Migrant domestic workers in immigration law: human rights implications of current changes in the UK by Dr Cliodhna Murphy

Clíodhna Murphy is a postdoctoral fellow on the IRCHSS-funded Senior Fellowship project “Migrant Domestic Workers and Migration Law Regimes in the EU: exploring the limits of rights protections”.

The rights and immigration status of migrant domestic workers have long been on the political agenda in the UK, where there is a long campaigning history associated with migrant domestic workers’ rights. From 1998 to 2012 the UK Immigration Rules provided for a specific visa for migrant domestic workers in private households (the overseas domestic worker visa) which allowed such workers to change employer, bring their dependents to the UK and eventually settle as long-term residents and citizens. On 29 February 2012, following a consultation process, it was announced that fundamental changes would be introduced to the visa which will remove these benefits and confine entry to the UK as an “overseas domestic worker” in a private household to a maximum period of six months. This blog post examines this process of law reform and the justifications offered for changing the law.

From 2002 until 2012, following a long campaign by the Waling-Waling and Kalayaan migrant workers’ associations, the Immigration Rules provided for a specific status for migrant domestic workers working in private households by way of the overseas domestic worker visa (ODW visa). The standalone and specific nature of the ODW visa recognised domestic work as a distinct employment sector, but one which is subject to the same employment protections as any other sector. The ODW visa was initially granted for a period of up to twelve months, which could be extended for twelve months at a time. Similar to the situation pertaining to other types of work visa, dependents could apply to go with the migrant domestic worker to the UK or to join them there.  Migrant domestic workers also had a pathway to long-term residence, as they could qualify for “indefinite leave to remain” if they met the criteria laid down in Immigration Rule 159G.

According to research conducted by Kalayaan, the portability of the ODW visa played a crucial role in enabling migrant domestic workers to escape from abusive employers, in facilitating them in negotiating fairer terms and conditions and remaining visible in the UK while continuing to support their families by continuing to send remittances home and in facilitating the pursuit of legal remedies against their employers. This arguably helps to reduce the incidence of trafficking and forced labour among migrant domestic workers. This view was endorsed in 2009 by the Home Affairs Select Committee on Human Trafficking in the UK. The United Nations Special Rapporteur on the Human Rights of Migrants further reinforced this view in noting the effectiveness of visa protections in the UK in facilitating the escape of migrant workers from exploitative and abusive situations and suggesting that the protections be extended to cover those domestic workers employed by diplomats.

Notwithstanding the innovative nature of the ODW visa and its undoubted advantages in reducing the degree of vulnerability of such workers, it was announced in February 2012 that the government would introduce changes to the overseas domestic worker routes to align these categories wit wider migration policy. The Immigration Rules are to be amended to provide that ODWs in private households will only be permitted to accompany and work for visitors. They must leave the UK with the visitor, or after a maximum of six months. They may not extend their stay, switch employer, sponsor dependants or settle here. The changes to the Immigration Rules were laid before the Parliament on 15 March and will come into effect on 6 April 2012. There will be no change in the legal status or position of those who entered the UK in the ODW category prior to 6 April 2012. While, in theory, a resolution of disapproval passed by either House of Parliament within 40 days could result in amendments to the planned changes, such a resolution is unlikely.

The rationale offered by the government (as set out in its consultation paper of June 2011 for the proposed changes is marked by the characterisation of domestic work as low skilled work of little value, which UK immigration policy should not be encouraging. The stated general rationale for the proposed ‘reforms’ as part of immigration policy as a whole is to reduce net migration by increasing the numbers of migrants who leave after their initial stay, in order to get to a position where “Britain will continue to attract the brightest and best workers, who will make a strong contribution to our economy and society during their stay, then return home”. Another strand of the government’s argument is that overseas domestic workers are taking British jobs in the context of high levels of unemployment in the UK.

