The issue of principle which Amnesty International wishes to address is whether an irregular migrant worker is prohibited from obtaining redress against his or her employer where their contract of employment was not permitted under domestic legislation. Amnesty International submits that the common law doctrine of illegality does allow for the protection of irregular migrant workers in contract and/or tort law where they are exploited by their employer.
As Juan Amaya-Castro points out, (domestic) migration legislation is about selecting among potential or prospective migrants, i.e. creating two categories of migrants: ‘documented’ or ‘regular’ migrants, whose migration status complies with established requirements, and ‘undocumented’ or ‘irregular’ migrants, whose migration status does not so comply. Where does this leave international law and, as Juan Amaya-Castro calls it, its humanist-egalitarian tradition? This post will argue that Amaya-Castro underestimates the strict and strong limitations on the sovereignty of states established by international human rights law, international refugee law and international labour law. In particular, states’ discretion in the adoption and enforcement of migration policies is limited by their obligation to respect, protect and promote the human rights of all individuals within their territory and subject to their jurisdiction (UN Human Rights Committee, General Comment No. 15, para. 5). This post discusses some of the far-reaching consequences of this principle, focusing on three types of limitations on state sovereignty with respect to migration: limitations on the prerogative to control entry; limitations on the prerogative to establish conditions for entry and stay; and limitations on the treatment of irregular migrants.
Limitations on the prerogative to control entry
The obligation not to reject refugees and asylum-seekers at the frontier may be an exception to state sovereignty conceptually, but it is far from exceptional in practice, especially in certain European contexts. Of the 19,234 people “intercepted” along EU borders by the joint border control operation Mos Maiorum between 13-26 October 2014, 11,046 people (57%) claimed asylum (Mos Maiorum final report, p. 25). More than a quarter of those “intercepted” were Syrians, followed by Afghans, Eritreans, Somalis, Iraqis – individuals whose need for international protection can easily be argued (ibid., p10). Nikolaos Sitaropoulos expertly discussed the limitations imposed on states’ sovereign prerogative to control entry and stay by the Council of Europe human rights framework, in particular its obligation of non-discrimination. Outside that framework, the guidance provided by the UN Committee on the Elimination of Racial Discrimination (CERD) is also worth mentioning. In 1998 the Committee criticised Switzerland’s so-called three-circle-model migration policy, which classified foreigners on the basis of their national origin, as ‘stigmatizing and discriminatory’ (UN Doc. CERD/C/304/Add.44, para. 6). Four years later, the Committee expressed concern at the possible discriminatory effect of Canadian migration policies (in particular, a high ‘right of landing fee’) on persons coming from poorer countries (UN Doc. A/57/18, para. 336). On these grounds, this post argues that the general principle of non-discrimination is a limitation to states’ discretion in the adoption and enforcement of all migration policies, including their prerogative to control entry.
Limitations on the prerogative to establish conditions for entry and stay
While the limitations imposed by international law on a state’s prerogative to control entry into its territory are relatively well-established, at least on paper, visa regimes are often perceived to be an area where state sovereignty has little boundaries. Once the state has complied with its international obligations in selecting who is allowed into the country, it seemingly enjoys a broad freedom in determining how long they can stay and under which conditions (the generally recognised exception being, again, refugees and those protected by the obligation against refoulement). In fact, the rules of international labour law protecting workers from labour exploitation, forced labour and servitude, and the international legal rules against trafficking in human beings, profoundly impact the prerogative of states to establish conditions for entry and stay in the form of visa regimes. As the requirements of some visa regimes may ultimately be in breach of a state’s international obligations to protect individuals from labour exploitation, forced labour, servitude and trafficking, such obligations limit its sovereignty in establishing visa conditions. In 2014, Amnesty International published an analysis of selected visa regimes in five countries of destination (China/Hong Kong, Italy, Qatar, South Korea and the United Kingdom), showing that some visa requirements, such as the inability to change employer and the employer’s control over the worker’s migration status, increase migrant workers’ risk of suffering labour exploitation and other abuses at the hand of private actors such as recruitment agencies and employers. Recently, the link between visa requirements stopping migrant workers from changing employers and vulnerability to labour exploitation has been at the centre of the debate on a new Modern Slavery Bill in the United Kingdom. NGOs have argued that the current system of overseas domestic workers visas “tied” to the employer (whereby the migrant worker is not allowed to change employer) is open to abuse, as the workers can only leave an exploitative labour relationship at the price of losing their visa. Amnesty International’s research also shows that the promise of regular documents is often used by abusive employers to induce irregular migrant workers to accept exploitative labour conditions. In countries where the administrative procedure to obtain or renew residence and work permits has to be initiated by, or requires the cooperation of, the employer, the employer’s effective power to determine their migration status can easily become a tool to intimidate or threaten workers, undermining further the irregular migrant workers’ limited ability to negotiate better wages and working conditions (Amnesty International, Abusive labour migration policies, 2014, p. 7-10).
