Access to Justice for Migrant Workers

Date01 January 2008
Access to Justice for Migrant Workers1
The death of eighteen Chinese cockle pickers in Morecambe Bay, Lancashire
on the 6 February 20042heralded an era of restrictive legislative action3in the
area of immigration aimed particularly at preventing the employment of
irregular immigrants. The law in Ireland has mirrored the approach in the UK.
The legislatures in both jurisdictions have become increasingly preoccupied
with ensuring the criminalisation of such workers and their employers4and
1Elaine Dewhurst B.C.L.( NUI), EJ Phelan Fellowship in Inter national Law 2004–
2006, PhD Candidate University College Cork.
2“Slavery exis ts in our world today” Hull Daily Mail, 12 Ju ly 2006 (UK); Herbert,
“Cockle Deaths Gang master ‘tried to blam e two victims’” The Independent, 20
September 2005 (London); “Fishing Bosses to F ace Legal Action” Liverpool D aily
Echo, 9 July 2004 (UK); Griffith, “Law’s all at sea” (Letter) Daily Post, 1 M arch
2004 (Liverpool); “Police Bail Men ove r Deaths of Cocklers” Birmingham Post, 11
February 2004 (Birmingham).
3See Gangmaster’s Licensing Act 2004 (c3) (UK). This Act has been commenced by a
series of commencement order s and at present the majority of the Act is in force.
See Gan gmasters (Licensing) Act 2004 (Commencement No 1) Order 2004
(SI 2004/2857) (UK); Gangmasters (Licensing) Act (Commencement No 2) Order
(SI 2005/447) (UK); Gangmasters (Licensing) Act 2004 (Commencement No 3) Order
2006 (SI 2006/2406) (UK); Gangmasters (Licensing) Act 2004 (Commencement No 4)
Order 2006 (SI 2006/2906) (UK); Gangmasters (Licensing)Act 2004 (Commencement
No 5) Order 2007 (SI 2007/695) (UK). A full discussion of the terms and implications
of this Act are beyond the remit of this Chapter. A detailed analysis can be found in
Ireland “Crimin al Law Legislation Update” (2 007) 3 Journal of Criminal Law 71.
This Act requires Gangmasters to be licensed and provides for a series of enforcement
4See the Employment Permits Act 2003 (No 8 of 2003) (Ireland); I mmigration Act
1999 (No 2 2 of 1999) (Ireland) as amended in 2003 and in 2004. A non -national
who is present in the State without the permission of the Minister for Justice, Equality
and Law Refo rm (Immigration Act 2004 (No 1 of 2004) (Ireland ), section 5(1)) is
considered to be “unlawfully present in the State ”(Immigration Act 2004 (No 1 of
2004) (Ireland), section 5(2)). The Minister for Justice, Equality and Law Reform has
the authority to requ ire the non-national to reside or remain in a particular district
or place in the state and/o r that they report at specified intervals to an imm igration
officer or a member of the Garda Siochana. (Immigration Act 2004 (No 1 of 2004)
(Ireland), section 14(1) (a) and (b)). A non-national who fails to do this is guilty of
an offence (Immigr ation Act 2004 (No 1 of 2004) (Ireland) section 14(2)). The
Minster also has the ultimate authority to arrest and detain such a non-nati onal
(Immigration Act 2003 (No 26 of 2003) (Ireland) section 5(1)(g) as amended by the
Immigration Act 2004 (No 1 of 2004) (Ireland) section 16(8)) until such time as they
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the denial of rights to such workers as a preventative tool5. By taking this
course of action both governments have failed to consider that the
elimination of the causes of irregular immigration, in most cases the pulling
force of employers intent on cost-reduction, may have a far greater
preventative force than the present structure.
This Article will analyse firstly, the present position in Ireland in relation
to the exclusion of irregular migrant workers from the employment
protection regime. It will concentrate on irregular workers as one category
of excluded workers that are the most vulnerable to exploitation as a result
of their migratory status. It will examine the effect of irregularity on the
contract of employment. The philosophy behind such exclusion will be
critiqued to determine whether this can be objectively justified. Finally, after
an examination of different solutions to this issue, it will be concluded that
the provision of rights to such workers will have the effect of not only
reducing exploitation but also irregular migration as a concept.
While this Article focuses primarily on the situation of irregular workers
in Ireland as one group of migrant workers who are regularly and
systematically denied access to employment rights, the effects of such a
denial and the possible solutions are of relevance to other groups of migrant
workers such as seafarers6and domestic workers,7who are also expressly
excluded from legislation providing protection.
are removed from the state (Immigration Act 20 04 (No 1 of 2004) (Ireland) section
5(2)(a) and section 5(3)(a)).
