The fundamental rights of irregular migrants in the European Union

The fundamental right to work, the fundamental right to healthcare


Essay, 2013

55 Pages, Grade: merit


Excerpt

CONTENTS

The fundamental rights of irregular migrants in the European Union

Abstract

1. Introduction
1.1 General considerations
1.2 The notion of “irregular” migrant

2. The fundamental right to work
2.1 The Charter of Fundamental Rights of the European Union;
2.2 International Covenant on Economic, Social and Cultural Rights;
2.3 The ILO Conventions;
2.4 Legal provision with regard with remunerations; practice of the different EU Member States; obstacles in obtaining the monthly wages;
2.5 Ideas for improving the access of irregular migrants to the fundamental right to work

3. The fundamental right to healthcare
3.1 The Charter of Fundamental Rights of the European Union
3.2 The International Covenant on Economic, Social and Cultural Rights
3.3 Other Legal Provisions
3.4 Obstacles in accessing the right to healthcare; different practices of the EU Member States;
3.5 Ideas for improving the access of irregular migrants to the fundamental right to healthcare

4. Conclusions

BIBIOGRAPHY

The fundamental rights of irregular migrants in the European Union

“Human rights belong to human beings and we remain human beings even if we do not have a visa or a residence permit”[1]

Abstract

This paper examines two fundamental social rights belonging to irregular migrants: the right to work and the right to healthcare. Even though there is a lack of specific legal provisions directly applicable to this social category, the general ones, such as the Charter of Fundamental Rights of the European Union, the International Covenant on Economic, Social and Political Rights, also concern undocumented migrants. They are analyzed from general to particular taking into consideration broad terms such as “all”, ‘every”, “everyone”, which include the specific category of undocumented migrants. The existent case law, although characterized by scarcity because of the migrants’ fear of being deported when lodging claims in courts, emphasizes the fact that this social category also has rights and these rights are recognized and defended in national and European courts. The obstacles in accessing fundamental rights are also analyzed. The practical implications are taken into consideration. Ideas to improve the exercise of fundamental rights to work and healthcare by irregular migrants are suggested at the end of every chapter. Being human beings, they have the right to social protection regardless of their status.

1. Introduction

1.1 General considerations

This dissertation focuses on the fundamental rights to work and healthcare of irregular migrants within the EU territory. It covers aspects such as the notion of “regular” and “irregular” immigration. The first chapter aims to answer the question “who is an irregular migrant”, covering a whole spectrum which includes: peoples who arrive in the respective Member State through clandestine routes, those who stayed over their allowed residence period, immigrants who work without a valid stay or work permit or access healthcare without possessing a national health insurance or without fulfilling other legal requirements. This notion also includes people who possess and use false documents in order to enter a certain EU Member State or those regularized who regress again into an irregular status. The concept is often outlined in opposition with the notion of regularity.

The second chapter presents the most important legal provisions applicable through analogy to irregular migrants when exercising the right to work: the Charter of Fundamental Rights of the European Union, the International Covenant on Economic, Social and Cultural Rights, various international conventions and secondary EU legislation. The practice of different EU Member States in regard to the use of the right to work, distinct obstacles encountered by irregular immigrants when exercising this right and ideas for improving their access to the fundamental right to work are analyzed.

Similarly, the third chapter, in relation to different practices of the EU Member States, complies with the same structure by examining legal provisions, then obstacles in accessing the right to healthcare. Ideas for improving the access of undocumented migrants to the fundamental right to healthcare are also presented at the end of this chapter.

The last chapter concludes that the rights analyzed in the previous two chapters are under exercised in the EU. However, there is a need for improvement of national and European policies and legislation on immigration. Furthermore, there is a huge demand for reform and legislative measures in this particular area of law which is very under researched and characterized by scarcity of case law and legal provisions, secondary EU legislation being almost absent. For these reasons, this dissertation represents an attempt to contribute to the existing literature on irregular migrants and has experienced that the topic can be contrasted to a similar position of the irregular migrants, less written about, in the shadow of the regular migrants.

