Introduction
In an earlier entry on this blog, Natalie Sedacca and Avril Sharp outlined the horrifying circumstances in which many domestic workers, as victims of human trafficking or ‘modern slavery’, often find themselves. My concern, in this entry, is with something more basic. That is domestic workers’ and other migrant workers’ immigration status.
Labour migration schemes tend to distinguish between migrants on the ground of their skills, affording some labour migrants more rights than others. This is not problematic; indeed, it is a primary function of the market to differentiate between people on the basis of their skills, that which employers and consumers alike demand (section I). However, such discrimination becomes problematic when it intersects with prohibited grounds of discrimination, such as sex or ethnicity. Accordingly, one way of resolving this may be by making immigration status a protected ground of discrimination (section II).
However, as is well known, in human rights law discrimination in itself is not always wrongful; rather, discrimination affects other human rights, such as the right to private and family life. It is plausible that some discrimination that occurs on the ground of immigration status, while constituting legitimate discrimination on the ground of skills, nonetheless infringes on certain human rights of migrant workers, such as the right to private and family life. One example of a potentially illegitimate restriction is that of employer ties (section III).
1. Discrimination on the Ground of Skills
Recall that the UK has not opted in to the EU’s migration and asylum acquis and therefore retains sovereignty to determine the conditions of entry for third-country nationals. A cursory review of the UK’s visa scheme reveals at least 22 different work-related visa schemes, ‘Domestic Workers in a Private Household’ being just one of these. Why so many? Each category of visa attracts different rights. Those labour migrants who are in high demand or need generally attract more rights, while those in low demand attract fewer rights. This is nothing more than the market at work (see Bauder; Ruhs and Martin; Ruhs (2010); and Ruhs (2013)). The immigration code therefore appears to distinguish between people in some respect. But what is the ground of discrimination?
It is people’s skills. Discrimination on the ground of skills is a basic function of the market. Employers and consumers demand skills; and where the domestic market cannot provide, then perhaps the global market can. Distinguishing or discriminating between people on the ground of skills is a regular function of our daily interactions. I want a good plumber to fix the leak in my bathroom. That is, I want a plumber with specific characteristics and qualities, one who can use their capacities in a way which I find acceptable. I may even recommend such a good plumber to a friend as being particularly skilled or capable in their job. Similarly, if I am seeking a promotion in work, I will need to emphasise the skills I have, how I have used them to date, how I can improve them and how my qualities and abilities stand out as meriting further reward. Finally, if a country is in need of workers with certain skills—say, software engineers, who are globally in high demand but short supply—then it may afford such workers additional rights to those who are in low demand and high supply—for example, domestic workers. In this way, the UK’s labour migration code conditions or constructs migrants’ right to work. Labour migrants are not generally afforded the full panoply of labour rights; rather, their access to the labour market is conditioned or constructed by their immigration status. While this seems distinctive — indeed, in some ways it is — the contract of employment in its many manifestations regularly performs a similar function, eg by affording some workers greater annual leave, flexibility and other rights. In my view, as a matter of general principle, it should be legitimate to distinguish between people on the grounds of skill, a view with which at least some political theorists of migration tend to agree (see Miller in Cohen and Wellmann; Carens; Miller; and MacKay).
The problem arises, however, that while discrimination on the ground of skills may be the operative reason explaining the different rights contained in the UK’s labour migration code, that does not mean that it is the only reason. There may be what we can call auxiliary reasons lurking in the background (Raz; Gardner). I reason: (1) I need an affordable cleaner. (2) There are no cleaners on the domestic market within my price range. (3) There is an abundance of people who are willing to work at an affordable rate on the global market. (4) Many of these are poor women from developing countries. Leading to conclusion: (5) I will hire a migrant domestic cleaner, who happens to be a woman from the Philippines. The operative premise is (1); premises (2)-(4) are auxiliary premises.
There is nothing objectionable per se about the operative premise. I am not cheap, although I’d like to save money where I can. But there may be something objectionable about the auxiliary premises. It may be that by directly discriminating (read: discerning) on the ground of skills in a seemingly unobjectionable way, we indirectly discriminate on some other, objectionable ground, such as sex, ethnicity or nationality (McCormack-George). We may discriminate in an intersectional way.
