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Elaine Dewhurst: Irregular Migration in Ireland

This post is contributed by Dr. Elaine Dewhurst. You can read more about Elaine on our Guest Contributors’ Page.

logoThey clean your hotel room, serve you in restaurants, pick your vegetables, clean your office, build your houses, mind your children and they may even entertain you. While many of these people are regular workers, there is a real possibility that these workers are, in fact, irregular migrant workers (sometimes referred to as “illegal” or “undocumented” workers). Due to their status as “illegal”, they strive to conceal their identities and their lives in case they are subject to deportation. But how do migrant workers become irregular and what is their status in Irish employment law?
How do migrant workers become irregular? The majority of migrant workers working in Ireland have the requisite permission to work here either because they are from a European Union (EU) or European Economic Area (EEA) country and thus benefit from free movement or because they have been given specific permission by the Minister for Enterprise, Trade and Employment (such as an employment permit) to work in Ireland. However, there are some migrant workers in Ireland who do not have permission to work in Ireland and they are referred to as irregular migrant workers (Immigration Act 2004, s. 5(2) and Employment Permits Act 2003 (Ireland), s. 2(2) as amended Employment Permits Act 2006 ).

There are two separate routes to becoming an irregular migrant worker in Ireland:

Irregular Entry – Irregular Work

‘Irregular entry’ refers to migrant workers who enter Ireland in an irregular fashion by circumventing the normal entry requirements. For example, a migrant worker could enter the State clandestinely through unprotected areas of coastline or borders or by utilising false documentation. In all such cases of irregular entry, any work the migrant worker enters into will automatically be illegal and as such they are an irregular migrant worker.

Regular Entry – Irregular Work

In many cases, the entry of the migrant worker into the State will, in fact, be regular. Most will have obtained permission to reside and work in Ireland before they enter or will obtain such permission while they are here in Ireland. So how do such migrant workers become irregular? There are two categories of migrants who enter the State regularly but subsequently end up in a situation of irregularity.

The first category relates to migrant workers who through their own actions or inactions or through the operation of the law lose their regular status. The Migrant Rights Centre Ireland has identified (“Life in the Shadows”) that migrants can become irregular by:
•    Overstaying permission to remain in Ireland
•    Working outside the scope of the permission given to them by the Minister for Enterprise, Trade and Employment (a prime example of this is a student who works more than the 20 permitted hours a week)
•    Losing a right to reside (and thus work) in Ireland through, for example, marital breakdown
•    Failing an application for refugee status
•    Human trafficking

The second category of such workers relates to migrant workers who become irregular through no fault of their own whether by;
•    Deception (e.g. their employer assures them a valid work permit is in existence when it is not)
•    Exploitation (e.g. the migrant worker works under exploitative conditions for fear of losing an employment permit – Dewhurst, ‘Agencies of Slavery: The Exploitation of Migrant Workers by Recruitment Agencies’ (2007) 13 Texas Wesleyan Law Review 277)
•    Action or inaction on the part of the employer (e.g. the employer fails to renew a work permit)*

So what effect does the status of irregularity have on migrant workers? Even though it is easy for a migrant worker to lose their regular status and slip into irregularity, the implications of such a status are very serious (the ultimate sanction is deportation). The potential for exploitation in employment is a very immediate reality for many migrant workers. The reason why exploitation is so common in this sector relates directly to the lack of protection available to such workers in employment law in Ireland (See Dewhurst, “Migrant Workers and Access to the Employment Dispute Resolution Process” (2009) Hibernian Law Journal 1)
While employment law in Ireland applies equally to both migrant workers and Irish employees (Protection of Employees (Part-Time Work) Act 2001 (Ireland) s.20 (2)), irregular migrant workers are not afforded the same protection. This is because Irish employment law is centred on the idea of the valid contract of employment. Rights accrue once a valid contract can be identified. However, illegality in the formation of a contract is fatal to the contract of employment. The courts have held that if the contract formed is contrary to the terms of a Statute, it is an illegal contract and will be declared to be illegal as formed, void ab initio and as such unenforceable (e.g. hiring an irregular migrant worker (Employment Permits Act 2003 (Ireland), s. 2(2) as amended Employment Permits Act 2006) See also the cases of Vakante v. Addey & Stanhope School and Others [2004] EWCA (Civ) 1065 and Lewis v. Squash Ireland Ltd. [1983] ILRM 363). Therefore, if an irregular migrant worker attempts to enforce any employment rights in Ireland, they will be refused access to these rights as they do not have a valid contract of employment.

