residence
that is not tied to the residence status of their spouse.
The
Committee of Ministers Recommendation Rec(2002)4 on the legal status
of persons admitted for family reunification further recommended
granting an autonomous residence permit independent of the principal
right holder after a period of four years of legal residence, and
the right to apply for an autonomous residence permit after one
year in case of divorce, separation or death of the principal. The
Assembly, in its report on the integration of immigrant women in
Europe,
insisted on granting an autonomous
status to the spouse and children of the principal right holder
at the earliest opportunity in order to guarantee and protect their
rights fully and facilitate their social integration and avoid confining
them to the domestic sphere. This recommendation has been echoed
in successive resolutions and recommendations on domestic violence.
34. Furthermore, the Assembly has deemed it necessary to provide
appropriate mechanisms, in the language of origin if necessary,
to ensure that victims of domestic violence are sufficiently well
informed of their rights, have effective access to remedies and
assistance in order to guarantee the protection of their fundamental
rights. In order to prevent violence against migrant women, new
migrants, both men and women, should be given more information on
their rights and duties, fundamental democratic principles, including equality
between women and men, the personal status of migrants, the rights
and protection that derive from this and available legal channels
of appeal.
3.3. Brain waste and lack of recognition of skills
and qualifications
35. While the majority of migrant women find jobs in
low-skilled professions, they are far from being “unskilled”. The
United Nations Population Fund observes that migrants are not usually
from the poorest backgrounds. In fact, people who emigrate are generally
better educated than the people who stay behind.
36. In most developing countries, emigration rates for skilled
workers are substantially higher among women than men. Women with
tertiary degrees are at least 40% more likely than male graduates
to emigrate to developed economies. However, whereas most of these
skilled and highly skilled women migrants are leaving to find a
better-paid job abroad, they end up in occupations below their qualifications.
According
to the United Kingdom Migration Advisory Committee, in August 2009,
81% of spouses of highly skilled and skilled migrants were employed
in unskilled jobs compared to 38% of principal applicants.
37. Research shows that in many cases migrant women in occupations
like domestic work have relatively high levels of education. In
Chile, for example, 70% of Peruvian domestic workers have completed
either a high school or university education.
Your
rapporteur believes that the situation is similar in the European
Union countries as regards domestic workers from central and eastern
European countries.
38. This “deskilling” or “brain waste” is cause for serious concern,
not only for the individual migrant but also for the society in
which they work and the society they have left behind. The fact
that migrant women meet the increasing demand for cheap and flexible
labour is not incidental but structural.
It denies society the benefit of migrant
women’s skills and qualifications.
39. Europe cannot afford to waste human capital by an inability
to act. Women who enter the global labour market as migrants should
be able to do so in a safe and legal manner, with their skills,
competencies, talents and rights recognised and valued by the states
and societies that receive them. In this regard, transparent and prompt
procedures for the recognition of qualifications obtained abroad
should be set up; and access to vocational and life-long training
as well as free language courses provided for migrants and refugees
so as to assure that migrant workers and refugees can access employment
on equal terms with national workers.
3.4. Gender-based discrimination and abuse of migrant
women in the labour market
40. Gender-based discrimination in the labour market
in countries of origin is one of the factors that leads women to
cross borders in search of work in the first place. However, they
usually find that discrimination is also present in the host country.
Gender discrimination in the labour market takes various forms,
both indirect and direct; however, three specific phenomena – the
wage gap between women and men, labour market segregation by gender
and the “glass ceiling” (in which women are clustered in the lower
rungs of the employment ladder) – are of particular concern to women
workers in both sending and host countries.
41. Wage-based discrimination is a major factor. Not only are
migrant women’s wages often lower than those of their male counterparts,
but wages are also often linked to the employee’s national or ethnic
origin. A recent European Union study shows that third-country migrant
women experience higher unemployment rates, more frequent part-time
employment because of inability to find full-time work, greater
likelihood of temporary-contract employment, and a higher incidence
of “deskilling”, compared to European Union-born migrant women,
native-born women and migrant men. This study also reveals that
the age of the migrant woman’s youngest child and how recently she
has arrived in the host country affects participation rates. These
are all indicators of difficulties integrating third-country migrant
women into the labour force.
