Labour,Legality and shifts in the Public/Private divide

This article discusses the changing role that work performed in private homes has played, and continues to play, in migration law in the Netherlands and at the EU level. It explores to what degree work performed in the home is defined as (exploitative) contractual labour or as inherent to family life, and what this means for claims to residence rights as a precursor to citizenship. It does this by reviewing case law of the European Court of Justice (CJEU) and of the European Court of Human Rights (EctHR) against the background of the Dutch case. It reveals tension between how citizenship is constructed and reproduced at the national level and how it is constructed and reproduced at the EU level. Following Adam McKeown, this article concludes that different perspectives on (reproductive) labour as a qualification for citizenship may reflect different perspectives on (reproductive) labour and the quality of citizenship.

Policy Implications

• Third Country Nationals must be allowed to reside in the EU with their EU children, to ensure the latter's effective enjoyment of fundamental rights.
• Policies to combat trafficking of domestic workers must respect family life.
• Family migration policies must allow individual family members enough scope to resist exploitation within families.
• Policies concerning labour protection, social protection and migration should no longer take the breadwinner‐citizen as point of departure, but the current reality of flexible labour relations in which the distinctions between home and work, and between employment and self‐employment, are no longer sharply defined.