Discerning on the ground of skill, as the UK’s immigration code clearly does, is insensitive to such intersectional discrimination. The fact that many of our domestic workers are women from poor countries may be something we have a problem with. It reflects the fact that women are disproportionately affected by poverty, which frequently undermines their human rights and, consequently, their ability to flourish (Campbell). This is possibly something which at least some legal academics would like to see tackled through anti-discrimination law. How could this occur?
2. Discrimination on the Ground of Immigration Status
One way may be to challenge the immigration status itself; that is, to argue that the way in which domestic workers’ migration status is constructed is itself discriminatory. It could be argued that it fails to secure their human rights (Mantouvalou in Collins, Lester and Mantouvalou).
The ECtHR has long acknowledged the legitimacy of drawing differences between EU nationals and third-country nationals (Moustaquim v Belgium (1991) 13 EHRR 802; Ponomaryovi v Bulgaria (2014) 59 EHRR 20). Moreover, the weight to be attached to differences of treatment based on nationality is very different from that to be attached to differences based on immigration status. Because immigration status as a characteristic is not immutable and involves an element of choice, distinctions made on the grounds of immigration status are less weighty, or less morally significant, than those based on nationality (Bah v United Kingdom (2012) 54 EHRR 21[46]-[48]). Of relevance in this context is the wide discretion granted to contracting parties ‘when it comes to general measures of economic or social strategy’ (James v United Kingdom (1986) 8 EHRR 123[46]; National and Provincial Building Society v United Kingdom (1998) 25 EHRR 27[80]; and Bah, above, [37]).Indeed, the Court has confirmed that for any welfare or resource-redistribution system to operate effectively, the state may need to make distinctions and broad categorisations between different groups (Runkee v United Kingdom App 42949/98 (ECtHR, 10 May 2007)[39]; and Ponomaryovi, above, [54]).
However, some more recent case law of the ECtHR represents a potential departure from this view. In Hode and Ali v United Kingdom (2013) 56 EHRR 27, a case concerning the UK’s migration and asylum code, the first applicant had been granted asylum in 2006 and was given leave to remain in the UK until 2011. The first applicant subsequently married the second applicant in Dijbouti in 2007. The second applicant applied for a visa to enter the UK, but this application was rejected on the grounds that the applicants did not qualify for family reunion. At the time, the family reunification rules in the UK’s immigration code applied only to the spouses of refugees who were part of the refugee’s family before they had left the country of origin.
The applicants challenged these rules as infringing art 8 (the right to family life) in conjunction with art 14. The ECtHR agreed. First, the Court confirmed that there had been discrimination on the basis of immigration status: the ground for treating the applicants differently was the first applicant’s status as a refugee. The Court then turned to the question of justification. It accepted that, in principle, ‘offering incentives to certain groups of immigrants may amount to a legitimate aim’ (Hode, above, [53]). The UK Government argued that in providing preferential treatment to the spouses of students and workers coming to the UK, it was providing such incentives in a legitimate manner. However, the Court disagreed because the respondent government had never relied on such a justification domestically and, moreover,
[T]he Court sees no justification for treating refugees who married post-flight differently from those who married pre-flight. The Court accepts that in permitting refugees to be joined by pre-flight spouses, the United Kingdom was honouring its international obligations. However, where a measure results in the different treatment of persons in analogous positions, the fact that it fulfilled the state’s international obligation will not in itself justify the difference in treatment. (Hode, above, [55])
Hode and Ali is important for two reasons. First, it acknowledges the legitimacy of providing benefits and incentives to certain types of immigrants. This may appear to support the type of differentiation in rights evident in labour migration regimes generally, consistently with my earlier comments in respect of the legitimacy of discrimination on the grounds of skills. Second, and most significantly, the decision challenges a rule which forms part of the immigration code as itself being discriminatory on the grounds of immigration status.
What are the implications of Hode and Ali for my analysis here? Given that the ECtHR was willing to review the decision in question on the ground of immigration status, it may be possible in future to make claims that the different rights which are granted to different categories of labour migrant should be changed. In other words, it might provide a vehicle for migrant workers to argue that they should be entitled to similar rights as other migrant workers or to other workers in the labour market more generally.
However, as Hode and Ali itself demonstrates, it would have to be shown that some other right in the ECHR has been violated. What other right may be relied on?