1.2 The notion of “irregular” migrant

The term “migrant” covers all people trying to migrate. Although everyone is “free to leave any country, including his own”[2] there is not a correlative right to enter and fix the residence in another state’s territory.[3] Irregular migrants are foreign citizens, third party nationals, who do not respect immigration regulations.[4] The notion refers to people who arrive in a clandestine manner in the respective EU Member State, to those who prolong their stay after the allowed period of residence expires or to immigrants who work without possessing a permit or violating employment regulations.[5] The term also includes people who use forged papers in order to enter the country, as well as regularized migrants who lose the regularization status and become undocumented again.[6] Those born into irregularity are also covered. Tolerated persons are staying illegally and consequently included in the category of irregulars from a technical point of view even if authorities are aware about their status.[7] The legal framework does not explicitly enunciate all these categories neither at the European nor at the national level. With the exception of Portugal, national legislations do not define precisely the notion of “irregular migrant”. Generally, “irregularity” is defined in opposition with “regularity”.[8] What is not included in the umbrella of regularity becomes automatically irregular.

One of the few elaborated definitions in the field of irregular migration regards the notion of “irregular entry” as representing “crossing borders without complying with the necessary requirements for legal entry into the receiving State”.[9] Similarly, the Return Directive defines “illegal stay” as “the presence on the territory of a Member State of a third-country national who does not fulfill or no longer fulfills the conditions of entry as set out in Article 5 of the Schengen Borders Code or other conditions for entry, stay or residence in that Member State”.[10] But to define “irregular” or “undocumented” migration is notoriously complicated. The practice of Member States is very different in regard to who is an “irregular migrant” and this contributes to the difficulties in approaching this term.

Generally, irregular migrants are seen as being outside the national societies. As outsiders, they are mistakenly presumed not to have any duties towards the state of residence and, correlatively, any rights. Because of the continuous breach of immigration regulations they are perceived as a danger to society and, despite of their behavior, are usually criminalized.[11] The vulnerable situation in which they live make them be easily exploited. In fact they represent “an ideally exploitable source of labour”.[12] Actually, they perform the “three-D” jobs: dirty, degrading and dangerous[13] and EU nationals benefit from their illegal presence paying them lower wages than they would normally pay to a national or regular migrant doing the same job, under unsecure and unhealthy conditions, in extremely long hours of work, without contributing to the tax and social security systems.[14] And, despite all these, undocumented migrants as “human beings, are disqualified by being called illegal”[15], especially bearing in mind that their status may be regularized one day,[16] becoming subjects to ”any state procedure by which illegally staying third country nationals are awarded a legal status”.[17]

2. The fundamental right to work

“The protection of strangers should constitute an important test for human rights since they do not claim protection as members of a family, clan or nation, but as members of humanity”[18]

2.1 The Charter of Fundamental Rights of the European Union

After the Treaty of Lisbon had entered into force on the 1st of December 2009 and introduced important changes in the development of human rights protection, the Charter became legally binding, strengthening the protection of human rights in Europe. According to article 51 of the Charter, its provisions are applicable to EU bodies and institutions in conformity with the principle of subsidiarity and to Member States when enforcing EU law. That means that the rights enshrined in the Charter have effect on work and social security matters which fall within the EU field of competence. All rights mentioned in the Charter apply to irregular migrants even though they are not explicitly mentioned. The Charter of Fundamental Rights is concerned with the protection of illegal migrants as long as the immigration policy falls within EU shared competence.[19] These rights represent political and civil rights, being closely related to the content of the European Convention on Human Rights. Therefore, they are similar to the rights included in the 1969 European Social Charter and 1996 Revised European Social Charter. Another similarity with the European Convention on Human Rights which mentions comprehensive general terms such as “everyone”, “no one”, the Charter of Fundamental Rights of the European Union refers to “every person”, “every worker”, “everyone”, “the elderly”, “children and young people”, “workers”, employers” etc. without differentiating between different nationalities or regular and irregular status. There is an obvious harmony between the Charter and the Convention and the rights analyzed in the Charter are formulated in a more comprehensible and easy to understand manner, fact which made them more accessible to ordinary beneficiaries.[20]

According to the Charter of Fundamental Rights of the European Union “Every worker has the right to working conditions, which respect his or her health, safety and dignity. Every worker has the right to limitations of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave”[21].

