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Towards a strategic immigration policy – some key elements


Piaras Mac Éinrí
Director
Irish Centre for Migration Studies
National University of Ireland, Cork

(draft only: may not be cited without permission)


Introduction

Immigration policy is a multi-stranded issue. Broadly speaking the following elements may be distinguished:

  1. Admission criteria (humanitarian, family reunion, economic).
  2. Application and selection modalities
  3. Social and economic rights of immigrants as defined by domestic, EU and international law
  4. Integration programmes and policies, including programmes to combat xenophobia and racism.

A strategic approach presupposes the implementation of legislative, administrative, policy and infrastructural measures (including planning, information gathering and monitoring) concerning all of the above, bearing in mind the inter-relationship between domestic measures and the rapidly developing EU role in this field[1].

A short paper such as this one can do little more than indicate some of the questions which would need to be explored before a comprehensive strategic immigration policy can be put in place. Presumably a number of these questions have already been considered within official circles. It must be a matter for some regret that most of the detail of immigration policy has effectively been managed in ways which have not been open to public scrutiny. Moreover, we have not had to date in Ireland the type of forum which would enable a ‘policy community’ including politicians, civil servants and other statutory administrators, social partners, including the voluntary sector, advocacy groups of various kinds, immigrant organisations and academic experts to come together to address these issues in a comprehensive and transparent manner. A partnership approach such as already been developed in the case of the Department of Foreign Affairs (development policy, emigration issues), and the Department of Social, Community and Family Affairs (community development) would help greatly.

In the case of a question which is politically as sensitive as immigration policy it would appear to be all the more important that such consultations should take place before any new legislative proposals are brought forward. It would also be desirable that the role of all relevant Government Departments be recognised in some way. Some form of White Paper might be one way of promoting this debate.


1    Admission criteria (humanitarian, family reunion, economic)


Humanitarian (programme refugees, asylum and special leave to remain). Most of the outstanding issues in this field have been dealt with, not always in a satisfactory manner, by new legislation and policy. Several criticisms could be levelled at the system as it currently operates, but they are beyond the scope of this paper, which is not primarily concerned with the 1951 Convention and related issues.

One of the undoubted difficulties with asylum policy is that in the absence of a proper immigration policy many persons apply for asylum who are really would-be economic migrants. The introduction of an appropriate strategic immigration policy might well be accompanied by new measures in asylum policy. This should not lead to the overuse of safe country designation nor should it lead, as the Home Office is reported to favour, to a wholesale revision of 1951 Convention obligations. In the present climate any tinkering with the Convention might well lead to a substantial downward shift in the level of protection (flawed as it is) offered to genuine would-be asylum seekers.

Family reunion. This is discretionary in the case of most non-EEA migrant workers in Ireland (more below) although the new work visa/work authorisation has introduced improvements. In general procedures are slow, there is little or no transparency and negative decisions are frequent. A proposed directive [2] would codify and liberalise this situation in ways which would go well beyond existing Irish arrangements.

Economic migrants. Other EU Member States, like Ireland, have not seen themselves as countries of immigration. Nonetheless, it is worth looking at (a) the postwar experience of guestworker and colonial and/or ex-colonial immigration policies of certain Member States (b) the recent introduction (2000) in Germany of a ‘green card’ system[3] (c) the ideas set out in the Vitorino discussion document (see footnote 1). 

One should additionally examine the more elaborate quota-based immigration regimes practised in countries which did explicitly see themselves as immigration countries at one time or another, notably the USA[4], Canada[5], Québec[6], Australia[7] and New Zealand[8]. Broadly speaking such schemes rely partly on geographically-derived country or regional quotas (the USA) and/or partly on ‘points systems’ related in particular to labour market needs and the relevance of the qualifications of the would-be immigrant. Moreover, most of these regimes integrate other criteria, in particular, family reunion and language skills. Some combination of quotas and a points-based system would be attractive and relatively transparent, although there would be administrative implications.


2    Application and selection modalities


The most important point here is that the present Irish system is extremely light in administrative terms, because in effect the employer and the would-be labour immigrant do most of the work and application and selection modalities are really decided in the marketplace.  This has obvious advantages but also a number of downsides (see below).

