The Migrant Rights Centre Ireland

The Migrant Rights Centre Ireland Nelson Mandela House, 44 Lower Gardiner Street, Dublin 1. Tel: 00-353-8881355 Fax: 00-353-8881086 Email: info@mrci.ie Website: www.mrci.ie Submission on the Green Paper on an EU Approach to Managing Economic Migration, to the Director General, Directorate General Justice, Freedom and Security, European Commission The Migrant Rights Centre Ireland (MRCI) April 2005

Introduction The Migrant Rights Centre Ireland is a national, rights based voluntary organisation. It was established in 2002 and has as its mission statement to contribute to the development of a sustainable, intercultural society which respects and promotes cultural diversity and empowers migrant workers to enjoy their rights and participate fully in all aspects of social, economic, cultural and political life in Ireland. Through the provision of services and information support of collective initiatives and engagement with policy development, the MRCI seeks to remove boundaries and build solidarity and challenge racism, exploitation, prejudice and inequalities experienced by migrant workers. The Migrant Rights Centre Ireland welcomes this initiative to review migration policy for the longer term at an EU level. While appreciating the desire to establish a common framework for managing this consultation process we have considerable difficulties with the structure presented for giving feedback. Our core group concern is that the central issues of rights for migrant workers should form the cornerstone of any EU migration policy. The MRCI believes that migration has a valuable role to play in the economic and social development of the European Union. However to realise this potential there is a need to move away from the more traditional control approach to one that seeks to manage migration in a manner that is based on A clear analysis of the migratory process and the relationship between Europe and the global realities impacting on migration A recognition that the migrant worker is not simply a unit of labour but a person with economic, social, cultural, political needs and rights A planned approach to the long term integration of migrant workers and their families A forward looking approach to the changing needs of the economy in the short, medium and long term period Migration to the EU Inward migration to the EU, as mentioned above, will form a vital part of its future economic and social development. The Commission has highlighted in the past the contribution immigration can make in the context of the Lisbon strategy which set the goal for the EU: to become the most competitive and dynamic knowledge based economy in the world; capable of sustainable economic growth with more and better jobs and greater social cohesion. There are a number of demographic and societal factors that are generating the reality that inward migration is not a transient but permanent process upon which future development depends. Changing demographics within Europe. The population of the European Union is set to decline by 10% over the next number of years. With the prospect of an ageing and declining working-age population more immigration into the EU is both likely and increasingly necessary to meet the needs of an enlarged EU. As national economies within the EU become more globalised there will also be a move towards increasingly mobile markets, capital, goods, services, profits and labour. The dependency ratio is set to increase significantly. 2

Female participation in the labour market continues to generate demand for childcare. In many of the member states people are staying longer in education and taking time out to undertake educational and training opportunities. European workers are retiring younger, working shorter hours and taking longer holidays. The reality that as we become more developed as a society the greater the reliance will be on migrant workers who undertake work that is considered dirty, dangerous and difficult. Policy and Legislative Context A future EU policy on migration needs to build on existing policy developments and frameworks. Such a policy should be developed in consideration of: The Lisbon Social Agenda and Mid-Term Review, which highlighted the need to take greater account of the social dimension of globalisation and the social pillar of sustainable development. 1 Joint Social Inclusion Report reminded us the fight against poverty and social exclusion remains a major challenge for The European Union. 2 Employment Guidelines in recognising the role of immigration in filling current and future labour shortages called for the promotion of integration of disadvantaged groups, including migrant workers, in the labour market. They highlighted the need for a significant reduction in each Member State in the unemployment gaps between non-eu and EU nationals. 3 First Annual Report on Migration and Integration highlighted the urgent need to mainstream immigration policy by actively and openly taking into account immigration in all relevant policies and measures at EU and national level. 4 Communication on immigration, integration and employment in its call for a forward looking approach to immigration stated that the EU s ability to manage immigration and ensure integration of immigrants will greatly influence its overall ability to master economic transformation and to reinforce social cohesion in the short and longer term. 5 Amsterdam Treaty. Article 63 of The Amsterdam Treaty put forward proposals to establish the common legal framework on the status of third country nationals within the context of strengthening individual rights with new provisions on fundamental rights. Tampere Council. In terms of legislative framework for migration at an EU level, Tampere called for a more vigorous integration policy aimed at granting legally resident third country nationals rights and obligations comparable to those of EU citizens. 1 COM (2005) 33 final, Brussels, 9.2.2005 2 COM (2005) 14 final, Brussels, 27.01.2005 3 Commission decision 2003/578/EC of 22 July 2003 OJ L 197/20 of 5.8.2003 4 COM (2004) 508 final, Brussels, 16.7.2004 5 COM (2003) 336 final, Brussels, 3.2.2003 3