The term used “every worker” first confirms things mentioned above and second emphasize the applicability of this article to every person who works, no matter the current status of that person: regular or irregular. Because the law does not make any distinction it cannot be distinguished between different categories of workers. The term “every” is comprehensive enough to be applicable to any social category, to any status or condition as long as the person is on the territory of the European Union and has the required age in order to fulfill a certain occupation.

The first paragraph of article 31 is founded on Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work, on the Social Charter, mainly article 3, and on the Community Charter on the rights of workers, point 19, on the revised European Social Charter, according to which the parties “ensure a weekly rest period which shall, as far as possible, coincide with the day recognized by tradition or custom in the country or region concerned as a day of rest”[22]. There is a profound connection with the Treaty on the Functioning of the European Union, to be more precise with article 156 which makes reference to “working conditions”. The cooperation between Member States in social fields relating to working conditions is underlined by this article. Problems may arise at national level or at that of international organizations in relation with regular monitoring and assessment.[23]

The inscription of the right of every worker to fair working conditions in article 31 of the Charter of Fundamental Rights of the European Union, together with the access to placement conditions in article 29 and the right of protection in case of unfair dismissal in article 30, represents the progressive realization of fundamental social rights of workers within the Union. The right to fair working conditions includes three guarantees: (1) the right to working conditions which respect health and safety of the worker; (2) the right to conditions of work that respect the dignity of the worker; (3) the right to limitation of working hours, the entitlement to daily and weekly rest periods and the right to annual period of paid leave.[24]

Paragraph 2 of the article 31 is based on Directive 93/104/EC concerning certain aspects of the organization of working time (Working Time Directive), article 2 of the revised European Social Charter and article 8 of the Community Charter of Fundamental Social Rights of Workers. These texts, together with the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and many conventions adopted by the International Labor Organization (ILO) represents the essence of the legal context in the field of work[25] and proves that being applicable to “every worker” are indeed applicable to everyone no matter his regular or irregular status.

The Charter of Fundamental Rights further provides that “the freedom to choose an occupation and right to engage in work” consisting in the fact that “Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State.”[26] Therefore the “freedom to choose an occupation and the right to engage in work”[27] is guaranteed by the Charter of Fundamental Rights of the European Union. This freedom is applicable to everyone[28], regular or irregular, the Charter does not make any distinction. A separate provision regarding “fair and just working conditions”[29] applicable to every worker, therefore to irregular workers, is regulated in the same Charter. From the cumulative analysis of the first and last provisions it follows that undocumented migrant workers are free to perform suitable activities and benefit from legislative protection regarding their employment.

The right to work is recognized at European level in the first paragraph of article 15. What is not regulated is the obligation of the Member States to provide paid employment for every person or the obligation to answer positively to the right to require a working place but there is the correlative provisions regarding the right of everyone to engage in work and the freedom of every citizen to seek employment. This right is designated as an individual freedom to involve the free choice of employment and the opportunity to access a paid work. It is the duty of every Member State, as expressly mentioned in article 1 of the European Social Charter, to implement measures to allow the access of everyone to a freely chosen employment .[30]

The right mentioned in article 15 of the Charter is reinforced by article 14 of the same Charter: access to vocational training and article 29: right of access to placement services, article 30: protection in case of unfair dismissal. These interlinked provisions reinforce and emphasize the importance of the right to work and its broad applicability. That covers both regular and irregular migrants. Moreover, these provisions can be seen in the light of those mentioned in article 51 and 52 of the Charter, being applicable the principle of proportionality, certain limitations being done only under certain circumstances.[31]

The provisions regarding professional freedom and the right to work enshrined in article 15 of the Charter are more detailed than the instruments on classical fundamental rights, as for example the Universal Declaration of Human Rights of 10 December 1948 which provides in article 23.1 that “everyone has the right to work, the free choice of employment, to just and favorable conditions of work and protection against unemployment”[32] or the International Covenant on Economic, Social and Cultural Rights of 16 December 1966 which states in article 6.1 that the States Parties to the present Convention recognize “the right to work, which includes the right of everyone to the opportunity to earn his living by work freely chosen or accepted, and will take appropriate steps to safeguard this right”.[33]