Other European countries have tended to rely on (a) formal state-to-state agreements and (b) complex application and selection machinery in designated third countries. Sometimes (as in the Italian case) these have only proved partially effective, because of time delays and the bureaucratic nature of the system. Parallel-track legal migration flows from these designated third countries are not untypically accompanied by substantial undocumented immigration.

In the case of such countries as Australia and the USA, state-to-state agreements do not generally feature. However, there is a strong insistence on application and selection procedures taking place outside the country and embassies and consulates as well as national immigration services need to be substantially resourced.

Proposals for a common EU approach to labour immigration by third-country nationals raise the interesting possibility of pooling application and selection procedures and facilities in third countries. It should in theory be possible to feed information about labour market needs from the various Member States to such offices (possibly run through the Commission’s own system) and to combine such information with expertise already available to various national authorities about such issues as equivalence of educational qualifications. Such a strategically formulated approach, centrally but flexibly managed, might offer an attractive way for Ireland to move beyond its existing regime.


3    Social and economic rights of immigrants as defined by domestic, EU and international law


Before proceeding to any consideration of major changes in Irish immigration policy and law, it should be borne in mind that existing Irish regimes may be out of step with ECJ and ECHR caselaw concerning several key areas, notably social security, freedom of movement and family reunification. Even taking the limits of this caselaw into account, Ireland’s non-participation in key parts of the Schengen arrangements and the fact that the position of third-country nationals is less than clear under many aspects of EU policy, it is clear from recent Commission proposals, the Tampere conclusions and European Parliament thinking that an increasing emphasis on equivalence of treatment of third country nationals will be central to developing policy in this field.

Existing Irish Models

The present Irish system for immigration by non-EEA economic migrants (which is discussed in greater detail in another place[9]) effectively has a two-tier regime:

(1)   Work permits, which are granted for a maximum of twelve months and are only for specific posts. The employer must demonstrate that no EEA citizen was available for the post in question[10]  

Social and economic rights are limited. Work permit holders do not have the right to free medical care, social welfare entitlements or education. Moreover, there is no right of family reunification for work permit holders[11].

(2)   A work visa/work authorisation regime, covering certain high-skills categories where labour in Ireland is in short supply. This makes it possible for prospective employees with job offers from employers (emphasis added) to obtain immigration and employment clearance in advance from Irish Embassies and Consulates. Applications for working visas and work authorisations are accepted from persons outside the country only. A working visa or work authorisation is usually valid for two years (three months in the case of a temporarily registered nurse) and authorisation to continue to work and reside in the country may be granted to a holder of either of them in Ireland at the end of the first period of their validity. Holders of working visas and of work authorisations are allowed to change their employers within the same skills category after arrival in Ireland as long as they continue to have authorisation to work and reside in the country.

Social and economic rights: work visa/work authorisation and work permit holders do not have the right to free medical care, social welfare entitlements or education. They are permitted to bring dependents into the State to reside with them provided that they can financially maintain them, and dependent children under the age of 18 are entitled to free primary and secondary education. Presumably, in the case of ‘universal’ allowances such as children’s allowances, these would be paid.

The distinguishing characteristics of both regimes are:

  • Selection is entirely labour-market driven as the potential employer effectively decides in the first place who should be eligible to apply. This is in contrast with those countries which operate preselection procedures, normally using offices in third countries to vet applications. It also contrasts with the emphasis in the Tampere conclusion on partnerships with countries of origin[12].
  • Family reunification rights are non-existent in one case and limited in the other.  Moreover the proposed Directive on family reunification[13] would only apply to third-country nationals holding a permit of at least one year
  • Social and economic rights are limited.

These conditions can hardly be described as satisfactory.