Limitations on the treatment of irregular migrants: “firewalls”
The current European debate on irregular migration tends to focus on the limitations on state sovereignty during law-enforcement, i.e. on the procedures of arrest, detention and deportation. In fact, the international obligation to respect, protect and promote the human rights of migrants may require states not only to modify the procedures of their law-enforcement operations, but also to limit law-enforcement operations tout court. In his 2013 report to the United Nations General Assembly, the Special Rapporteur on the human rights of migrants, François Crépeau, called on states to allow migrants to access the public services needed for the enjoyment of their rights without fear of being arrested, detained and deported. In order to do so, states should implement “firewalls” between public services and migration enforcement, whereby public services (healthcare, education, housing, labour inspection, local police) would be instructed not to request migration status information unless essential; and migration enforcement would not have access to the information collected by public services relating to migration status (para. 82). The call for “firewalls” between the public officials charged with protecting and enforcing the human rights of irregular migrants (teachers, doctors, labour inspectors, etc.) and those charged with enforcing migration laws recognises and addresses a problem familiar to human rights advocates: irregular migrants are generally so concerned about coming to the attention of the authorities that they are reluctant to access public services, even when they would be entitled to do so to enjoy their human rights. While, in its first formulation, the “firewall” argument was built on ethical and policy grounds (Carens 2008 at pp. 167-168), this post argues that it also has strong grounds under the legal principle that the human rights of migrants limit the sovereign prerogative of states to control migration. Here again, the debate is far from being academic. The domestic legislation of several European states imposes on public officials a duty to report irregular migrants to migration-enforcement authorities, either expressly (such as in the Irish Immigration Act 2003, s. 8) or via the interplay of legislation criminalising irregular migration and a general requirement of any public officer to report all suspected criminal acts to law-enforcement authorities. Yet, many European states also impose direct or indirect reporting bans on public bodies and officials providing basic services, which either prohibit them or allow them not to report irregular migrants to the police. Although a complete review of state practice in this field is beyond the scope of this post, a few examples may illustrate the point. In Italy, irregular migrants are allowed free access to “urgent or essential” health services and “preventive care” services, including maternal health care, children health care, vaccinations and the care of infectious diseases and epidemics (Legislative Decree No. 286/1998, art. 35.3). To allow meaningful implementation of this right, Italian legislation expressly guarantees that access to health services by irregular migrants will not be reported to the authorities (ibid, art. 35.5). Germany’s migration legislation imposes upon all public administration bodies a general duty to report irregular migrants to the authorities in charge of migration enforcement (AufenthG, s. 87). In 2011, an explicit exception to this provision was introduced for schools and other educational and care establishments for young people (ibid.). In the same way as reporting bans on healthcare and education personnel are a simple measure to “firewall” irregular migrants’ rights to health and education, reporting bans on labour inspectors are a simple measure to “firewall” irregular migrants’ rights at work. Such bans are in fact required under the ILO Labour Inspection Convention, 1947 (No. 81). According to the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR), tasking labour inspectors with immigration control functions is incompatible with international obligations because it diverts resources from their primary duty “to protect workers and not to enforce immigration law” (General Survey on Labour Inspection, 2006, p25).
This post has attempted to provide a summary overview of the limitations imposed by international human rights law, international refugee law and international labour law on states’ sovereign prerogative to control entry and stay in its territory. The broad scope of these limitations strengthens the comparatively weaker position of the individual migrant vis-à-vis the state. By imposing a range of direct restrictions on law-enforcement operations, states are effectively hampered in their pursuit of the goal of migration control.
