Illegal Migrant Workers and Their Protection of Rights under the European Union - Research Paper Example

 Illegal Migrant Workers and Their Protection of Rights under the EU Proposal Despite the enormity in numbers of migrant workers both legal and illegal entering EU states, studies show that these workers and their families are not given significant attention in regards to protection of their rights (Cholewinski, 1997). Although the rights of legal migrant employees are clearly given some protection and consideration as evident in the current policies and existing humanitarian laws of EU member states, the rights bestowed on illegal migrant workers are still difficult to discern. Even so, it is also difficult to conclude whether illegal migrant workers are given their rights at all. Hence, this research will focus mainly on evaluating whether the rights of illegal migrant workers are given protection. It will also be analyzed whether the EU policies and laws on these workers veer towards a more liberal and humanitarian approach as embodied in the EU Constitution. These aims can be achieved through careful scrutiny of policies and laws under which illegal migrant workers can assert protection of rights or bring to action their claims and grievances. International cooperation must also be examined as to the impact it has on migration in a region such as the EU. Through analyzing and evaluating the rights of illegal migrant workers through means of thorough study of the existing policies and laws concerning these workers, it will be found out whether or not the migrant workers are given equal protection under the law. Background The influx of migrant workers, both legal and illegal in status has been considered a major concern for the governments of Western European countries. Questions with regards to their legality and their impact on the host countries’ economy have caused controversy and heated debates (Layton-Henry, 1990). OECD (Organization for Economic Cooperation and Development) member countries have also stepped up their efforts to fight illegal entry and employment of migrant workers, yet, illegal entry of migrant workers into the EU member states has continued to increase. As a result, the OECD most recently augmented cooperation at both EU community level and the national level. The OECD (2000) has also affirmed its policies to curb and prevent illegal employment of foreigners. Due to the influx of migrant workers throughout Europe, the OECD has shown that they indeed fight for migrant workers' rights and are not lax in this area on both the community and national level. A major concern on the part of European nations in regards to immigrants in general is the hardships that the nation must accept and endure, especially that of subjecting their nation to multiculturalism. For some nations, such as Germany, opening their doors to immigrants may be seen as opportunities for those nations to lesson their burdensome history. For other countries, though, they hear of immigration issues and warning signs appear. The nations may be fearful of allowing an increased number of immigrants into their borders because it may result in fragmentation throughout the nation and its identity will be influenced to change, whether in small or large degree (Joppke, 2004). These underlying attitudes of nations affect their dealings with immigrants, especially illegal ones. Governments throughout Europe have created consultative organizations which deal with the issue of international migration. Due to the EU make-up of various member states, an influx of migration in labor intensive areas can evidently become a problem, therefore, organizations such as the Intergovernmental Consultations of Asylum, Refugee, and Migration Policies in Europe, North America, and Australia (IGC) and the Budapest Process have risen up in an attempt to regulate and manage the movement of migration throughout Eastern Europe, Central Europe, and beyond. Something as simple as nations sharing information with one another has shown to be a vital factor in improving migratory trends within a particular region (Hjarno, 2003). Current data shows that the number of migrant workers reached a record high numbering tens of millions all over Europe. The illegal migrant workers have been estimated to be about 20 million (OECD, 2000). With these numbers, the problem of illegal employment of migrants is simply too significant to be ignored any longer (Martin, P. L., Abella, M. I., & Kuptsch, C., 2006). EU Policy on Legal and Irregular Migrant Workers The EU policy on migrant workers can only be analyzed through a rights-based approach as migration is mainly a result of social and economic disparity, deepened and worsened by globalization. Since there are an increasing number of people migrating, there are also an increasing number of migrants, especially those who are irregular migrants who are prone and vulnerable to human rights abuse. Thus, the EU undertook a more humanitarian approach to migration and asserted that migration is primarily an economic problem. Despite that assertion, reports of the UNCHR state that key principles of equal treatment is primarily not achieved by most EU member states. Illegal migrant workers are most of the time prohibited to access health care, adequate housing and education services for them and their families. Though EU policy clearly states that they indeed are aiding migrant workers and providing them with equal protection under the law, the reality exists that their stated values are not being acted upon or ultimately achieved. Amidst these sets of problems the EU is facing, the UN calls for the ratification of the Migrant Workers Convention of all member states, as well as, stricter adherence to the provisions set forth in the convention by member states. Likewise, the UN reports that the civil and political rights given to migrant workers are ‘in line’ with the provisions embodied in the Convention. In this way, the UN is conducting themselves in a cautionary manner so that they will not be unprotected when it comes to providing or refusing to provide wanted provisions claimed by illegal or irregular immigrants. In order to make sure that migrant workers are being provided for, the UN has made sure that their organization's policies are the same as the Migrant Workers Convention's policies and even the EU's policies. The integration policies in countries such as France and the United Kingdom were considered to be on the right track by the UN. Organizations within