  • In the first place, the market-driven approach may be flexible and administratively light from the point of view of costs and efficiency. It is not necessarily satisfactory from the viewpoint of the prospective immigrant. Apart from reported cases of illegal financial demands being made from those using the services of agencies, it would appear that in many cases prospective immigrants are given little or no information about Ireland and life in this country. There may also be very little or no post-arrival orientation.
  • Second, it is difficult to defend an overtly elitist distinction between the high-skilled few in those categories for which a work visa/work authorisation may be sought and the rest – the great majority – who must apply for a work permit. Ireland needs people with other skills, and even people with very limited formal skills, just as much as it needs high-skills people. It is difficult to justify the invidious and discriminatory distinctions in social and economic entitlements which apply to the two categories.
  • Third, the work permit regime ties the immigrant worker to a particular employer. This creates an obvious danger of exploitation and there is considerable evidence that such exploitation is taking place[14]. Moreover, even though Irish labour and anti-discrimination law does protect foreign as well as indigenous workers, a person with a work permit may not feel free to assert his or her rights. Even in the case of work visa holders there will still be a danger of exploitation, not least because of a lack of clarity and accountability on the official side – the recent case of Filipino nurses living in substandard accommodation is a case in point[15].
  • Fourth, in the earlier German case (more below) the needs of the labour market were also paramount but the State’s role was still much more interventionist than in the Irish case. 

    The labour authorities collected applications from German employers who wanted to employ foreign workers and checked that the priority for German workers was maintained, that the applications were in accordance with certain requirements of model contracts of employment, and that the wages promised were equal to those for Germans. Finally, the prospective German firm had to prove that „adequate housing" (e. g. dormitories) would be provided for the migrant worker. Recruitment contracts approved by the labour authorities were passed on to the recruitment offices in the sending countries in Athens, Belgrade, Lisbon, Madrid, and Istanbul. The recruitment offices used three criteria in making their selection: qualifications, health, employment record (including skills testing, e. g. construction worker). They also arranged the necessary formalities such as residence and work permits (valid for one year only) and organised group transport to Germany[16]

    It is worth noting that under this system the employer was charged for the service provided, thus enabling the State to recoup some of its own costs.

  • Fifth, an entirely market-driven regime takes no account of the impact of selective migration on the sending country. This raises important political and ethical issues (e.g. the danger of a brain drain) which could have an impact on Ireland’s relations with such countries.
  • Sixth, the absence of any family reunification rights in the case of work permits, and the limited nature of such rights in the case of work visas/work authorisations, is medieval.

In sum, it would be fair to say that the regime in place bears many resemblances to the early years of the gastarbeiter system in post-WW2 West Germany. That system was also based on the assumption that one was a gast (and by implication would return home after a short period) and an arbeiter (a worker, not a social being).

The German experience

It is worth dwelling in a little detail on the German case as there are instructive lessons for the current Irish situation.

Germany (and Switzerland) have often been characterised as having a rotation or guestworker system. In such a system, individual immigrants are issued work and residence permits valid for a limited time only and often the work permits are tied to a specific job - sometimes a specific employer. Family reunion is not encouraged, and immigrant policy measures such as good housing or language instructions are given little attention. A rotational system, in its purest sense, would require the replacement of departed „guests" with new workers employed under the same temporary restrictions[17].

German policy was originally framed as a ‘win-win’ equation; good for the host country and the home country and good for the individual migrant:

Interests of the receiving country:  

* Manpower bottlenecks can be alleviated. The imbalance on the national labour market can be of a cyclical, regional, sectoral (e. g. construction industry), qualification (e. g. nurses) or seasonal (tourism, agriculture) type. The numbers admitted and the skills’ structure of the foreign workers can flexibly be adjusted to the prevailing labour market situation. Foreign workers can easily be assigned regionally, to where the demand occurs. They are more mobile as they do net yet have a permanent residence in the host country.

* Benefits arise from the work performed. The availability of (comparably cheap) labour in times of economic expansion strengthens (at least in the short run) the competitive position of the individual company and the national economy.

* Avoid displacement of national workers by foreign labour. To maintain social peace and to obtain the consent of the German trade unions it was agreed that the foreign worker should be paid the collectively bargained wage. Thus competition between foreign and German workers through wage-cutting was largely avoided.

* Consequential social follow-up costs are avoided. Due to the temporary nature of immigration hardly further costs are expected to arise. This would occur when the family joins. Examples are payment of social benefit such as unemployment benefit/aid, child allowance, housing subsidies or the additional cost for the education system when the children of the migrants join school classes.

