Labor, Legality and the Public/Private divide in Dutch and European Migration Law

In my paper I shall discuss the changing role that work performed in private homes has played, and continues to play, in the construction and reproduction of citizenship and processes of inclusion and exclusion through migration law. An important theme will be to what degree work performed in the home is defined as (unpaid) contractual labour or as inherent to family life, and what this distinction does or does not mean for claims to residence rights as a precursor to citizenship. After a historical discussion of the Dutch case, I shall examine recent case law of the European Court of Justice (ECJ) and of the European Court of Human Rights (ECtHR). As I shall show, there is an inherent tension between how citizenship is being constructed at the national level in terms of the public/private divide, where the ghost of the breadwinner citizen still hovers, and how it is being constructed at the level of the EU , where neo-liberalism seems to have chased that ghost from the scene.

As McKeown has theorised in his book Melancholy Order, such differences in the meaning attached to labour as a qualification for citizenship may well reflect different perspectives on the meaning of labour for the quality of citizenship - i.e. for the rights that citizens, as workers, can claim vis à vis the state. The case law of the ECtHR, that in future may well play an important role in mediating tensions between the national and EU legal orders, already expresses confusion and anxiety concerning the qualification of work within the home.