The Hague Programme 2004. This programme called for the the common principles underlying a coherent European framework on integration to be established. EU migration policy should also be developed in line with international commitments and agreements along with human rights instruments. In particular: Charter of Fundamental Rights Of The European Union The European Social Charter. Article 19 of the charter makes specific reference to the rights of migrant workers and members of their families to protection and assistance. International Declaration Of Human Rights International Convention On The Protection Of The Rights Of All Migrant Workers And Members of Their Families. The convention, not yet ratified by any Member State, makes reference to situation of vulnerability in which migrant workers and members of their families frequently find themselves owing, among other things, to their absence from their State of Origin and to the difficulties they may encounter arising from their presence in the State of employment. International Labour Organisation various conventions. As stated in its Constitution, one of the objectives of the ILO is the protection of the interests of workers when employed in countries other than their own. International Convention On The Elimination Of All Form Of Racial Discrimination. In the context of existing frameworks relating to the basic human rights of migrant workers, the MRCI, would urge that migrant workers and their families are recognised as: Human beings with the full range of needs as other members of society. Members of both families and communities, which need to be supported, resourced and enabled. Consumers and contributors to economic and social development of society. People who are vulnerable to being in situations of social exclusion and inequality. Not a homogenous group but experiencing a diversity of experiences shaped by factors such as gender, skill levels, legal status, family status, language skills, age etc. 1. Harmonisation at EU level A European policy should establish clear principles and guidelines for national states. It would be welcome only based on the following criteria; That the rights accorded to migrant workers coming to the EU would be based on highest possible standards. States need to actively work to reach these standards and avoid a minimal approach to the provision of rights for migrant workers. That the social as well as economic aspects of migration policy is addressed and reflected in such a policy. 4

That the definitions used are based on internationally agreed definitions as contained in the UN Convention on The Protection Of Rights Of All Migrant Workers And Members Of Their Families. That workers admitted under any scheme would have access to an acceptable level of human rights. That states would have clear protections in place for migrant worker vulnerable to social exclusion and exploitation. 2. Admission systems for paid employment 2.1. Preference for the domestic labour market The community preference principle as currently defined is outdated and does not take into consideration present labour market dynamics, requirements or complexities. For example in the area of care work, it is no longer a matter of simply filling vacancies. It involves a complex range of factors such as experience in care work, willingness to engage in such work, adaptability to difficult working conditions etc. Third country nationals already resident should be provided with opportunities to take up further employment, progression routes, and access to employment supports etc. This should not be viewed as an either or scenario with third country nationals not resident. Dependents of migrant workers, including children reaching eighteen, and spouses not allowed access to work should be facilitated to take up job opportunities. In addition migrant workers who have become undocumented through no fault of their own i.e. workplace exploitation, forced labour, trafficked, should be allowed access the labour market in the country they are residing in. This paper fails to recognise the existence and particular vulnerability of undocumented migrant workers, many of whom have become undocumented through no fault of their own. Provisions to facilitate regularisation and access to the labour market therefore transforming undeclared work into regular employment. 2.2. Admission systems While accepting that there needs to be an admission system in place for economic migration it is our experience that a system set up primarily with the short term needs of the labour market in mind compromises the rights, entitlements and quality of life of migrant workers. It also creates difficulties for States at an administrative level in the failure to recognise the social dynamics of migration in viewing migrants as units of labour. Any admission system should form part of a coherent and planned approach to migration based on medium to long term social and economic goals and a developed analysis as opposed to been part of a political manifesto. Neither should an admission system be based on short-term economic fluctuations as this fails to acknowledge the complex and changing nature of labour force requirements and the nature of migration. Admission and integration policies are inseparable and should mutually reinforce each other. Any future EU migration policy should focus on capacities to identify skills and labour shortages and to ensure higher participation of immigrants in the labour market. 6 6 COM (2004) 508 final, Brussels, 16.7.2004 5