Interests of the migrant worker  

* Earning higher wages. With large differences in income between countries, the main motive for temporary migration is better pay. The income achieved can be used for consumer goods or for capital expenditure, e. g. for setting up one’s own business.

* Improvement of individual labour market opportunities. Even if the determining motive for employment abroad is better earnings, the knowledge and skills acquired abroad can help to improve labour market opportunities for the individual after return to the home country. This may be the case for employment in the new emerging industries of the country of origin or the income earned abroad can provide a basis for self-employment.

* Protection from exploitation. The migrant workers need protection from exploitation as they are in a weak position. Therefore, the bilateral agreements fixed social minimum standards and the work contracts stipulated wages and working conditions.

* The early migrants did not want to stay for extended periods. Survey after survey showed they wanted to earn money and then return home with their savings. This was true in many cases but many of the migrants stuck to the "illusion of return": they postponed their departure while still harbouring the idea of return.

Interests of the country of origin  

* Alleviating the labour market situation. In the emigration countries of the Mediterranean basin there was a lack of job opportunities associated with high unemployment and/or low income. Temporary employment abroad can mean escape from joblessness and a reduction of unemployment in the home country.

* Contribute to the development of the home country. Employment abroad reduces unemployment at home and permits the migrant worker to obtain a higher income. Remittance of the earnings may contribute to the economic development of his home country, depending on whether the transferred capital is consumed or invested. Furthermore it was argued, skills acquired abroad can be put to good use after returning either in the emerging industries or when setting up one’s one small-scale business.

* Maintain some control of the outgoing migrants. The country of origin will also be interested in keeping a check on the temporary emigration of its nationals. This can best be done if migration is carried out in co-operation with the host country in the form of bilateral agreements. The check on the type and level of emigration concerns the interests of the country of origin for two reasons: on the one hand the social welfare of the migrants is to be secured. This can be done in the form of bilateral agreements which stipulate the principle of equal treatment of nationals and foreigners with regard to wages, working hours and other working conditions including social security (sickness insurance, unemployment benefit, pension rights etc.). On the other hand the countries still want to have a certain say in the selection of workers who leave the country. But there is a collision of interest. The immigration country and its employers can exert more pressure on the selection process.[18]

In reality the rotation system never worked and a policy of treating people as economic production units but not as members of society quickly came to be seen as ethically unacceptable.

The most important one (i.e. factors tending to work against the assumptions presented above) was certainly the shift from temporary stay towards prolongation and, finally, settlement. As it turned out, intentions of people changed over time. Migration experience suggests that many temporary migrants extend their stay, if the labour market situation allows and as long as the receiving country permits prolongation. Family members join, children are born and, while the wish to return may still be maintained, it is again and again still further postponed, and may finally be abandoned ("illusion of return").

Despite the tremendous increase in foreign workers and their prolonged duration of stay (verify: Umfrage BA zu Rückkehrwunsch und Aufenthaltsdauer 1973) German politicians, employers, unions, and the migrants themselves continued to proclaim that the stay was only temporary. It is true that more migrants left than stayed. However, the rotation of workers was neither in the interests of the migrants nor their employers. Migrants stayed longer than planned to save more money as long as well-paid work was available. Some sent for their families. Many German employers favoured family unification, since the wives of the „guestworker" were also able to work. Moreover, the presence of the wives assured the experienced and trained migrants to remain, and saved employers the cost of recruiting and training new migrants.

The German government did not enforce rotation strictly. But the Aliens Act did not grant foreign citizens any legal right of immigration or residence. The issuance of a residence permit depended often at the discretion of the immigration authorities, whose decision was based on the „interests" of the FRG (Esser/Korte 1985: 184). The permit may be restricted as to duration or location. This was the rule in the case of immigrant workers, who mostly received work permits valid for one year only. The work permit is granted „according to the situation and development of the labour market with regard to the individual case" and as long as there is no German applicant for the same job (priority for German workers). After a stay of more than tree years a work permit may be issued for durations of two or more years After a minimum residence of five years a permanent residence permit may be granted. These regulations made of the foreign workers a manoeuvrable labour force which could be controlled according to the labour market situation. But in spite of all the restrictions it was inevitable that those migrants who remained obtained with each work permit renewal more residence rights.

