Human Rights-Based Integration Policy and the New “Migrant Integration Strategy”

We are delighted to welcome this guest post from Leanne Caulfield, research assistant at Maynooth University on the IHREC-funded project “Integration Policy in Ireland Through the Lens of Human Rights and Equality”.

In January, Professor Mary Gilmartin and Dr. Clíodhna Murphy (Maynooth University) commenced work on an Irish Human Rights and Equality Commission funded research project which focuses on the development of a human rights-based integration policy framework for public bodies. One aspect of the research involves the collation and analysis of public bodies’ existing policies relating to migrant integration, diversity or interculturalism. In evaluating public bodies’ integration policies, it seems fitting to turn firstly to the Migrant Integration Strategy published by the Office for the Promotion of Migrant Integration in February of this year. Continue reading “Human Rights-Based Integration Policy and the New “Migrant Integration Strategy””

Human Rights-Based Integration Policy and the New “Migrant Integration Strategy”

Benefit Sanctions and Coercion Within the Irish Welfare System

We are pleased to welcome this guest post from Charles O’Sullivan, doctoral candidate at Maynooth University.

In recent days, the Department of Social Protection (DSP) has announced that since January 1st of this year, 4,242 jobseekers have been subjected to penalties for refusal to engage with services, refusal to take up an offer of training or education, or failure to attend meetings. These benefit sanctions can involve a recipient receiving €44 less per week, and where the failure persists after the sanction has been imposed for 21 days, social welfare payments may be withdrawn in full for a period of 9 weeks. In some instances, a complete ejection from the welfare system is possible.

This figure represents a low in comparison to the roughly 6,500 sanctions applied throughout 2014, but far in excess of the 359 issued in 2011. It must also be born in mind that sanctions can now be applied for far lower infractions, such as failure to upload a CV to a government website, demonstrating the degree of coercion now in force.

This increased emphasis on sanctions overlaps with several years of prolonged austerity within Irish society, and what is now a government focused on the continued retrenchment of public services for ideological reasons. Consequently, welfare recipients are required to overcome ever more burdensome procedural hurdles in order to access increasingly limited funds. Callan et al have previously highlighted that those under 25 years of age, single parents, and low-income families with multiple children have suffered the most with each new series of welfare reforms, and have seen their entitlements cut far more than others. The gendered dimension of these cuts must also not be overlooked, as single parents, most of whom are women, are 35% more likely to fall into poverty than other groups. From the perspective of applying sanctions, Adler notes that in the UK groups such as these, as well as the disabled, and immigrants with low levels of English comprehension will be more likely to receive them. This means that the already vulnerable are not only targeted in relation to cuts in welfare rates but also in how much they are policed. Inevitably this will lead to higher levels of deprivation among these groups.

Secondly, the DSP emphasises that any sanctions imposed are proportionate. The result is that the highest penalty of €44 will only be applied to jobseekers in receipt of the top rate of €188 per week, while those receiving, for example, a lower rate of €84.50 would see their benefit temporarily reduced to €64 per week for the prescribed period of time. However, even if one ignores that these are more likely to be imposed on the already vulnerable, that sanctions can be applied to the lowest rates of payment is particularly troublesome.

A further potential consequence is that in forcing jobseekers to stretch their resources even further while sanctioned, they may be less able to comply with the necessary conditions and that this will result in additional sanctions. Research interviews conducted in Scotland show evidence of this, as well as the potentially significant amount of time spent by welfare recipients in order to avoid sanctions which could be spent on something more productive (such as searching for employment).

Finally, the idea that these sanctions are likely to encourage higher rates of compliance and employment is highly problematic. Sanctions essentially act as a means of ejecting, either partially or wholly, the recipient from the welfare system, and make it more difficult for them to engage with the labour market. Research from the United Kingdom found that those who left the welfare system following the imposition of sanctions often do so without having obtained employment, meaning that many are simply left without state income supports. Other research has found that those who do find employment are more likely to take up low-skilled labour, attracting far lower rates of remuneration, and with less certainty as to tenure and working conditions. This also presupposes that there is a high demand for such labour, and where the supply of jobseekers exceeds the demand for them in the labour market, it emphasises that in spite of clear structural deficits it is somehow the jobseeker who is responsible for their continued unemployment. Where higher levels of support are given, even if it means a person being unemployed for longer periods, this can lead to better outcomes in terms of transitioning into employment and the kind of employment they will find.

The legal basis upon which these sanctions can be challenged is somewhat limited for individuals on whom they are imposed. The Constitution itself does not specifically provide for a right to social welfare. Article 45 does allude to the directive principle of supplying income supports and protecting the vulnerable but is not justiciable as a cause of action, and is simply a guiding principle for social policy. Minister for Social, Community and Family Affairs v Scanlon [2001] IESC 1, saw the Supreme Court find that existing rights such as the right to property in Article 43.1 may also not be invoked, as any entitlement to social welfare benefits is created through ordinary legislation alone. Nor do legal principles such as estoppel or ‘reasonable expectation’ create a presumption of entitlement as established in Galvin v Minister for Social Welfare [1997] 3 IR 240, and Wiley v Revenue Commissioner [1993] ILRM 482 respectively. Such a challenge would also be impractical for an individual of limited means regardless of how likely or unlikely it is to succeed.

The case of Hurley & Ors v Secretary of State for Work and Pensions saw the English High Court find that a limit being placed on the amount of welfare benefits an individual can receive is indirectly discriminatory where they act as the carer for a person with a disability, based on Articles 8 and 14 of the ECHR. In theory a similar challenge could be brought here, but may still face a judiciary that is deferential to the way in which the State allocates funds and which views welfare payments as a solely statutory right.

