A Law Centre (NI) Response - February 2010

About Law Centre (NI)

Law Centre (NI) is a public interest non-governmental organisation. The Law Centre works to promote social justice and provides specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland.  The Law Centre provides advice, casework, training, information and policy services to over 450 member organisations in Northern Ireland. We are the main advisers on immigration law in Northern Ireland and facilitate the Immigration Practitioners’ Group consisting of lawyers and voluntary sector organisations.

1. Do you have any comments or contributions on the above arguments about ratification of the MWC or other issues arising from the information contained in the Appendices?

In particular, what in your organisation’s view would be the ‘added value’ of the ratification of the MWC at the domestic level?

We agree with the Convention’s central premise that migrant workers and members of their families are frequently vulnerable persons in a global situation. We agree that a group-specific convention would draw attention to this premise and would also give symbolic significance to the issue.

The periodic reporting requirements outlined in the Convention would be the most instrumental factor in facilitating positive change for migrants. We are acutely aware of the current lack of monitoring mechanisms relating to migrants rights.  The UK government has set up two monitoring bodies in recent years that review aspects relating to migration: the Migration Advisory Committee and the Migration Impact Forum. However, neither body has been tasked with monitoring the rights of migrants and as such these are not sufficient mechanisms.

The issues of migration and immigration have become increasingly politicised in recent years. Unfortunately this has given rise to a trend of politicians advocating increasingly ‘tough’ immigration measures. While the protection of migrants’ rights is not always a high priority for politicians, in Northern Ireland the Migrants Worker Strategy may offer a framework for discussing these issues. A group-specific Convention is necessary to ensure that human rights do not fall by the wayside of political agendas.

2. Is your organisation in favour of the ratification of the MWC?

Yes. Law Centre (NI) favours ratification of the Convention in light of its potential for improving protection for migrants rights. However, we are mindful that the Convention makes distinctions between different categories of migrant workers and that these distinctions affect access to certain rights;¹ we wonder if this would limit the Convention’s potential effectiveness. Despite this reservation, we do believe that ratification would result in greater social justice and human rights protections.

3. If your organisation is in favour of ratification, can you give a brief account of what action, if any, you have taken or intend to take to press for ratification or more generally to promote the Convention?

We will raise the ratification of the Convention with senior UKBA officials, local politicians and with OFMDFM where appropriate.

4. What are your views on the approach of the Joint Committee in continuing to press for ratification of the MWC but also using it as a yard stick for relevant law and policy?

We believe that it is a sensible approach for the Joint Committee to use the Convention as a ‘yard stick’ against which to measure law and practice in the two jurisdictions. The Convention sets an international standard which can be used as a tool to highlight poor practice in certain areas, regardless of whether it has been ratified by the UK.

5. What do you consider are priorities for changes in law, policy or practice in your jurisdiction that would bring the protection of the human rights of migrant workers and their families up to the level required by the MWC?

We have identified a number of areas of law that appear to be incompatible with the Convention and which we believe are in most urgent need of change.

1. Qualifying periods for settlement

Ratifying the Convention would give welcome clarity to the issue of qualifying periods for permanent settlement in the UK. Article 52 permits restrictions on access to employment for a maximum of 5 years.² Until recently, individuals who were legally resident in the UK for five years were entitled to apply for Indefinite Leave to Remain (“ILR”). Granting ILR automatically lifts restrictions on access to employment. Therefore, by default or design, the UK’s laws have actually been compatible with the Convention in this regard. However, this is no longer the case. The Borders, Citizenship & Immigration Act 2009 contains the statutory footing for new citizenship provisions, due to commence in 2011. Under these provisions, migrants will no longer be able to apply for ILR after five years of temporary status. Instead, they will have to spend an additional 1- 5 years as a ‘probationary citizen’, during which time, they will continue to be subject to restrictions, including employment restrictions.³

The extended ‘qualifying periods’ and the notion of ‘probationary citizenship’ were the subject of numerous government consultations⁴ prior to the Bill being published and the subject of intense debate during its passage. Access to citizenship and settlement is increasingly becoming a politicised topic and is presented as a matter of concern.⁵ The new immigration Act gives the Secretary of State powers to amend the qualifying periods with minimum scrutiny.⁶ These developments compound to mean that immigrants may face increasing periods of insecurity and uncertainty. Ratifying the Convention would at least give a benchmark of maximum qualifying periods for immigrants seeking permanent settlement.

