Report | Doc. 12549 | 24 March 2011

Protecting migrant women in the labour market

Committee on Migration, Refugees and Population

Rapporteur : Ms Pernille FRAHM, Denmark, UEL

Origin - Reference to committee: Doc. 12164, Reference 3667 of 26 April 2010. 2011 - Second part-session

Summary

According to United Nations estimates, just over half of the 69 million migrants in Europe are women. Whereas in the past women mostly accompanied their spouses and family abroad, today the feminisation of poverty pushes increasing numbers of women to migrate independently, mostly to support their families but also for personal empowerment.

The Committee on Migration, Refugees and Population regrets that the contribution of migrant women to their host societies is still largely undervalued. These women tend to find work in traditional women’s roles such as domestic work, childminding, health care or hotels and catering, where they work long hours for low pay and are sometimes severely exploited, especially if they have no papers. In the worst cases, they have no benefits, little recourse to justice and may even face abuse or violence from unscrupulous employers.

The current economic austerity measures and cuts in funding risk having a further long-term negative impact on the employment of migrant women, their access to rights and services and their integration in general. The committee therefore pleads for enhancing the protection of migrant women by boosting legal migration opportunities and developing gender-sensitive policies that promote equality. More information should be made available in countries of origin, to help women avoid the dangers of trafficking and target appropriate jobs. Women who join their spouses through family reunion should be granted an individual legal status and be authorised to seek work.

Finally, states should combat exploitation in the labour market by regulating the riskier sectors such as health care or domestic work, with strong sanctions against employers or agencies which break the rules. Domestic and care workers, in particular, should get clearly-defined labour rights and protection, as well as visa schemes allowing them to enter legally to carry out this kind of work.

A. Draft resolution

(open)

1. Over half of the world’s 210 million migrants and three quarters of all refugees are women. According to United Nations estimates, in 2010 migrant women represented 52.3% of the 69 million migrants in Europe. Increasingly, women are migrating in search of economic opportunities – a trend that is not likely to reverse in the foreseeable future.

2. Migrant women play essential roles in the labour markets and make a valuable contribution to the economies and societies of host countries. But they also face specific challenges. Women mainly migrate out of necessity, often having to leave their children behind in order to find work to support their families. Others migrate with their families, and bear the burden of hard work, as well as caregiving at home.

3. Migrant women tend to find work in traditional women’s roles – domestic work, childminding, health care, hotels and catering, garment manufacturing, piece work – where they work long hours for low pay and may be severely exploited, many of them with an irregular legal status. Domestic work is particularly problematic as women are isolated and sometimes abused, with few benefits and little recourse to justice. It is an occupation which is not internationally recognised as “work”. Migrant women may also face abuse and violence by employers, law enforcement officials, employment agencies and spouses. Because of the growing criminalisation of migrants, and because of their limited knowledge about their rights and where to turn for help, they are often unable to seek redress for such abuse.

4. Significant numbers of women enter host countries as spouses of migrant workers. Because of their immigration status, many of these women are not allowed to work for a certain length of time. This forces them to seek employment in unregulated sectors and in jobs well below their levels of qualifications. In most countries they lose their immigration status and right to protection if they decide to leave their husbands or partners because of domestic violence. Many married women of certain cultural and ethnic backgrounds are also discouraged from entering paid employment by their families and communities. They remain confined to the home doing housework and isolated from the local community, without real opportunities to learn the language of the host country, thus further exacerbating their isolation and reducing their possibilities to integrate in their host societies.

5. Women asylum seekers and refugees are a particularly vulnerable category of women in the labour market. Lengthy asylum procedures and non-recognition of gender-based asylum claims often push these women to destitution and domestic servitude. The situation is equally bad for trafficked women, who not only have to prove that they have been trafficked into the country, but even if they have been given the right to stay in the host country on humanitarian grounds, they find it difficult to obtain gainful employment because of the temporariness of their status.

6. The Parliamentary Assembly has repeatedly emphasised the need for and proposed measures to promote the integration of immigrant women in Europe (most recently in Resolution 1478 (2006) and Recommendation 1732 (2006)), and also the need to protect migrant women from domestic violence (Resolution 1697 (2009) and Recommendation 1891 (2009) “Migrant women: at particular risk from domestic violence”).

7. In view of the above considerations, the Assembly recognises the need for host countries to develop and implement measures to specifically address the protection of migrant women in the labour market, irrespective of their occupation or migrant status. In this regard, it calls upon member states of the Council of Europe to:

7.1. increase legal migration opportunities for women and adopt immigration policies based on human rights that are gender sensitive and empowering, and which prevent irregular migration, exploitation and trafficking. In particular, member states are called upon to:

7.1.1. improve laws and policies that regulate recruitment and employment of women migrant workers; aspire to attain labour migration agreements, including a 50-50 quota for women and men;

7.1.2. diversify and provide additional legal employment opportunities for migrant women;

7.1.3. ensure that any studies undertaken to map the skills that are necessary to be filled by migrant workers include domestic services such as childminders and care workers;

7.1.4. encourage countries of origin to create a single and effective system of information on jobs abroad, targeting an equal number of jobs for migrant women, and strengthen the monitoring of employment agencies and other agencies providing information abroad;