Any appeal of sanctions triggered at a national level is as such limited to the appeals mechanism set out in the Social Welfare (Consolidation) Act, 2005 and its supporting instruments, with appeals being lodged through the the Social Welfare Appeals Office, based on the procedure established in Section 318 of the 2005 Act.

It is possible that the systemic issues with sanctions could be raised under the Covenant on Economic, Social and Cultural Rights. As McLachlan recently highlighted, the results of the United Kingdom’s periodic review from the Committee on ESCR were quite unfavourable with regard to benefit sanctions and their detrimental effect on the lives of welfare recipients. During Ireland’s own review last year, this issue was not raised, but it would be possible for civil society and other social actors to raise this issue in future in the hopes of a similar outcome. This would require that the circumstances in Ireland are of a comparative standard and are clearly demonstrable. However even this would require that the State is amenable to altering the current system, as a being found to have violated rights within the Covenant would not immediately trigger the need for changes by itself. Consequently, any substantive, systematic changes require a political will that seems to be absent at present.

Benefit Sanctions and Coercion Within the Irish Welfare System

Responding to the Refugee Crisis: Examining the Broader Systemic Context in Ireland

Ireland’s role in responding to the refugee crisis has been the subject of a lot of media attention in recent weeks and months. In particular, the provision of search and rescue assistance by the Irish Navy, and the agreement to receive up to 4,000 asylum seekers as part of the EU resettlement and relocation programme are to be broadly welcomed. In addition, the allocation of funds in Budget 2016 to support relocated asylum seekers has been cautiously welcomed  by the Irish Refugee Council. Leaving aside the sufficiency of the Irish and EU response overall (for example, see commentary on the EU relocation programme by Steve Peers here), important questions remain as to how relocated asylum seekers will be treated on arrival in Ireland.

How will the State avoid repeating the mistakes of direct provision (on which, you can access posts by Liam Thornton and others here)? Moreover, how is it proposed to deal with asylum seekers already in the system, or those who arrive in Ireland spontaneously? Will the recommendations of the Working Group on Improvements to the Protection Process (critiqued by Liam here) in relation to reception of asylum seekers be fully implemented for new arrivals as well as those already seeking asylum in the State? What will happen to relocated asylum seekers who are refused refugee status?

All of these questions form part of the bigger picture of the State’s approach to asylum and immigration matters. In this context, a number of cases which seem to highlight a lack of compassion and humanity in the administration of immigration and naturalisation law come to mind.

Appeals to Minister for Justice’s humanity in PO

In PO v Minister for Justice and Equality [2015] IESC 64, the Supreme Court refused to restrain the deportation to Nigeria of a woman and her nine-year old son, who was born, raised and educated in the State (although was not an Irish citizen). In the context of a prolonged period of unlawful residence in the State (the applicants had had no right to be in the State since 2010), the Supreme Court found that they had no entitlement to remain in Ireland on the basis of Article 8 of European Convention on Human Rights, which protects private and family life.  Given its decision that “no legal rights” were involved, the Supreme Court could not disturb the Minister for Justice’s decision to deport the applicants.

However, a notable feature of the case was the Supreme Court’s appeal to the Minister to exercise her discretion in a humane way, given that “real issues of ministerial discretion may arise in this case, which involve an 8 year old child, and his mother, both of whom have now resided in this State for well nigh on 9 years.”  Laffoy J agreed with these observations of MacMenamin J.  Charleton J also commented: “As a matter of humanity, but not as a matter of law, it is for the respondent Minister to ask herself how she feels it appropriate to consider this matter in the exercise of her discretion.” These comments effectively raise questions as to the ethics of the State’s approach to deportation proceedings.

Impatience in the Supreme Court in Sulaimon

The Supreme Court’s impatience with administrative procedures and decision-making had been clearly expressed in Sulaimon v Minister for Justice, Equality and Law Reform  [2012] IESC 63, in which the Court severely criticised the “contrived” nature of ministerial and departmental attempts to deny a young boy birthright citizenship, on the basis of their calculation of the residence of his father.

Here, a father sought to claim birthright citizenship for his son on the basis that he (the father) had satisfied the three year lawful residence period in the State at the date of the son’s birth. His application was refused on the basis that he was three days short of the required time period. The case turned on a technical point of immigration law concerning the date on which the father’s legal permission to remain had been granted, with the Supreme Court finding in favour of the child that a letter received by the father constituted the permission to remain, rather than the date on which the relevant stamp was placed in the father’s passport.

The severity of the criticism which was levelled at the Department and the Minister by the Court in Sulaimon, in terms of both the handling of the application and the subsequent litigation, was striking. Hardiman J was particularly vocal, stating (at para. 24):

I simply do not understand why so great an effort has been made over so long a period to deprive a small boy of citizenship in the country where he has been permitted to reside all his life, a citizenship enjoyed by his father and his sister. If there is a point to the pain and anxiety caused to the child’s family, the expense to which they have been put and the taxpayers’ money which has been spent, it entirely eludes me.

The correspondence received by the father was described by O’Donnell J as “confused and confusing”, and the conduct of the litigation, during which “highly contrived and artificial arguments” were advanced on behalf of the Minister, was seen as unacceptable.

Formalism, legalism and rigidity: the basis for a generous response to refugees?