42. The same study also indicates that other barriers such as
lack of language proficiency and unfamiliarity with the labour market
of the receiving country, influence migrant women’s outcomes in
the labour force. Furthermore, it suggests the possibility that
structural, systemic obstacles are also at play. These may include lack
of provision of adequate housing (for example in locations conducive
to better employment outcomes), limited rights (especially for certain
groups of migrants such as asylum seekers or irregular migrants)
to access key public services, and discrimination in the labour
market on the basis of nationality, ethnicity, religion and/or gender.
43. Migrant women are also prone to face myriad types of exploitation
and abuse. Most common are those related to contracts and compensation.
It often happens that migrant women may not understand the language in
which their contract is written. They may discover that the contract
they sign is later replaced by an inferior version stripped of worker
protections, or they may be refused a copy entirely. In some countries,
women who have contracts may face legal or economic barriers in
accessing courts of their judicial institutions. As may be expected,
women in the informal, irregular or illegal sectors are rarely given
contracts.
44. Even if paid on time and to the term of their contract, migrant
women are often paid substandard wages. Employers may deduct dubious
or unfair charges, including fees for health services that are never
received, or fees for rent in situations of squalor. At the extreme
end of the spectrum, women who are in conditions of debt bondage
or slavery may not receive wages at all.
45. The International Labour Organization (ILO) explains that
a major cause of exploitation and ultimately forced labour is that
labour standards are not applied or enforced in either countries
of destination or origin. These standards include respect for minimum
working conditions and consent to working conditions. Tolerance of
restrictions on freedom of movement, long working hours, poor or
non-existent health and safety protections, non-payment of wages,
substandard housing and so on, all contribute to expanding a market
for trafficked migrants who have no choice but to work in conditions
simply intolerable and unacceptable for legal employment. Worse
still is the absence of worksite monitoring, particularly in such
already marginal sectors as agriculture, domestic service and sex
work. Such monitoring would contribute to identifying whether workers may
be in situations of forced or compulsory labour.
46. The Assembly, in its
Resolution
1534 (2007) on the situation of migrant workers in the
temporary employment agencies (TEAs), proposed regulating labour
providers through registration and licensing schemes, establishing
their liabilities, applying dissuasive and proportionate sanctions
both for temporary employment agencies and user companies in breach
of regulations, and establishing co-operation between labour inspection,
trade unions, temporary employment agencies, NGOs and police, with
a view to identifying gangmasters and abusive practices in breach
of national labour regulations.
47. A positive example along these lines is the setting up of
the Gangmasters Licensing Authority (GLA) in the United Kingdom
in 2004, with a view to safeguarding the welfare and interests of
workers in the agricultural, horticultural, shellfish gathering
and associated processing and packaging industries, whilst ensuring
labour providers operate within the law. Apart from government representatives,
your rapporteur perceived a strong desire of the people she met
with to extend the mandate of the GLA to incorporate the inadequately
regulated work of health-care and domestic workers as well.
48. Most countries still need to address the issues of gender
discrimination and inequalities among migrant women in the labour
market context, with a view to eradicating all forms of discrimination
and gender inequality, as well as tackling other violations and
abuse and their consequences by applying international labour standards.
3.5. Protection gaps, working conditions and vulnerabilities
in the domestic service sector
49. Domestic work is the single most important category
of employment for millions of documented and undocumented migrants,
absorbing up to 10% of total employment in some countries. Regardless
of this, domestic work is socially undervalued, often legally unrecognised
and unregulated. An ILO study undertaken in 65 countries reveals
that only 19 countries have specific laws or regulations dealing
with domestic work.
50. Many European countries do not consider domestic work as valid
for the allocation of a residence or work permit. The fact of working
in a household makes it difficult for undocumented women migrants
to supply proof of employment and benefit from regularisation schemes.
51. On the whole, national approaches to domestic work in Europe
vary greatly. A few countries, such as the United Kingdom and Ireland,
have opened a legal channel for employers to bring in their domestic
staff and grant independent, “portable”, visa status to the worker.
This
keeps the workers visible, contributing to the economy through taxes
and visa fees, whilst ensuring that they can access protection through
criminal and civil courts without fearing deportation. Some southern
European countries such as Cyprus, Greece, Italy and Spain have
regularised domestic workers even though work permits provided under
these schemes consider work as temporary and normally do not allow
migrant women to bring family members to join them.