Ladies and gentlemen,
Amnesty International would like to thank the UN Committee on Migrant Workers and the Office of the High Commissioner for Human Rights for inviting the organisation to participate in this Day of general discussion.
My observations today will focus on abusive labour migration policies, i.e. labour migration policies that increase migrant workers’ risk of suffering labour exploitation and other abuses at the hands of their employers.
These observations are based on field research on labour exploitation of migrant workers, conducted by Amnesty International in Hong Kong (China), Italy, Qatar and South Korea between 2009 and 2014. You will find more details in Amnesty International’s written submission to the Committee. Individual testimonies and detailed legal and policy analyses have been published in country-specific reports.
In many of the cases of labour exploitation that Amnesty International investigated, the abuses suffered by workers were not only due to the actions or failures of an individual employer, but were linked to systemic problems in the way migrant workers’ employment is regulated in the destination country. We have found that, in many destination countries, labour exploitation is rooted in serious flaws in the processes by which migrant workers are recruited and employed, which facilitate and enable employers to subject migrant workers to exploitative practices.
Let me give you some details about two types of abusive labour migration policies:
- Labour migration policies that give the employer control over the migrant worker’s residence status;
- Labour migration policies that tie migrant workers to a specific employer.
1. Labour migration policies that give the employer control over the migrant worker’s residence status
Amnesty International’s research has found that labour migration policies that give the employer control over the migrant worker’s residence status increase the risk of labour exploitation.
In Qatar, the Sponsorship Law gives the employer the exclusive responsibility to complete the administrative procedures to issue or renew migrant workers’ visas and work permits. This means that the employer has the power to arbitrarily make migrant workers irregular, even when they meet the relevant legal requirements about entry and stay. Amnesty International researchers met hundreds of migrant workers arbitrarily left “undocumented” by their employers. Without the documents necessary to prove their migration status, migrant workers find themselves at constant risk of arrest by police, who regularly stop migrant workers to check their papers. This highly precarious situation reduces migrant workers’ ability and likelihood to access assistance by the authorities in case of labour exploitation.
In Italy, the seasonal permits system has de facto become an unofficial regularisation mechanism for the many migrant workers in an irregular situation. As the procedure can only be initiated by the employer, irregular migrant workers are completely dependent on their employer’s willingness to apply for the documents necessary to regularise their status. The employer’s effective power to determine the worker’s migration status can easily become a tool to intimidate or threaten workers, undermining their ability to negotiate better wages and working conditions. Amnesty International’s research has shown that the promise of regular documents is often used by employers to induce migrant workers to accept exploitative labour conditions. The non-payment of wages or arbitrary wage deductions, which are common instances, are often justified by the employer as payments for his/her “cooperation” in the process to obtain documents.
2. Labour migration policies that tie migrant workers to a specific employer
Amnesty International’s research has found that labour migration policies that tie migrant workers to a specific employer increase the risk of labour exploitation.
This is the case, for example, of:
- Visas or work permits which require permission by the first employer for the migrant worker to change jobs;
- Visas or work permits immediately or rapidly expiring when a migrant worker leaves a job or is fired.
A. Visas or work permits which require permission by the first employer for the migrant workers to change jobs
Some countries impose limitations on the labour mobility of migrant workers, requiring them to obtain permission by their first employer in order to change jobs. In Qatar, such a permission is known as “No objection certificate”, or NOC; in South Korea, the employer signs a “release” document.
If workers find that they have been deceived about the terms and conditions of their contract during the recruitment process, or are subjected to abuse by their employer, the question of whether or not they can change jobs depends on their employer. Where permission to change jobs is not granted, migrant workers who leave their job lose their regular migration status, thus risking arrest, detention and deportation.
Amnesty International’s research has found that the employer’s power to prevent workers from leaving their job can be used to pressure them to continue to work in situations where they are subjected to exploitation or when the individual simply wants to resign and return home. These practices are inconsistent with the right of everyone to the opportunity to gain a living by work which he or she “freely chooses or accepts” (Article 6, International Covenant on Economic, Social and Cultural Rights).