By 1973 it was clear that many of the temporary „guests" had become more or less permanent residents. Nevertheless many Germans felt uneasy about the unanticipated settlement of Turks and Yugoslavs in Germany. The government reacted by restricting immigration. It raised the employer-paid recruitment fee from 300 DM to 1000 DM to discourage employers from requesting new migrants. A wave of wildcat strikes in summer 1973 that involved many migrant workers provided further reasoning to bring foreign worker recruitment to a halt. In November 1973 the German government proclaimed an recruitment stop (in line with most other European labour importing countries). The stop was justified by the oil embargo, which threatened to provoke an economic recession and made additional migrants unnecessary. [19]

As will be evident, the German approach in the 1960s was actually more liberal than the present Irish one, as family reunification was permitted. Moreover, certain social benefits such as unemployment benefit were payable (question: do work permit holders in Ireland pay PRSI? And if so, how can they be denied benefit?)

It is unedifying, to say the least, to see Ireland reviving the worst features of this system now, the more so as (given our own emigration history) we should understand the situation of immigrants rather more than most countries.

EU and other caselaw on the rights of non-EEA migrant workers [20]

The following notes are from Hailbronner, K (2000) Immigration and Asylum Law and Policy of the European Union. The Hague: Kluwer Law International. Cf Section D ‘social rights of third-country nationals, pp. 307-351

Overall:

  • Freedom of movement of 3rd country nationals within the EU is a key question
  • Moves to eliminate differential treatment are ongoing
  • Existing caselaw is quite strong
  • EU-level policy formulation is increasing. Post-Nice, this will probably be one of those areas where majority voting will have most effect. The Charter of Fundamental Human Rights will have particular relevance.

The picture is complex. Community Law is ‘quite ambiguous as to the incorporation of third-country nationals’. Workplace related measures – safety, gender equality – apply to all. But the ECJ has always interpreted ‘worker’ as meaning a worker who is a national of a Member State. ‘Moreover, according to the specific group of third-country nationals to which the individual belongs, different rules apply as to social benefits, public assistance, the aggregation of periods, the export of pensions, the consideration of family members living abroad when assessing family benefits, and to equal treatment in general’.

The Maastricht Treaty left these issues for IGC third pillar cooperation – primary focus is on ‘governing and restricting immigration’. There is a non- binding Council resolution on status of third country nationals residing on a long-term basis in the territory of a Member State. The main elements are: equal treatment re working conditions, membership of trade unions, public housing, social security, emergent heath care and compulsory schooling.

Currently there is no charter of fundamental human rights in the EU although such a charter has been proposed (Feb 1999, Spiros Simitis report). It is not clear if/when this will happen and if it will include third country nationals.

Social rights in articles 138,139, 141 of ECT.

Article 141 and other legislation relating to sexual discrimination is applicable to EU citizens and third-country nationals (according to a communication from the Commission). The ECJ has already found that the old Article 118 (Social Provisions) of the Treaty of Rome did apply to third country nationals. This article covers employment, labour law and working conditions, basic and advanced vocational training, social security, prevention of occupational accidents and diseases, occupational hygiene and the right of association and collective bargaining between employers and workers. But (p. 312) the Court denied any powers to the Community as to cultural integration.

The promotion of the integration into the workforce of workers from non-member countries must be held to be within the social field within the meaning of article 118, in so far as it is closely linked to employment. This also applies to their integration into society, having regard to the objectives pursued by the contested decision, inasmuch as the draft measures in question are those connected with problems relating to employment and working conditions, and there is no reason to consider that the decision intended to give a different meaning to that concept. As regards the cultural integration of immigrant communities from non-member countries, whilst this may be linked, to an extent, with the effects of migration policy, it is aimed at immigrant communities in general without distinction between migrant workers and other foreigners, and its link with problems relating to employment and working conditions is therefore extremely tenuous.