Others, such
as Germany, the Nordic states, the Netherlands and most central
and eastern European states, have hardly acknowledged the need for
migrant domestic workers, let alone included this need in their
managed migration policies.
52. Research on domestic work confirms that domestic workers are
among the most exploited and abused workers in the world. Predominantly,
though not exclusively, women and girls, they often experience working conditions
that fall far short of international standards, including low and
irregular pay, excessively long working hours, lack of rest periods
(being on the call twenty-four hours a day), and exclusion from
social protection such as social security and maternity benefits.
53. Domestic workers may also face physical, psychological, and
sexual abuse, food deprivation, forced confinement, and trafficking
into domestic servitude. These risks are heightened given their
isolation and their structural dependency on employers for their
work, accommodation and immigration status. In addition, they may
suffer from excessive recruitment fees, language barriers, and confiscation
of passports. Lack of knowledge about their employment rights and
the pressure to send remittances home can cause domestic workers
to stay with their employers even if they mistreat them.
54. A recent study carried out in the United Kingdom shows that
65% of migrant domestic workers had their passports withheld by
their employers, 64% work seven days a week with no day off or significant
rest period, 58% were psychologically abused, 57% receive a wage
of £50 a week or less, 50% worked sixteen hours per day or more,
16% were physically abused and 5% were sexually abused or harassed
(although the true figure is likely to be higher since many prefer
not to report such experiences).
55. All over Europe, domestic workers in diplomatic households
are of particular concern. They experience similar levels of exploitation
as other migrant domestic workers, but they are usually deprived
of the right to change employer and have virtually no negotiating
power vis-à-vis their employment terms and conditions. Further,
when fleeing from abusive employers they automatically lose their
immigration status and become vulnerable for further exploitation.
This, in combination with the diplomatic immunity of their employers, dramatically
increases the employer’s power over the domestic worker and makes
the latter particularly vulnerable to be trafficked for domestic
servitude. Studies show that a far higher percentage of domestic workers
are trafficked in diplomatic households as compared to domestic
workers in private households. On a positive side, Germany has introduced
a requirement whereby diplomat employers of domestic staff receive
a special identity card (Protokollausweis),
issued by the Federal Foreign Office, which is accompanied by a Note Verbale stating fair treatment
and non-possession of employees’ personal documents.
56. Another concern is that domestic work takes place within the
household, which determines its exclusion from the ambit of labour
law. Domestic work is done in households (not considered as workplaces)
of private persons (not considered employers) that cannot be supervised
by labour inspectors. Domestic workers’ employment situation does
not fit into the general framework of existing employment laws so
their working conditions remain, in essence, unregulated. In fact,
not only do some countries not consider household helpers as domestic
workers and exclude them from protection under their national labour
codes, but they do not provide them with optional protection under
any other national law.
57. Considering the above, your rapporteur sees an urgent need
to fill the current protection gaps for domestic workers. Most importantly,
as a means of reducing the incidence of trafficking and forced labour,
all European countries should ideally introduce an independent domestic
worker visa status, which would provide domestic employees with
the right to change their employer and to seek legal remedies against
mistreating employers. This should also apply to domestic workers
in diplomatic households. Victims of trafficking, violence or abuse
should be granted a right to settle in the host country.
European
consulates should be encouraged to provide information to migrant
domestic workers on their rights and responsibilities when issuing
visas. “Model contracts” for domestic workers should be developed
in close collaboration with the trade unions. Besides stipulating
employment conditions that are in conformity with national labour
codes, including wage and hour regulations, health and safety codes,
holidays and leave regulations, these contracts should specify that
the domestic worker retains all his or her travel documents. Employers
who hold the documents of their domestic employees should be made
liable for prosecution. Furthermore, labour inspectors must be given access
to the home, which should be recognised as a working place as opposed
to private property. Finally, domestic migrants should also be allowed
to change their job type in order to prevent the long-term deskilling of
skilled women.