B. Visas or work permits immediately or rapidly expiring when a migrant worker leaves a job or is fired
Visas or work permits that expire immediately or shortly after a migrant worker leaves a job or is fired, leaving them in an irregular migration situation, increase the risk of labour exploitation because they greatly reduce the likelihood that the worker would seek help from the authorities in case of abuse, for fear of being detected as irregular and deported.
This is the case for visas that do not allow the worker to change employer, thereby expiring when the employment relationship with the first employer ends, such as the United Kingdom’s visa for migrant domestic workers.
However, the same risk of labour exploitation arises with respect to labour migration policies that allow migrant workers only a very short time to find a second employer after the end of the employment relationship with the first one, such as the Two-Week Rule in Hong Kong (China) and the Employment Permit System in South Korea.
Migrant workers who lodge a complaint against their employer are likely to have their contract terminated. Labour migration policies that impose on them a very short time to find another job leave them with little choice but to remain in abusive and/or exploitative conditions or accept jobs with unfavourable work conditions in order to maintain their regular migration status. Fear of losing their job and quickly becoming irregular increases migrant workers’ reluctance to complain about abusive labour conditions.
Amnesty International recommends that the Committee requests states parties to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families to provide detailed information on the following aspects of their labour migration policies:
- Labour migration policies that give the employer control over the migrant worker’s residence status;
- Labour migration policies that tie migrant workers to a specific employer;
- Measures taken to ensure the right of all migrant workers to the opportunity to gain a living by work which he or she freely chooses or accepts;
- Measures taken to ensure that all migrant workers are able to report instances of labour exploitation and obtain an effective remedy for human rights violations.
“General Assembly Resolution A/RES/67/172 on the protection of migrants and how a human rights perspective can enhance the design and implementation of international migration and development policies”
Amnesty International’s letter dated 12 June 2013 to the Office of the United Nations High Commissioner for Human Rights (OHCHR) can be read here. It includes examples of migration policies that increase the risk of labour exploitation and discusses some obstacles to access to justice for migrant victims of labour exploitation.
A recent High Court judgment bears untenable consequences on the rights of irregular migrant workers.
Mohammad Younis is a 59-years-old father of nine. In September 2002 he left Pakistan to work as a tandoori chef in his second cousin’s restaurant in Ireland. From September 2002 to December 2009 he worked 7 days a week without days off, except for a month in September 2009. For the first two and a half years he worked 11 hours a day and was paid 40 euros per week (0.51 euros per hour). After February-March 2005 he started working 8 hours a day. Although his pay was raised, it stayed always well below the national minimum wage of 475 euros per week.
Mr Amjad Hussain, Mr Younis’ employer, paid for his initial work permit (July 2002-July 2003). However, the work permit was not renewed after the first year and Mr Younis became undocumented in July 2003. He did not speak English and his social connections were limited to his employer and his work colleagues; he therefore relied entirely on his employer for his employment permit, taxes and passport.
“The exploitation I suffered put me in a deep, dark well. I felt I had no hope for my future and no way out.”
Mohammad Younis to the Irish Independent
Rights Commissioner Decision and Labour Court Determinations
In December 2009 Mr Younis contacted Migrant Rights Centre Ireland and left the restaurant, starting a process that would lead him to initiate legal proceedings against his former employer before Irish courts.
In March 2011 the Rights Commissioner awarded Mr Younis more than 91,000 euros as backpay and compensation for breaches of Irish employment legislation. Two Labour Court’s determinations dated September 2011 upheld that decision.
High Court Judgment
The case reached the High Court for judicial review in August 2012. Mr Younis’s employer claimed that he had no standing to invoke the protection afforded by Irish employment legislation, since any contract of employment was illegal in the absence of an employment permit.
Mr Justice Hogan did not fail to grasp the public policy implications of the case:
“The treatment of migrant workers is a vexed one which poses considerable difficulties with regard to the regulation of the labour market and the enforcement of public policy. The Oireachtas must, of course, regulate the labour market by specifically deterring illegal immigrants from taking up employment, as failure to do so could have serious medium term implications for both employment and immigration policy. If, however, that legislation is applied in a rigorous and unyielding manner it might have serious consequences for vulnerable migrants who found themselves exploited by unscrupulous employers” (Amjad Hussein v. The Labour Court and Mohammad Yunis (Notice Party)  IEHC 364 para1).