countries such as these that were in favor of the integration policy, criticized their governments for their strict and inhumane treatment of immigrant workers and their policies regarding such workers. This implies that the host countries in Europe understand their responsibility: to make sure that the civil and political rights of immigrants are respected (Apap, J., 2002). The Migrant Workers Convention is an achievement for the member states under the EU since it encourages a more humanitarian and liberal approach on the issue of migration. The convention ensures that not only the rights of legal migrants are protected but also the rights of irregular workers. Although its provisions call for the eradication of irregular migration, its primary purpose is to end exploitation of migrants, especially those of illegal status. The UN states that the convention does not provide new rights to the illegal immigrants, but asserts their rights embodied in the UN Fundamental Rights provisions. These rights disregard a migrant worker's status pertaining to legality, illegality or irregularity and explicitly incorporates the recognition of the rights of irregular migrant workers. The rationale behind this is that states must be able to recognize the seriousness of irregular migration, thereby preventing human trafficking. With the integration policies within European nations adhering to the UN's policies, the nations desire the same humane treatment of migrant workers and immigrants, whether or not these policies occur is a different issue. Expansion of the Rights of Migrant Workers Although there are numerous critics of the current EU Constitution who lambaste the deficiency of its provisions in protecting the rights of every individual, there are scholars who assert that the EU has made great strides in the expansion of these rights after World War II (Layton-Henry, 1990). However, In the United Kingdom, for instance, employment law provides that illegal contracts are not enforceable. The dismissal of a worker suspected of being illegal is enough to terminate contract of employment. The scenario in France is different that the in the United Kingdom, though. There, the employee is not barred from asserting his rights, and is allowed to file a claim although only a minimal protection is bestowed to the migrant worker. Through a legal claim, the employee can acquire damages and interests as compensations. However, this is difficult to implement since the illegal migrant employee will have to prove beyond reasonable doubt the existence and duration of his employment. As one can see, the EU Constitution has critics on both sides of the issue on whether it has expanded the rights of migrant workers or not and the facts show that each nation may implement different provisions with their discretion, though abiding by the EU Constitution. At the beginning of this millennium, a number of European nations decided that their nation's need for more humane labor policies to be established and implemented was urgent. They saw that in order for their labor management to improve, their legal procedures needed to be sifted through, thrown out if necessary, and changed if needed. Now after just a few years of holding to this mentality, Europe, as a whole, has found somewhat of a solace in giving provisions that are satisfactory to their labor citizens and non-citizens alike (Bogusz, 2004). Within the past decade, several nations in Europe fought for humane practices to be made law and have succeeded in coming together and doing so. Nations throughout Europe experience influxes of illegal migrant workers. How they ultimately will be handled is thankfully, for the most part, in the hands of the EU policy makers and enforcers. Nations may differ in how EU policy is allowed to be enforced within their borders, yet the EU stands firm on their purpose to give all humans, illegal migrant workers or not, equal protection of their rights under the provisions described in the EU Constitution. EU Policy on Claims of Discrimination by Illegal Migrant Employees One of the ways in which a government determines whether an illegal employee is given consideration to air grievances is by the testing of the EU provision which prohibits “discrimination on the grounds of sex, race, disability, sexual orientation and religion or belief in the employment context.”1 The EU Council policy concerning discrimination of one’s age was outlawed in 2006. Claimants under these provisions needed to demonstrate that a legal contract of employment existed. Basically, the EU provides that no man or woman will be discriminated against because of their gender, ethnicity, disability, sexual orientation, religion, beliefs, or age, but in order for this provision to be given, the man or woman employed must have evidence regarding their employment. When looking at specific court cases, it is clearly shown how the nation's government enforces the provisions for their immigrants, illegals or not. For example, the courts in the United Kingdom, considering the EU provisions, decided that the contract of employment, though illegally made, would be sufficient for claims under the anti-discrimination provision. This is evident in the case of Leighton v. Michael where the Employment Appeal Tribunal (EAT) permitted a claim for discrimination on the grounds of gender, even though the contract was made illegally.2 In this case, the EAT decided that the illegality of the contract was immaterial since the contract was not the only reliable basis in which the defendant had to file a claim for sexual discrimination. The court, on the other hand, argued that a claimant, though not legally employed, could not be barred from bringing a claim for discrimination based on the illegality of the contract as provided by the European Council Directives. This case clearly shows that the rights of illegal workers in Europe have been and are well protected. International Cooperation Needed A significant need in regards to the various nations' success of granting their migrant workers, whether illegals or irregulars, the rights of protection that they provide for their citizens is for the surrounding communities and, on a greater scale, nations to cooperate with one another in finding legal policies and procedures that have the best intended results on smoothing the conflicts which arise when there's talk of a rise in illegal immigrants and migrant workers. As nations in a particular region, such as Europe, study each other, compromise, and work together they will