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The case for equal labour rights for undocumented migrant workers

By Pablo Rojas Coppari, Strategic Advocacy Officer, Migrant Rights Centre Ireland (MRCI)

This article puts forward arguments for the benefits for the labour market of protecting undocumented migrants’ labour rights. It takes Ireland as a case in point by presenting the case of a High Court Judgement challenging a decision of the Labour Court concerning labour exploitation of an undocumented migrant worker.

Irregular migration is a phenomenon affecting all Western countries. A significant amount of irregular migrants become so as a consequence of poorly-devised labour market and migration policies. Such policies do not take into account the realities of the market, in particular the demand for essential skills and the difficulties in supplying these from within the internal market – even when this spans across several countries as is the case in the European Union.

Undocumented migrants have a high level of participation in the labour market and as such irregular migration should be seen as an issue of mismanaged labour migration which is deeply embedded in most Western economies. Irregular migrants suffer from a high-level of social exclusion and lack of visibility. This, coupled with the lack of legal protection in several areas, makes it increasingly more difficult for them to access fundamental rights such as healthcare, education, shelter and employment rights. Children of irregular migrants are particularly vulnerable due to the irregular status and lack of corresponding rights.

Access to justice and redress coupled with pathways to regularisation mechanisms represent a pragmatic response to the changing demands of our labour market.

Granting equal employment rights can help alleviate some of the difficulties experienced by this category of migrants, yet governments tend to be fiercely opposed to the idea. They argue that granting rights to undocumented migrants serves as a pull factor. Yet, there is no evidence to back this argument.

What we do know is that limiting the labour rights of one group of workers can prove very disruptive to the labour market, and has a potential to worsen standards for the entire workforce, including the indigenous population. Granting equal rights to undocumented migrants helps regulate the imbalances of the labour market, and as such should be considered as an effective measure.

Ireland – A case in point

The Migrant Rights Centre Ireland (MRCI) has always worked to improve labour standards for all migrants, including irregular migrants. As such, we have focused on the most vulnerable sectors of employment such as agricultural work, domestic work and restaurant work. Due to the unregulated nature of these sectors, and the lack of unionisation of their workers, labour exploitation is more prevalent, as well as the phenomena of irregular migration and trafficking for forced labour.

MRCI has a long-standing record of advocating on behalf of exploited migrants, regardless of their legal status. This has been done through different advocacy strategies such as formal and informal mediation, and litigation in the employment courts. MRCI has been successful in recouping substantial monies in wages owed for migrant workers and while doing this, has raised the standards of employment in the aforementioned sectors as well as setting legal precedence.

From as early as 2003, MRCI has taken cases to the employment tribunals on behalf of undocumented migrants, and the Rights Commissioners have vindicated their entitlements under the different employment laws in spite of their lack of legal status. The idea was that even in the absence of a valid employment permit, the employer-employee relationship was still existent and therefore, our employment standards should be upheld.

This progressive position of the Labour Court allowed for exploitative employers to be punished and sent a strong message to other employers that the State would not tolerate such exploitation. This, in turn, helped set standards which benefited other employers. It also helped MRCI in advocating for a regularisation mechanism for exploited workers who were rendered undocumented as a consequence of exploitation. This regularisation mechanism is still in place and has benefited thousands of undocumented workers. It is also expected to feature in the forthcoming Immigration, Residency and Protection Bill.

But all these achievements have been jeopardised and put on hold since the High Court Ruling in the Case of Amjad Hussein -v- The Labour Court and Mohammad Younis [2012] No. 194 J.R.in September 2012. The case concerned Amjad Hussein, trading as Poppadom Restaurant, challenging a decision of the Labour Court with respect to Mohammad Younis, who was awarded €92,000 for breaches of employment law.

