1. DR. ELAINE DEWHURST Dublin City University Socio-Legal Research Centre The Other Side of Undocumented Immigration: Addressing the Pull Factor

2. Introduction Who are undocumented workers? What is the “pull factor”? How are States currently addressing the issue? Current EU approach Conclusion

3. Who are undocumented workers?

4. Definition Undocumented immigrants: Wide category of persons Enter illegally (whether by fraud / deception or by trafficking) Enter legally – subsequently lose permission to remain in the State (whether through a fault of their own or otherwise)

5. Work Profile 3 D’s  Dirty  Dangerous  Difficult

6. Numbers Between 4.5 – 8 million illegal immigrants in the EU working in all sectors of the economy (Source: European Parliament (2009)) PROBLEM!

7. Current Approaches to Undocumented Migration

8. State Measures to Address Undocumented Immigration Criminal penalties e.g. Immigration Acts (Ireland)  Penalise employers for hiring illegal immigrants  Penalise employees for being illegal immigrants Three D’s – Detection, Detention, Deportation  Increased border controls / inspection mechanisms  Detention facilities for illegal immigrants  Deportation of illegal immigrants Regularisation programmes

9. TACKLING THE PULL FACTOR A new approach

10. Why a New Approach? Addressing a “Pull” Factor Pull factors are those factors that entice illegal immigrants to a State One key pull factor: availability of employment in the State

11. Risk v. Profit Decision to hire / decision to take up work illegally is based on a balance of Risk v. Profit  Risk low and profit high = pull factor  Risk high and profit low = no pull factor How to make risk high? Increase current measures How to make profit low? Enforce employment rights for undocumented migrants

12. EU Member States and the Pull Factor Non- Protection Protection with Consequences Full Protection

13. Current Approaches Non- Protection Protection with Consequences Full Protection

14. Non-Protection Approach Illegal immigrants have an illegal contract of employment No employment rights / access to dispute resolution Description Protection – wage levels / sanctity of judicial process Deterrence – deter illegal contracts / protect national security Justification Ireland / UK / Denmark / Sweden / Luxembourg / Portugal / Slovenia / Finland Usage Allows for unjust enrichment Does not address pull factor Critique

15. Current Approaches Non- Protection Protection with Consequences Full Protection

16. Protection with Consequences Approach States protect certain rights e.g. Equal pay States allow access to courts Irregular immigrants face detection, detention and deportation Description Not to provide protection allows for unjust enrichment Illegal immigrants should face the consequences of their actions Justification Austria / France / Germany / Greece / Netherlands / Spain / Italy Usage Recognises unjust enrichment Illegal immigrants unlikely to complain – undermines the purpose Critique

17. Current Approaches Non- Protection Protection with Consequences Full Protection

18. Full Protection Approach Full protection for employment rights Access to courts without consequences e.g. Confidential complaints mechanism Description Unjust enrichment removed Reduces the pull factor Justification Currently not in official usage (some attempts made in France and Italy) Usage Recognises unjust enrichment Potential for reducing pull factor Critique

19. The New EU Approach EU Sanctions Directive (2009/52 EC) Non- Protection Protection with Consequences Full Protection

20. EU Approach Protection with Consequences  Only protects remuneration rights (illegal immigrants can claim for back pay, taxes and social security contributions and costs arising from claiming back pay). Does not protect other employment rights  Remedies – Directive states that illegal immigrants should have access to an effective remedy  Directly – the worker can take a claim on their own behalf – recognises the consequences that the worker will face as a result

21. EU Sanctions Directive Appears to allow for some measure of “full protection approach” The Directive makes provision (Article 13) for another body to act “on behalf of” or “in support of” an illegal immigrant– is this a full protection approach? – no mention of confidentiality.

22. Conclusion Challenging Undocumented Immigration Continue with current approaches Address the Pull Factor

23. Thank you Elaine Dewhurst  Elaine.dewhurst@dcu.ie Elaine.dewhurst@dcu.ie