Many immigrants come here on work permits but end up undocumented due to bad employers. We must take steps to prevent this, writes Siobhan O'Donoghue.
In all likelihood, every Irish person has been touched by emigration. Many would also be familiar with what it means to be undocumented - either through personal experience or through friends and family.
Every day, the Migrant Rights Centre Ireland (MRCI) meets migrant workers who have found themselves in that situation in Ireland. Most are working to support a family back home, have paid huge fees to recruiters, pay tax and social insurance, and are undertaking work and jobs without which this country would grind to a halt.
Whether we realise it or not, we connect with undocumented workers daily and most of us have no knowledge or cares about what stamps their passports bear.
The experience of the MRCI is that most of these workers came to Ireland in good faith on a work permit but find themselves undocumented due to exploitation or misinformation. This can take the form of promised permits which never come through, permits that are not renewed, non-payment or underpayment of wages, and excessive working hours. The upshot? They can find themselves without a valid residency stamp.
From a sample of the MRCI caseload, we found that out of 300 people who reported they had come here on work permits, 135 had become undocumented by the time they accessed our service during 2005 - a staggering 45 per cent.
The MRCI has also conducted an analysis of migrant workers' experiences of seeking redress for exploitation. Out of 89 cases analysed, 54 were undocumented or on the verge of becoming undocumented when they first contacted us. With support, these people were able to regularise their situation and make formal complaints in the Labour Relations Commission and the Employment Appeals Tribunal (EAT). All but five had favourable outcomes.
Without an extensive level of support and assistance, they would never have been able to follow through their complaint. One migrant worker said "without someone's help, 97 per cent of workers, no matter how badly they are treated, will not take a case".
So what should these people do? Some would say they should leave the country if they become undocumented. But what about the right of a worker to seek justice if he or she has been mistreated? Is it fair that a worker who has paid social insurance for years is immediately denied access to social benefit because the person who has been exploiting him or her has managed to make them undocumented?
Take for example Olga from Ukraine who is supporting two teenagers back home. Olga worked for a cleaning company. She had been promised a work permit had been applied for. After several months waiting for it to appear, she found out the company had withdrawn the application within weeks of submitting it. Should she have simply got on a plane back to Ukraine and let the company off the hook?
Olga took a stand and lodged a complaint of unfair dismissal. The EAT eventually found in her favour. The ruling was that the employer could not avoid its contractual obligations as a result of having neglected its duty to apply for a permit, and Olga received a substantial award. This is an important judgment with serious consequences for the State, employers and undocumented workers. Olga's right to legal employment and to be legally resident was undermined by an exploitative employer. They were in the wrong, not her. Yet she was denied social protection and access to healthcare, and was made feel like a fugitive. She is one of those faceless "illegals" we hear about in emotive and ill-informed debates.
The MRCI has been calling for the introduction of a "bridging visa" for migrant workers who find themselves undocumented through no fault of their own. A bridging visa is a temporary stamp that would allow the person to remain in the country, make a formal complaint, access social benefit, look for new work and so on. The MRCI believes this is a practical solution to what is a situation that benefits no one except employers bent on exploitation and avoiding prosecution.
Migrant workers who find themselves in this situation are not free agents. They generally owe money, are owed money, have to send money home and are not in a position to just get on a plane and leave.
Irish people know this scenario very well. In the late 1980s when my friends were packing their bags for the US, the standard deal was to borrow the money needed and pay it back over the next year or two. This is still the pattern of today for most migrant workers.
When Minister for Foreign Affairs Dermot Ahern went to campaign for Irish undocumented workers in the US, he said Ireland's immigration system was one of the best in the world and was transparent and efficient. Our experience in the MRCI is that this is unfortunately just not the case. In fact, Ireland is one of the easiest countries in the EU in which a migrant worker can become undocumented. There is no safety net and no structured way back into the system. All it takes is for an employer to neglect to submit the necessary form.
Let us learn from our experience and recognise our system serves neither the individuals involved nor the State: it only fuels exploitative practices that undermine democracy.
Siobhan O'Donoghue is director of the Migrant Rights Centre Ireland.