Protection from Slavery, Servitude and Forced Labour under the ECHR: Problems and Prospects

Slavery

The European Court of Human Rights has recently decided a number of important cases on the scope of Article 4 of the European Convention on Human Rights. In its seminal decision in Siliadin v France (Judgment of 26 July 2005)(previously discussed by David Keane on Human Rights in Ireland here) the Court confirmed that States have positive obligations under Article 4 to protect individuals from slavery, servitude and forced or compulsory labour. These positive obligations entail both the effective criminalisation of treatment contrary to Article 4 and the effective investigation of complaints of such treatment. In two decisions handed down in late 2012, CN and V v France (Judgment of 11 October 2012) and CN v United Kingdom (Judgment of 13 November 2012), the Court again considered the scope of States’ duties under Article 4 and clarified certain aspects of the law. All of these cases decided by the Strasbourg Court to date have been taken by migrant domestic workers, illustrating the vulnerability of this category of this group to exploitation and abuse.

CN and V v France concerned two young Burundian girls who had been taken in by relatives in Paris (a Burundian UNESCO official and his wife) after the Civil War in Burundi and who performed all the domestic work of the household for a number of years, including looking after the couple’s seven children (including a disabled child). They were accommodated in makeshift, sub-standard accommodation and constantly threatened with expulsion to Burundi. The Court found that the older sister had been subjected to forced labour and servitude and that France was in breach of its duties under Article 4 in failing to have in place an effective criminal prohibition on this treatment. It confirmed that forced labour was labour performed against a person’s will under the menace of some penalty, and that servitude has the additional element of the person feeling that their situation was unchanging and unlikely to alter. Importantly, the Court recognised the links between immigration status and vulnerability, finding that the “menace of some penalty” could, in certain circumstances, include the threat of expulsion.

In CN v UK (discussed on the UK Human Rights Blog here), the Court found that the legislative framework in place in the UK prior to the introduction of section 71 of the Coroners and Justice Act 2009  did not permit the police to carry out an effective investigation of the applicant’s complaints. Article 4, the Court found, requires the effective investigation of any ‘credible’ complaint of treatment amounting to slavery, servitude or forced labour.

Certain aspects of CN and V v France, in particular, are open to criticism. It was found that the younger sister in that case, V, had not been subjected to servitude or forced labour, as the work which she had been required to perform did not go beyond ‘normal’ family obligations. ‘Forced labour’ was to be distinguished from activities related to ‘mutual family assistance or cohabitation’, particular regard being had to the nature and volume of the activity in question. It seems that the reasoning behind this conclusion that the work performed by V did not meet this threshold was that she had some days off from her household chores and she was allowed to attend school. This finding was made despite the Court’s acceptance that V had been seriously ill-treated, both physically and psychologically.

On the basis of the Court’s approach in CN and V, it seems that it will be difficult for applicants to show that treatment reaches the threshold of severity required to show ‘forced labour’, meaning that Article 4 will only ‘kick in’ in the most severe and unusual cases. In addition, the reference to activities related to ‘mutual family assistance or cohabitation’ is vague, with no real indication of how far normal family obligations might stretch, or how this is to be measured. In addition to these difficulties with the interpretation of Article 4, potential Article 13 (right to an effective remedy) aspects of these cases remains under-explored. In particular, it has not been argued or considered as yet whether inadequate access to employment law remedies, including employment tribunals, could constitute a violation of states’ positive obligations under Article 4. It is to be hoped that these issues will be more fully expanded upon in future cases.

Notwithstanding the unresolved issues in the case law, Ireland remains in breach of its positive obligations under Article 4 in its continued failure to criminalise forced labour, servitude and slavery, a point which has been made previously by this writer, among many others, including the Migrant Rights Centre of Ireland. In December 2012, a heads of Bill for the Criminal Law (Human Trafficking) (Amendment) Bill 2012, which proposes to extend the definition of ‘human trafficking’ in Irish legislation to include subjecting a person to forced labour, enslavement or servitude, was approved by Cabinet. However, question marks remain over the adequacy of the anti-trafficking framework generally to deter trafficking and adequately identify and protect victims. Thus, while the proposed bill would be an improvement on the current position, situating this reform within anti-trafficking legislation may not be sufficient to meet the exacting standards relating to deterrence, the facilitation of prosecutions and protection required by the European Court.

Protection from Slavery, Servitude and Forced Labour under the ECHR: Problems and Prospects

Providing a future for separated children? Obstacles to accessing third level education

Dr Cliodhna Murphy, Lecturer in the School of Law and Government at Dublin City University.

