Committee Reports > List of Committees > Joint > 1978 > Committee on the Secondary Legislation of the European Communities > Report No. 35 - Approximation of the Legislation of Member States in order to Combat Illegal Migration and Illegal Employment

REPORT

Introduction

1. The Joint Committee has examined the Commission’s proposal for a Council Directive concerning the approximation of the legisation of the Member States in order to combat illegal migration and illegal employment [R/808/78 (SOC 97)}. The proposal is based on Article 100 of the EEC Treaty which requires the approximation of national laws which directly affect the functioning of the common market. The present proposal is a modification of one sent by the Commission to the Council in November, 1976 which had been criticised both by the European Parliament and the Economic and Social Committee on the grounds of its inadequate protection of illegal migrant workers.

Contents of the Proposal

2. The proposed Directive seeks to oblige Member States to adapt its legislation and administrative practice to ensure that provision is made for the folowing:—

(a) dissemination of information, both in Member States and elsewhere, about working conditions and national regulations on entry, residence and employment;

(b) controls for the prevention and detection of illegal migration and illegal employment especially of employers and employment agencies;

(c) the imposition of penalties on those, including employers, who organise or participate in illegal immigration and illegal employment, the penalties to include the possibility of imprisonment;

(d) a requirement that employers and others involved meet the cost of repatriation;

(e) a requirement that an illegal immigrant found guilty of working illegally fulfil his employment obligations whether subject to deportation or not;

(f) an appeal procedure against deportation and access to supporting evidence and to free legal aid where applicable;

(g) a requirement that employers fulfil obligations towards illegal immigrants, particularly in such matters as remuneration, severance payments, social security contributions and taxes;

(h) a requirement that illegal immigrants are treated no less favourably than a Member State’s own nationals as regards reimbursement of social security contributions.

Law and Practice in Ireland

3. The Aliens Act, 1935, Section 5 (i) (/z) confers on the Minister for Justice power to make orders to require aliens to comply with particular provisions as to registration, change of abode, travel, employment, organisation and other such matters. The Aliens Orders, 1946 and 1975, made under that Act, provide that an alien may not enter ’the service of an employer in the State save in accordance with a permit issued to an employer by the Minister for Labour. They also provide that an alien may be refused admission if coming for empoyment which is not covered by a permit. Breach of aliens controls e.g. working without a permit, is an offence punishable by fine and / or imprisonment. There are no prescribed sanctions against employers. In practice, the Gardaí do not prosecute persons found working without a permit. The employer may merely be instructed to regularise the position, or the alien may be required to cease employment and to produce proof of financial independence if he wished to stay.

4. The conditions under which work permits are issued to prospective employers of alien workers now require that the Minister for Labour be satisfied that no Irish or EEC member country national is available to fill the position in respect of which an application for a work permit has been received.

5. Existing law permits the Minister for Justice to deport an alien in the public interest and to apply any money or property of the deportee to defray some of the costs of deportation. At present there is no specific provision for an appeal against deportation but the person concerned could have recourse to the High Court for an order prohibiting his deportation. Aliens from Member States of the Council of Europe have certain rights of appeal against expulsion, under the European Convention on Establishments (1956, European Treaty Series, No. 18).

Views of the Joint Committee

6. As there is no extensive employment of immigrant labour in Ireland, the matters dealt with in the draft Directive do not pose big problems in this country. The Joint Committee regards the measures at present in operation here as adequate though it accepts that there is a case for making the employer rather than the employee primarily responsible in a case of illegal employment. However, it would not favour setting up here an elaborate and costly system of control .for which there is no real need and it trusts that changes to meet the objective of the proposed Directive will prove to be minimal.

7. The Committee, nevertheless, fully accepts the proposition that illegal migrant workers should be adequately protected. In particular, it welcomes the provision that “an illegal migrant, whether or not subject to deportation, shall be given every opportunity to assert his rights and those of his family before the proper authorities, have access to all possible supporting evidence and, where applicable, free legal aid”. Subject to suitable safeguards where deportation is contempated on security grounds, the Committee would favour some system of appeals similar to the introduced recently for EEC nationals by the European Communities (Aliens) Regulations, 1977 [S.I. No. 393 of 1977].

8. If adopted, the Directive would impose obligations on Member States to disseminate information both within and outside the Community about working conditions and regulations on entry, residence and employment. The Joint Committee believes that in this area the Commission itself might be asked to play a part instead of leaving the matter exclusively to the Member States.

Bodies Consulted

9. In examining this proposal the Joint Committee consulted the Federated Union of Employers, the Irish Congress of Trade Unions and the Confederation of Irish Industry and it is extremely grateful for the assistance it received.

(Signed) MARK CLINTON,

Chairman of the Joint Committee..

13th December, 1978.