Judgement of 9 July 1987 Germany and others v. Commission, joined cases 281, 283, 284, 285, 287/85. ECR 3202.

Social Security Provisions in the Treaty

Old article 51 mentions migrant workers and their social security rights, providing basis for Commission to make proposals. Old article 118a also provided basis. Articles 136-145 are main basis.  Areas covered:

Improvement of working environment; working conditions; information exchange and worker consultation; integration of persons excluded from the labour market; social security and social protection; protection of workers on termination of contract; representation and collective defence of workers’ rights, conditions of employment of third-country nationals legally resident in Comununity territory and financial contributions to promote employment and job creation, Workplace health and safety, gender equality

Third country nationals – present and proposed scope

Freedom of movement for EU citizens is guaranteed and underpinned by social security/social benefits guarantees. Regulation 1408/71 is the main one, along with 547/72 – several amendments to both. Community regulations overrule in a wide range of situations the principle of territoriality.

Third country nationals are partially covered e.g. family members of EU citizens, refugees, stateless and EEA. Third country nationals may also be covered by the Association, Europe or Med. Agreements; may also be bilateral or multilateral agreements of some member states with third states. Otherwise no express entitlement arises.

The Porto Conference (1994) already debated this issue. Does Community have competence? Depends on whether broad or narrow definition is applied to ‘worker’. Unanimous view not found but broad consensus that Community law did not prevent and extension of the personal scope of 1408/71.

Existing Regulation 1408/71.

Substantive scope: general/special, contributory/non-contributory: sickness and maternity benefits, invalidity benefits, old-age benefits, survivors’s benefits, benefits in respect of accidents at work and occupational diseases, death grants, unemployment benefits, family benefits.

No social security benefits can be provided solely for Member State nationals and Member States are not permitted to required qualifying conditions that are harder. Underlying principle: lex locus laboris.

Personal scope of application does not currently cover third country nationals.

Proposal for extended personal scope of application (p. 323)

OJ 1998 C 6/15, plus opinion of economic and social committee. Entitlement to enter, to stay or reside in an MS or to have access to its labour market is expressly excluded

Coordination of social security systems: Com (98) 779 O.J. 1999 C. 38/10. Would apply to all EU citizens, refugees or stateless, and persons who are or have been subject to the social security legislation of one or more Member States.

Equal Treatment – some proposals so far

The 1989 Social Charter says legally resident third country workers should enjoy ‘comparable’ treatment but it is left to Member States to define.

1994: Commission communication to Council and EP on integration of legal immigrants – called for strengthening of rights.

1995 resolution of October 1995 on fight against racism and xenophobia in employment and social affairs.

The European Parliament has called on several occasions for equal treatment – e.g. 30 jan 1997 resolution on racism, xenophobia, and anti-semitism for EYR.

Proposal for Council Act establishing the Convention on rules for the admission of third-country nationals to the MS (COM (97) 387 final OJ 1997 C 337/90). But ‘long-term residence’ was defined as at least ten years.

There is no clear statement in Amsterdam Treaty about third country nationals.

Community third-country Agreements

The EEA is an obvious example, as well as the agreement between the EU and Switzerland. The Association agreement with Turkey has been used (p. 329) to vindicate social security benefit even in case where individual only possessed a limited residence permit. But another case did not support this view.

Other cases also arise – Maghreb, EuroMed.

Kziber case (p. 330) held that 1408/71 effectively applied to Moroccans as regards unemployment benefits.

Yousfi case confirmed this and referred to disability benefits.

There are ten agreements with Eastern European and Central European aspirant states. Certain obligations also derive from these agreements although they would not appear to be as wide as for the Med. cases. Some legal experts believe that clauses in these agreements could have direct effect as in Taflan Met case, but it would probably not apply to social security provisions, say, under article 38 of the agreement with Poland.