The proposals were strongly resisted by Kalayaan (among other organisations), who argued that the modifications would remove crucial protections and risk creating an underclass of workers susceptible to bonded labour. The campaign against the proposed changes was ultimately unsuccessful.

While the effects in practice of the specific amendments to the Immigration Rules and the modifications of the ODW visa remain to be seen, they will certainly result in a more precarious position for migrant domestic workers within the UK. This provides an important example of the role played by immigration law in placing migrant domestic workers in a situation of vulnerability to abuse and exploitation.

The Lubanga Judgment and the Impact on Girl Soldiers by Fiona O’Regan

The Definition of Using Children to Participate Actively in the Hostilities in the Lubanga Judgment and the Impact on Girl Soldiers by Fiona O’Regan (PhD student, IRCHSS scholarship recipient, Supervisors Dr Fiona Donson and Dr Siobhan Mullally)

On Wednesday, the International Criminal Court (ICC) delivered its long awaited first judgment, convicting Thomas Lubanga Dyilo of the war crime of conscripting or enlisting children and using them to participate actively in hostilities.  This case marked a significant moment in the development of the law surrounding the use of child soldiers, representing an opportunity for the permanent court to strengthen understanding of these crimes, in particular, the myriad of activities that can form part of the recruitment and use of child soldiers. However, the ICC declined to take up this mantle and rather than define what is meant by  “using children to participate actively in the hostilities”, the Court held that this term was to be defined on a case by case basis depending on the charges brought against the accused.

 

In her partial dissent, Judge Odio Benito criticised the majority for this stance, stating that “[t]he Chamber has the responsibility to define the crimes based on the applicable law, and not limited to the charges brought by the prosecution against the accused”.  The Judge also added that “this case-by-case determination can produce a limited and potentially discriminatory assessment of the risks and harms suffered by the child”.  The practical consequence of this approach in the Lubanga case was that evidence relating to sexual violence which had been repeatedly raised throughout the trial and mentioned by 21 out of 25 prosecution witnesses in their testimonies, was not accounted for when the Chamber was determining the accused’s responsibility. The sexual violence evidence was not considered because no charges of sexual violence were brought against the accused and according to the Chamber, their decision could only be based on the charges brought (under Article 74 of the Rome Statute). In the words of Judge Odio Benito, the effect of this decision is that “the Majority of the Chamber is making this critical aspect of the crime invisible”.  Girl soldiers in particular are negatively impacted by this outcome.

 

The plight of girl soldiers in armed conflict, particularly abuses which disproportionately affect girls, have tended to be overshadowed by more traditional conceptions of the crime of recruitment and use of child soldiers.  Although girl combatants commonly carry out the same duties as boys, fighting in battles, acting as bodyguards, look-outs and spies; they are also expected to perform domestic work such as cooking and cleaning and more seriously, act as the so-called “wives” of commanders through engaging in sexual activity.  Whilst all recruits, male and female are vulnerable to sexual violence through their training and living in the camps or as a means of punishment, only girls are targeted for these sexual slavery related crimes.  Girls are often recruited to specifically fill these roles, which act as essential support functions and ensure that the particular militia operates effectively.  Thus, these ostensibly subsidiary functions are in fact an intrinsic aspect of the role of a girl soldier.

 

Had the Chamber adopted the approach canvassed by Judge Odio Benito, whereby a definition of “using children to participate actively in the hostilities” had been set down by the Chamber independent of the facts of this particular case, then the sexual violence suffered by the victims engaged in this case could have been recognised, provided an expansive definition of this term was adopted.  The UNICEF Principles and Guidelines on Children Associated with Armed Conflict and Armed Groups adopted in Paris in 2007 (The Paris Principles) offer some guidance in this respect, by specifically highlighting girl soldiers, stating that “the use of girls as “wives” or other forced sexual relations, actual forced marriage and the use of girls for domestic labour or other logistical support in armed conflict constitute acts of recruitment or use”.  The sexual violence suffered by child soldiers, particularly girls, is so intertwined with their recruitment and use that it ought to be included in the definition of child soldiering crimes, and in fact, to exclude it, as Judge Odio Benito states, would be to discriminate against girl soldiers, as it excludes a large part of their personal experiences of these crimes.  Recognising the sexual violence angle to child soldiering would have been particularly beneficial in this case as the decision of the prosecutor to not charge crimes of sexual violence attracted considerable negative commentary and continues to be viewed as one of the major failings of the Lubanga case.  Thus, had the Court recognised that sexual violence can form part of the recruitment and use of child soldiers then at least a degree of recognition would have been awarded to these crimes.