PO and Sulaimon seem to highlight a legalism, formalism and rigidity in the administrative approach to leave to remain and naturalisation processes. These features are also in evidence in the “discretionary” areas of the more tightly-regulated field of asylum, as shown in a series of judicial reviews in which ministerial decisions on family reunification for refugees have been overturned. Among these was AMS v Minister for Justice and Equality [2014] IESC 65, in which the Supreme Court found that the approach taken by the Minister in refusing family reunification to the mother and minor sister of the applicant (on the basis of the potential financial burden which they would be on the State) was disproportionate. This was the second time that a decision of the Minister in respect of the same case was found to be disproportionate by the courts, the High Court having quashed the first refusal.

It is difficult to see how those due to arrive in Ireland (let alone individuals currently seeking protection or leave to remain, or those who arrive spontaneously at our borders) can be dealt with in a caring, rights-centred manner in the context of a system which demonstrates these features. However, perhaps the outpouring of public sympathy for the plight of those fleeing violence and persecution will provide the impetus for a shift in culture in this regard. Fundamental reform (preferably abolition) of the direct provision system (the weekly allowance of 19.10 per adult and 9.60 per child remains untouched after Budget 2016); the publication of the International Protection Bill (which would start a process of debate and critique of the Bill); and clarification on the procedures which are to be applied to relocated asylum seekers would seem to be a good start.

Responding to the Refugee Crisis: Examining the Broader Systemic Context in Ireland

Interculturalism and Immigration Reform? Integration Policy in Ireland

Migration Nation1It has been an interesting time for asylum and immigration policy in Ireland. Last week saw the publication of the MacMahon Report on Direct Provision (read Liam Thornton’s analysis here), then, at the weekend, leaked documents  provided some insight into Ireland’s “hands-off” approach to early EU negotiations on search and rescue in the Mediterranean. Yesterday, the Immigrant Council of Ireland published research on the experiences of young migrant men, which suggests that the Gardaí and other public servants should undergo anti-racism training.

Against this background, the following post addressing the long-term question of Ireland’s approach to the “integration” of migrants may be of interest. It was written as a guest column for “Immigrant News”, the ICI’s daily epaper.

In May, the Immigrant Council of Ireland and the Migrant Integration Policy Index (MIPEX) launched the MIPEX 2015 findings for Ireland, which involved a comprehensive measurement of policies to integrate migrants and the outcomes of these policies. We did not fare well, ranked 19th of 38 countries surveyed and below all Western European countries except Austria and Switzerland. These results came only a short time after census figures suggested that the Irish school system is becoming increasingly segregated and ghettoised.

The Immigrant Council of Ireland is now calling for (among other things) the development of a comprehensive National Integration Strategy. So where does Irish integration policy currently stand, and where should we go from here?

The Rise and Fall of Integration Strategy in Ireland

To date, integration policy has been largely piecemeal, with various government departments and public bodies producing diversity and intercultural strategies (for example, intercultural strategies in the areas of education and health, and a diversity strategy for An Garda Síochána). The first formal strategy for integration was produced in 2008 by the newly-established Office of the Minister for Integration. This document, called “Migration Nation”, outlined the principles intended to underpin Irish integration policy.

The central features of the policy statement are its mainstreaming approach to the provision of services for new communities; its situation of integration policy in the context of the general social inclusion and equality framework; and its insistence on a two-way model of integration. Other notable features include the emphasis placed on respect for cultural differences and the lack of emphasis on identity or “values” issues.  The practical areas of language education; interpretation and translation; information provision; and funding arrangements information are identified as the key areas crucial to integration success, rather than areas relating to culture or values.  This was welcome, especially when seen in the broader European context of a retreat from multiculturalism and an exclusionary focus in integration policy on “shared values”.

While, broadly speaking a mainstreaming, intercultural approach drawing on EU integration policy is endorsed in the policy documentation, a more developed specific vision of integration still seems to be lacking.  Aside from Migration Nation, the only integration-specific document to emanate from the Office for the Promotion of Migrant Integration (“OPMI”) related to the specific group of resettled refugees.

Since its establishment, the OPMI’s role has been centred on facilitating integration at grassroots level through the funding of sporting groups, NGOs and faith-based community groups rather than developing an overarching integration framework which could be used to inform the action of other state bodies.  It also has “a cross-Departmental mandate to develop, lead and co-ordinate migrant integration policy across other Government Departments, agencies and services”. The decentralised approach taken to date to integration is reflected in the focus on the development of integration strategies by local authorities rather than by the OPMI.  This is a rather narrow approach to integration which suggests a political reluctance to tackle the deeper issues, particularly those which might require public spending.

The main reason for the lack of progress in the field of integration has been the impact of the financial difficulties which Ireland has been experienced since late 2007.  The financial crisis and dramatic rise in unemployment resulted in April 2009 in a return to net emigration for the first time since 1995.  These developments have meant that integration is no longer as immediate an issue as it was between 2000 and 2007 and it slipped down the political agenda.  The harsh budgetary measures accompanying the financial crisis have impacted on the equality and integration infrastructure through, for example, the closing of the National Consultative Committee on Racism and Interculturalism and the cuts in funding for the Human Rights Commission and Equality Authority (now the Irish Human Rights and Equality Commission).

The plans set out in Migration Nation to establish new integration structures, including a standing Commission on Integration and a Task Force to establish future policy needs, were shelved, and the Ministerial Council on Integration is defunct. The provision of language teaching was hit hard by budget cuts, and immigration reform under the Immigration, Residence and Protection Bill 2010 was abandoned. In 2011, the position of Minister for Integration itself was abolished. The combined effect of these measures has meant that integration policy has effectively been on “pause” for the last number of years.