Despite the cautioning against “rigorous and unyielding” interpretations, Mr J Hogan went on to consider that the Employment Permits Act 2003, which prohibits a non-national from being employed without an employment permit, rendered the contract of employment between Mr Younis and his employer substantively illegal and that, therefore, such a contract could not be enforced by Irish labour courts. In other words, the Employment Permits Act 2003 would prevent any irregular migrant worker from seeking redress under Irish labour law as their irregular migration status would make their employment contract null and void.
The domestic law issues highlighted by the High Court judgment are outside the scope of this article (see, however, Darius Whelan’s notes). Rather, what follows will discuss the compatibility of the judgment with Ireland’s international obligation and its advisability as a matter of public policy.
Ireland’s human rights obligation to respect, protect and fulfil the labour rights of all workers without discrimination based on migration status
Under Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which Ireland ratified in 1989, states parties are under a duty to respect, protect and fulfil “the right of everyone to the enjoyment of just and favourable conditions of work”. These would ensure, for example: fair wages and equal remuneration for work of equal value; remuneration which provides all workers, as a minimum, with a decent living for themselves and their families; safe and healthy working conditions; rest, leisure and reasonable limitation of working hours.
The UN Committee on Economic, Social and Cultural Rights has highlighted that the right to work safeguards should extend to everybody, including all migrant workers, in line with the principle of non-discrimination (General Comment No. 18, para18). The principle of non-discrimination prohibits both discrimination between Irish nationals and migrant workers; and discrimination against irregular migrant workers. In the words of the Committee:
“The Covenant rights apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation” (General Comment No. 20, para30).
The Committee further noted:
“States parties are under the obligation to respect the right to work by, inter alia, prohibiting forced or compulsory labour and refraining from denying or limiting equal access to decent work for all persons, especially disadvantaged and marginalized individuals and groups, including prisoners or detainees, members of minorities and migrant workers” (General Comment No. 18, para23).
The UN Committee on the Elimination of Racial Discrimination recommended states to recognize that:
“while States parties may refuse to offer jobs to non-citizens without a work permit, all individuals are entitled to the enjoyment of labour and employment rights, including the freedom of assembly and association, once an employment relationship has been initiated until it is terminated.”
General Recommendation No.30, para35
Despite Ireland being legally bound by both the ICESCR and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), ratified in 2000, their provisions are not directly enforceable before Irish courts. This is because none of the UN human rights treaties that Ireland has ratified have been incorporated into domestic law, a requirement under Article 29.6 of the Irish Constitution.
More complex legal issues arise with respect to the compatibility of the Yunis judgment with the European Convention on Human Rights and the domestic European Convention on Human Rights Act 2003 (for which see Cliodhna Murphy’s article).
The “illegality doctrine” as a public policy principle
The principle whereby courts can refuse to enforce obligations arising from an illegal deal, know in English law as “illegality doctrine” or “illegality defence”, is well established in some jurisdictions, including Ireland. It is argued here that its application to irregular migrants’ employment contracts (a) is not justified in the light of the principle’s rationale and (b) leads to untenable and/or counterproductive policies.
The purposes of the “illegality doctrine” include: (i) deterring the conclusion of illegal deals; (ii) keeping individuals from profiting from their own wrong; (iii) reaffirming the rule which the illegal conduct has infringed and/or (iv) maintaining the integrity of the legal system. None of these purposes are achieved when the doctrine is applied to irregular migrants’ employment contracts.
(i) Some may argue that refusing irregular migrants the protection of employment law would deter them from migrating and seeking employment in the host country in the first place. This would assume that migrants leave their country to look for better employment conditions and legal protections. In fact, they often leave their country to look for any job, as opposed to a better job, and have to accept dirty, difficult and dangerous work. A different approach in the design of migration policies focuses on reducing irregular migrants’ labour demand, by imposing effective sanctions to employers of irregular migrants, rather than trying to reduce its supply. This is the approach adopted by the European Union Directive on sanctions against employers of irregular migrants (2009/52/EC). Under the Directive, the employer who is found having employed irregular migrants must make back payments of any outstanding salary (at least at minimum wage level), taxes and social security contributions.