 

In addition, the Chamber heard considerable evidence from witnesses, mainly child soldiers about the sexual violence employed against recruits particularly girls.  According to one witness who attended the demobilisation centres for child soldiers connected to this case, all the girls she met at these centres had been sexually abused and “that the psychological and physical state of some of these young girls was catastrophic”.  For these victims, the refusal by the Court to acknowledge this aspect of their suffering could have a very negative impact and may delay their efforts to reintegrate and move forwards from victimisation.  The Chamber’s decision to allow victim-witnesses and expert witnesses to testify about sexual violence and the prosecutor and the victims’ legal representatives to repeatedly ask questions about the issue appeared to lead to the conclusion that such evidence would be accounted for when assessing the accused’s responsibility, and therefore the ultimate decision not to take this evidence into account is very disappointing.

 

The Trial Chamber did state that sexual violence may still have relevance in the upcoming sentencing and reparations hearings, which may offer some comfort to the victims involved in this case, particularly girl soldiers.  However, the failure to articulate a definition of “using children to participate actively in the hostilities” and instead leave the crime to be interpreted on a case by case basis meant that the ICC lost a valuable opportunity to further the law on child soldiering as well as offer recognition to the victims of sexual violence engaged in the present case.

 

Tags:

ICC, Thomas Lubanga, Child soldiers, sexual violence, Odio Benito, international criminal law

Venice Academy of Human Rights

The Venice Academy of Human Rights will take place from 9-18 July 2012. The theme of this year’s Academy is “The Limits of Human Rights” (http://www.eiuc.org/veniceacademy/).
Online registration is open until 1 May 2012.
Faculty of the Venice Academy 2012

Professor Philip Alston, NYU Professor Seyla Benhabib, Yale Assistant High Commissioner Erika Feller, UNHCR Professor Martti Koskenniemi, Helsinki Professor Friedrich Kratochwil, CEU/EUI Professor Bruno Simma, Ann Arbor/Munich Professor Henry Steiner, Harvard

 
Key Facts Participants: Academics, practitioners and PhD/JSD students Type of courses: Lectures, seminars and optional workshops Number of hours: 21 hours of compulsory courses (plenum), 16 hours of elective and optional courses (smaller groups) Location: Monastery of San Nicolò, Venice – Lido, Italy Fees: 500 €
The Venice Academy of Human Rights is a center of excellence for human rights education, research and debate. It forms part of the European Inter-University Centre for Human Rights and Democratisation (EIUC). The Academy offers interdisciplinary thematic programmes open to academics, practitioners and doctoral students with an advanced knowledge of human rights.
A maximum of 55 participants is selected each year.
Participants attend morning lectures, afternoon seminars and workshops and can exchange views, ideas and arguments with leading international scholars and other experts. This includes the opportunity to present and discuss their own “work in progress” such as drafts of articles, chapters of doctoral theses, books and other projects.
At the end of the program, participants receive a Certificate of Attendance issued by the Venice Academy of Human Rights.

 

International Criminal Court Delivers First Ever Verdict in Lubanga Case by Anna Marie Brennan

The International Criminal Court delivered its first ever verdict in The Hague this morning in the case of Thomas Lubanga.