A New Integration Plan: The Importance of Immigration Law Reform

There is clearly a need for a more developed, nuanced and long-term approach to integration than that in existence in Ireland at present.  This has been recognised by Government, and a new integration strategy is expected later this year. The current review of integration strategy has involved a public consultation and engagement with key stakeholders.

As mentioned already, the absence of focus on “cultural integration” in Migration Nation was hugely positive and should be replicated in the general philosophy of any new strategy. However, a key element of the development of a comprehensive strategy is that it also needs to be acknowledged that “integration” encompasses core constitutional and other legal rights and issues, including a secure migration status and family rights. Any new integration strategy must expressly recognise the impact of immigration law on integration, and be accompanied by immigration reform, in order to be meaningful. While Ireland scored well in MIPEX in the areas of political participation and anti-discrimination, a particular area of weakness identified was the discretionary nature of access to family reunification and long-term residence. We currently have among the most discretionary (and least favourable) policies in the developed world in these spheres. These entitlements need to be placed on a secure, transparent, statutory footing to ensure certainty, efficiency and equality of access.

Unless the importance of migration and citizenship law to integration is formally recognised, it is unlikely that Ireland will progress beyond being a country which is, to use MIPEX’s scoring system, “halfway favourable” to the integration of immigrants.

Interculturalism and Immigration Reform? Integration Policy in Ireland

"Social Movements & Political Alternatives to Neoliberalism": Workshop at Maynooth University

You are cordially invited to attend a workshop organised by the Maynooth University Research Cluster on Social Justice, Participation & Human Rights, in association with the Network on Power, Politics & Society, the Department of Law and the Department of Geography:

 

Social Movements & Political Alternatives to Neoliberalism: Lessons from Latin America for Irish Civil Society”

 

This workshop is aimed at social movement activists, political campaigners and representatives, trade unionists, community groups, and interested academics. The workshop will give participants an opportunity to hear from one of the leading voices on social movements and political change in Latin America, Professor Eduardo Silva. There will be dialogue on the lessons from Latin America for Ireland, as well as on what Latin American social movements can take from current struggles in Ireland and the European periphery.

 

The workshop will include inputs from key civil society members and activists in Ireland. The aim is to improve our understanding of social movements and political transformation, and to develop greater dialogue amongst civil society activists engaged in challenging neoliberalism. It will also contribute to research into this area being undertaken at Maynooth University.

 

It will take place on Friday, 15 May 2015, from 10am to 4pm in the John Hume Boardroom (John Hume Building, North Campus, Maynooth University). If you would like to attend, please send an email to either rory.hearne@nuim.ie or john.reynolds@nuim.ie.

 

Further information about the workshop can be found at this link.

"Social Movements & Political Alternatives to Neoliberalism": Workshop at Maynooth University

The UK Modern Slavery Act: Template for Ireland or False Friend?

Theresa May3This post originally appeared as a guest column in the Immigrant Council of Ireland’s daily epaper, Immigrant News

Heralded by the UK Home Secretary, Theresa May, as “an historic milestone” which brings the UK “closer to consigning slavery to the history books”, the UK Parliament adopted the Modern Slavery Act on 26 March.

The Act brings together and simplifies the existing UK law on slavery and trafficking and also contains a number of important innovations, including potential life imprisonment for traffickers, asset confiscation rules and a new Anti-Slavery Commissioner. Victims of trafficking are provided with a statutory defence in order to ensure that they are not inappropriately criminalised, and provision is made for “Reparation Orders” to be awarded by way of compensation. Also introduced is a requirement for large companies to annually report on efforts to identify and address modern slavery in their supply chains.

The Act has been broadly welcomed, including by campaigning groups such as Anti-Slavery International. The legislation also reflects developments in the case law of the European Court of Human Rights in Strasbourg, which requires States to put in place an effective regime for deterring, investigating and punishing slavery, servitude and forced labour.

The most contentious aspect of the legislative process was the failure of the Act to reform the migration status of overseas domestic workers in the UK to better protect this group. The terms of the “overseas domestic workers visa” ties these workers to their employer, with specialist NGOs such as Kalayaan arguing that this in itself creates conditions ripe for slavery and severe exploitation.

Slavery in Ireland

While the scale of the issue in the UK may be larger, it is beyond doubt that a significant problem of slavery and trafficking exists in Ireland. The Immigrant Council of Ireland has long advocated for and represented victims of sex-trafficking, in particular, while the Migrant Rights Centre of Ireland has produced reports on the trafficking and labour exploitation of those in the domestic work sector and cannabis production.

In 2012, the High Court case of Hussein v Labour Court and Younis vividly demonstrated the gaps in individual rights protection created by the intersection of Irish employment and immigration rules. Mr Younis had been required to work for seven days a week for a number of years and was paid “what amounted to pocket money”, but was told by the High Court that he could not pursue the employer for breaches of labour law as he was an undocumented migrant.

In the wake of the Hussein decision, a number of changes were made to the Irish system to deal with the injustices which had been highlighted. Forced labour is now a crime, under the Criminal Law (Human Trafficking) Act 2013. In addition, the Employment Permits (Amendment) Act 2014 means that undocumented migrants who are undocumented through no fault of their own may pursue their employer for outstanding remuneration. However, these piecemeal amendments do not constitute an anti-slavery code along the lines of the Modern Slavery Act 2015.