While paragraph 1 of article 15 refers to “everyone”, paragraph 2 makes reference to the “EU citizens”. The notion of citizenship was crystalized by the Court of Justice. The status of citizen of the EU implies that those placed under the same conditions enjoy the same treatment at law regardless of nationality. By application this includes those who are on the territory of the EU, performing work here, under the same circumstances as those applicable to EU nationals. Even if it is difficult to believe irregulars who stay and work in EU benefit from the same rights as regulars or nationals. This conclusion is based on the text of the first paragraph which makes reference to “everyone”, without any distinction.[34]

Rarely, under special circumstances irregular migrants go to national courts in order to look for justice and for the defense of their rights, in this particular case the right to work. The Employment Courts in UK have recently faced two cases of this type. In the first case Allen v. Hounga and Another the court debated whether illegal workers can proceed with discrimination claims against employers liable to commit these acts. The irregular worker, a Nigerian woman employed in domestic work as a housekeeper, provided false personal data at her employer’s suggestions. After her visa was not available any more she remained in UK and continued working there. After being fired she pretended the dismissal was unfair and invoked racial discrimination. Even though working illegally, this was not a barrier in introducing a claim based on racial discrimination. It has also been taken into consideration the fact that the employers were aware of the status of the employee, therefore bona fides of the employer could not be invoked. It can be concluded that, as a general principal, irregular workers can introduce discrimination claims. In practice, courts make a clear distinction between dismissal claims and discrimination claims, especially in the situations where the employers are aware of the irregular status of employees. This meaning that the liability of the employers is taken into consideration and produces consequences to the benefit of the employees when dealing with discrimination claims. Practical consequences are obvious: more rights for irregular migrants and their protection in courts. This case also emphasizes the complicity between EU national employers and illegal employees, the latter category cannot subsist without the complicity of the former one, therefore, when going to court both opinions and complains have to be taken into consideration with future good consequences for the exercise of rights by irregular migrants.

In the second case, Kurumuth v. NHS Trust Middlesex University Hospital , the ambiguity of an employee immigration status was examined in the context of his dismissal. Not even the official authorities like UK Border Agency were able to clarify the status of a Mauritian woman employed in domestic work as well. When the employer fired her she claimed unfair dismissal and the court decided that from a procedural point of view her firing was unfair. This case has practical consequences on the migrants in the same situations. Their fear or deportation or reprisals will not be an impediment in exercising procedural rights anymore. Another conclusion which can be drawn is that, in practice, employers are expected to check the migration status of their employee prior to employment or taking a decision such as that about dismissal.

In Siliadin v. France , a 15 year-old girl was brought from Togo into France and hired in domestic work by a French family. Her documents were confiscated by that family and the girl was forced to work 15 hours per day, seven days per week, without being paid, without the normal leaves, holidays or proper accommodation and, the worst, without an authorized legal status. When the case was judged by the European Court of Human Rights the instance decided that the girl was led into servitude, in a state closely linked to slavery and forced labor. Employing a third country national in domestic work in a EU country led in this case to the breach of article 4 on prohibition of slavery and forced labor of the European Convention on Human Rights. These facts were not criminalized in the French Penal Code and the highest French court acquitted the defendants but the European Court of Human Rights appreciated that France had breached its obligations under the Convention. The conclusions that can be drawn in this case is that national legislations lack fundamental provisions and national courts are not fully aware of the practical implications of hiring illegal migrants in domestic work and of the abuses of EU national employers. National legislation should be updated in accordance with international provisions and special training sessions should be organized at every court level in order to gain knowledge about these particular circumstances, taking into consideration that this type of cases appears very seldom in courts. Usually, irregular migrants are too afraid of deportation and reprisals to endeavor such initiatives in national courts.

[...]