The Statement on Integration Strategy and Diversity Management (“Migration Nation”) published by the Office of the Minister for Integration in 2008 emphasised a social inclusion approach to integration, which focussed on the delivery of services for new communities and practical issues such as language education and interpretation and translation in an effort to “avoid the creation of parallel societies, communities and urban ghettoes.” In the financial crisis which followed the publication of this report, perhaps the most significant of the integration “casualties” of the economic recession and the consequent reorientation of government policy was the abolition of the position of the Minister for Integration in 2011.  The Office for the Promotion of Migrant Integration still exists but without any real policy direction outside of the 2008 statement and operating with a very small budget. In these circumstances, despite the elaboration of various “intercultural strategies” by the Garda Síochána, FÁS and the Department of Education, the development of a coherent, nuanced and holistic integration policy in Ireland seems unlikely in the near future.

Among the groups of migrants who have been tolerated by the Irish state but have certainly not been the beneficiaries of a policy designed to welcome them as future members of and contributors to Irish society are separated children. This post highlights some of the barriers faced by separated children in accessing third level education – a potential route out of poverty and marginalisation.

Issues identified by the Ombudsman for Children in its report on Separated Continue reading “Providing a future for separated children? Obstacles to accessing third level education”

Providing a future for separated children? Obstacles to accessing third level education

Guest Post: Migrant Domestic Workers in Diplomatic Households

We are pleased to welcome this guest post from Clíodhna Murphy (left). She is a postdoctoral fellow on the IRCHSS-funded Senior Fellowship project “Migrant Domestic Workers and Migration Law Regimes in the EU: exploring the limits of rights protections” run by Professor Siobhán Mullally in UCC. Clíodhna has just joined DCU School of Law and Government as a lecturer.

Migrant Workers and Access to Employment Rights: The Case of Migrant Domestic Workers in Diplomatic Households

Hogan J’s decision of last week in Hussein v The Labour Court [2012] IEHC 364 (31 August 2012)  turned the spotlight on limitations to access to employment rights and entitlements for irregular migrants. The judgment, which has been the subject of analysis by Liam Thornton  and Darius Whelan, holds that undocumented workers are barred from enforcing employment rights as they do not have a valid contract of employment, their contract of employment being ‘substantively illegal in the absence of the appropriate employment permit’. In this context, it seems timely to draw attention to another specific group of migrant workers whose access to employment rights is effectively blocked by operation of law – migrant domestic workers employed in diplomatic households. Continue reading “Guest Post: Migrant Domestic Workers in Diplomatic Households”

Guest Post: Migrant Domestic Workers in Diplomatic Households

Murphy on Migrant domestic workers in immigration law

We are pleased to welcome this guest post from Clíodhna Murphy (left). She is a postdoctoral fellow on the IRCHSS-funded Senior Fellowship project “Migrant Domestic Workers and Migration Law Regimes in the EU: exploring the limits of rights protections.

Migrant domestic workers in immigration law: human rights implications of current changes in the UK

A previous guest blog on Human Rights in Ireland examined the progressive development of international standards relating to the rights of migrant domestic workers. The rights and immigration status of migrant domestic workers have long been on the political agenda in the UK, where there is a long campaigning history associated with migrant domestic workers’ rights. From 1998 to 2012 the UK Immigration Rules provided for a specific visa for migrant domestic workers in private households (the overseas domestic worker visa) which allowed such workers to change employer, bring their dependents to the UK and eventually settle as long-term residents and citizens. On 29 February 2012, following a consultation process, it was announced that fundamental changes would be introduced to the visa which will remove these benefits and confine entry to the UK as an “overseas domestic worker” in a private household to a maximum period of six months. This blog post examines this process of law reform and the justifications offered for changing the law. Continue reading “Murphy on Migrant domestic workers in immigration law”

Murphy on Migrant domestic workers in immigration law

Guest Post on Migrant Domestic Workers and Migration Law in the EU

We are very pleased to feature this guest contribution from Catherine Kenny, a researcher on an IRCHSS-funded Senior Fellowship project, led by Professor Siobhán Mullally, University College Cork. The research team includes Dr Cliodhna Murphy, Post-Doc Fellow. The project will focus specifically on recent developments in the EU and selected Member States: Ireland, UK, France, the Netherlands and Sweden.

In recent years there have been significant developments in the expansion of international human rights standards for the protection of non-citizens. This blog post examines the progressive development of international standards relating to the rights of migrant domestic workers, a group that is marginalised not only because of their frequently precarious migration status, but also because of the often hidden and isolated nature of their work. In 2011 the ILO adopted a Convention and Recommendation on Decent Work for Domestic Workers. The rights of migrant domestic workers were the subject of the first General Comment adopted by the UN Committee on the Rights of Migrant Workers and their Families in 2010. Domestic work, and the particular challenges faced by migrant domestic workers, is also addressed by the UN CEDAW Committee in their 2009 General Recommendation on Women Migrant Workers. These developments and their implications for EU migration law and policy is the subject of a recently launched Irish Research Council Senior Fellowship project, led by Professor Siobhán Mullally, University College Cork.  Continue reading “Guest Post on Migrant Domestic Workers and Migration Law in the EU”

Guest Post on Migrant Domestic Workers and Migration Law in the EU