Undocumented and Unheard

In light of the High Court’s decision to refuse compensation to Mohammad Younis, a man seemingly guilty of little more than forgetfulness, Yvanne Kennedy looks at the rights protections available to undocumented workers in Ireland

Mohammad Younis was very similar to a lot of people working in businesses across the state. He was working long hours as a chef in a restaurant run by his cousin, Amjad Hussein. He worked for up to eleven hours a day, every day of the week, for a low wage and without complaint. He was by all accounts a model employee, but he had one problem. From mid-2003, Younis was not working legally in Ireland. His work permit had expired and neither his employer nor he himself made any efforts to renew it.

As a result, when Younis finally realized how badly he was being treated in 2009 and resigned from his job, his action against the employer was unsuccessful. While he was initially awarded €92,000 by the Labour Court that included in excess of €86,000 that they believed he was due in back pay, Justice Gerard Hogan in the High Court quashed that decision last week.

While the consequences in this case are profound and obvious, the decision will have far-reaching implications for anyone working in the country without a permit. While the judge was undoubtedly following the law as is his job, he was seemingly critical of the process as a whole. The Irish Times have quoted him as saying that his judgment has “important policy implications that the Minister for Jobs and the Oireacthas might consider addressing.”
Younis and those like him are entirely blameless. They are working illegally but for a large number like him, they are unaware of their obligations under their visas and the consequences attached to their lapsing, or even the date at which they do. Justice Hogan remarked that if the claims made by Younis were accurate, that he was the victim of “the most appalling exploitation.” Very simply, he was used by his cousin who was in a much better bargaining position than a man coming to a country alone to a family he believed he could trust, when he didn’t even have the language of the land he was now to call home.

The law is indeed flawed in that it cannot provide protections to those in society who truly do need it most. While some may argue that Younis simply should have had a permit, and because he didn’t it’s his own tough luck, it is actually quite multi-faceted. In this case alone, there has been far more blame directed towards the employee and very little focus on the employer. It is also illegal to employ someone who doesn’t possess a work permit and yet Amjad Hussein and many like him will probably never see the inside of a criminal court for this offence.

Essentially, the law leaves the vulnerable employees entirely exposed. There will now be awareness that it is practically pointless to complain about substandard working conditions if you find yourself undocumented and in hostile situations. The legislature must ensure that the labour market is regulated correctly by specifically setting up roadblocks to deter illegal immigrants from taking up employment. However, that legislation, if applied uniformly and without consideration for individual circumstances, might have severe consequences for vulnerable workers who could be quite easily exploited by unscrupulous employers looking for inexpensive labour.

Currently, a non-Irish national cannot be employed without an appropriate permit and as has been said, this prohibition on employment also stretches to employers. However, an employer can defend themselves in any potential criminal proceedings while an employee is left without a leg to stand on. The law is called the Employment Permits Act 2003 and it allows an employer to put forward the defence that they took all reasonable steps to ensure compliance with the legislation. An employee has no such opportunity to do so and must find another loophole to jump through, though few are available.

Grainne O’Toole from the Migrant Rights Centre remarked that “fundamental problems” with the Act had been uncovered with Mohammad Younis’ case. “It is a sad day for Ireland when a man who suffered extreme exploitation is denied justice while his exploiter walks free” she said. This hardly a complex issue, though the law and the lingo may make it seem like such. Two wrongs don’t make a right and but when you look at the morality and circumstances of situations such as these it has to be realised that there is something fundamentally wrong when a person is treated as a practical slave, and has no opportunity then to fight back against the person who wronged them simply because they lack a piece of paper.

A rights protection for undocumented workers is not something new. Specific legislation exists in other countries to safeguard them from unjust attack and inhumane conditions. It seems like Ireland is stuck in the dark ages with these laws and there is definite need for reform. If this case doesn’t shock us into the 21st Century, it’s hard to know what will.