IRREGULAR MIGRATION: LEGAL DILEMMAS Bernard Ryan, Law School. University of Leicester Undocnet conference, London Metropolitan University, 6 December 2013

Irregular migration and the law Employer checks and penalties Landlord checks and penalties OUTLINE

Justifications for action against irregular migration? Upholding the rule of law? Upholding the system of immigration control? – E.g. IPPR, No Easy Options (2011): necessary to secure support for legal migration policy Protection of migrants Socio –economic policy goals concerning welfare of resident population IRREGULAR MIGRATION AND THE LAW

Reasons to limit state action against irregular migration? Illegitimacy of immigration control system -May be general, or limited to a particular context or moment Fundamental civil and political rights of migrants -international protection relative to place of origin -Family/ private life rights in place of migration Equal treatment irrespective of status in the socio-economic sphere: -as a fundamental principle -to advance socio-economic policy goals (e.g. in labour market or public health) IRREGULAR MIGRATION AND THE LAW

Penalties for employing workers without a right to work Widely accepted since 1970s Introduced in both France and Germany in 1972 United States: Immigration Reform and Control Act 1986 United Kingdom: Asylum and Immigration Act 1996 Australia: Migration Amendment (Employer Sanctions) Act 2007 Recent evolution from criminal to administrative (‘civil’) penalties: Netherlands in 2005 United Kingdom in 2008 Australia in EMPLOYER CHECKS AND SANCTIONS

Employer sanctions in international instruments ILO Migrant Workers (Supplementary Provisions) Convention 143 of 1975, Article 6: “1. Provision shall be made under national laws or regulations for the effective detection of the illegal employment of migrant workers and for the definition and the application of administrative, civil and penal sanctions, which include imprisonment in their range, in respect of the illegal employment of migrant workers …” UN Migrant Workers Convention 1990, Article 68(2): “States of employment shall take all adequate and effective measures to eliminate employment in their territory of migrant workers in an irregular situation, including, whenever appropriate, sanctions on employers of such workers.” EU Employer Sanctions Directive (Directive 2009/ 52) EMPLOYER CHECKS AND SANCTIONS

Main objections Risks of discrimination (against persons/ groups with a right to work; or ethnic minority-run businesses) Enhanced risks of exploitative practices for workers (some workers?) Regulatory burden on employers Practical problems, especially with re-checks Possible justifications Potentially effective strategy to uphold immigration law/ control Works against under-cutting in the labour market Possible pre-conditions? An effective labour migration policy (in practice, for lower-skilled migration) Access to labour law by irregular migrants – UK anomaly there EMPLOYER CHECKS AND SANCTIONS

Penalising landlords who rent to those without status? Some EU member states expressly prohibit renting (Italy, Greece, Cyprus, Denmark, Estonia) – EU Fundamental Rights Agency report, 2011 Local ordinances in United States: Hazleton, Pennsylvania (2006); Farmers Branch, Texas (2008); Fremont, Nebraska (2010) -based on requirement on tenant to acquire a licence -coupled with penalties for those who rent residential property to them -First two cases rejected by federal courts of appeal on ‘pre-emption’ grounds – interferes with regulation by federal law -Third survived at federal courts of appeal level, ostensibly because scheme defers to federal authorities’ determination of status. LANDLORD CHECKS AND SANCTIONS

Civil penalties for landlords Immigration Bill 2013, clauses and Schedule 3 New legal concept of a “right to rent”: either a national of an EEA state or they have a right to be in the United Kingdom Landlords exposed to fines of up to £3000 if they “authorise an adult to occupy premises under a residential tenancy agreement”, and that person does not have a right to rent Penalties apply where a person does not have the right to rent at the time of the agreement, or ceases to have it during the tenancy Note that no liability if person(s) have right to rent, but no checks made Checks of immigration status offer an excuse, if (1) undertaken before tenancy and (2) where right to rent is limited, a re-check within 12 months or before end of immigration permission (whichever is longer) - Note intention to remove 12 month rule under employer penalties LANDLORD CHECKS AND SANCTIONS

Questions of practicality Covers a broader range of cases than employer checks (visitors too can rent) “Residential use” defined as a person having “the right to occupy the premises as their only or main residence” Landlord is not liable if makes “reasonable enquiries” in relation to adults not named in the agreement Documentation may not be available: British citizens or recent adults without any documentation; persons of any nationality may have pending applications for documents Enforcement where? Note Government plan is for a pilot for 6 months, with any further rollout to be laid before Parliament (negative resolution procedure) after general election. LANDLORD CHECKS AND SANCTIONS

Questions of principle The state is not regulating immigration to manage the housing market (unlike labour market) Risks of discrimination of various kinds: ethnic minorities, foreign nationals, social position Likely to increase homelessness, including by those with a ‘right to rent’, also foreign nationals in a marginal legal position (current or former asylum-seekers, bailed immigration detainees) Adequate housing is a fundamental right for all: – Article 11 of the International Covenant on Economic, Social and Cultural Rights – General Comment No. 20 on Non-discrimination in Economic, Social and Cultural Rights (2009): “The Covenant rights apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status.” Not calculated to protect against exploitative practices. Note the protection for the validity of the tenancy agreement (clause 17(9), added at Committee stage LANDLORD CHECKS AND SANCTIONS

Once measures against irregular migration are accepted Need to offer justifications for limits What are the limits? Employer checks and sanctions Now a broad acceptance of the principle Why? In UK, presumably because of the effectiveness as a control technique, rather than fair labour market policy Landlords checks and sanctions Widely thought to be unworkable/ to go too far Danger that will be accepted simply as an extension of employer sanctions principle – despite significant differences in their implications FINAL THOUGHTS