 

Should Ireland seek to emulate the Modern Slavery Act?

As academic Judy Fudge has noted, it is difficult to criticise the Modern Slavery Act, as “no one is ‘for’ slavery”. However, there are a number of reasons why the Irish government would be best to concentrate reforming energies elsewhere, rather than seek to simply emulate the approach taken in the UK Act.

First, the Act’s main focus is on the criminalisation and prosecution of slavery and trafficking offences rather than redress for victims, although the protection of victims was strengthened somewhat during the process due to pressure from campaigners. It also fails to address the obstacles faced by migrant workers, in particular, to seeking redress through the ordinary employment law system – a ready-made system designed to protect employment rights so that exploitation does not reach the severity of slavery, servitude or forced labour. These obstacles are practical (including cuts to legal aid) and legal (illegality of the contract of employment of most undocumented migrant workers).

Second, there must be question marks over the effectiveness of legislation seeking to address labour exploitation and trafficking, in the broader context of ever-tightening immigration rules and the devaluing of migrants’ contribution to the labour market and the economy. The Modern Slavery Bill stands in counterpoint to the increasingly hostile environment for migrants being created in the UK, including through restrictive changes to family reunification rules, imposing reporting requirements for landlords where they believe that a tenant may be undocumented, and the continued government refusal to acknowledge the vulnerabilities created by tying domestic workers to their employer.

Overall, the Modern Slavery Act contains some significant changes which may assist those who suffer the worst forms of labour and sexual exploitation. However, it does not address the root causes of such treatment and certainly will not make a difference to most migrant workers enduring the everyday indignity of low wages, poor working conditions and limited access to employment redress mechanisms.

So what should Ireland do?

From this perspective, rather than trying to ape the UK modern slavery package, Ireland would be better to undergo two, more fundamental, reforms (quite aside from a fundamental review of our trafficking framework, which was argued for in this newspaper by Nusha Yonkovo last week).

The first would be to further change the Employment Permits regime to fully legalise the employment contracts of all undocumented workers and thereby provide equal access to labour rights. Although this may seem radical in the Irish context, most European countries (the UK being a notable exception) provide a certain minimum level of employment protection for all workers, notwithstanding their undocumented status.

The second is to pursue the long-awaited comprehensive reform of the immigration system, providing on a statutory footing for secure and durable statuses, family reunification, and access to public services. The legal recognition of migrants’ contribution to the Irish economy and society is a vital, if intangible, element of tackling ‘modern slavery’.

The UK Modern Slavery Act: Template for Ireland or False Friend?

Undocumented migrants and the enforcement of employment rights: assessing recent developments

Liam Thornton has previously blogged about issues surrounding the enforcement of employment rights by undocumented migrants, particularly in the wake of the 2012 High Court judgment in Hussein v The Labour Court & Anor [2012] IEHC 364. In this decision, Hogan J found that an undocumented migrant employee could not enforce statutory employment rights against his employer, as the contract under which he was employed was “substantively illegal”. As there were a number of developments in this area of law in Ireland and the UK in 2014, it is useful to review the state of the law and assess whether undocumented migrants are in a better position as a result of these developments.

Addressing gaps in protection: the Employment Permits (Amendment) Act 2014

The Employment Permits (Amendment) Act 2014 addresses some of the issues at the heart of the Hussein decision. Section 3 provides for a defence for the employee to the charge of having been employed without an employment permit, where they can show that they took all reasonable steps to ensure compliance with the section. In addition, section 4 permits the foreign national to take a civil claim for compensation against the employer, notwithstanding the illegality of the contract, again where it can be proved that they took all reasonable steps to comply with the requirement to have an employment permit, and provides that the Minister may take such an action on behalf of the employee.

These changes have been welcomed by migrant rights organisations. However, the Act’s approach of providing a “carve-out” for civil, remuneration-related claims taken by undocumented workers, who played no part in the breach of the Employment Permits Act 2003, leaves the basic conceptual framework intact. The contract of employment remains illegal and, most significantly, those employees who do not take “all reasonable steps” to ensure that an employment permit is obtained remain unprotected. The 2014 Act still leaves those who are in some way implicated in the illegality, for whatever reason. unprotected by Irish employment legislation.

Assessing the promise of UK developments: Hounga v Allen

The concept of illegality, relied upon in the Hussein decision, has been considered in the UK in the context of attempts to use equality legislation to obtain a remedy for discrimination resulting from irregular immigration status, even though the statutory tort of race discrimination does not necessarily depend on a valid contract of employment. In Hounga v Allen [2014] UKSC 47 the applicant had accepted the findings of the tribunal and of the EAT that the defence of illegality precluded any claim which might arise under the contract of employment. However, the Court of Appeal had gone one step further and decided that the applicant (a Nigerian “au pair”, described as “a young, illiterate person of uncertain age although with a good command of English”) could not bring a race dismissal discrimination claim as she was working illegally.

Ms Hounga’s dismissal discrimination case relied on the argument that her employers had taken advantage of her illegal status and the fact that she had no right to be employed in the UK to treat her less well than a hypothetical white British comparator, thus, in the view of the Court of Appeal, “making a direct link between the discriminatory treatment of which she complained and the circumstances in which she came to be, and was, employed by the Allens.”

In 2014, the Supreme Court upheld the domestic worker’s appeal. The primary basis for the Supreme Court decision was that, in the particular facts of this case, there was an insufficiently close connection between the appellant’s immigration offences and her claims for the statutory tort of discrimination, meaning that the “inextricable link” between the facts giving rise to the claim and the illegality, required by tort law, had not been established. Her immigration offences merely provided the context within which the tort was committed.