Lubanga, who became the political leader of the Union of Congolese Patriots in 2002, had been charged with recruiting and using child soldiers in armed hostilities in the north-eastern region of the Democratic Republic of Congo (DRC). He pleaded not guilty to the charges and contended during trial that he did not take any part in the hostilities. Lubanga also argued that he was only the political leader of the UCP and was not the commander of the party’s armed wing. However, the Prosecution accused Lubanga of using boys and girls under the age of 15 as bodyguards, sex slaves and soldiers.

During the proceedings video footage was admitted into evidence which appeared to depict Lubanga inciting child soldiers to actively participate in tribal warfare in the north-eastern region of the DRC. In a unanimous decision, the three trial judges held that the evidence proved that as the leader of the UCP and its armed faction, Lubanga was responsible for the recruitment of child soldiers who took part in inter-tribal warfare in the region. 

This is landmark decision for a number of reasons. First of all, it is the first verdict to be handed down by the International Criminal Court after it was established more than ten years ago. It is also the first ever trial to focus specifically on the use of child soldiers in an armed conflict situation and therefore could set a precedent for individuals such as Joseph Kony, the leader of the Lord’s Resistance Army in Northern Uganda, who still remains at large.

At the same time, the trial of Thomas Lubanga was not without controversy. In June 2008, the proceedings were halted after the court ruled that the refusal by the Prosecutor to disclose exculpatory evidence, from sources such as the United Nations, had infringed the accused’s right to a fair trial. Even though the Prosecutor had acquired the evidence on the condition of confidentiality the trial chamber held that the Prosecutor had wrongly applied the Rome Statute of the International Criminal Court. As a consequence, the International Criminal Court ordered the release of Lubanga on the grounds that a fair trial of the accused was not possible because there was no longer any justification for his continued detention. However an Appeal Chamber agreed to keep Lubanga in custody while the Prosecutor appealed the trial chamber’s decision. In November 2008, the Prosecutor agreed to make all confidential information available to the trial chamber. As a result, the trial chamber overturned its ruling and ordered the resumption of the trial. Although the Prosecutor was widely criticised for his conduct the International Criminal Court was commended for its efforts to ensure the fair trial of Lubanga. 

Nevertheless, the International Criminal Court can be criticised for a number of reasons. States such as China, Russia and the United States who are permanent veto-holding members of the UN Security Council have not signed the Rome treaty establishing the Court. This in turn has arguably undermined the authority and influence of the court in the international arena. The Court is also impeded in carrying out its functions by not having its own police force to execute arrest warrants and as a consequence relies on the goodwill and support of the international community to capture and detain suspects. However, the most contentious issue is that despite the fact that the International Criminal Court has nearly 700 employees and had a budget of nearly 900 million dollars during the first decade of its existence it still took almost seven years to initiate the trial of Thomas Lubanga. 

International legal experts, such as Professor Schabas at Middlesex University, have also criticised the outgoing Prosecutor of the ICC, Moreno Ocampo, for only investigating and initiating proceedings against the losing parties in armed conflict situations. In particular, Professor Schabas has argued that the prosecutor has “avoided situations where he would be likely to step on the toes of the permanent members of the Security Council, from Afghanistan to Gaza, to Iraq, to Columbia.” In conclusion, a persuasive argument can be made that the International Criminal Court may not be fulfilling the actual purpose for which it was established; to bring individuals suspected of committing international crimes to justice.

Climate Justice and the Durban Platform for Enhanced Action

Mary Robinson, President of the Mary Robinson Foundation – Climate Justice (MRFCJ), delivered a public lecture at UCC’s Centre for Global Development titled ‘Climate Justice Post Durban’ on 18 January 2012. Mrs. Robinson explored the outcomes of the most recent UN climate change conference, COP17, which took place in Durban, South Africa, in December 2011, from a climate justice perspective and the extent to which it addressed the needs of those most vulnerable to the impacts of climate change.

COP17, she said was concerned with “what I believe to be the most critical issue we all face – the future of our planet. In these times of economic crisis, amid worries about our own and the European and international economies, it is not surprising that attention focuses on our immediate problems. But, make no mistake about it, we ignore the threat posed by climate change at our peril.”