Economic needs test If considering an economic needs test as a system we feel that it should be applied in a flexible manner with consideration of the following: That migrant workers in the so-called low skilled sector of employment have qualifications and skills not been currently utilised and recognised. Progression routes within the labour market could utilise this. Migrant workers change jobs, progress within the job, therefore creating more vacancies in the labour market. Migrant workers carry out many of the three D jobs, dirty, dangerous and difficult, that nationals will no longer carry out. There will always be a labour market demand to fill these positions. The existence of a direct link between the low skilled and high skilled sector, in that for every high skilled job filled several lower skilled positions are created. It is not only high skilled labour that is in demand, in particular Southern European countries or recent immigration countries, there is a need for lowskilled workers. 7 What alternative optional systems could be envisaged? We are of the opinion that an EU framework on admissions incorporating several systems, for example one for high skilled and another for the so-called low skilled sector would seriously compromise the basic human rights of migrant workers. In our experience select systems of admission for the highly skilled sector often afford more rights to the worker, for example in terms of family reunification, whilst this does not apply to more low skilled workers. Such a two tiered system can create huge discrepancies between rights afforded to certain categories of migrant workers and could lead to the creation of tension and animosity within third country nationals in a Member State. A common green card system based on the long term economic needs and mindful of the social context of migration affording access to rights for migrant workers should apply to any category of migrant worker coming to the EU. 2.3. Admission procedures for self-employment A common EU rule for admission of third country nationals for self-employment should acknowledge the expertise, life experience; skills and qualifications third country nationals have to offer in the EU. In the increasingly multicultural society in which we live it only makes sense that entrepreneurship is encouraged and facilitated in terms of the benefits for the economy and society in general. There are goods and services increasingly in demand that cannot always be provided for by the majority in a host country. More flexible procedures for self-employed persons who wish to enter the EU, or the possibility of Member States to promote certain sectors should be provided for. In simplifying the administrative and regulatory burdens attached to establishing business start ups, special consideration is required and provisions made to ensure that migrant workers have equal access to these opportunities. 7 COM (2004) 508 final, Brussels, 16.7.2004 6

2.4 Applications for work and residence permit(s) At an administrative level a one stop-shop procedure in terms of leading to one combined residence and work permit would be welcome if it led to greater efficiency and a more useable transparent system for all. Abolishing the need for a separate entry clearance would lead to less administration for the state and an easier system for migrant workers to negotiate. In relation to the application for work and residency we would recommend the following; That residency rights are viewed as separate from the working permit. Upon entry to the country a migrant worker should be entitled to secure residency rights. Greater coordination between the various government departments involved in economic migration. A more transparent system with a built in and efficient appeals procedure. A flexible system that acknowledges the dynamic of employer/employee relations i.e. in situations where the work permit, for example, is in the possession of the employer who fails to renew the permit, and consequently leave to remain expires the migrant worker is in an extremely vulnerable situation. Provision of a safety catch in such circumstances is of the utmost importance. 2.5. Possibility of changing employer/sector It is the experience of the MRCI, that when the permit holder is solely the employer the migrant worker is automatically placed in a vulnerable situation at the risk of exploitation and their residency status compromised. The inflexibility of such a system facilitates many becoming undocumented, often through no fault of their own. It is necessary to acknowledge the unequal power dynamic in such a relationship that allows the employer if s/he is so inclined to exploit the migrant worker employed. Recommended actions under this heading include: Facilitating the employee to own or at the very least co own the permit. Work permits are more often than not issued for up to one year. It should be possible to extend this to a two-year option. The possibility of changing employer should apply in situations where the migrant worker is progressing within the job of in the labour market in general. Imposing limitations on the mobility of third country nationals should be waived in all situations where the worker has a valid complaint against the employer or has been trafficked for the purpose of bonded labour, regardless of the length of stay in employment. 2.6. Rights As this Green Paper has stated, third country nationals should enjoy the same treatment as EU citizens in particular with regard to certain basic economic and social rights before they obtain long-term resident status. 8 Any EU policy on migration should build on existing commitments and policy developments in relation to rights for migrant workers. A future policy must respect the fundamental rights and observe 8 COM (2004) Brussels, 811 final 7