Disagreement in the UK Supreme Court

There was significant disagreement among the members of the Supreme Court as to the precise basis for their unanimous overall finding that the appeal should be upheld. Lord Hughes (with whom Lord Carnwath agreed) was careful to specifically confine his judgment to tort cases, distinguishing the tort claims under consideration from the contractual claims initially made in the employment tribunal and EAT, which would be dependent on a lawful contract of employment.

Lord Wilson (with whom Lord Kerr and Lady Hale agreed), on the other hand, engaged in a more wide-ranging analysis of the public policy dimensions of the doctrine of illegality, finding that “the considerations of public policy which militate in favour of applying the defence so as to defeat Miss Hounga’s complaint scarcely exist”. Lord Wilson placed great importance on his conclusion that Miss Hounga’s case was, effectively, one of trafficking for the purposes of forced labour, bringing it within the scope of the UK’s international obligations in this regard, including Article 4 of the ECHR. He even went so far as to suggest that the public policy considerations involved in trafficking cases could have possibly yielded a different result, had the contractual claims for unfair dismissal and unpaid wages been pursued in the appellate courts.

The approach of Lords Wilson and Kerr and Lady Hale could potentially provide a basis for a more nuanced application of the doctrine of public policy in purely contract-based claims, at least in cases involving trafficking. However, it is difficult to assess if and how this strand of reasoning will develop in future cases, given that Lords Hughes and Carnwath explicitly disagreed with the idea that the law of trafficking provided a specific basis for allowing the appeal. It was also their trenchant view (echoing the comments of earlier courts) that even if one assumed that Miss Hounga was subjected to forced labour, she had not been compelled to commit the relevant immigration offences, meaning that any contract of employment was substantively illegal.

Ultimately, despite the strong statements on trafficking and public policy in Lord Wilson’s judgment, the UK Supreme Court judgment in Hounga is (purposefully) narrow and does not, in the short term, have a real impact on access to justice in the UK for undocumented workers in the context of general employment law claims. Post-Hounga, the defence of illegality will not automatically operate to exclude tort claims related to their employment taken by undocumented migrants in the UK, however, as seen in the case of the Employment Permits (Amendment) Act 2014, the wider legal landscape has been left intact.

Conclusions

In the UK and Ireland, the exclusion of undocumented migrants from employment protections persists, despite recent legislative and jurisprudential developments. This results in state-constructed vulnerability to labour exploitation for this group of workers, with the State complicit in the creation and perpetuation of a decent work deficit for undocumented migrant workers.

Undocumented migrants and the enforcement of employment rights: assessing recent developments

Domestic Servitude: Exploring the Role of the State in Creating the Conditions for Labour Exploitation

The past twenty four hours has seen a large amount of media attention focused on the issues of domestic slavery, servitude and forced labour, and in particular the legal framework in the UK for dealing with these appalling forms of labour exploitation. Much of the discussion has been around the effectiveness of the criminalisation, investigation and prosecution of such forms of exploitation, through section 71 of the Coroner’s Act 2009 in the UK and the Criminal Law (Human Trafficking) (Amendment) Act 2013 in Ireland. I have previously blogged about States’ positive obligations under Article 4 ECHR to criminalise slavery, servitude and forced or compulsory labour here.

However, the efficacy of criminal law provisions alone in combatting forms of domestic servitude must be questioned, and such provisions must be viewed in the broader context of the restricted employment rights and protections available to domestic workers. This is a particular problem in the UK, where domestic workers are expressly excluded from a number of aspects of employment-related regulation. For example, “domestic servants in private households” are exempted from the scope of health and safety regulation by the Health and Safety Act 1974, as well as certain aspects of working time regulation. Most strikingly, domestic workers who live with their ‘employer’ and who are ‘treated as a member of the family’ may not be entitled to the minimum wage, under Regulation 2(2) of the National Minimum Wage Regulations 1999. This exclusion was upheld and reinforced by the Court of Appeal in its recent decision in Nambalat v Taher [2012] EWCA Civ 124.

The perception of domestic work as somehow ‘different’ from other forms of employment, and of difficulties in applying employment rules in the private domain of the home, was also clear in the UK’s abstention from the final adopting the International Labour Organisation’s 2011 Domestic Work Convention (which attempts to address the gaps in protection experienced by domestic workers). In justifying the UK’s decision to be one of only eight ILO Member States to abstain in this way, the then Minister for Employment Relations (Edward Davey MP) highlighted the incompatibility of the Convention with the approach taken in UK employment law. He queried why the Government would wish to change its system and agree to passing ‘quite an intrusive law’, one that would give to health and safety inspectors a ‘new right to visit millions of homes’.

For undocumented migrant domestic workers, access to law and legal remedies is even more constrained. In a number of recent Employment Appeals Tribunals (Zarkasi v Anindita [2012] UKEAT 0400_11_1801) and Court of Appeal (Hounga v Allen [2012] EWCA Civ 609) decisions involving migrant domestic workers, it has been confirmed that where undocumented workers are willing participants in unlawful employment, their contract of employment is tainted with illegality and they are thus excluded from the protection of almost all protective employment regulation.

It must be acknowledged that the state plays a central role in constructing and reinforcing the vulnerability of those engaged in domestic work, including through the ways outlined above. If the UK Government is serious about addressing this vulnerability, it will need to go far beyond the incorporation of domestic servitude and forced labour into its broader trafficking framework or improving the effectiveness of criminal law provisions. Reform should involve a deeper reflection on the nature of work, the conditions which create vulnerability to exploitation and the divide between the ‘public’ and ‘private’ spheres.