Mohammed Younis entered Ireland on a Work Permit in 2002 to work as a chef at the Poppadom Restaurant. His work permit expired in 2003. The legal responsibility for renewing the Work Permit under the Employment Permit Act, 2003 rested with the employer, Amjad Hussein. The failure to renew the Permit rendered Mohammed undocumented in the State. For many years, Mohammed Younis was paid well below the minimum wage, 55 cent per hour. He worked extremely long hours (77 hours per week) with no day off. He was subjected to threats and severe exploitation amounting to modern day slavery. Due to the chronic treatment that Mr Younis suffered the MRCI identified him as a victim of trafficking for forced labour, but the Irish authorities failed to do so.

In the High Court decision Justice Hogan found that Mr Younis was “… the victim of the most appalling exploitation…” but his employment contract was “substantially illegal” so that it left him with no recourse under Irish Employment Law. He stated “there must be some concern that this legislation will produce consequences which were not foreseen or envisaged. Specifically it may not have been intended by the Oireachtas that undocumented migrant workers should be effectively deprived of the benefit of all employment legislation by virtue of his illegal status...” Judge Hogan, therefore, quashed the Labour Courts’ decision but in doing so, chose to submit his ruling to the Oireachtas (the Irish Parliament) for its consideration on the matter.

This is an issue of concern

The High Court has acknowledged that Mr Younis was a victim of severe labour exploitation but that due to his lack of legal status he was unable to claim the compensation that he would otherwise have been entitled to. It has done so by highlighting so-called “illegality of contract”. Mr Younis and his legal team will be appealing this judgement to the Supreme Court. The impact of the judgement has been far reaching for many vulnerable workers.

Some employers are using the High Court decision as a defence to avoid paying out money they owe to workers under Labour court decisions. Cases waiting to be heard in the employment courts have been adjourned indefinitely pending clarification on the matter. All of the estimated 30,000 undocumented migrants in Ireland (of which the majority are workers) no longer have recourse to legal routes to vindicate their employment rights. It is now hard to mediate on their behalf, since employers know they have very little to fear.

MRCI has noted an increased number of undocumented workers who are being laid off without reason, despite having worked for their employer for many years and having paid their taxes. They are not granted any redundancy benefit as their employers are quoting the Younis judgement to ‘get out’ of paying the working what they are entitled to.

Why and how to remedy this?

A successful appeal to the Supreme Court will vindicate Mr Younis’ search for justice but it is a lengthy process that can take years. The Government has an obligation to amend our current legislation to allow for all breaches of employment legislation to be remedied regardless of legal status in accordance to our international obligation laid out by the International Covenant on Economic, Social and Cultural Rights, the International Convention for the Protection of the Rights of All Migrant Workers and the ILO-Convention No. 143.

There are two significant opportunities that could remedy this situation for other workers. The Employment Permit Legislation is currently being reformed and a provision can be inserted here to close off the loophole that has emerged due to the High Court case. Likewise, the Workplace Relations Bill which will reform the employment structures should include a provision that reasserts workers’ rights to legal redress regardless of their legal status.

Undocumented migrants have a high level of participation in the labour market and as such irregular migration should be seen as an issue of mismanaged labour migration which is deeply embedded in most Western economies.

It is critical that the Government take these steps as if irregular migrants have no remedy against exploitation, the standards of employment for all workers will be eroded. Restricted employment rights push workers into poverty which in its turn creates social problems which cannot be ignored by the Government. It means people have more difficulties accessing basic services such as healthcare and children are being forced to live in dire conditions. These are overall issues of social unease which can have a contagion effect.

It is also an issue of concern for us who access services provided by undocumented migrants, whether knowingly or not. We cannot choose to ignore the labour rights of the people cooking our food, cleaning our buildings and minding our children.

Legislating for equal employment rights is a response to a shortcoming in legislation that has serious implications for the overall society. It shows maturity and sends a strong message that exploitation is not to be tolerated and that it does not go unpunished. Access to justice and redress coupled with pathways to regularisation mechanisms represent a pragmatic response to the changing demands of our labour market.

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