5The most recent version of the Immigration and Residence Bill 2008 (Ireland)
provides in section 6(1)(a ) that an irregular person in Ireland will not be entitled to
any service s or benefits by a Minister of the Government, a local authority or the
Health Service E xecutive or other bodies. Howe ver, provision is made f or essential
medical services (section 6(2)(a)(i)), medical or o ther services necessary for the
protection of public health (section 6(2)(a)(ii)), access to education for persons under
the age of 16 (section 6(2)(a)(iii)), the provision of legal aid(section 6(2)(b)), services
under section 201 and section 202 of the Social Welfare Consolidation Act 2005 (No
26 of 2005) (Ireland) (power to make payments in cases of excep tional need and
urgency) (section 6(2)(c)), other services that are of a humanitarian nature (section
6(2)(d)(i)), a re provided for the purpo se of dealing with or al leviating emergencies
(section 6(2)(d)(ii)), or are provid ed by way of assistan ce t repatriating foreign
nationals (section 6(2)(d)(iii)). While it may appear that this Bill provides for a
number of rights, the reality is that these are minimum standards of human rights and
do not extend their reach to other essential services such as protect ion from
6Seafarers are excluded expressly fro m the Minimum Notice and Terms and
Conditions of Employment Act 1973 (No 4 of 1973) (Irelan d), s 3(1 )(f); the
Protection of Employment Act 1977 (No 7 of 1977) (Ireland), section 7(2)(d) and the
Organisation of Working Time Act 1997 (No 20 of 1997) (Ireland), section 3(2)(a)(i)
and (ii). However, non-national seafarers are also excluded by implication from the
Unfair Dismissals Act 1977 (No 10 of 1977) (Ireland), which insist s upon evidence
of residence or domicile in Ireland before an emp loyee is entitled to claim under the
Act (section 2(3)). Non-national seafarers are regularly engaged on transit visas which
do not entitle them to enter or reside in the State and which thus effectively excludes
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Exclusion from the employment protection regime
In Ireland where two distinct criteria are established, the claimant should,
in theory, have access to the employment dispute resolution process. Firstly,
the claimant must establish that they are an employee of the employer and
secondly, that they are not expressly or impliedly excluded by statute from
taking a case. This two-part test is considered necessary in the employment
context to protect the employer against frivolous claims and the associated
costs. However, the reality for many workers and in particular migrant
them f rom the sco pe of the Act. (Transit visas are issued under the Aliens (Visa)
Order 2003, SI 708 of 2003. Regulation 3 provides that an alien coming from a place
outside the St ate, other than Great Britai n or Northern Ireland, who is a citizen of
the State, specified in one of the Schedules to the Order, shall not enter a port in the
State un less he or she is the holder of a valid Irish transit visa.) Other legislation
insists upon the conclusion of a contract of employment “in the State” before it will
extend its protection, impli edly excluding all seafarers who conclude contracts of
employment with recruitment agencies in their home states (Protection of Employees
(Part-Time Work) Act 2001 (No 45 of 2001) (Ireland) section 20 (b)). Thus, it is the
residential status of the individual, which often determines whether the individual will
fall to be covered by the legislation. An employee who works in Ireland for a foreign
employer is covered by the legislation. However, an employee who works outside the
state for an Irish employer is excluded. Despite the obvious injustice in this decision,
no justification for s uch a formulation appears forthcoming. All o ther employment
legislation in Ireland applies to all seafarers, if not expressly then by implication. The
Terms of Employ ment (Inf ormation) Act 1994 (No 5 of 199 4) (Irelan d) refers
expressly to the employment of persons who are working outside the State for more
than one mon th (section 4(1)). Where no express reference i s made to seafarers or
their exclusi on, it is to be as sumed that such legisl ation applies to them as long as
they can prove the existence of a contract of employment (more commonly referred
to as the Articles of Agreement) and satisfy the eligibility criteria laid out in the Act.
So f or example, all seafarer s on bo ard Irish registered ves sels are entitled to the
minimum wage. The seafaring industry is very much inundated with migrant workers
so an exclusion from the protection of employment legislation is even more worrying.
Many reasons have been given for the exclusion of seafarers from employment rights
legislation. The jurisdictional difficulties associated with the employment of seafarers
and a desire on the part of states to increas e international trade and the associated
economic benefits has meant that the internation al and domestic protection of
seafarers falls we ll below the standards applicable to more traditional employment
7See for example the Redun dancy Payments Act 196 7 (No 21 of 1967) (Ireland)
section 3(a) and (b). Domestic work ers were excluded from the terms of the
Employment Equality Act, 1998 (No 2 of 1998) (Ireland) by section 37(5). However,
this has been repealed by section 25 Equality Act 2004 (No 24 of 2004) (Ireland). It
will be interesting to see whether this w ill make any dif ference to the situation of
domestic workers in Ireland. They are entitled as employees to all the rights provided
in Irish law, including now equality with Irish nationals in comparable jobs, however,
a recent Report suggests (See Migrant Rights Centre Ireland, Private Homes, A Public
Concern: The Exp loitation of Twenty Migra nt Women Em ployed in the Pr ivate
Home in Ireland (Dublin: Migrant Rights Centr e Ireland, 2004) that they are not
achieving these rights.
Access to Justice for Migrant Workers 3
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