Domestic Servitude: Exploring the Role of the State in Creating the Conditions for Labour Exploitation

Resisting deportation on the basis of ‘integration’? Assessing the impact of Article 8 ECHR

ECHR at 60Given the recent focus on the 60th anniversary of the coming into effect of the European Convention on Human Rights, and following on from Fiona de Londras’ and Liam Thornton’s posts, it seems timely to include a post based on the paper which I presented at the UCD Human Rights Network Conference in June (The ECHR and Ireland: 60 Years and Beyond). My paper looked at the influence of Article 8 ECHR on Irish immigration law, concentrating on the impact of the Strasbourg jurisprudence on the potential disruption of the private life of migrants caused by removal or deportation.

State discretion in the sphere of immigration law is limited by the ECHR, including through the jurisprudence of the Strasbourg Court interpreting Article 8’s protection of family and private life. The Court has been steadily building a complex body of jurisprudence in both expulsion and family reunification cases, but the aspect of the Court’s work which has received most attention is its body of jurisprudence on the impact of the deportation of an individual in terms of their right to family and private life. A deportation will infringe Article 8 if it is a disproportionate disruption of the private and family life of the individual, and/or of family members who may be lawfully resident in the State. A balancing exercise between the various individual rights and State interests at stake must be carried out in order for such a removal to be compliant with the requirements of Article 8.

My paper examined an aspect of the ECHR case law which has been under-explored to date in the Irish context: the impact of Article 8 on the expulsion of so-called ‘settled migrants’, who have developed extensive ‘social ties’ comprising a private life in the country of residence. The Strasbourg Court has placed a strong emphasis on integration, in particular the social aspects of integration, in deciding whether the expulsion fails to respect the individual’s private and family life. In Uner v The Netherlands (2007) 45 EHRR 14, consideration of the “solidity of social, cultural and family ties with the host country and the country of destination” was recognised as an important part of the balancing exercise where ‘settled migrants’ are involved.

In common with most European states, successive Irish governments have emphasised that the successful integration of migrants is a key policy objective and is desirable for social cohesion as well as to allow migrants to realise full equality with existing members of society. This rhetoric has not, however, been accompanied, in recent times, by a funded integration strategy or a comprehensive anti-racism plan. In addition, from a legal doctrinal perspective, to date, integration has had little impact on legal security of residence in Ireland.

A review of the Irish case law shows that the impact of ‘private life’, or integration, considerations, in the Irish context has, to date, been weak. Social and cultural ties are taken into account in the course of the ministerial decision-making process under section 3(6) of the Immigration Act 1999. In addition, the courts have adopted the approach of the Strasbourg court in terms of taking into account factors such as the ages and adaptability of children, extent of integration, length of time in contracting state and connections to country of deportation in the overall balancing exercise required (most notably, in the seminal Supreme Court decision in Oguweke v Minister for Justice, Equality and Law Reform [2008] IESC 25).

However, the overall impact of private life considerations in the Irish courts’ analysis of constitutional and convention rights and on the actual outcomes of these cases has been weak to date. Factors such as integration into the community and/or the education system are often considered by the Irish courts but almost never considered to be determinative. Such factors have been easily outweighed by the State interest in migration control.

The Irish courts have thus, as yet, failed to take on board the full implications of the jurisprudence of the ECtHR on ‘social and cultural ties’ and integration. This is due mainly to the limitations of the Strasbourg and Irish courts’ approach in interpreting the concepts of ‘private life’ and “settled migrants’, as well as the deference shown to the decisions of government in the sphere of immigration law (see, for eg, the decisions in Alli v MJELR [2009] IEHC 595; Igiba v JELR [2009] IEHC 59). Challenges to deportations of the ground of interference with Article 8 rights are almost always primarily based on alleged interference with ‘family life’ rather than ‘private life’.

However, more recent cases seem to reveal an emerging shift in attitude, towards a greater recognition of private life considerations in the balancing exercise being assessed by the courts and an increasing tendency to accept that migrants are ‘settled migrants’, in certain circumstances. S v MJELR [2011] IEHC 417 and EA v MJELR [2012] IEHC 371 (which involved an application for an interlocutory injunction restraining deportation), for example, show that the families and individuals involved in recent deportation judicial review cases have increasingly been here for a significant period of time, citizen children are deeply embedded in the Irish educational system, and parents of Irish-born citizen children are themselves being naturalised. In consequence, a greater proportion of migrants are starting to become recognised as “settled migrants”, with a corresponding impact on the weight of their connection to the State in the balancing exercise carried out by the Minister and reviewed by the Courts.

As Ireland’s migration story continues to evolve, we will also continue to see more cases closely resembling those at the heart of the Strasbourg court’s jurisprudence on deportation and private life, including where it is sought to deport longer-term ‘legal’ migrants because they have committed serious offences.

Overall, the coming years should see a greater impact of the Strasbourg court’s approach in cases such as Boultif v Switzerland (2001) 33 EHRR 50 and Uner v the Netherlands and a more detailed and systematic consideration of issues relating to the network of social, cultural, educational ties to Ireland in deportation cases. The Irish courts will be compelled to take on board the systematic way in which the Strasbourg court considers the integration of the individual as part of its analysis under Article 8, but only if these arguments are presented in submissions.