the principles recognised in particular by Article 19 of the European Social Charter, the European Convention for the Protection of Human Rights and Fundamental Freedoms and by the Charter of Fundamental Rights of the European Union. The Council Directive concerning the status of third-country nationals who are long-term residents, draws particular attention to Tampere Council, where it was stated that the legal status of third-country nationals should be approximated to that of Member States nationals should be granted a set of uniform rights which are as near as possible to those enjoyed by citizens of the European Union. 9 Regardless of longterm status, however, migrant workers should be afforded an acceptable level of basic economic and social rights. Whether this is increased incrementally on the basis of period of residency in the Member State, a migrant worker should have access to: The labour market, including training and employment services. Affordable rented accommodation of a high standard. Health services especially in terms of emergency situations. Social protection in the case of becoming unemployed. Active citizenship in terms of including the civic, cultural and political spheres of society. Family reunification The Council Directive on the right to family reunification not only points out that family reunification is a necessary way of making family life possible but that it also helps to create sociocultural stability facilitating the integration of third country nationals in the Member State, which also serves to promote economic and social cohesion. 10 The directive recognises the right to family reunification for third country nationals holding a residence permit of one year. Granting automatic right to family reunification after a given period of time is acknowledgement that a migrant worker is more than a unit of labour, and that s/he is a human being as well as a member of a community and a family. Not only should all migrant workers have access to family reunification, regardless of the employment sector they are employed within that Member State, it is imperative that family members are entitled to access to employment, education and vocational training. It has been said that been away from home and family is poverty in itself. Migrant workers have been recognised as a group vulnerable to social exclusion. Not having the right to family reunification would greatly increase this risk of social exclusion. 2.7. Accompanying measures: integration, return and cooperation with third countries A future EU policy on migration needs to be based on the global reality of migration, taking into consideration the relationship between sending and receiving countries, the issue of brain drain, role of agencies and remittances. Increased co-operation between sending and receiving countries would be welcome in consideration of: Agents and agencies regulated and unregulated play an important role in the migration process. It is our experience that a significant number of migrant 9 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents 10 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification 8

workers pay fees, sometimes of exorbitant amounts, to an agent for services in relation to location of a job, work permit, airfare etc. Increased monitoring of their role is required both at the point of departure and arrival. Greater coordination between sending and receiving countries in relation to ensuring migrant workers have access to basic information about their rights and entitlements in terms of employment rights in the host country, the work permit/visa system in question and general information on the country itself. Migrant workers sent a large percentage of their earnings back to the home country, contributing to the economic development of that country along with forming part of a massive exchange of remittances globally which translates into money for the banks involved. Transfer of earnings should be facilitated at an EU level in a transparent and efficient manner. Migrant workers in many instances are supporting entire families and in some cases communities with the remittances been sent home. Integration Integration of immigrants, both future and established, is vital for social cohesion and economic development in the European Union. Integration is a continuous, two-way process, which is based on mutual rights and obligations both of immigrants and of the Member State. It is the responsibility of the host society to ensure that the formal rights of immigrants are in place in such a way that the individual has the possibility of participating in the economic, social, cultural and civil spheres of society. 11 At the same time immigrants need to be respectful of the fundamental norms and values of the host society and participate actively in the integration process, without having to relinquish in any way their own identity. An incremental approach in relation to the development of rights and obligations over time, as suggested in the past by the Commission, implies that integration should be available to all third country nationals as early as possible after their arrival. 12 Policy measures aimed at integration, as part of an EU policy on migration, should not be aimed solely at third country nationals with long-term residency rights. Integration of economic migrants should be underpinned by the following principles: A holistic approach which takes into account not only the economic and social aspects of integration but also issues relating to cultural and religious diversity, citizenship, participation and political rights. Integration policies as part of an EU policy on migration should be planned in a coherent manner based on the long term. A comprehensive policy on integration would focus on a number of core issues: Integration into the labour market Education, life long learning and language skills Housing and urban issues Health and social services The social and cultural environment Nationality, civic citizenship and respect for diversity 11 COM 2003, 336 final, Brussels, 3.6.2003 12 COM 2003, 336 final, Brussels, 3.6.2003 9

Conclusion The European Union has an opportunity to put in place policies that reflect best practice and standards of treatment in relation to the management of economic migration. Migrants themselves and their representative organisations should be a core part of the process in determining a future policy. Future developments should be in line with the principles of mainstreaming policies for the integration of immigrants. The economic and social benefits of immigration can only be realised if a higher degree of successful integration of migrants can be achieved. Future policy developments should also place the rights of migrant workers at the core, acknowledging the need to secure the social, civil, economic and political rights for migrant workers. Existing international conventions on human rights as well as the EU Charter of Fundamental Rights should form a basis for a future European legislative structure in terms of immigration. The Migrant Rights Centre is keen to ensure that it can make a positive contribution to a forward-looking approach to a migration policy and is willing to engage in ongoing consultation in this process. 10