N EW APPROACHES TO DEAL WITH UNDECLARED WORK BY MIGRANTS WITHOUT STAY PERMIT

1. NEW APPROACHES TO DEAL WITH UNDECLARED WORK BY MIGRANTS WITHOUT STAY PERMIT Mgr. Pavel Čižinský, CounsellingCentre for Citizenship/Civil and Human Rights

2. Overview of the presentation: • definition of the topic (terms, specific aspects of the situation of foreigners without stay permit) • traditional approach to the problem 3) Some new approaches: a) repression b) regularisation c) prevention d) soft-regularization 4) Final comments

3. 1. Definition of the topic Term “ILLEGAL MIGRANT“ or “ILLEGAL FOREIGNER“: • starts to become a politically incorrect • this term tends to extend the illegality on the whole person I am going to use the term “FOREIGNER WITHOUT STAY PERMIT“

4. Undeclared work Is it meaningfull to separate the problem of undeclared work by foreigners without stay permit from the general problem of undeclared work (by EU-nationals, by foreigners residing legally etc.)? • From purely legal point of view there is no reason to deal withe this problem separately • The combination with the illegality of stay creates some special negative social consequences (greater vulnerability, labour exploitation, problems with integration into the host society) • The separation can have negative effects on the public debate and on the aim of the policy: regarding other groups the states strive to legalize their work, regarding foreigners without stay permit the states want them to leave the country (this apriori approach can cause many dificulties)

5. ILLEGAL STAY • Illegality of stay/residence has much harder negative consequences for the person concerned than the breach of law in other spheres (in other spheres of of law it is possible to stop breaking to law at any timey) • Legality of work without a legality of stay is possible only exceptionally (e.g. in the case of some family members of EU-citizens) – usually the legality of employment ends at the moment in which the foreigner loses his/her legal stay • Illegality of stay is a trap which is almost impossible to escape without hard penalties

6. 2. TRADITIONAL APPROACH (The word „traditional“ means the usual approach as it developed in most European countries.) Penalties and “return“ measures (fines, administrative expulsion, detention) • On the level of administrative law (no criminal law): fines and administrative expulsion • Much higher penalties for the employers • Much easier proceedings against the employees – foreigners; in practice it is much easier to bring some evidences against the alien staying illegaly on the territory of foreign state than to investigate into the illegality of work

7. Problems of the traditional approach • Low effectivity + high expenses (on police staff, on administrative and court proceedings, on accomodation facilities for detained foreigners, on transport etc.) • Feelings of unjust hardship against the foreigners • Dissuasive impact on the foreigners without stay permit to end their illegal presence in Europe

8. NEW REPRESSIVE APPROACHES Introducing of new penal law provisions into the Penal Codes: • Criminalization of the employers (the employers-sanctions directive foresees penal law sanctions in some cases) • Criminalization of the employees-foreigners • Criminalization of the facilitation of illegal stay (Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence) • Criminalization of the illegality of stay itself (only in some states, highly controversial) Limits of the repressive approach: • low legitimacy of the penal law sanctions; the humanitarian aspect of illegal migration is too strong • reluctant application of such norms by the courts • fear of abuse of criminal law for political purposes

9. REGULARISATIONS vague definitions: e.g. definition used by International Centre for Migration Policy Development (ICMPD): • Regularisation - any state procedure by which third country non-nationals who are illegally residing, or who are otherwise in breach of national immigration rules, in their current country of residence are granted a legal status. • Regularisation Programme - a specific regularisation procedure, which (1) does not form part of the regular migration policy framework, (2) runs for a limited period of time and (3) targets specific categories of non-nationals in an irregular situation. • Regularisation Mechanism - any procedure other than a specific regularisation programme by which the state can grant legal status to illegally present third country nationals residing on its territory. In contrast to mass regularisation programmes, mechanisms typically involve "earned" legalisation (e.g. by virtue of long-term residence), or humanitarian considerations (e.g. non-deportable rejected asylum-seekers, family ties etc.), and are likely to be longer-term policies.

10. Important aspects of the definition of regularisation: • From legal point of view, regularisation is only a possibility to apply for stay permit (the so called „standard“ way, i.e. to apply only abroad and in person, is something that can be easily changed – in Czech Republic this principle was introduced so recently as in 2000) • state authorities are given the right to pardon some of the penalties • socially beneficial aim of regularisations

11. Categorizing of regularisations • Traditional typology: • Permanent X one-off, • fait-accompli X humanitarian, • With X without legal entitlement • From the point of view of the public debate, important distinction is: • Regularisations that are publicly proclaimed X regularisations that are held in secret • Regularisations that are considered to be regularisations X measures with regard to which there is a common consensus that they will not be called regularisations moral and philosofical doubts and concerns • Moral and philosofical doubts and concerns: • Is regularisation in the past a pull-factor for new migrants in to future? • Co regularisations harm the legitimacy and the respect of the state and its public authorities? • Mass regularisation X case by case? • Part II of the Europena Pact on Immigration and Asylum: “the European Council agrees…(a) to use only case-by-case regularisation, rather than generalised regularisation, under nationallaw, for humanitarian or economic reasons;“ There is no clear criteion from legal point of view – case to case approch is rather a matter of accuracy and diligence of the work of public authorities than a wording of the legal norms

12. Combination of repression with elements of regularisations The aim is to break the alliance between the employer and the employee and to pose their interests against each other: • The offer of regularisation for the foreigner in exchange for his/her cooperation with the state against the employer or • The separation of the public law interests from the private entitlements of the foreigner (this idea is contained in the employers-sanctions directive: the state should assist the foreigner to enforce his/her unpaid wage, but afterwards the foreigner can be expelled

13. Preventive measures • Facilitation of legal labour migration (blue cards, circular or seasonal migration) • Strengthenning of the legal status of labour migrants during the first years of their stay (the right to change the employer, non-discrimination, access to unemployment benefits) • Safeguarding mechanisms by third persons (justificatif d'hébergement in Frech law, Versicherungserklaerung in German law, carta de invitación in Spanish law)

14. Soft – Regularisation Soft-regularisation measures mean partial integration of foreigners without stay permit into the society of their host state while the stay of these foreigners remains illegal. In practice, foreigners without stay permit can be granted: • Acces to different public services (access to education for children, acces to health care, access to some social services etc.) An important question is if it would be possible to allow foreigners without stay permit to be employed legally? That would mean that the stay of the migrant would be illegal but his economic activity could be legal.

15. FINAL COMMENTS • More pragmatic approach instead of moral and philosofical premises • More emphasis on the control in social sphere and liberalization of the immigration rules • Proporcionality of sanctions Illegality affects only the stay and/or the work, other spheres of the life are legal