(ii) From a moral point of view, the “illegality” doctrine aims at stopping an individual from relying on, or benefiting from, their own wrongdoing. In the case of irregular migrants, however, what is “illegal” is their entry or stay in the country, not their work per se.
“The money that [irregular migrants] receive in compensation [for their work] is not a form of ill-gotten gain; they have earned it with the sweat of their brows. It is morally wrong for the state to announce that employers are free to extract that work and then withhold the promised pay” (Carens, 2008).
On this basis, Joseph H. Carens has maintained that the application of the “illegality defence” to irregular migrants’ employment contracts is “fundamentally misguided” on moral grounds.
(iii) Finally, some may argue that recognising irregular migrants’ labour rights would undermine the whole system of rules regulating migration flows, which is based on the power of the state to decide entry, stay and work in its territory. At this point, we may consider this argument outweighed by the considerations of principle and policy discussed above. However, it is worth evaluating it in the light of other rules’ relative strength and the need for coherence and integrity within the legal system. The potential clash between the rules regulating migration flows and the rules intended to respect, protect and promote human rights is particularly evident in cases involving severe forms of labour exploitation of irregular migrants, such as domestic servitude, labour exploitation and trafficking.
Migrant Rights Centre Ireland have considered that the treatment suffered by Mr Younis amounts to trafficking for forced labour and pointed out that abusive employers often refuse to renew the employer’s documents so that they can use their undocumented status to isolate and threaten them. Indeed, deception regarding the acquisition of regular migration status and threats of denunciation to the immigration authorities are listed among the ILO indicators of forced labour.
The Rights Angle has already reported the case of M., a Nigerian girl who suffered severe labour exploitation while working as a domestic worker in the United Kingdom, likely amounting to trafficking for forced labour or domestic servitude. The labour courts that heard M.’s case not only ignored the gravity of the crimes possibly suffered by her, but also denied M. any compensation or backpay for the one and a half years during which her work was not paid, relying on the “illegality doctrine”.
Applying the “illegality doctrine” to irregular migrants who suffered forced labour and trafficking leads to the paradoxical conclusion of denying them redress for the exact reason of having been victimised in the first place. This is clearly an untenable position, especially considering the fact that, in many cases, pursuing breaches of employment law is the only avenue for redress available to victims of forced labour and trafficking. In Ireland, the Criminal Law (Human Trafficking) Act 2008 criminalised, inter alia, human trafficking for labour exploitation, including forced labour, but did not define forced labour, making it impossible to prosecute perpetrators.
Mr Justice Hogan himself conceded that his conclusion in the Younis case “is not a result which yields much satisfaction”. He continued:
“If Mr. Younis’ account is correct… then he has been the victim of the most appalling exploitation in respect of which he has no effective recourse. […] While I am bound to apply the policy as articulated by the Oireachtas via the 2003 Act, there must be some concern that this legislation will produce (and, perhaps, has produced) consequences which were not foreseen or envisaged. Specifically, it may not have been intended by the Oireachtas that undocumented migrant workers – not least a vulnerable migrant such as Mr. Younis – should be effectively deprived of the benefit of all employment legislation by virtue of his illegal status, even though he or she may not be responsible for or even realise the nature of the illegality” (Amjad Hussein v. The Labour Court and Mohammad Yunis (Notice Party)  IEHC 364 para23).
Mr Justice Hogan then took the unusual move to transmit a copy of his judgment to the relevant legislative and executive authorities, for them to “give consideration” to the purported policy implications of the Employment Permits Act 2003.
“The facts of the [Mohammad Younis] case speak for themselves, and I know that I had the same reaction to those facts as any right thinking person. I was appalled.”
Richard Bruton, Minister for Jobs, Enterprise and Innovation, September 2012
The Irish government announced plans to amend the Employment Permits Act 2003 “to ensure an employer cannot benefit from the fact that a contract of employment is illegal and, therefore, not legally binding.” The Bill, which has not been tabled yet, would “provide a defence to the employees and to give the courts some discretion when faced with similar circumstances”. It is unclear whether any legislative change, which is likely to be narrow in scope, would apply retroactively.