Gaygusuz Judgement

 'If foreign citizens are permitted to enter and work in a country, and if they make payments into the prevailing system of insurance on the same basis as nationals, the difference in treatment (based on nationality) does not appear to have objective and reasonable justification. (p. 335)

This was a judgement of the European Court of Human Rights (not ECJ). ECJ is not bound by caselaw of ECHR. Does entitlement to benefit based on contributions constitute a “possession”?  Equal treatment is part of constitutions of member states, of international instruments and Community law and should therefore apply. No clear decision:

 'With regard to the analysis made above and to the delicate position of the final judge in this matter, the Court of Justice, it does not seem possible to give a final answer on the question of whether the exclusion of third-country nationals from the scope of Regulation 1408/71 is compatible with fundamental rights. Even if it appears that the answer should be negative (sic). (p. 336)

The ECHR and European Social Charter (CE) contain strong statements re social rights but these are probably not legally enforceable.


4       Integration programmes and policies, including programmes to combat xenophobia and racism


In general much progress remains to be achieved in these fields in Ireland. In legislative terms a significant start has been made (see below). But the frequently announced public campaign against racism has yet to take operational effect. Provision for anti-racist auditing, training programmes, awareness campaigns and accompanying measures are limited as yet although the NCCRI (see below) is ready and willing to take up the challenge.

Legislation to deal with discrimination in the workplace is still in its infancy in Ireland, but significant changes have taken place in recent years. Three principal pieces of legislation are now in place. Moreover, the Government has also established powerful new agencies to police the implementation of these measures. While these changes are broad-ranging in their implications, there is a primary focus on the workplace.

Prohibition of Incitement to Hatred Act 1989 [21]

This legislation was the first of its kind in Ireland. It is directed at (a) actions likely to stir up hatred (b) broadcasts likely to stir up hatred (c) preparation and possession of material likely to stir up hatred.  Unfortunately, while well-intentioned, the Act has proved difficult to apply in practice, largely because the burden of proof in showing an actual intention to incite hatred is difficult to establish. In more than a decade since 1989 only a single case was upheld and it has just been overturned (March 2001) on appeal [16].

The Minister for Justice, Equality and Law Reform has already announced (late 2000) a review of the legislation.

Equal Employment Act 1998

The Employment Equality Act, 1998 prohibits discrimination in relation to employment on nine distinct grounds

  • gender
  • marital status
  • family status
  • sexual orientation
  • religious belief
  • age
  • disability
  • race
  • membership of the Traveller community.

With the exception of gender and marital status, complaints of discrimination under any of the other grounds can only be brought in relation to incidents which occurred after 18 October 1999. It will be noted that ‘immigrant’ is not in itself included in the nine grounds and that the term race (used without inverted commas) is in itself much contested, at least in the English-speaking world. The precise scope of the legislation will in practice be determined by emerging caselaw. The Act is likely to be a powerful instrument for change.

Where a person considers that s/he has been discriminated against on the gender ground, the Act allows the complainant the option of applying directly to the Circuit Court for redress.

The Employment Equality Act covers employees in both the public and private sectors as well as applicants for employment and training. The scope of the Act is comprehensive and deals with discrimination in work related areas, from vocational training to access to employment and employment conditions generally, including training, work experience and advancement within employment. The publication of discriminatory advertisements and discrimination by employment agencies, vocational training bodies and certain vocational bodies i.e. trades unions and employer, professional and trade associations are also outlawed.

Equal Status Act 2000 [22]

The Equal Status Act, 2000, prohibits discrimination in the provision of goods, services, disposal of property and access to education, on any of the nine grounds referred to under the Employment Equality Act 1998.

The Act outlaws discrimination in all services that are generally available to the public, whether provided by the State or the private sector. These include facilities for refreshment, entertainment, banking, insurance, grants, credit facilities, transport and travel services. Discrimination in disposing of premises, provision of accommodation, admission or access to educational courses or establishments is prohibited subject to a number of exemptions. The Act also contains sanctions against private registered clubs that are found to be discriminating.

Establishment of State agencies to implement new legislation.

Two new agencies, the Office of the Director of Equality Investigations ( www.odei.ie) and the Equality Authority (www.equality.ie) have been established. While it is still too early to evaluate the effectiveness of these agencies, what can be said is that their pro-active approach and legislative powers do give them real power and should enable a new landscape of equal rights to be mapped out.  It is also likely to lead to a more anticipatory and pro-active approach such as auditing and developing of 'racism-proofing' approaches to institutional and corporate policies and practices in the same way that gender- and poverty-proofing are already becoming standard practice.