7.1.5. instruct consulates in countries of origin to provide information to migrating women on the dangers of human trafficking and exploitation, including adequate information on legal rights and possibilities of redress and on organisations to contact in case of urgent need;

7.2. uphold fundamental human rights, inter alia, by:

7.2.1. granting an individual legal status to migrant women who join their spouses through family reunion, if possible within one year of their date of arrival, as recommended in many previous Assembly resolutions;

7.2.2. ensuring the right to family life and to marriage in line with Articles 8 and 12 of the European Convention on Human Rights (ETS No. 5), by refraining from imposing excessive admission criteria, such as onerous language tests, for spouses in the family reunification procedure;

7.2.3. authorising women who have joined their spouses to seek employment immediately upon arrival and to take affordable training and language courses;

7.2.4. granting migrant women in an irregular situation full access to health care and education, fair working conditions, and ensuring that they are able to report violence and exploitation without fear of deportation;

7.2.5. providing suitable assistance, including psychological and rehabilitation assistance, and protection services, including free legal aid, interpretation services, housing and childcare facilities, to victims of domestic and workplace violence, discrimination, exploitation and trafficking;

7.2.6. establishing a legal framework guaranteeing migrant women the right to hold their own passports and residence permits and making the unofficial confiscation of these documents a criminal offence;

7.3. promote equal opportunities by:

7.3.1. ensuring that all migrant women, independent of their legal status, are granted the same rights as national workers; in particular, by guaranteeing their access to decent working conditions, protection under labour legislation and access to social security;

7.3.2. introducing procedures for the recognition of degrees/diplomas and professional qualifications obtained in the country of origin and providing opportunities for upgrading qualifications through vocational and life-long training as well as local language skills;

7.3.3. advocating entrepreneurship and self-employment among migrant women, and providing appropriate support for them to set up or develop businesses;

7.4. combat exploitative practices in the labour market by:

7.4.1. promoting decent, humane, dignified and remunerative employment of women migrant workers;

7.4.2. introducing registration and licensing schemes for labour providers, especially in insufficiently or non-regulated sectors such as health care and domestic work; imposing dissuasive and proportionate sanctions both for employment agencies and user companies in breach of labour regulations;

7.4.3. informing women migrant workers about their rights, complaint procedures, and contact information for workers’ rights groups;

7.4.4. delinking labour inspection from immigration remits and granting undocumented workers the right to report abuse without having to fear for their residency in the host country;

7.4.5. granting protective immigration status to women migrant workers who have been victims of abuse or mistreatment.

8. The Assembly urges member states to recognise the important productive role and the social value of domestic work. To this end, it encourages member states to:

8.1. recognise domestic work as work under national labour law;

8.2. support the elaboration of a new International Labour Organization (ILO) convention on domestic workers and the supplementary recommendation on decent work for domestic workers;

8.3. develop independent visa schemes for migrant domestic and care workers which would allow legal entry, provide a standardised working contract, allow for a change of employer and type of work;

8.4. ensure that visas are not tied to particular employers and remove or exclude any stipulation that employees must live in the employer’s home;

8.5. provide migrant domestic workers with labour rights and protections, especially as regards clearly defined work tasks, daily hours of work and rest periods, wages (at least the minimum wage or equivalent) and method of payment, standards of night work and overtime, leave periods, standards of termination of employment and social security protection;

8.6. protect migrant domestic workers against all forms of abuse and harassment, including physical, verbal, sexual and psychological abuse and harassment; guarantee their right to seek legal remedies against employers that mistreat them;

8.7. support the work of non-governmental organisations and grassroots associations which promote women’s and migrants’ rights, the prevention of abuse, exploitation and violence against migrant women, and advocacy for the empowerment of women.

B. Draft recommendation

(open)

1. The Parliamentary Assembly refers to its Resolution … (2011) on protecting migrant women in the labour market.

2. The Assembly deems it essential to ensure the protection of the fundamental rights of migrant women in the Council of Europe member states. It recognises the work previously carried out by the Committee of Ministers in promoting the rights and the legal status of migrant workers and of persons admitted for family reunification.

3. The Assembly calls on the Committee of Ministers to:

3.1. encourage the governments of member states to step up the ratification of relevant legal protection instruments, notably the European Convention on the Legal Status of Migrant Workers (ETS No. 93) and the Convention on Action against Trafficking in Human Beings (CETS No. 197);

3.2. ensure that the future Council of Europe convention on preventing and combating violence against women and domestic violence includes the legal protection and support of migrant women from gender-based violence and abuse, irrespective of their legal status;

3.3. encourage the governments of member states to actively participate in the elaboration of the future International Labour Organization (ILO) convention on domestic workers and to adhere to its provisions;

3.4. launch an awareness-raising campaign in the member states aimed at recognising the work of domestic workers as work and eliminating practices such as withholding passports and/or wages, and physical, sexual and psychological abuses of domestic workers;

3.5. urge the European Union and its member states to involve migrant women in developing immigration and social policies;

3.6. strengthen the partnership between Council of Europe member states and countries of origin in order to respect the human rights of migrant women, promote gender equality, including in civil law, and empower women;

3.7. re-examine, in co-operation with the European Union, the availability of legal migration channels for migrant women, safeguarding their migration opportunities and protection in the context of reducing irregular migration.

C. Explanatory memorandum by Ms Frahm, rapporteur

(open)

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.