24,000 people without protection
In the meantime, about 24,000 irregular migrants in Ireland have no recourse to Irish courts to vindicate their labour rights. Migrant Rights Centre Ireland reported that some employers are using the High Court decision to avoid paying the money they owe to migrant workers and that cases waiting to be heard in the employment courts have been adjourned indefinitely pending clarification on the matter.
Mr Younis appealed the High Court judgment. His case is currently pending before the Irish Supreme Court. In July 2013 he received, together with Migrant Rights Centre Ireland, a social justice award.
How to cite this article:
Francesca Pizzutelli, “Do employers have to pay irregular migrants’ salaries? The Younis case in Ireland and the ‘illegality doctrine’”, The Rights Angle, https://therightsangle.wordpress.com/, 14 August 2013.
Con il decreto-legge n. 76 del 28 giugno 2013 il governo italiano ha parzialmente modificato la procedura della “sanatoria” 2012, il provvedimento di regolarizzazione per i migranti occupati irregolarmente iniziato lo scorso 15 settembre 2012 (art. 5, decreto legislativo n. 109 del 16 luglio 2012).
In particolare, l’articolo 9.10 del decreto legge dispone che:
– nei casi in cui la dichiarazione di emersione sia rigettata per cause imputabili esclusivamente al datore di lavoro, ma siano presenti gli altri requisiti di legge, al lavoratore possa essere rilasciato un permesso di soggiorno per attesa occupazione;
– nei casi di cessazione del rapporto di lavoro oggetto di una dichiarazione di emersione non ancora definita, la procedura di emersione si considera comunque conclusa in relazione la lavoratore, al quale e’ rilasciato un permesso di attesa occupazione (o un permesso di soggiorno in presenza della richiesta di assunzione di un altro datore di lavoro).
In un memorandum pubblicato nel settembre 2012, Amnesty International aveva denunciato il fatto che la procedura della “sanatoria” 2012 limitasse la capacità dei lavoratori migranti di partecipare in maniera effettiva alla regolarizzazione del proprio status, rendendoli completamente dipendenti dal datore di lavoro ed accrescendo la loro vulnerabilità allo sfruttamento lavorativo.
Amnesty International aveva raccomandato che la procedura della “sanatoria” 2012 fosse modificata in modo da assicurarne la conformità con l’obbligo di prevenire e contrastare lo sfruttamento lavorativo, in particolare in modo che i lavoratori migranti fossero in grado:
– di completare la procedura anche senza la cooperazione del datore di lavoro, se in possesso dei requisiti del caso;
– di cambiare datore di lavoro legalmente durante il periodo di tempo necessario per il completamento della procedura.
The Appellant in this case requested that there be no reporting of any details that could identify her or her former employers, even though they have already been used in the public domain in the past. In this article, she is identified as M. and the respondent is identified as Mrs A.
The story, as reported by the Employment Tribunal which later heard the case, is unfortunately common. M., a Nigerian girl in her early teens, had been working as a domestic worker for two years when she was offered the opportunity to travel to the United Kingdom to look after the A. family’s children. She was promised that she would be paid £50 a month and attend school in the UK. She accepted the offer, especially as she wanted the opportunity to go to school. To get a visa and a passport, she told the authorities that she was planning to visit her grandmother, lying about her name and age.
M. lived with the A. family about one and a half year, during which she looked after three young children aged 5, 4 and 3, feeding, cleaning and dressing them, as well as cleaning the house and washing the dishes. Contrary to what she had been promised, she was not paid for her work and did not go to school. She suffered serious physical abuse and it is unclear whether she ever left the house alone.
In the words of the Employment Tribunal, M.’s irregular migration status in the UK gave the A. family “power and control over [her] by threatening that if she was noticed by the authorities then she would likely be imprisoned”. When M. was found in a supermarket car park, after having finally been thrown out of the house, she was afraid of the police and very worried about what might happen to her because of her migration status.