58. Your rapporteur welcomes the recent endeavours to create international
standards for the employment of domestic workers. In this respect
she commends the progress that has been made towards the adoption
of an ILO convention on domestic workers supplemented by a recommendation
concerning decent work for domestic workers. The second and final
negotiations will take place in June 2011 and will represent a historic opportunity
for governments globally to recognise the rights that domestic workers
should have as workers and that they have been refused for so long.
59. So far, there is however no clear agreement amongst European
states on the need to adopt a strong instrument that will protect
(migrant) domestic workers worldwide. The United Kingdom has, for
example, said that it would seek to keep domestic workers excluded
from the health and safety provisions as well as the working time
regulations that apply to other workers. Your rapporteur shares
the concern of many that these exceptions have, for far too long,
made it possible for employers to exploit vulnerable migrant domestic
workers across the world. The opportunity offered by the ILO standard-making
process should be seized and a strong convention adopted.
3.6. Protection gaps in the nursing and other health
care services
60. The migration of health-care professionals is and
has always been an important domain of female-dominated labour migration.
Nursing shortages in countries of destination, in addition to other
factors such as higher wages, drive this type of migration and are
providing women with opportunities for regular migration either
temporarily or permanently.
61. In today’s context, the distinction between domestic and health-care
work is becoming increasingly blurred as there is a growing body
of health-care workers employed in private households. A number
of countries are in fact experiencing a shift from providing care
services to older people, disabled people or children to giving
individuals cash payments to pay for home-based care provision.
Austria, Italy, the Netherlands and the United Kingdom, for example,
have introduced forms of “direct payments”, which allow senior persons
or disabled people to buy support and assistance. This type of provision
encourages the development of a particular form of home-based, often
low-paid, “commodified” care, generally accessed privately through
the market.
62. According to some sources, 88% of the workers in care homes
in the United Kingdom are migrant women, mostly from South-East
Asia and central and eastern Europe. These women are often recruited
by unscrupulous employment agencies that promise them lucrative
skilled work and charge outrageous fees that create debt bondages.
Often these women end up undocumented and exploited, working excessive
hours for little or low pay, suffering from physical and psychological
harassment and violence, and threatened with deportation if they
report violence against them. Most of these women are ignorant of
their legal rights, but they have also little possibilities to access
legal aid. According to British trade unions, by law they can take
action against abusive employers, but it mostly turns against the
migrant, who then loses her job and risks deportation nevertheless.
Even if legislation provides health-care workers a twenty-four-day
possibility to find a new employer, it usually proves impossible
because of tight networks between care homes and labour providers.
63. Deskilling is a significant problem among health-care professionals.
Many doctors work as nurses or trained nurses work as assistant
nurses because their certificates are not recognised in the country
of destination. Despite deskilling, these positions are attractive
to many, since they can still earn more abroad than practising their
original professions in their countries of origin.
64. Reflecting these trends, there is an absolute need for European
governments to recognise the economic value of care work and the
extent to which migrants contribute to economic growth. Governments
must ensure that women’s informal care work is recognised as work
and a major contribution to the welfare system, and that it is covered
by minimum wage regulations and social protection. Instead of reducing
quotas, which only encourages irregular migration and trafficking
for labour exploitation as the need for labour exists, member states
should regulate this domain in order to encourage legal routes for
employment. Migrant workers should not be charged fees for obtaining
overseas employment. They should be given adequate information about
the prospective job prior to emigrating and possibilities for training
so that their qualifications could be more easily recognised. Furthermore,
labour providers in health-care services should be subjected to
labour inspection authorities similar to the Gangmasters Legal Authority
in the United Kingdom (which itself should be extended to include
in its scope labour providers of heath-care workers).
3.7. Particular vulnerabilities of undocumented migrant
women
65. There is a direct link between the legal status of
a migrant and his or her vulnerability to exploitation and abuse.
As the previous chapters have highlighted, legal irregularity touches
many categories of women: visa “overstayers”, failed asylum seekers,
trafficked women, spouses that have left their husbands while still
on probation, etc. But irregularity may also be related to the working
conditions, while the status of the migrant may be legal.
66. Because of their irregular status, undocumented migrant women
are highly susceptible to violations of their most fundamental human
rights as well as abuses such as withholding of their passport,
non-remunerated work, termination of employment without due notice
or reasons, as well as sexual and physical threats and violence.