Mrs Robinson explained the three priorities for the MRFCJ at COP17; the legal form of a future climate agreement; food security and agriculture; and women’s leadership and the gender dimensions of climate change.

Speaking about the outcome of COP17, known as the Durban Platform for Enhanced Action, Mrs Robinson said: “The door is open for a new international and inclusive legally binding agreement to solve the climate change problem. We have a start date, January 2012, a deadline December 2015, and a lot of work to do, barriers to breakdown and agreement to reach before then.

“Central to this will be overcoming the divide between developed and developing countries in the climate negotiations. The alliance formed between the EU, the Least Developed Countries and the Small Island Developing States at COP17 started to challenge this divide. It is a move in the right direction that will need to be nurtured and strengthened in the coming years to facilitate an ambitious new agreement.”

She continued: “We made progress on issues of importance to climate justice including gender equality and food security. Both of these reflect the Principles of Climate Justice which underpin the work of MRFCJ and help to communicate the human impacts of climate change and demonstrate the need for solutions which are informed by human rights.”

“This work is far from complete and we will continue to work on these themes inside and outside the Climate Change Convention as core elements of our work on climate justice.”

The lecture was part of the UCC Centre for Global Development’s Global Challenges Lecture Series.

See also:

Full text of lecture

Climate issues crucial, says Robinson – Irish Times, 19th January 2012

The Denial of Humanitarian Assistance: The case of Syria

The International Committee of the Red Cross (ICRC) has now entered the sixth day of negotiations with the Syrian authorities over allowing access for humanitarian assistance to the neighbourhood of Baba Amr in Homs. The Syrian authorities have cited security concerns for the denial of access to the ICRC and the Syrian Red Crescent, claiming that the neighbourhood is booby trapped and landmined. Yet the UN Secretary General, Ban Ki-Moon, has stated that he has received “grisly reports” of summary executions and torture by Syrian troops, and it is alleged that the delay in allowing access is so that Syrian forces can hide evidence of such killings. Meanwhile, the Irish authorities have pledged €500,000 in humanitarian assistance toSyria, with Tánaiste and Minister for Foreign Affairs Eamon Gilmore, highlighting the importance of immediate and unhindered access for all humanitarian agencies, and the danger of any militarisation of humanitarian assistance.

The Right to Humanitarian Assistance under IHL

Humanitarian access, particularly in the midst of an armed conflict, has long been a contentious issue. Nevertheless, while the extent of a binding international legal right to humanitarian assistance remains contested, Geneva Convention IV relative to the Protection of Civilian Persons in Time of War does provide certain rights to humanitarian assistance for civilian populations during armed conflicts. For example, Article 23 provides that the entire population in a conflict zone is entitled to receive medical supplies and objects necessary for religious worship; while particularly vulnerable groups such as children under fifteen, expectant mothers and maternity cases are additionally entitled to essential foodstuffs, clothing and tonics. The forms of assistance allowable in international armed conflicts were expanded via Article 70 of Additional Protocol I in 1977 to include clothing, bedding, shelter and other supplies necessary for the survival of the civilian population, plus objects necessary for religious worship.

While ICRC acknowledges that military considerations are part and parcel of decisions surrounding the provision of humanitarian assistance to civilians in conflict zones, GV IV also stipulates that civilian populations are entitled to a minimum level of protection against some of the consequences of war, with key protections in place for hospitals and “neutralised zones”. Particularly vulnerable groups such as the sick and wounded or the elderly should also receive explicit protection.

