FN11) Three States have opted out of the Sanctions Directive: Denmark, UK and Ireland. The opt-out provisions will be further examined later in this article.
FN22) Directive 2009/52 EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third country nationals (30.06.2009 Official Journal L168/24).
FN33) Directive 2009/52 EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third country nationals (30.06.2009 Official Journal L168/24), Recital paragraph (2).
FN44) Remuneration is defined in Article 2(j) of the Sanctions Directive as ‘the wage or salary and any other consideration, whether in cash or in kin, which a worker receives directly or indirectly in respect of his employment from his employer and which is equivalent to that which would have been enjoyed by comparable workers in a legal employment relationship’.
FN55) Ex Article 63(3) of the Treaty establishing the European Community.
FN66) Commission of the European Communities, Proposal for a Directive of the European Parliament and of the Council providing for sanctions against employers of illegally staying third-country nationals: Explanatory Memorandum, Brussels, 16.5.2007 COM(2007) 249 Final 2007/0094 (COD) at p. 2.
FN77) ‘Figures provided by 21 Member states point to a total of around 893,000 to 923,000 illegal immigrants entering the EU each year.’ See European Parliament Press Release ‘Parliament votes on “sanctions directive” ’ Immigration 29-01-2009 at 16.38 available at http://www.europarl.europa.eu/sides/getDoc.do?language=en&type=IM-PRESS&reference=20090129BKG47408 [last accessed 04-05-2011].
FN88) Commission Staff Working Paper, Accompanying Document to the Proposal for a Directive of the European Parliament and of the Council providing for sanctions against employers of illegally staying third country nationals, Summary of the Impact Assessment (Brussels: 16.05.2007, SEC(2007) 604).
FN99) Carrera and Guild, ‘An EU Framework on Sanctions against Employers of Irregular Immigrants: Some Reflections on the Scope, Features and Added Value’ (2007) 140 CEPS Policy Brief 1, at page 4, note that the ‘argument of illegal employment as a pull factor oversimplifies a phenomenon that is by its very nature complex and multifaceted’. In particular, the authors note that migration ‘follows a complex web of autonomous rationales and purposes, which are independent from any single determining factor’.
FN1010) Inghammar, ‘The Employment Contract Revisited. Undocumented Migrant Workers and the Intersection between International Standards, Immigration Policy and Employment Law’ (2010) 12(2) European Journal of Migration and Law 193 at p. 212.
FN1111) Supra n. 9 at pp. 3–4.
FN1212) Supra n. 9 at p. 4.
FN1313) See Articles 9 and 10 of the Sanctions Directive which impose criminal sanctions on employers for hiring an irregular immigrant where this is committed intentionally, and is continuous or persistently repeated (Article 9(1)(a)), the employer hires a significant number of irregular immigrants simultaneously (Article 9(1)(b)), the infringement is accompanied by particularly exploitative working conditions (Article 9(1)(c)), the irregular immigrant is a victim of human trafficking (Article 9(1)(d)) or where the irregular immigrant is a minor (Article 9(1)(e)).
FN1414) Financial sanctions may include fines (Article 5(2)(a)) and the cost of return of the irregular immigrant (Article 5(2)(b)).
FN1515) Employers are obliged to require that a third-country national has a valid residence permit before taking up employment (Article 4(1)(a)), to keep a copy of this permit so that it is available for inspection by the relevant authorities (Article 4(1)(b)) and to notify the authorities of the employment of a third-country national (Article 4(1)(c)). The Sanctions Directive also provides for a defence for employers in cases where the documentation presented by the third-country national is a forgery (Article 4(3)).
FN1616) Other measures that may be imposed on employers who hire an irregular immigrant include: exclusion from entitlement to some or all public benefits, aids or subsidies for up to five years (Article 7(1)(a)), exclusion from participation in a public contract for up to five years (Article 7(1)(b)), recovery of some or all public benefits, aids of subsidies granted to the employer for up to 12 months preceding the detection of the illegal employment (Article 7(1)(c)) or the temporary or permanent closure of the establishments that have been used to commit the infringement of the Sanctions Directive or temporary or permanent withdrawal of a licence to conduct the business activity in question (Article 7(1)(d)).
