The human rights of migrants as limitations to states’ control over entry and stay in their territory

(C) Valerio Rinaldi for Amnesty International

(C) Valerio Rinaldi for Amnesty International

This post was published on 21 May 2015 on EJIL Talk!, blog of the European Journal of International Law

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).

Conclusion

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.

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Illegal immigrants don’t exist … until after 1930

Reblogging a post by Fabio Rojas, Associate Professor of Sociology at Indiana University, about the use of “illegal” migration terminology over the last century. Graph sourced from Google books Ngram Viewer.

orgtheory.net

no_illegal

According to immigration scholar and advocate Francesca Pizzutelli, the phrase “illegal immigrant” did not exist in English (or was insanely rare) before the 1930s. Rather, people used the phrase “irregular immigrant” for transitory labor. The bias against outsiders exists in all societies, but this suggests that the modern legal and cultural edifice that bars people from migrating peacefully to the US did not exist till the series of anti-immigration laws passed by Congress in the 1920s.

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Abusive labour migration policies: Amnesty International’s statement on the occasion of the UN Committee on Migrant Workers’ Day of general discussion on workplace exploitation and workplace protection

Mexican construction workers

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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:

  1. Labour migration policies that give the employer control over the migrant worker’s residence status;
  2. 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.

Recommendations

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.

 

The 2007 Italy – Egypt readmission agreement * in English and Italian

Source: Wikimedia

Source: Wikimedia

The Cooperation agreement on readmission between the government of the Italian Republic and the government of the Arab Republic of Egypt (“Accordo di cooperazione fra il governo della Repubblica Italiana e il governo della Repubblica Araba di Egitto in materia di riammissione”) was signed in Rome on 9 January 2007 and entered into force on 25 April 2008.

According to the Italian Ministry of Interior, responding to a Parliamentary question, the agreement was still being applied in August 2013.

The Italian and English texts of the agreement were published online by terrelibere.org in September 2013.

* * *

Download the 2007 Cooperation agreement on readmission between the government of the Italian Republic and the government of the Arab Republic of Egypt in English (PDF)

Scarica l’ Accordo di cooperazione fra il governo della Repubblica Italiana e il governo della Repubblica Araba di Egitto in materia di riammissione in italiano (PDF)

The 1992 Spain – Morocco readmission agreement * in English and Spanish

Copyright: Wikimedia

Copyright: Wikimedia

The Agreement between the Kingdom of Spain and the Kingdom of Morocco on the movement of people, the transit and the readmission of foreigners who have entered illegally entered into force on 21 October 2012. It had been provisionally applied since 13 February 1992, date of its signature.

This is the official Spanish version:
Acuerdo entre el Reino de España y el Reino de Marruecos relativo a la circulación de personas, el tránsito y la readmisión de extranjeros entrados ilegalmente, «BOE» núm. 100, de 25 de abril de 1992, p13969-13970 (BOE-A-1992-8976).

You will find below an unofficial English version. Download it in PDF format here.

* * *

AGREEMENT BETWEEN THE KINGDOM OF SPAIN AND THE KINGDOM OF MOROCCO ON THE MOVEMENT OF PEOPLE, THE TRANSIT AND THE READMISSION OF FOREIGNERS WHO HAVE ENTERED ILLEGALLY

 In the framework of the cooperation established between the Kingdom of Spain and the Kingdom of Morocco and the historical ties linking the two peoples and to address the common concern of coordinating efforts to stop the illegal migration flow of foreigners between Spain and Morocco,

The two Parties have agreed as follows:

CHAPTER I
Readmission of foreigners

Article 1
At the formal request of the border authorities of the requesting State, border authorities of the requested State shall readmit in its territory the third-country nationals who have illegally entered the territory of the requesting State from the requested State.

Article 2
The readmission will be effected if it is proven, by any means, that the foreigners whose readmission is requested actually come from the territory of the requested State.
The application for readmission shall be submitted within ten days after the illegal entry into the territory of the requested State [sic]. It shall contain all available data relating to the identity, the personal documents that the foreigner may possess and the conditions of his/her illegal entry into the territory of the requesting State, as well as any other information available.
When the readmission is accepted, it is documented by the issuance by the border authorities of the requested State of a certificate or any other document stating the identity and, where appropriate, the documents of the foreigner in question.

Article 3
There is no obligation of readmission:
a) For nationals of third countries that have common borders with the requesting State;
b ) For foreigners who have been allowed to remain in the territory of the requesting State after their illegal entry;
c ) For foreigners who, at the time of entry into the territory of the requesting State, are in possession of a visa or a residence permit issued by the requesting State; or who have obtained from the same [requesting State] a visa or residence permit after their entry;
d ) For those to whom the requesting State has recognized refugee status according to the Geneva Convention of 28th July 1951.

Article 4
The requesting State shall readmit in its territory those foreigners whose readmission it requested and obtained by the requested State when it results from checks after the expulsion that they were, at the time of entry into the territory of the requested State, in one of the situations described in Article 3.