Furthermore, Article 70 API utilises non-discretionary language: “If the civilian population … is not adequately provided …, relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken” (emphasis added). Nevertheless, despite this mandatory language, Article 70 then introduces certain limitations on the provision of this humanitarian assistance. First and foremost, the provision that humanitarian assistance must be “subject to the agreement of the Parties concerned”. Additionally, the Parties have the right to prescribe technical arrangements, including search procedures, under which the passage of humanitarian supplies are permitted. Meanwhile, although Article 71 API provides that humanitarian personnel shall be respected and protected in the discharge of their functions, it also stresses that “[u]nder no circumstances may relief personnel exceed the terms of their mission … In particular they shall take account of the security requirements of the Party in whose territory they are carrying out their duties”.

These provisions reflect the recognition throughout IHL that while parties to a conflict have explicit responsibilities towards civilians under their control, individual rights may be legitimately constrained, either for military necessity, security reasons or due to insufficient resources.

Considering that the Syrian authorities have argued security concerns for the denial of access for the ICRC and Syrian Red Crescent, at face value this might imply that they are justified in their current stance. Indeed, internal armed conflicts present further difficulties for humanitarian access. Additional Protocol II does not contain the same level of detail regarding relief activities for civilian populations, and Article 18(1) APII provides only a right for humanitarian agencies such as the Red Cross to offer their services for the victims of internal armed conflicts. By implication, such an offer may be refused by a Party to the conflict. Yet, Article 18(2) once again uses mandatory language in proscribing that “[i]f the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival … relief actions for the civilian population … shall be undertaken”.

Furthermore, the provisions of humane treatment set out in Common Article 3 apply in all internal armed conflicts, and the ICRC has determined that the provision of humanitarian assistance to civilian populations is part of customary international law. Under Customary International Law Rule 55, the parties to a conflict must allow and facilitate the rapid and unimpeded passage of humanitarian relief for civilians in need, while Rule 56 states that Parties to a conflict must ensure the freedom of movement of authorised humanitarian personnel. Crucially, only in case of imperative military necessity may their movements be temporarily restricted.

The Denial of Humanitarian Assistance as an International Crime

During the negotiations for the establishment of the International Criminal Court (ICC), Sergio Vieira de Mello submitted a communication to the Diplomatic Conference on behalf of the UN Inter-Agency Standing Committee which argued that the wilful denial of humanitarian assistance committed in both international and internal armed conflicts, should be included in the jurisdiction of the Court. While the Rome Statute did not create a specific crime of the denial of humanitarian assistance, the non-provision of humanitarian assistance could be classified as a crime against humanity. As per Article 7 of the Rome Statute, a crime against humanity includes acts committed as part of a widespread or systematic attack against any civilian population that results in murder, extermination, persecution, or other inhumane acts causing great suffering or serious injury to body or to mental or physical health. Indeed, the ICC has noted that “extermination” covers inflicting conditions that destroy life and has specifically highlighted the deprivation of access to food and medicine in this context. Furthermore, Additional Protocols I and II prohibit the deliberate starvation of civilians as a method of warfare, and the ICRC Customary International Law Study has concluded that this prohibition is also part of customary international law in both international and non-international armed conflicts.

So if it is part of a widespread or systematic policy which is considered an attack on a civilian population, the deliberate denial of humanitarian assistance and resultant suffering and potential deaths may amount to a crime against humanity. It is therefore possible for prosecutions under international criminal law to be initiated if evidence comes to light that a deliberate policy of denial of humanitarian assistance has taken place in breach of Syria’s international obligations. Individuals who planned and implemented policies that resulted in the denial of humanitarian assistance could therefore face either national or international criminal charges. The consequential threat of punishment for actions that result in denial of assistance may help ensure not just the mobilisation of national resources for the affected populations, but facilitate access by international agencies to those in need.