FN1717) Article 6(1).
FN1818) Often this also includes a denial of other employment rights.
FN1919) In response to the European Migration Network Ad Hoc Query on the payment of back wages to foreign illegal workers (supra n. 21), the UK reiterated the position that the introduction of provision for back pay of any outstanding remuneration to illegally employed foreign nationals ‘could encourage some illegal workers to work in the knowledge that even if they are identified and removed from the UK they will still be paid in full’.
FN2020) Often this includes other employment rights also.
FN2121) European Migration Network, ‘Ad-Hoc Query on the payment of back wages to foreign illegal workers returned to their country of origin’ (18 January 2010) available at http://www.emn.fi/files/193/Compilation_AHQ_on_the_payment_of_back_wages_wider_dissemination_revised.pdf [last accessed 05.05.2011].
FN2222) Latvia, Slovak Republic and the Netherlands are examples of jurisdictions where an irregular immigrant can take a claim even though they may no longer be in the state. Supra n. 21.
FN2323) See Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (hereinafter referred to as the Returns Directive) which is based on the recognition that it is ‘legitimate for Member States to return illegally staying third-country nationals’ (Recital at paragraph 7).
FN2424) Article 6(1)(a).
FN2525) Article 6(1)(b).
FN2626) Article 6(1)(c).
FN2727) Article 6(1)(a).
FN2828) Article 6(2)(a).
FN2929) Article 6(2)(b).
FN3030) Article 6(3).
FN3131) See for example, Finland, Germany, Latvia, Netherlands and the Slovak Republic. See European Migration Network, ‘Ad-Hoc Query on the payment of back wages to foreign illegal workers returned to their country of origin’ (18th January 2010) available at http://www.emn.fi/files/193/Compilation_AHQ_on_the_payment_of_back_wages_wider_dissemination_revised.pdf [last accessed 05.05.2011].
FN3232) One country that has brought in a limited measure for the purposes of the Sanctions Directive is Spain. The Sanctions Directive has been transposed into national law by means of the Organic Law 2/2009 of 11 December which amended Organic Law 4/2000 of 11 January, on the rights and freedoms of foreigners in Spain and their social integration (henceforth Organic Law 4/2000). Irregular migrants are entitled to claim for outstanding remuneration, similar to any legal employee. There is also a Guaranteed Salary Fund, administered by the Ministry of Labour and Immigration, which protects all workers, including irregular immigrants, in the event of employer insolvency. However, this mechanism is limited to situations of insolvency and so does not cover the broader range of circumstances in which an irregular immigrant may seek outstanding remuneration. See European Migration Network, ‘Ad-Hoc Query on the payment of back wages to foreign illegal workers returned to their country of origin’ (3 March 2010) available at emn.intrasoftintl.com/Downloads/download.do;jsessionid... fileID=1242 [last accessed 05.05.2011].
FN3333) Butter & Verhagen, Exploitative Labour Relations and Legal Consciousness of Irregular Migrant Workers in the Netherlands (Amsterdam: University of Amsterdam, 2011) at p. 30 available at http://lastradainternational.org/lsidocs/Exploitative_Labour_Relations.pdf [last accessed 19.07.2011].
FN3434) Ibid., at p. 31.
FN3535) Ibid., at p. 32.
FN3636) Clandestino, Undocumented Migration: Counting the Uncountable. Data and Trends Across Europe: Country Report France (6th Framework Programme for Research and Technological Development under Priority 7 ‘Citizens and Governance in a Knowledge-Based Society’, Research DG, European Commission, 2009) at p. 19 available at http://clandestino.eliamep.gr/wp-content/uploads/2009/10/clandestino_report_france_final_2.pdf [last accessed 19.07.2011].
FN3737) Whether this argument is sustainable will be examined further in the article.
FN3838) Recital to the Directive at paragraph 39, supra n. 2.
FN3939) Ibid., at paragraph 38.