Article 5
The requested State shall ensure that the foreigners readmitted are sent as soon as possible to their State of origin or the State where they started their journey, to the extent that they are not entitled to remain in the territory of the requested State.

CHAPTER II
Transit for the expulsion of foreigners

Article 6
Each of the Contracting Parties, upon request of the other Party, may accept the entry and transit through its territory of nationals of third countries for expulsion, where the continuation of the journey and the admission in the State of destination are fully ensured.
Each of the Contracting Parties, upon request of the other Party, may accept also the transit for expulsion of nationals of third countries through the international areas of designated airports, in the same conditions as in the previous paragraph. Transit by air may be made, where appropriate, in the custody of the police authorities of the requesting State.
The requesting State shall immediately readmit into its territory those foreigners whose expulsion is in progress when the State of destination refuses their entry.

Article 7
The request of transit for expulsion of third country nationals will be processed directly between the authorities designated for such purposes by the Ministries of Interior of both Parties. It shall contain the information concerning the identity, the personal documents that the foreigner may possess, their stay in the territory of the requesting State and the conditions of their transit through the territory of the requested State.

Article 8
The transit for expulsion may be denied:
a) When the foreigner’s entry in the requested State is prohibited;
b) When the foreigner may be charged or has been condemned by a Criminal Court in the requested State, for facts preceding the transit;
c) When the foreigner may be charged or has been condemned by a Criminal Court in the State of destination, for facts preceding the transit;
d) When the foreigner faces the risk of suffering ill-treatment in the State of destination;
e) When the transit is requested for the expulsion of nationals of Maghreb countries members of the UMA [Union du Maghreb Arabe, Arab Maghreb Union].

 CHAPTER III
Other provisions

Article 9
This Agreement shall be without prejudice to the obligations for the readmission of third country nationals resulting from the application of the provisions of other bilateral or multilateral Agreements.

Article 10
The requesting State shall bear:
The costs of transport unto the entry in the requested State of the persons whose readmission is requested.
The costs of transport unto the destination State of the persons whose transit is authorised. The requesting State shall also bear the costs of return of the person not admitted.

Article 11
A Spanish-Moroccan Joint Committee is hereby established, under the authority of the Ministers of Interior, which shall resolve all contentious cases that may arise from the implementation of this Agreement and monitor the implementation of its provisions.
The Joint Committee shall review the procedures and criteria for compensation of the financial imbalances resulting from the readmission of the expelled foreigners.
This Committee will organize mutual assistance in the development of border control measures, especially in regard to equipment and training of border control personnel.

Article 12
In accordance with Spanish legislation and international agreements on free movement of persons of which Spain is a Party, Moroccan citizens legally residing in the territory of Member States of the European Community may, without a visa, access and circulate freely through the Spanish territory for a maximum period of three months.

Article 13
The Spanish and Moroccan authorities shall cooperate in the appropriate framework in the organization of migration flows between the two countries, to the extent that they may be necessary, always guaranteeing the social rights of the workers concerned.

Article 14
The Ministries of the Interior of the Contracting Parties may establish and, if necessary, modify the list of border posts in which readmission and entry for transit of nationals of third countries can take place, as well as the list of airports that may be used for the transit of expelled foreigners in their journey to the State of destination.
The Contracting Parties shall notify each other of such lists and any amendments through diplomatic channels.

Article 15
In the framework of the Joint Committee established under Article 11, the Contracting Parties may propose all modifications and improvements deemed necessary for a better implementation of this Agreement and to safeguard the national interests of the Contracting Parties.

Article 16
This Agreement shall enter into force thirty days after both Contracting Parties have notified each other of the fulfilment of constitutional requirements for its ratification. The Agreement shall be applied provisionally from the date of signature.
This Agreement shall be in force for three years, renewable by tacit agreement for periods of equal duration.
This Agreement may be denounced at any time by either Party. Denunciation shall take effect three months after its notification to the other Party.

Done at Madrid, on 13th February 1992, in two originals in Spanish and Arabic, both texts being equally authentic.

For the Kingdom of Spain
JOSE LUIS CORCUERA SLOPE
Minister of the Interior

For the Kingdom of Morocco
Driss Basri
Minister of Interior and Information

This Agreement shall be provisionally applied from 13th February 1992, date of its signature, as provided in Article 16.

Made public for general knowledge.
Madrid, 17th March 1992. The Technical Secretary-General, Aurelio Pérez Giralda.

Do employers have to pay irregular migrants’ salaries? The Younis case in Ireland and the illegality doctrine

A recent High Court judgment bears untenable consequences on the rights of irregular migrant workers.

Mohammad Younis protesting against forced labour in Dublin, December 2011  Copyright: Sam Boal/Photocall Ireland

Mohammad Younis protesting against forced labour in Dublin, December 2011
Copyright: Sam Boal/Photocall Ireland

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) [2012] 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.

Legislative changes

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) [2012] 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.

Sfruttamento lavorativo: Governo italiano modifica la procedura per la “sanatoria” 2012

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.