3. Immigration Status and the Right to Private and Family Life
The ECHR does not protect the right to work as such, but in protecting certain other rights the ECtHR has given recognition to the right to work. Two cases of relevance stand out.
In Sidabras and Dziautus v Lithuania (2006) 42 EHRR 6, two former KGB agents were dismissed from public employment in Lithuania due to their involvement in the KGB. By virtue of a provision of national law, the applicants were also prohibited from applying for various jobs in the private sector. They argued that their dismissal violated art 8 on its own and in conjunction with art 14 ECHR. The Court first assessed whether there was a difference in treatment of the applicants and then considered whether the facts of the case fell within the ambit of art 8 ECHR. Accordingly, the Court first concluded that there was a difference of treatment between the applicants and persons who had not worked for the KGB. In turning to the second question, the Court had regard to art 1 of the European Social Charter and the ILO’s Convention on Discrimination (Employment and Occupation) 1958 (No 111) and concluded that ‘a far-reaching ban on taking up private-sector employment does affect “private life”’ (Sidabras, above, [47]). While the ECtHR accepted that the ECHR does not guarantee a right of access to a particular profession (Sidabras, above, [52]), nevertheless ‘state imposed restrictions on the possibility for a person to find employment with a private company for reasons of lack of loyalty to the state cannot be justified (…) in the same manner as restrictions governing access to their employment in the public service’ (Sidabras, above, [58]). Accordingly, the restrictions in place were disproportionate and violated art 8 in conjunction with art 14 ECHR. Sidabras thus identifies work as a vital constituent element of a person’s life and their well-being.
Capagnano v Italy (2009) 48 EHRR 43 concerned a bankruptcy case. The applicant’s name was entered in the bankruptcy register and as a result, she argued, she was unable to engage in any activity or business activity, thereby violating her right to private and family life under art 8 ECHR. The scope of application of the restrictions included a prohibition on being appointed a guardian, a prohibition on being appointed as the director or trustee in bankruptcy of a commercial or cooperative company and the inability to carry on the occupations of trustee in bankruptcy, stockbroker, auditor or arbitrator. The applicant was also prohibited from participating in certain professions, such as the legal profession. Because these restrictions on a bankrupt affected ‘the applicant’s ability to develop relationships with the outside world’ (Capagnano, above, [54]), the ECtHR found that they fell within the ambit of art 8 ECHR. According to the Court, being listed on the bankruptcy register clearly amounted to an interference with the applicant’s right to respect for her private life (Capagnano, above, [58]). Given the wide-ranging nature of these restrictions and the length of time before rehabilitation could be obtained (a period of five years), the Court considered that infringement of the applicant’s art 8 rights were not ‘necessary in a democratic society’ (Capagnano, above, [66]). Capagnano therefore locates work as a central source of meaning and identity in people’s lives and emphasises the contribution of participation in the labour market to a person’s well-being.
In light of Hode and Ali, Sidabras and Capagnano, it may be possible to argue that (i) the restrictions placed on some categories of migrant workers treat them differently on the ground of immigration status and (ii) those differences in treatment detrimentally affect their right to private and family life. In other words, affording some labour migrants less rights than others may infringe their human rights.
What, specifically, are the kind or type of restrictions which may infringe a migrant worker’s human rights? In my view, employer ties which apply to domestic workers in the UK are a paradigm form of restriction which infringe people’s right to private and family life. This view is, of course, largely speculative. But my speculation could be confirmed if it could be established, through empirical research, that employer ties restrict those aspects of a person’s right to private and family life which are most pressing, such as their ability to make and enter into relationships with others or their ability to exercise their other rights. The empirical work of Natalie Sedacca and Avril Sharp is therefore vital in establishing the facts from which an inference of a violation of migrant workers’ human rights can be inferred.
Dáire McCormack-George is a graduate of the universities of Dublin and Oxford and is a doctoral researcher at Trinity College Dublin, the University of Dublin. He was a Visiting Researcher at the Labour Rights Institute, University College London in May 2018 and is currently a Visiting Scholar at the Institute for Labour Law, KU Leuven.
(Suggested citation: D McCormack-George, ‘Labour Migration, Skills and Discrimination,’ UK Labour Law Blog, 10 July 2019, available at https://wordpress.com/view/uklabourlawblog.com).
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