FN4040) Irregular entry can occur by entering the State clandestinely through an unapproved port (section 6, Immigration Act 2004) or without a valid passport or travel documentation either with or without the knowledge of the immigrant concerned (section 11, Immigration Act 2004). The new Immigration, Residence and Protection Bill 2010 will maintain this class of irregular immigrants. (See sections 24 and 26, Immigration, Residence and Protection Bill 2010 which class unlawful entry through an unapproved port and the use of false travel documentation as criminal offences, respectively.).
FN4141) Section 5, Immigration Act 2004. Section 6 of the Immigration, Residence and Protection Bill 2010 will replicate this provision.
FN4242) Article 2(b).
FN4343) Irish Naturalisation and Immigration Service, European Return Fund Multi-Annual Programme: Annex II (Dublin: Irish Naturalisation and Immigration Service, 2008) at p. 3 available at http://www.inis.gov.ie/en/INIS/Multi-Annual 20Programme 20- 20Return 20Fund.pdf/Files/Multi-Annual 20Programme 20- 20Return 20Fund.pdf [last accessed 18.05.2011].
FN4444) Migrant Rights Centre Ireland, Life in the Shadows: An Exploration of Irregular Migration in Ireland (Dublin: MCRI, 2007).
FN4545) Migrant Rights Centre Ireland – www.mrci.ie.
FN4646) Supra n. 44 at p. 13.
FN4747) The concept of ‘leave to land’ means that an individual has permission to land in the State and present themselves to an immigration officer for entry into the State. See Article 5(2) Aliens Order 1946 (S.I. 395/1946).
FN4848) In 2009, 4,899 people were refused leave to land in Ireland. In 2008, this figure stood at 5,394.
FN4949) These figures are taken from the Department of Justice, Equality and Law Reform, Annual Report (2009 at p. 26), (2008 at p. 30), (2007 at p. 28), (2006 at pp. 46, 47), (2005 at pp. 33, 39), (2004 at p. 59), (2003 at p. 59), (2002 at p. 51), (2001 at p. 55) and (2000 at p. 49). The 2010 Annual Report is not yet available.
FN5050) See the report of the Migrant Rights Centre Ireland, Life in the Shadows: An Exploration of Irregular Migration in Ireland (Dublin: MCRI, 2007) at p. 13.
FN5151) The report of the Migrant Rights Centre Ireland notes that in 2005 there were 8, 902 deportation notices issued, yet the official statistics from 2005 reveal that only 396 persons were actually deported and 335 were voluntarily deported. This leaves over 8,000 people unaccounted for. Supra n. 50 at p. 13. See also Quinn and Hughes, Illegally resident third country nationals in Ireland: State Approaches towards their Situation (Dublin: ESRI, 2005) at p. 8.
FN5252) Administered by the Irish Naturalisation and Immigration Service, available at http://www.inis.gov.ie/en/INIS/Pages/Undocumented_Workers_Scheme [last accessed 18.05.2011].
FN5353) Department of Justice, Equality and Law Reform, Annual Report 2009 at p. 25 available at http://www.justice.ie/en/JELR/DJELR- 20ANNUAL 20REPORT 202009v2.pdf/Files/DJELR- 20ANNUAL 20REPORT 202009v2.pdf [last accessed 18.05.2009].
FN5454) Immigrant Council of Ireland, ‘Undocumented Migrants’ (2010) available at http://www.immigrantcouncil.ie/campaigns/undocumented-migrants [last accessed 18.05.2011].
FN5555) See Immigrant Council of Ireland, ‘Government must improve immigration processes in response to massive budget cuts’ (2010) available at http://www.immigrantcouncil.ie/media/press-releases/press-releases-2010/437-government-must-improve-immigration-processes-in-response-to-massive-budget-cuts-immigrant-council-of-ireland [last accessed 18.05.2011].
FN5656) Supra n. 44 at p. 26.