The National Consultative Committee on Racism and Interculturalism [23].

The NCCRI was established in 1998 with the aim of promoting a more pluralist and intercultural Ireland. It has no statutory powers and reports to the Minister for Justice, Equality and Law Reform. Its principal role is likely to be the implementation of a Government-sponsored anti-racism campaign with a three-year budget of approximately IR£4.5m. It has also been promoted a number of specific campaigns, mainly in the area of public awareness raising, such as the 1998 A Part of Ireland Now campaign on refugees and immigrants in Ireland.


CITIZENSHIP


On a final note: there remains a discrepancy between Irish legislation and official discourse regarding citizenship in the broad sense, and popular perceptions of Irish identity. As a recently published work on German citizenship and immigration law puts it:

..the traditional German view linked to ius sanguinis is that of the German nation as a Schicksalsgemeinschaft, a community with a special emotional bond, tradition and history[24].

The alternative is

..one of Verfassungspatriotismus, of rational allegiance.. Foreigners can obtain German nationality with relative ease. Shared citizenship is seen as a means of improving social equality between different ethnic groups, similar to the approach of the USA[25].

Irish citizenship law, of course, provides for citizenship to be obtained through ius sanguinis, ius soli and naturalisation. But we are a long way from creating a culture of inclusion which favours and accepts the notion that an immigrant can truly become Irish and be accepted completely as a fully-fledged legal and social member of Irish society.


NOTES

[1] Most recently, Communication from the Commission to the Council and the European Parliament on a Community Immigration Policy. Brussels, 22.11.2000 COM (2000) 757 final.

[2] European Commission, Amended proposal for a Council Directive on the right to family reunification  (http://europa.eu.int/eur-lex/en/com/dat/2000/en_500PC0624.html )

[3] For a short description see http://www.techweek.com/articles/8-07-00/dc.htm It has not been an entirely trouble-free passage – see ‘Green Card system – German infotech industry sees red’ Hindu Business Line 2 May 2000 (http://www.indiaserver.com/businessline/2000/05/02/stories/14023905.htm accessed 26/04/01)

[9] Mac Éinrí, P. (2001) Immigration into Ireland: trends, policy response, outlook. (http://migration.ucc.ie/irelandfirstreport.htm )

[10] Source: Information leaflet concerning working visas for employment in Ireland (http://www.entemp.ie/lfd/working3.doc ) and web page on work permits (http://www.entemp.ie/lfd/workpermits.htm) Department of Trade, Employment and Enterprise website, accessed 23 April 2001

[11] Ward, T (2001) Immigration and Residency in Ireland. Dublin: City of Dublin VEC.

[12] Tampere European Council: Presidency Conclusions (http://europa.eu.int/council/off/conclu/oct99/oct99_en.htm )

[13] European Commission, Amended proposal for a Council Directive on the right to family reunification  (http://europa.eu.int/eur-lex/en/com/dat/2000/en_500PC0624.html )

[14] see, for instance, ‘Immigrant workers being exploited, say unions’ Irish Independent, 2 April 2001, http://www.unison.ie/irish_independent/stories.php3?ti=41&ca=9&si=394880&issue_id=4221

[15] See Irish Times ‘Health Boards apologise to Filipino nurses for accommodation’ 29 March 2001 http://www.ireland.com/newspaper/ireland/2001/0329/hom1.htm

[16] Werner H (2000) From Guests to Permanent Stayers? The German guestworker program. Institut für Arbeitsmarkt- und Berufsforschung der Bundesanstalt für Arbeit. (http://www2.smu.edu/tower/Werner.html, accessed 23 April 2001).

[17] Werner, op.cit.

[18] Werner, op.cit.

[19] Werner, op.cit.

[20] Hailbronner, K (2000) Immigration and Asylum Law and Policy of the European Union. The Hague: Kluwer Law International.

[24] Marshall, B. (2000) Europe in Change: The new Germany and migration in Europe. Manchester: Manchester U.P., p. 141

[25] Marshall, B. (2000) op.cit., p. 140


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