While the Irish experience of challenging deportation in the courts reveals the limitations of court-centred activism when it comes to claiming and realising migrant rights, it is suggested that migrants, migrant rights’ advocates and legal representatives could fruitfully make more ‘use’ of the ties which migrants have formed to the State to challenge deportation and better realise their rights under Article 8. Greater attention certainly needs to be given to the ECHR jurisprudence on private life.

Resisting deportation on the basis of ‘integration’? Assessing the impact of Article 8 ECHR

Family Rights and Deportation in Ireland: on-going issues in the “Irish-born child” cases

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It is well known that a complex body of jurisprudence on the issues surrounding the residency rights of non-citizen parents of Irish-born citizen children has been evolving for a number of years.  The landmark 2003 decision of the Supreme Court in AO and DL v MJELR established that non-citizen parents did not have a right to assert a choice of residence on behalf of their Irish citizen children, and that the constitutional right of such children to the company, care and parentage of their parents within the State was not absolute. This right could be outweighed by the State’s sovereign interest in maintaining the integrity of the immigration system.

The clash between the ‘common good’ in the guise of the protection of the immigration/asylum system and the family and other constitutional and ECHR rights of non-citizens has been a recurrent theme of decisions following AO and DL as the courts have sought to strike a balance between individual and family rights and the “rights” of the State in respect of migration control.

The approach of the Irish courts, particularly in cases involving the deportation of parents of Irish citizen children, has been criticised (by Siobhán Mullally and Liam Thornton, among others) for failing to give sufficient weight to the rights and best interests of the children involved, under both Article 41 of the Constitution and Article 8 ECHR.

The situation of parents and children in this position has been improved by the effects of the Zambrano ruling of the CJEU, in which it found that a non-EU national parent of an EU citizen child has a right not to reside within an EU member state, but also to be granted a work permit, so as to ensure that the EU citizen child can benefit from their rights as an EU citizen. (Read Liam Thornton’s post on this, here).

The Zambrano case (together with subsequent case law) and EU law has thus done for Irish citizen children what Irish constitutional law and the application of Strasbourg case law combined could not do – accord primacy to the children’s future genuine enjoyment of the substantive rights attached to their citizenship.

There are some residual cases, however, to which Zambrano decision (together with subsequent CJEU case law) does not apply. These have been found to include situations where there is “no real prospect that the deportation of the applicant would bring about a situation where [the child] would be compelled to leave Ireland or, for that matter, the territory of the Union”. The line of authority going back to AO and DL is, therefore, still active and important and I think that it is timely to review some of the recent cases on this issue. There have been some positive, if slightly confusing, developments in the case law in the past few years.

In EA and PA v MJELR [2012] IEHC 371, the applicants were a Nigerian national and his Irish-born citizen child. The father had a chequered immigration history, having had his asylum application rejected on credibility grounds, his subsidiary protection application rejected because of lies about country of origin, and having returned to Ireland after deportation in 2010 and having lied about living with the mother and son in a family unit. Here, there was no risk to the child’s enjoyment of his European citizenship as the mother had refugee status and was separated from the father, meaning that she would not be following the father to Nigeria if he were deported, and Zambrano did not apply.

Hogan J found that there were “abundant grounds” in this case for suggesting that the substance of the child’s right to the care and company of his father would be denied if his father were to be deported.

Hogan J went on to distinguish AO and DL on the basis that the decision in that case does not concern situations where of necessity the effect of the deportation would be to deprive Irish child of opportunity of any real personal contact with a parent. He acknowledged (referring to Alli v MJELR, among other cases) that there were some inconsistencies in the High Court decisions on this point, which he described as “cross-currents of judicial opinion”. However, in cases such as the present one where the effect of the deportation order would be to split up the family and to deprive the children of the essence of their constitutional rights to the care and company of their parents by “condemning them to a childhood without one of their parents”, his view was that the deportation of the parent would deprive the child of the essence of his constitutional right of the child to the company and care of their parents. He granted an interlocutory injunction restraining the deportation (I have been unable to find any subsequent developments in this case).

In S v Minister for Justice [2011] IEHC 417, Clarke J had come to a similar conclusion in respect of an application to revoke a deportation order and reasoned on the basis, primarily of constitutional rights, that “it would be unreasonable and therefore disproportionate to expect this family to either live forever without the husband and father or to leave Ireland and return to Nigeria”.

These cases appear to signal a more protective attitude to the constitutional rights of the child, in particular, where the family has been settled in Ireland for a long period of time and the citizen children are firmly integrated into the Irish education system. Although the ECHR was not the basis of the reasoning in these cases, this brings Irish case law into closer alignment with ECHR cases such as Nunez v Norway (Judgment of 28 June 2011) which have emphasised the primacy of the best interests of the child, even in cases where the parent has consistently flouted immigration rules.

However, even more recent cases such as FE v Minister for Justice [2013] IEHC 93, in which a proposed deportation on foot of a conviction for sexual offences was found to be a proportionate interference with the rights of the applicant and his several Irish citizen, indicate that the best interests of the children will not always be a determinative factor and that these cases will continue to be fact-dependent and somewhat unpredictable.

Overall, it remains to be seen whether the reasoning of Hogan J in EA will be adopted and expanded in High Court decisions more generally (the facts in this case were very specific, including the fact that the mother was a recognised refugee and thus had no option to return to Nigeria).  In turn, this will determine whether this seemingly more rights-based turn in the case law will have a significant impact on ministerial decision-making in this sphere.

Family Rights and Deportation in Ireland: on-going issues in the “Irish-born child” cases