They are more vulnerable to such abuses because their employers
know that they have fewer rights and insufficient legal means to
seek redress.
67. Several European countries, including France and the United
Kingdom, have imposed heavy fines on employers that recruit irregular
migrants. However, the effect of this has often been limited or
the reverse: these high penalties often justify even harsher exploitation
and servitude.
68. Your rapporteur believes that amnesty procedures could be
a more effective solution, provided they take account of the specific
profiles of these women, for whom it is very difficult to get out
and about, make contact with the authorities and provide documentary
evidence.
The regularisation
experiences in Spain and Italy have proved that point. The Swedish
model, whereby everybody who has an employment contract automatically
has a regular status, is ultimately the optimal solution for fighting
against irregular migration.
69. As long as this is not the case, governments should be encouraged
to take steps to remove the legal and structural obstacles that
prevent undocumented migrant women from gaining access to essential
services and lead health and housing organisations to deny them
assistance. Health services, education for children or free legal
aid should be accessible regardless of one’s legal status. It is
also important that the sectors which are prone to employ undocumented
migrants be monitored for labour rights abuses, and that all migrants
in these sectors know their basic rights. This can be achieved through
co-operation between migrants’ organisations, trade unions and religious
institutions.
3.8. Restrictions on migrant women’s ability to organise
for their rights
70. In many countries, migrant women face barriers and
restrictions on their ability to organise for their rights. In some
countries, the restrictions are enshrined in the law and based on
migrants’ alien status: non-nationals may not be entitled to lawfully
organise or join unions of other organisations. In other places,
domestic workers may be specifically barred from union membership
because they are not legally considered full employees under applicable
labour law. Even in places where these restrictions are not in force, undocumented
women are often unable to openly join organisations for fear of
reprisal and deportation. Some barriers are less formal – women
domestic workers, for example, are often continually present at
their place of work, and may face seemingly insurmountable barriers
to organising efforts because of their inability to meet with other
workers or because of problems with the language of the host country.
Employers of domestic workers often place limits on the workers’
access to the larger community, and may monitor communications and
activities.
71. Even when no restrictions from employers apply, women of various
nationalities, religions, or ethnicities may feel that they are
not adequately represented by unions dominated by other groups.
This is especially true in places where racism and xenophobia against
some groups is worse than it is against others. In response to these
problems, some unions, for instance, have begun outreach efforts
specifically aimed at assisting the whole range of migrant women
in domestic work.
72. Generally, national trade unions have not prioritised organising
domestic workers precisely because they are invisible, they are
women in “lower status” jobs, seemingly without collective power,
difficult to organise using traditional approaches and a challenge
for financial sustainability. Yet, the increasing number of migrant
women in the labour force and their conditions of work clearly constitute
a challenge which cannot be ignored by trade unions. In response
to this, trade unions at European level such as the European Trade Union
Confederation (ETUC) or the International Domestic Workers’ Network
(IDWN) have started to place the concerns of migrants on their agenda
and increasing interest is being taken in the problems faced by
female domestic workers.
73. All in all, in recent years there has been increased mobilisation
in Europe. National, regional or international civil society networks
defending the human rights of migrant women have emerged in many countries,
which can only be seen as a positive trend.
4. Conclusions of the rapporteur
74. In the previous chapters, your rapporteur has highlighted
several challenges that need to be tackled in order to achieve the
enhanced protection and the empowerment of migrant women in the
labour market context. She concludes that as long as women cannot
live their lives free from poverty, threat of violence and discrimination
in their home countries, they will choose to work abroad and labour
migration will continue. As long as legal migration is impossible
or remains severely restricted, migrant workers will continue to
be forced to take risks and be practically driven into the arms
of the criminal networks that control the illegal routes into the
countries of destination. As long as European countries are not
willing to give trafficked persons and irregular migrants the minimum
rights to which they are entitled by international standards, exploitation
and abuse will continue.
75. The draft resolution and draft recommendation include steps
that need to be taken by member states and by the Committee of Ministers
of the Council of Europe to improve the labour market outcomes for
migrant women.
76. Your rapporteur deems it necessary to open up the debate in
European countries. The image of migrant women will change when
we realise how much they contribute to the well-being of our societies.