On this basis, it would seem that the criminalisation of actions that lead to the wilful denial of humanitarian assistance can provide a key tool in negotiations on humanitarian access in situations of armed conflict. However, Médecins Sans Frontières has noted that:

“… it is the threat of punishment, rather than punishment itself, that might potentially have a deterrent effect. Once the latter has been handed down, the criminal has nothing left to lose. Within a week of the ICC’s arrest warrant for the Sudanese head of state [President Omar al-Bashir], the Khartoum government committed a new series of war crimes, ranging from blocking humanitarian aid to kidnapping humanitarian workers, including the looting and use by Sudanese security forces of MSF’s vehicles, communications devices, and personal identification. So while the threat of charges could act as an incentive in negotiations between the international community and the Sudanese government, the announcement of charges against the Sudanese president drove him into a corner … As far as relying on the fear of international criminal charges to protect humanitarian relief efforts is concerned, we can only stress that it is a risky bet.”

If this is the case, then the ICC should be cautious in bringing charges against Syrian officials at this stage when the conflict is ongoing, but rather should be actively pursuing credible allegations of crimes within the Rome Statute for potential prosecutions in the future. Meanwhile, in the absence of a unified approach from the UN Security Council, the international community must increase the diplomatic and political pressure on the Syrian authorities to respect their international commitments to provide and facilitate humanitarian assistance to all civilian populations.

LAUNCH OF CITIZENSHIP REPORT: Living in Limbo

The Centre for Criminal Justice and Human Rights, in association with NASC and the Immigrant Council of Ireland, are pleased to announce the following event:

Launch of Citizenship Report: Living in Limbo

at a Lunchtime Seminar

The event will take place on Tuesday 13th March from 12.30 – 2 pm in the  Lewis Glucksman Gallery, UCC

Chair: Justice Catherine McGuinness

Speakers:

  • Catherine Cosgrave (Senior Solicitor, Immigrant Council of Ireland)
  • Michael Lynn B.L.
  • Fiona Finn, CEO, NASC, the Irish Immigrant Support Centre
  • Prof Siobhán Mullally (UCC, Faculty of Law)

See: http://www.nascireland.org/#/naturalisation/4556551099

 Please RSVP to info@nascireland.org

Tel. 021 4317 411

ALL Welcome

CPD Points: 1.5 available

There is no registration fee for this event. Light refreshments will be available.

For further information can be obtained by contacting Claire McCarthy, Policy and Communications officer: clairemccarthy@nascireland.org

Migration and Regularisation in Poland by Alan Desmond

CCJHR blog is pleased to be able to cross post this blog by Alan Desmond with Human Rights in Ireland.  Alan is writing a PhD here at UCC, under the supervision of Professor Siobhán Mullally, on the regularisation of undocumented migrants in international and European Human Rights Law. Alan is a Government of Ireland Research Scholar in the Humanities and Social Sciences.

The immigration to Poland from the east which followed the collapse of communism in 1989 and the fall of the Soviet Union in 1991, coupled with EU accession negotiations in the 1990s, forced Poland to try to put in place a framework to deal with immigration. One of the methods employed in the field of irregular immigration was to implement regularisation or legalisation programmes, a process whereby unlawfully present non-EU citizens can apply for a legal status.

 Despite the dim view of regularisation taken by the Council of the European Union and the European Commission which emphasise instead enhancing border control and returning irregular immigrants to their countries of origin or transit, most EU Member States have implemented regularisation measures of one sort or another. Poland’s third regularisation programme, underway since 1 January, looks set to succeed where the country’s first two attempts at regularisation failed.

The 2003 and 2007 Regularisations

Poland’s first attempt at regularisation was carried out in 2003 in anticipation of its accession to the EU in May 2004, with the second regularisation programme coming in 2007 ahead of Polish membership of the Schengen zone.

Both attempts were abjectly ineffective. This was due to overly-restrictive eligibility criteria, failure to publicise the programmes amongst the target group and the understandable reluctance of immigrants without a legal status to present themselves to the authorities.

In order to successfully apply for regularisation in 2003 the Polish authorities had to be satisfied that applicants did not pose a threat to national security or public order, with irregular immigrants having to submit proof of, amongst other things, almost 7 years’ continuous residence in Poland; medical coverage and sufficient resources to support themselves without recourse to social welfare; a promise of work; and legal title to residential accommodation. The 2007 regularisation programme was even more restrictive.