Therefore, irregular migrant workers are in an extremely susceptible position in employment in Ireland. This exposure in conjunction with the other implications of irregularity (fear of identification and deportation, lack of access to services, language difficulties) guarantees that irregular migrant workers are vulnerable to exploitation and deception. While s. 6 of the Immigration, Residence and Protection Bill 2008 does provide for the provision of essential services to irregular workers, this Bill does not make provision for the employment rights of such workers.

It is time to start considering the probity of permitting employers and the State to enjoy the fruits of irregular labour without allowing for these workers to be protected against exploitation.

*Note: The Minister for Justice, Equality and Law Reform has introduced (September 2009) an administrative scheme for some irregular migrant workers who have become irregular through no fault of their own i.e. “through the action or inaction of their employer”, who do not have a deportation or transfer order issued in respect of them and who are working on an employment permit (the scheme does not apply to workers on student visas, work visas / authorisations, spousal permits etc.). The scheme essentially provides for a temporary residence permission or “bridging visa” to give irregular migrant workers the opportunity to apply for a new employment permit and to essentially “regularise” their situation. (Dewhurst, ‘Access to Justice and the Impact of Delay on Migrant Workers’ (2009) Cork Online Law Review)

  1. November 16, 2009 at 5:05 pm

    I wonder what you mean by ‘permitted’? It is illegal to employ undocumented workers and there are fines etc. Enforcement is another matter entirely…Inspections usually seem to happen on foot of complaints by regular employees. The undocumented are clearly not in a position to register a complaint and erquest a NERA inspection. So the first question for organisations assisting such people is how to help them and ensure that the employers are not ‘permitted’ to go on exploiting them, without exposing the extremely vulnerable undocumented workers… The govt scheme is only useful for those who are currently in employment where their employer is willing to apply for a permit for them.

    Any ideas on tactics would be most welcome!


  2. Elaine Dewhurst
    November 16, 2009 at 6:49 pm

    Thanks Claire – you are absolutely right. Employing illegal workers is illegal. However, my “permitted” here refers more to the current approach that turns a blind eye to exploitation and essentially “allows” employment and exploitation to occur due to lack of adequate enforcement.

    In practical terms, assisting such workers is difficult. As you rightly point out,a complaint to NERA will identify the worker and leave open the possibility of arrest and detention.

    One, more long term solution, may be the development of equal rights provisions for irregular workers along the lines of the UN Convention on the Rights of Migrant Workers and Members of their Families. Research I have conducted has shown that this will require the development of a confidential complaints system as exists in other jurisdictions e.g. France. The provision of rights to all migrant workers regardless of their migratory status may,in fact, reduce the level of irregular migration by removing the pull factors that currently encourage irregular migration. If irregular workers cost just as much (in employment protection terms) as regular workers, employers might think twice about risking a criminal conviction.

  3. November 17, 2009 at 1:32 pm

    Thanks Elaine – that sounds like a very worthwhile long-term campaigning project, particularly as increased ‘spontaneous’ enforcement looks unlikely at the moment.

    I would love to learn more about your research. Maybe you would send me an email?


  4. Elaine
    November 17, 2009 at 7:02 pm

    I certainly will Claire. I would be delighted to.

  1. November 16, 2009 at 9:56 pm

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