be able to create a standard of law greater than what exists currently, thus, allowing the citizens and non-citizens within feel a sense of security regarding the protection of their rights (Cholewinski, 1997). The EU has pursued an economic and political integration between their member states. This has, in turn, allowed for inter-migration between the states which has fortunately resulted in a harmonization of member states and citizens. They have successfully established a free movement of workers within the union, yet seeks to control aspects of its citizens' movement in order to ensure economic stability. By working together, Europe has brought about an entire region of the world to agree on certain protection policies for all citizens, including immigrants and migrant workers, thereby providing economic stability to their region in an unsurpassed manner. Conclusion It is very complex to judge whether the EU as a whole protects the rights of illegal migrant workers, yet, there are specific cases that have been studied to demonstrate that the EU has protected the rights of illegal migrant workers and continues to uphold its constitution, case by case. In an attempt to approach the issue of illegal immigrant migrant workers throughout Europe in a humanitarian manner rather than the traditional inhumane treatment of these workers, the EU established the Migrant Workers Convention. Through this great achievement to build its reputation around the globe, the EU provided its illegal migrant workers, as well as irregulars, fair and equal treatment under its constitution. The EU Constitution specifically provides equal and fair treatment of all persons in the EU member states, therefore, discrimination of such persons as illegals or irregulars is against the organization's code of conduct. Through analysis of the European studies recorded in the United Kingdom and France, it is shown that the testing of the EU policy is crucial for a nation's success in dealing with claims by illegal migrant employees. The current EU constitutional provisions uphold the same standards of measure in protection of rights for illegal and irregular immigrants as they do ordinary citizens of its member states. It must be said though that in order to fully conclude if the EU policies protect all illegals and irregulars and uphold their constitutional provisions on a consistent basis, more national studies must be done in the EU member states. Future studies would want to look for patterns in when migrant workers are denied their rights and when migrant workers are provided their rights of protection. For now, as far as can be shown, the EU has established policies which have and continue to uphold protection of rights of migrant workers in many of their member states. Annotated Bibliography Apap, J. (2002). The rights of immigrant workers in the European Union: An evaluation of EU public policy process and the legal status of labour immigrants from the Maghreb countries in the new receiving states. The Hague: Kluwer Law International. Joanna Apap explores the socio-legal consequences of the European Union's policy process in regards to immigrant workers, noteably illegals. As she explains the burdensome process of immigrants emerging into the culture and society of the new receiving states, Joanna is able to enlighten the reader on the specific rights that the European Union strives to protect. Bogusz, Barbara. (2004). Irregular migration and human rights: theoretical, European, and international perspectives. Immigration and Asylum Law and Policy in Europe Series, 7(5), Boston: Martinus Nijhoff Publishers. This study aims to show diverse perspectives on irregular immigrant migration and its connection to human rights' laws and policies. The author focuses the majority of the study on European nations and what their legal system has established in regards to irregulars in their borders. Cholewinski, R. I. (1997). Migrant workers in international human rights law their protection in countries of employment. Oxford: Clarendon Press. This analytical study focuses on the connection between human rights and international law when concerning migrant workers. The author clearly demonstrates through several key examples how migrant workers have, while in other cases have not, received full protection under human rights' laws. Hjarno, J. (2003). Illegal immigrants and developments in employment in the labour markets of the EU. Research in Migration and Ethnic Relations Series, 4(2), Aldershot, Hampshire, England: Ashgate. The question is asked, “How have illegal immigrants influenced the labor markets of the EU?” and through conceptual analysis, the author attempts to identify the various factors of influence that the influx of illegal immigrants has had on the EU and employment scales. Joppke, Christian. (2004). Multiculturalism and immigration: A comparison of the United States, Germany, and Great Britian. Theory and Society, 10(4), Italy: Springer Netherlands. Through a comparison study of three diverse nations, Joppke suggests that awareness of the prevalent issue of multiculturalism and a nation's attitude toward such a concept is crucial when it comes to immagration quota. Layton-Henry, Z. (1990). The political rights of migrant workers in Western Europe. Sage Modern Politics Series, 5(9),London: Sage Publications. Tackling issues such as human rights and state sovereignty in the midst of an influx of migrant workers, Layton-Henry demonstrates in this study how migrant workers have benefited from nation-states' extensions of legal rights to non-citizens. Martin, P. L., Abella, M. I., & Kuptsch, C. (2006). Managing labor migration in the twenty-first century. Global Management Series, 3(1), New Haven: Yale University Press. Martin, Abella, and Kuptsch explore how labor migration has thus far been managed in the twenty-first century in this study. These authors confer that labor migration is a problem and needs a proper solution to be found and implemented. OECD (Organisation for Economic Co-operation and Development). (2000). Seminar on preventing and combating the employment of foreigners in an irregular situation. Combating the Illegal Employment of Foreign Workers Series, 1(4), Paris: OECD. This study looks at the trends in international migration and encourages the prevention of nations' employing illegal and/or irrelgular immigrants. The Organisation for Economic Co-operation and Development examines the fact that international cooperation is needed for migration management. Read More