While the 2003 programme facilitated regularisation of about 2000 immigrants, the 2007 programme yielded less than 1000 successful applications.

Those who acquired a legal status under both programmes were given a one-year residence permit and were drawn primarily from the most well-organised immigrant groups in Poland, namely the Armenian and Vietnamese communities. While Ukrainians constitute the largest irregular immigrant community in Poland, they ranked third in terms of successful applications.

Given that Poland’s irregular population is estimated by the government to be between 40, 000 and 100, 000, with NGOs putting the figure at 100, 000 – 500, 000, Poland’s first two attempts at regularisation were wholly unsuccessful.

The 2012 Regularisation

It is perhaps unsurprising, then, that a third regularisation programme was deemed necessary. Providing a legal status to immigrants allows them to emerge from the shadows of illegality where exploitation is rife. Freed from the fear of deportation which blights the lives of irregular immigrants the world over, regularisation empowers them to demand respect for their rights. Indeed States will sometimes be required to provide a legal status to irregular immigrants so as to comply with their human rights obligations. The right to respect for private and family life recognised in Article 8 of the European Convention on Human Rights is one example of a human right which has been found to oblige a State to regularise the status of an irregular immigrant.

While agitation by civil society and immigrants themselves played an important part in the introduction of a third regularisation programme in Poland, politicians seem to have proposed the relevant legislation not so much out of an awareness of human rights obligations as out of a realisation that the country’s dynamic economy, coupled with large-scale emigration of Polish citizens, has produced a demand for labour.

Thus from 1 January until 2 July an application for regularisation may be lodged by unlawfully present immigrants who have been continuously resident in Poland since 20 December 2007 and by asylum-seekers whose application for refugee status was refused prior to 1 January 2010.

Successful applicants will be granted a two-year residence permit which will also entitle them to work without a work permit, though the legislation provides that these two years may not be counted as part of the period of continuous legal residence which is required before an immigrant can apply for EU long-term residence status.

In contrast to the stringent requirements of the first two regularisation programmes, the current programme precludes regularisation only where applicants are found to be a threat to national security or public order; to have submitted false documents or information as part of their applications; to have been entered into the Schengen Information System by another Schengen country for the purposes of refusing entry.

The current regularisation programme is thus far more applicant-friendly than the earlier ones and its less restrictive eligibility criteria mean that it is open to a far wider pool of Poland’s irregular immigrant population than was the case in 2003 and 2007.

Little surprise, then, that the first eight weeks of the programme have seen 3377 applications submitted to the regional authorities in each of Poland’s 16 administrative regions, more than half of the combined total of applications submitted during the 2003 and 2007 botched attempts at regularisation. A negative decision at the regional level may be appealed to the Office for Foreigners.

The scale of the response no doubt reflects the government information campaign and media coverage, but with just 303 positive decisions issued so far it remains to be seen whether increased awareness and more favourable eligibility criteria will in fact translate into an appreciably larger number of regularised immigrants than Poland’s previous efforts to provide legal status for unlawfully present non-EU citizens.

Furthermore, despite the comparative generosity of the current regularisation programme, it fails to deal with irregular immigrants who arrived in Poland after the magic date of 20 December 2007. Are they to await the country’s fourth regularisation programme four years from now? Would the implementation of such a regularisation programme be contingent on propitious economic circumstances? To avoid uncertainty and unfairness it might be wise to follow the advice of people such as Joseph Carens who has argued that rather than having recourse to one-off amnesties, liberal democratic States should institutionalise an automatic transition to legal status for irregular immigrants who have been settled for a specified minimum length of time. Just how much time should have to pass before an irregular immigrant gains legal status is of course fertile ground for disagreement and, as Carens admits, a question whose answer inevitably involves an element of arbitrariness.

Detailed, regularly updated information on Poland’s third regularisation programme is provided in a number of languages at http://abolicja.gov.pl