FN5757) See for example the Unfair Dismissals Act 1977 (Ireland), section 1; the Employment Equality Act 1998 (Ireland) as amended by the Equality Act 2004 (Ireland), section 2; the Carers Leave Act 2001 (Ireland), section 2; the Parental Leave Act 1998 (Ireland), section 2; the Maternity Protection Act 1994 (Ireland), section 2; the Terms of Employment (Information) Act 1994 (Ireland), section 1; National Minimum Wage Act 2000 (Ireland), section 2.
FN5858) Prior to the decision in Lewis v. Squash  ILRM 363 and the subsequent amendment of the Unfair Dismissals Act 1977 to allow for recovery in cases of employment contracts which were illegal by virtue of fraud on the Revenue or social services, a number of decisions of the Employment Appeals Tribunal highlighted the reluctance of the Tribunal to allow recovery in cases where the contracts of employment were tainted with illegality e.g. Fox v. Inchicore United Workingmans Club (UD 624/82); Magee v. Cambell (UD 449/83); Costello v. Fleming Haulage Ltd (UD 1146/83); Morris v. Peter Keogh (Upholsters) Ltd. (UD 1146/83). See Madden, ‘Illegality and Public Policy’ (1985) 3 Irish Law Times 178.
FN5959) Treitel, The Law of Contract (London: Thomson Sweet & Maxwell, 11th ed., 2003) at p. 393. Mogul Steamship Co. v. McGregor, Gower & Co.  AC 25 at p. 39 (per Lord Halsbury). Cf: Cheshire and Fifoot, Law of Contract (London: Lexis-Nexis UK, 14th ed., 2001) at p. 425.
FN6060) See the England and Wales Employment Appeals Tribunal decision in Vakante v. Addey & Stanhope School and Others EAT 10565/03/RN. See also the Irish decision of Lewis v. Squash Ireland Ltd.  ILRM 363.
FN6161) Cheshire and Fifoot supra n. 59 at p. 425.
FN6262) Mogul Steamship Co. v. McGregor, Gower & Co.  AC 25 at p. 39 (per Lord Halsbury).
FN6363) As Cheshire and Fifoot supra n. 59 contend at p. 424 ‘no person can claim a right or remedy whatsoever under an illegal transaction’.
FN6464) As Collins, Ewing and McColgan, Labour Law: Text and Materials (Oxford: Hart, 2001) note at p. 70, contracts entered into in contravention of immigration legislation are void ab initio.
FN6565) In Ireland, the Employment Permits Act 2003 (Ireland), section 2 (as amended by the Employment Permits Act 2006 (Ireland), section 2) makes it a criminal offence for a migrant worker to be employed without an employment permit and for an employer to employ a migrant worker without the requisite employment permit.
FN6666) The most recent immigration related Bill, the Immigration, Residence and Protection Bill 2010, section 9 refers to the rights of ‘unlawfully resident’ foreign nationals to certain services e.g. medical services but makes no mention of employment law protection.
FN6767)  ILRM 363.
FN6868) Ibid., at paragraph 4.03.
FN6969) Ibid., at paragraph 6.01.
FN7070)  ILRM 363 at paragraph 6.02.
FN7171) Unfair Dismissals Act 1977 (Ireland), section 8(11) as substituted by Unfair Dismissal (Amendment) Act 1993 (Ireland), section 7.
FN7373) Unfair Dismissals Act 1977 (Ireland), section 8(12) as substituted by Unfair Dismissal (Amendment) Act 1993 (Ireland), section 7.
FN7474) Section 40, National Minimum Wage Act 2000. See Forde, Employment Law (Dublin: Round Hall Ltd., 2nd ed., 2001) at p. 38.
FN7575) Hereinafter referred to as the ICESCR.
FN7676) These include the right to non-discrimination (Article 2, ICESCR) and the right to just and favourable conditions of work (Article 7, ICESCR).
FN7777) Butter & Verhagen refer to the decision of the Committee on Economic, Social and Cultural Rights (CESCR) to the effect that ‘the rights apply to everyone, including migrant workers, regardless of legal status and documentation’ supra n. 33 at p. 11. See the decision of the Committee on Economic, Social and Cultural Rights, General Comment No. 20, on Article 2 paragraph 2 (2009) UN doc. E/C.12/GC/20, at para. 30.
