“The treatment of migrant workers is a vexed one which poses considerable difficulties to the regulation of the labour market and the enforcement of public policy….”
Hussein v The Labour Court & Anor  IEHC 364 (31 August 2012) at para. 1 (Mr. Justice Hogan).
[UPDATE 25/06/2015: The Supreme Court has set aside Hogan J.’s High Court decision. Full information here].
The High Court decision in Hussein v The Labour Court has serious implications for employment rights and entitlements of irregular migrants who are working in Ireland. Unfortunately, as this blog post outlines, this decision was not surprising, however there is a need to ensure that Ireland’s laws on irregular migrants fully reflect obligations under international human rights law. The judgment concerns the owner of Poppadom Restaurant who challenged determinations of the Labour Court. The restaurant employed an undocumented migrant worker, Mohammed Younis, who was initiallyawarded substantial damages for being forced to work for as little as 55 cent an hour for 77 hours per week. (Mr Younis was not aware of his irregular status and this was accepted by the Labour Court). Mr Justice Hogan (at paras 13-18) held that the effect of Section 2 of the Employment Permits Act 2003 was to make any contract between an employer and a non-EU migrant worker who does not have permission to work in Ireland “substantively illegal”. At para. 17, Mr Justice Hogan states:
…[I]n the present case the Oireachtas has declared that a contract of employment involving a non-national is substantively illegal in the absence of the appropriate employment permit, so that, accordingly, a contract of this kind has been expressly prohibited by statute….the reasons for the employee’s failure to secure a work permit are irrelevant to that substantive illegality.
The judge went on to note how the legislation did not have any ‘saver clause’, which would have excused any illegality and the decision was ‘inescapable’. However (at para. 23), the judge did note:
…[I]t 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, even though he or she may not be responsible for or even realise the nature of the illegality.
While the judgment is being sent to the Minister for Jobs, Enterprise and Innovation (and others) , the case raises significant issues as regards structures in place for protecting the rights of irregular workers in Ireland. Those debating the wording and purpose of Section 2 of the 2003 Act in the Dail did not appear to appreciate the effect of this section. The fact that the 2003 Act withdraws any and all protections for migrant workers is unfortunately not surprising, and Elaine Dewhurst highlighted this in her guest post on Human Rights in Ireland in November 2009: Irregular Migration in Ireland, where she stated:
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  EWCA (Civ) 1065 and Lewis v. Squash Ireland Ltd.  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.
Placing Human Rights at the Heart of this Debate
Ireland is not a party to the UN International Convention on the Protection of Migrant Workers which contains specific protections for migrant workers in an irregular situation. The Convention recognises that all migrant workers, including those in a state illegally, nevertheless should enjoy protection of their fundamental rights. This includes equal protection and enjoyment of labour laws/rights, including the same conditions and terms of employment in line with national workers and other migrant workers not in an irregular situation (Article 15). Article 35 of the Convention also notes that:
Nothing in [Part III] of the Convention shall be interpreted as implying the regularization of the situation of migrant workers or members of their families who are non-documented or in an irregular situation or any right to such regularization of their situation…
Ireland, along with other European Union countries have not become parties to this Convention, principally because it recognises that even those in an irregular situation have certain rights that cannot be derogated due to their irregular status. This is not to say that under international human rights law, an irregular migrant has no rights. Indeed, as Ireland is a state party to the International Covenant on Economic, Social and Cultural Rights, there are obligations to ensure protection of core socio-economic rights for all, including irregular migrants. The right to work and entitlement of just conditions of work are necessarily engaged and the Committee on Economic, Social and Cultural Rights have already stated that migrant workers, regardless of legal status, must enjoy such rights without discrimination. (For a useful summation of the application of other international human rights treaties and state obligations towards irregular migrants, see here).
Article 6 of the 2009 European Union Directive on sanctions against employers of irregular migrants, provides that employers have to make back-payments to those in an irregular situation, which at a minimum must be equal to the legal minimum wage set in that state. However, Ireland is not bound by this Directive, as this state has a choice as to whether it is bound by EU law as regards immigration issues.
The European Convention on Human Rights Act 2003, may also be relevant to the situation of irregular migrants not receiving the same basic legal protections in employment. While the European Convention on Human Rights in no way provides a right to regularisation of irregular status, it may impact on the lack of legal rights for migrant workers in a number of ways:
- It prohibits forced labour: There is a positive obligation on the state to ensure it places significant sanctions to protect people from forced labour.
- Prohibits inhuman and degrading treatment: A State may have positive obligations to ensure a person is not subject to treatment that dehumanises that individual, and this may include the protection of basic socio-economic rights.
- Prohibits discrimination in the enjoyment of rights as set down in the European Convention on Human Rights.
…the law as it is now interpreted gives a green light to exploitative employers. Other countries have protections in place where undocumented workers, who have had their employment rights violated can seek legal redress. The Government must act immediately to guarantee that undocumented workers are protected under employment law.
For the future, it now falls to the political domain to ensure that the human rights of all workers are vindicated and respected. At a minimum, this must include the recognition that all workers in the state have certain minimum legislative rights and entitlements, regardless of legal status. Ireland may also have legal obligations under various human rights instruments to ensure that Mr. Younis is treated fairly and justly as regards his horrendous treatment from his former ‘employer’. The fact that new employment and work permits legislation is currently being drafted, will be little consolation to Mr Younis.
*This post was updated at 7pm on August 31 to include a further explanation of the decision after the judgment was released.
Update (05/09/2012): Dublin City Council has called on the Minister for Jobs, Enterprise and Innovation, Richard Bruton TD to urgently address the situation or irregular migrant workers and employment rights. While Cliodhna Murphy has a guest post, here, on the lack of protections for migrant workers in diplomatic households.