Trafficking for labour exploitation
M.’s case seems to fall squarely within the UK definition of trafficking. According to the Employment Tribunal, M.’s arrival in the UK was arranged by the A. family. Once in the UK, she was reportedly subjected to both threats and deception to induce her to work. Her young age and lack of resources, friends and family in the UK increased her vulnerability and dependence in her relationship with the A. family.
In fact, there are remarkable similarities between M.’s case and the 2005 case of Siliadin v. France, in which the European Court of Human Rights found that a Togolese girl was held in servitude in violation of Article 4 of the European Convention on Human Rights (ECHR).
The presence of indicators of trafficking for labour exploitation and domestic servitude should have pushed the UK authorities to start a criminal investigation into M.’s case, as required under international human rights law (see: ECtHR, C.N. v The United Kingdom, judgment, para69). Instead, there is no mention of criminal investigations into M.’s complaints in the Employment Tribunal’s decision.
In view of the gravity of the crimes possibly suffered by M., the silence of the Employment Tribunal on the trafficking and labour exploitation aspects of her case is deafening. The Tribunal found that M. performed “a function similar to that of an au pair”, ignoring that she was underage, unpaid, in an irregular migration status and not allowed to pursue education.
Of course, it can be argued that it is not for an Employment Tribunal to consider the criminal aspects of a case before it. Let’s consider, then, what should have been the Tribunal’s main concern: compensation.
No compensation for irregular migrants?
Article 13 of the European Convention on Human Rights guarantees the right to an effective remedy to all those whose rights under the Convention are violated. A specific right to compensation and legal redress for victims of trafficking is guaranteed, among others, under Article 15.3 and 15.4 of the Council of Europe Convention on Action against Trafficking in Human Beings, which the UK ratified in December 2008.
Despite these obligations, the Employment Tribunal held that, as M. knew that she was not legally allowed to work in the UK, her contract of employment was illegal, with the result that she could not bring claims for unfair dismissal, breach of contract, unpaid wages and unpaid holiday pay. The Tribunal applied what is known as “illegality doctrine” or “illegality defence”, whereby courts can refuse to enforce obligations arising from an illegal deal.
Acknowledging that M.’s case was “probably one of the saddest case that has come before this Tribunal”, however, the Employment Tribunal decided that her dismissal was an act of unlawful direct racial discrimination and awarded her £6,000 for injury to feelings. These findings were initially confirmed in appeal. The Court of Appeal (Civil Division), on the other hand, applied again the “illegality defence” to reject M.’s claim and refuse any compensation.
The “illegality defence” and human rights
The Court of Appeal’s decision is currently under review before the UK Supreme Court. Unless it is quashed, irregular migrant workers who are victims of labour exploitation, trafficking for labour exploitation, servitude and slavery would be unable to obtain compensation from UK employment courts on either contractual or discrimination grounds.
In a 2009 consultation paper on The Illegality Defence, the UK Law Commission recommended that the courts should apply the “illegality defence” only after a consideration of when this is justified on the basis of the policies that underlie it, including “furthering the purpose of the rule which the illegal conduct has infringed” (para 8.3). In the case of individuals in an irregular migration situation, the purpose of the rule infringed would be the regulation of migration flows. While this is a legitimate purpose, states’ discretion in the adoption and enforcement of migration policies is limited by their obligations under international human rights law.
As the Law Commission itself put it,
“any national rules on illegality must comply with the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) as incorporated into UK domestic legislation by the Human Rights Act 1988” (para 3.90).
“if, and to the extent that [the application of the illegality defence in a contractual context] might [infringe any rights protected by the ECHR], it is quite clear that the defence would have to be applied flexibly in order to satisfy the requirement of legitimacy and proportionality” (para 3.95).
In M.’s case, as well as in all other cases of labour exploitation and trafficking of irregular migrant workers, national rules on illegality should not apply when their application would result in a violation of the right to remedy under Article 13 of the ECHR. The irregular status of migrant workers who become victims of trafficking and exploitation cannot stop them from obtaining justice from UK courts.
How to cite this article:
Francesca Pizzutelli, “M., or how the UK can fail victims of trafficking and forced labour”, The Rights Angle, https://therightsangle.wordpress.com/, 5 April 2013.