2. Protection against expulsion

Ratifying the Convention could give migrant workers increased protection against expulsion.⁷ The deportation of foreign national prisoners has become a key UKBA objective; indeed, deporting ‘record numbers’ of prisoners is one of UKBA’s ten delivery milestones.⁸ ‘Automatic deportation’ was introduced by section 32 of the UK Borders Act 2007 and places a duty on the Secretary of State to make a deportation order in respect of foreign national prisoners who have been sentenced to a period of at least twelve months. This would appear to be contrary to the Convention which requires each case of expulsion to be ‘examined and decided individually’.⁹

Although the details have yet to be finalised, the application of proposals relating to ‘probationary citizenship’ may result in more individuals being at risk of expulsion. A recent proposal is to require migrants (and their families) who are ‘ineligible or fail to qualify for probationary citizenship’ to leave the UK.¹⁰ It is unclear whether such migrants would have the opportunity to have their case examined and decided individually as is required by Article 22 (1) of the Convention. Our concern that cases may not be examined individually is compounded by the provisions of the Draft Immigration Bill 2009 which significantly reduce appeal rights for immigrants facing expulsion.¹¹

3. Equality of treatment – access to social security benefits

Article 43 provides migrant workers with equality of treatment in relation to education, vocational guidance and services, housing, social and health services, etc. Article 54 also provides equality of treatment in relation to unemployment benefits. Access to these services and benefits are currently subject to tight regulation. We wholly support the concept of granting equal access to migrant workers, however we are mindful that to do so would constitute a significant change for the UK. If such a provision could be secured, it would have innumerable benefits for migrants and their families.

4. Equality of treatment – remuneration

Article 25 provides for equality of treatment for workers in respect of remuneration and other conditions of work. Crucially, this provision also extends to undocumented or irregular workers. Under current arrangements, an undocumented worker’s contract is deemed illegal if the worker has knowingly entered into an irregular working situation. This means that undocumented workers cannot take a claim against an employer who does not fulfil contractual obligations, a result of the ‘doctrine of illegality’. Clearly these current arrangements can mean that undocumented workers are particularly vulnerable to exploitation.¹² However, if the UK were to ratify the Convention and thus secure this right for undocumented workers, it could help address the problem of exploitation. This could have favourable implications for race relations and community cohesion as it would remove the likelihood of employers paying undocumented workers less than their legal counterparts. This would help to counter the anti-immigration rhetoric of ‘immigrants pushing down wages’.

5. Temporary absences

Article 38 encourages States to authorise migrant workers and members of their families to be temporarily absent without effect upon their authorization to stay or to work. UK immigration legislation currently places a number of restrictions on migrant workers whereby individuals can lose their immigration status (and, by extension, their entitlement to work) if they spend lengthy periods of time outside the UK. Individuals may also be prevented from applying for permanent residence or citizenship on the same basis. The time restrictions have been tightened considerably by section 39 of the Borders, Citizenship and Immigration Act 2009 and applicants can no longer spend more than 90 days outside the UK in any single year. Arguably these restrictions would not be compatible with the Convention. Thus ratifying the Convention would afford applicants much greater flexibility and would enhance freedom of movement.

Conclusion

For the reasons outlined above, the Law Centre supports the ratification of the Convention. We welcome the Joint Committee’s continued work in pursuing this objective. We also support the Committee’s proposal of using the Convention as a yard stick with which to measure the UK’s approach to issues relating to migrant workers.