[1] Morten Kjaerum, Director of the European Union Agency of Fundamental Rights

[2] Article 12, ICCPR

[3] Rights at the Frontier: Border Control and Human Rights Protection of Irregular International Migrants, Julian M. Lehmann, page 740

[4] Immigration Status and Basic Social Human Rights: a Comparative Study of Irregular Migrants’ Right to Healthcare in France, the UK and Canada, Sylvie Da Lomba, page 7

[5] Barbara Bogusz, Ryszard Cholewinski, Adam Cygan and Erika Szyszczac, Irregular Migration and Human Rights: Theoretical, European and International Perspectives, Elspeth Guild, Who is an Irregular Migrant?, page 3

[6] Immigration Status and Basic Social Human Rights: a Comparative Study of Irregular Migrants’ Right to Healthcare in France, the UK and Canada, Sylvie Da Lomba, page 7

[7] Regularization: A misguided option or part and parcel of a comprehensive policy response to irregular migration?, Albert Kraler, page 10

[8] Barbara Bogusz, Ryszard Cholewinski, Adam Cygan and Erika Szyszczac, Irregular Migration and Human Rights: Theoretical, European and International Perspectives, Elspeth Guild, Who is an Irregular Migrant?, page 15

[9] Article 3 lit. b, The Smuggling Protocol

[10] Article 3(2), the Return Directive

[11] Immigration Status and Basic Social Human Rights: a Comparative Study of Irregular Migrants’ Right to Healthcare in France, the UK and Canada, Sylvie Da Lomba, page 12

[12] G. L. Neuman, Strangers to the Constitution, page 185

[13] P. A. Taran and E. Geromini, Globalization, Labour and Migration: Protection is Paramount, Perspectives on Labour Migration, page 4

[14] UN Economic and Social Council, Specific Groups and Individuals, Migrant Workers, Report of the Special Rapporteur, Gabriela Rodriguez Pizarro, submitted pursuant to commission on Human Rights Resolution 2000/48, UN Doc. E/CN.4/2001/83, January 2001, paragraph 54

[15] Barbara Bogusz, Ryszard Cholewinski, Adam Cygan and Erika Szyszczac, Irregular Migration and Human Rights: Theoretical, European and International Perspectives, Kees Groenendijk, Introduction, page xix

[16] Ibid.

[17] Martin Baldwin-Edwards, Martin &Albert Kraler, REGINE, Regularizations in Europe. Study on practices in the area of regularization of illegally staying third-country nationals in the Member States of the EU, page 1

[18] V. Guiraudon, European courts and foreigners’ rights: a comparative study of norms diffusion”, The International Migration Review, vol. 34, no. 4, page 1092

[19] Fundamental and Human Rights Framework: Protecting Irregular Migrants in the EU, Massimo Merlino, Joanna Parkin

[20] “The EU Charter of Fundamental Rights, essays in European law”, Steve Peers, Angela Ward, page XVIII

[21] Article 31 – Fair and just working conditions, Charter of Fundamental Rights of the European Union

[22] Article 2(5), revised Social Charter

[23] Official Journal of the European Union C 303/17 - 14.12.2007

[24] Commentary of the Charter of Fundamental Rights of the EU, EU Network of Independent Experts on Fundamental Rights, June 2006, page 267-278, translated by the author of this paper Alina Alexe, on 10.07.2012

[25] Ibid.

[26] Article 15, the European Charter of Fundamental Rights of the European Union

[27] Article 15, Ibid.

[28] Article 15 (1), Ibid.

[29] Article 31(1), Ibid.

[30] Commentary of the Charter of Fundamental Rights of the EU, EU Network of Independent Experts on Fundamental Rights, June 2006, page 149-156, translated by the author of this paper Alina Alexe on 10.07.2012

[31] Ibid.

[32] Article 23.1, UDHR

[33] Article 6.1. ICESCR

[34] Commentary of the Charter of Fundamental Rights of the EU, EU Network of Independent Experts on Fundamental Rights, June 2006, page 149-156, translated by the author of this paper Alina Alexe on 10.07.2012

Excerpt out of 55 pages

Details

Title
The fundamental rights of irregular migrants in the European Union
Subtitle
The fundamental right to work, the fundamental right to healthcare
College
Queen Mary University of London  (Law Department)
Course
LLM
Grade
merit
Author
Year
2013
Pages
55
Catalog Number
V356128
ISBN (eBook)
9783668420670
ISBN (Book)
9783668420687
File size
703 KB
Language
English
Tags
european, union, irregular migrants, fundamental rights, human rights
Quote paper
Alina Alexe (Author), 2013, The fundamental rights of irregular migrants in the European Union, Munich, GRIN Verlag, https://www.grin.com/document/356128

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