FN7878) Article 15.2.1. Irish Constitution.
FN7979) Signature and ratification of the International Covenant on the Rights of Migrant Workers and Members of their Families (hereinafter referred to as the UNCMW) GA Resolution 45/158, annex, 45 UNGAOR Supp. (No. 49A) at 262, UN Doc. A/45/49 (1990); entered into force 1 July 2003 by Resolution 2003/48 (Commission on Human Rights) would also add to the argument that discrimination on the basis of migratory status is no longer compatible with international developments. The most important aspect of the Convention is that it regards all workers, regardless of their migratory status, as a necessary part of the labour market who are deserving of respect and encouragement. This shift in the manner in which migration is viewed will have, once ratified, a significant impact on the protection of migrant workers and has the potential to remedy some of the problems raised by globalisation such as the growth in irregular immigrantion, the denial of rights to such workers and the prevention of exploitation.
FN8080) UK Law Commission, Illegal Transactions: The Effect of Illegality on Contracts and Trusts, 30-188-01 at p. 86 available at http://www.justice.gov.uk/lawcommission/docs/cp154_Illegal_Transactions_Consultation.pdf [last accessed 18.05.2011].
FN8181) Everet v. Williams (1725) reported at (1893) 9 LQR 197 cited in Lindley on Partnership, (1979, Sweet & Maxwell, 14th ed.) at p. 137. See also the Irish decision of Morris v. Peter Keogh (Upholsterers) Ltd. where the Employment Appeals Tribunal held that a contract for employment was unenforceable as the employee had been claiming unemployment benefit for the final 12 months of the contract. There was no suggestion that the contract was illegal or unenforceable. However, the Tribunal refused redress of the employee on the basis that ‘it disapproved of the fact that he had illegally obtained unemployment benefit during a period of employment’, quoted in Madden, ‘Illegality and Public Policy’ (1985) 3 Irish Law Times 178 at p. 179.
FN8282) Parkinson v. College of Ambulance Ltd. and Harrison  2 K.B. 1.
FN8383) Supra n. 80 at p. 87.
FN8787) Sumner v. Sumner (1936) 70 ILRT 9 at p. 11. The court referred to the cases of Karley v. Thomson 24 QBD 742 where at p. 745 Fry LJ briefly stated the law in these terms: ‘As a general rule, where the plaintiff cannot get at the money which he seeks to recover without showing the illegal contract, he cannot succeed.’ The court in Sumner also referred to the case of Farmers Mart Ltd. v. Milne  AC 106 in which Lord Dunedin (at p. 113) said that the test laid down so long ago as 1816 in the case of Simpson v. Bloss 7 Taunt 246 was ‘whether the plaintiff requires any aid from the illegal transaction to establish his case’. Lord Dunedin went on to hold that if the plaintiff did require aid from the illegal transaction, the court would not aid him.
FN8888) Supra n. 80 at p. 88.
FN8989) The Commission (supra n. 80 at p. 88) referred to the case of Strongman (1945) Ltd. v. Sincock  2 Q.B. 525 where Lord Denning stated: ‘It is, of course, a settled principle that a man cannot recover for the consequences of his own unlawful act, but this has always been confined to cases where the doer of the act knows it to be unlawful or is himself in some way morally culpable. It does not apply when he is an entirely innocent party’ at p. 535.
FN9090) For example, it may be that an employer may not renew a work permit leaving the immigrant in a situation of irregularity without their knowledge.
FN9191) K. Batog, ‘Immigration Policy v. Labor Policy: An Analysis of the Application of Domestic Labor Laws to Unauthorised Foreign Workers’ (2006) 3 (1) Loyola University Chicago International Law Review 117 at p. 124.
FN9292) (1988) 11th circuit 846 F.2d 700 at pp. 704–705.
FN9393) Batog, supra note 91.
FN9494) Case C-453/99 Courage v. Crehan  ECR I-06297. In this case the CJEU allowed a pub owner to lodge a counterclaim for damages against a brewery who had forced the pub-owner to enter into an anti-competitive exclusive purchase agreement. See Elhaugh and Geradin, Global Competition Law and Economics (UK: Hart Publishing, 2007) at p. 46.
FN9595) His opinion was shared by that of the UK and the European Commission, supra n. 94.
FN9696) Ibid., at paragraph 57.
FN9797) P S Atiyah, An Introduction to the Law of Contract (5th ed., 1995) pp. 342–343.
FN9898) Holman v. Johnson  1 Cowp. 341. See the discussion in Treitel supra n. 59, Cheshire & Fifoot supra n. 59.
FN9999) Batog, supra note 91 at p. 124.
FN100100) Supra n. 80 at p. 88.
FN101101) Opinion of the Economic and Social Committee on the Communication from the Commission on Undeclared Work, Official Journal 101 12/04/1999 at pp. 0030–0037 at paragraph 126.96.36.199.
FN102102) Meeting of the Joint Committee on Justice, Equality, Defence and Women’s Rights, 6th February 2008 at 2.35pm, Scrutiny of EU Proposals, Mr. Kevin O’ Sullivan available at http://debates.oireachtas.ie/JUJ/2008/02/06/00003.asp [last accessed 18.05.2011].
FN103103) Batog, supra n. 91 at p. 125.
FN104104) Supra n. 6 at p. 6.
FN105105) Carerra and Guild, supra n. 9 at p. 5.
FN106106) Kyieri ‘European Policy Options for Fighting the Illegal Employment of Migrant Workers’, (EIPASCOPE 2008/3) where, in describing the purpose of the Directive she comments that ‘this proposal is mostly concerned with immigration policy and not with labour or social policy per se’.
FN107107) Carrera and Guild, ‘An EU Framework on Sanctions against Employers of Irregular Immigrants’ (2007) CEPS Policy Brief No. 140 at p. 1.
FN108108) Commission Staff Working Paper, ‘Accompanying document to Proposal for a Directive of the European Parliament and of the Council providing for sanctions against employers of illegally staying third-country nationals – Measures to prevent and reduce the employment of third country nationals who are illegally staying or working in breach of their residence status’ (Brussels 16.5.2007 SEC(2007) 596) at pp. 2–3.
FN109109) COM(2007) 628 Final.
FN110110) In 2003, the Irish Government introduced the Employment Permits Act 2003, to put the employment permit on a statutory footing. There has been a range of immigration legislation in Ireland in the past 30 years. These Acts are: Refugee Act 1996 (deals specifically with the situation and legal rights of asylum seekers in Ireland), Immigration Act 1999 (deals specifically with deportation procedures), Illegal Immigrants (Anti-Human Trafficking) Act 2000 (deals specifically with human trafficking adopting mainly a criminal model), Immigration Act 2003 (deals specifically with entry and residence of immigrants in Ireland), Employment Permits Act 2003 (deals with economic migration for the first time), Immigration Act 2004 (deals with control of foreign nationals in Ireland), Employment Permits Act 2006 (deals with conditions for allocation and termination of employment permits) and Immigration, Residence and Protection Bill 2010 (will deal with, once enacted, all aspects of immigration and refugee law in one Act).
FN111111) (2002) 535 US 137.
FN112112) R.J. Garcia, ‘Ghost Workers in an Interconnected World: Going Beyond the Dichotomies of Domestic Immigration and Labour Laws’ (2002–2003) 36 University of Michigan Journal of Law Reform 737 at p. 737.
FN113113) Ibid. at p. 740.
FN114114) Ibid., p. 743.
FN115115) This is modelled on the provisions of the Unfair Dismissals Act 1977 (Ireland), section 8(12) as substituted by Unfair Dismissal (Amendment) Act 1993 (Ireland), section 7 and the National Minimum Wage Act 2000, section 40(1).
FN116116) Quote from a participant in the study of the Migrant Rights Centre Ireland, supra n. 44 at p. 44.