Opinion: the government’s new scheme falls far short of the robust measures required to reduce the number of undocumented migrants in Ireland

By Alan Desmond, University of Leicester

There are tens of millions of irregular migrants right across the globe. Such migrants, also referred to as undocumented, are people who are present without permission in a state whose citizenship they do not possess. In many ways, irregular migration is a result of states’ failure to provide adequate routes for legal migration.

While some irregular migrants will have unlawfully crossed an international border, most will have entered legally on the basis of a tourist visa or work permit and simply stayed in their host state beyond the expiry date of that document. Migrant Rights Centre Ireland (MRCI) estimates that Ireland is home to between 20,000 and 26,000 undocumented migrants, a small number in both absolute and relative terms when compared to countries like the US where the irregular migrant population is reckoned to be around 11 million.

The undocumented migrant and the state

There are many reasons why states should take measures to reduce their undocumented migrant population. Irregular migrants will often be afraid to approach the authorities if they fall victim to crime. They may be reluctant to co-operate with the police if they witness crime. They will tend to avoid accessing healthcare services until an illness becomes acute, creating a health risk not just for themselves, but for the wider community.

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From RTÉ Radio One's Morning Ireland, Cian McCormack reports on calls from illegal immigrants living here to create a way for them to regularise their status

They will be unable to provide a suitably stable, supportive environment for their children. They will be slow to seek redress through official channels if they are underpaid, unpaid or otherwise exploited or abused by employers. They act in this way because they fear that contact with the authorities may lead to their deportation.

The presence of irregular migrants leads to a situation where the trust that is essential for effective policing is eroded, the health of the community at large is put at risk, innocent children suffer disadvantages which have lifelong consequences and unscrupulous employers enjoy an unfair advantage over competitors who play by the rules. What is the best way of dealing with such an undesirable situation?

Deportation vs regularisation

In discussing responses to irregular migration, states tend to emphasise stricter border controls and expulsion or deportation. But there is evidence that making it more difficult to legally migrate increases undocumented migration. In other words, if people can’t stay legally, they’ll stay anyway. Furthermore, once undocumented migrants are present in a state, there is a litany of factors which makes it difficult to remove them, with the result that most will never be deported.

Regularisation programmes have been implemented by dozens of states around the world, including Ireland.

An alternative solution to the presence of irregular migrants is regularisation, a mechanism whereby a state grants undocumented migrants a legal right to remain. Although politically unpopular and often cast as an exceptional measure, regularisation programmes have been implemented by dozens of states around the world, including Ireland.

The new Irish regularisation scheme

Ireland’s most recent regularisation scheme commenced in October, when the Department of Justice and Equality announced that it was opening a scheme for a specific group of undocumented migrants. Until 20 January 2019, the Irish Naturalisation and Immigration Service (INIS) will accept online applications for regularisation from irregular migrants who arrived to study in Ireland between 1 January 2005 and 31 December 2010.

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From RTÉ Radio One's Morning Ireland, Helen Lowry, deputy director of the Migrant Rights Centre Ireland, discusses the new visa scheme being introduced in Ireland

The scheme has been welcomed by MRCI, an organisation which has been at the forefront of efforts to address the plight of the undocumented in Ireland. The Department of Justice and Equality has claimed that the measure will benefit "a significant cohort" of the state’s undocumented population. It is certainly true that the scheme will be, as noted by Helen Lowery of MRCI, transformational and life-changing for those who successfully apply. While a comprehensive evaluation of the new initiative must wait until after the deadline for applications, some serious shortcomings are already evident.

Firstly, the scheme is too narrow in scope. It is open only to people who came to study in Ireland between 2005 and 2010, around 5,000 individuals. While the introduction of the scheme was prompted by a Supreme Court ruling earlier this year, the government could have seized this opportunity to regularise a much broader swathe of Ireland’s undocumented population.

Many of Ireland’s undocumented migrants have been residing here for over five years. They have put down roots, become part of a community, worked and raised children who have known life in no other country apart from Ireland. This would have been an opportune moment to give legal recognition and protection to their place in Irish society and remove the threat of deportation which hangs over every undocumented migrant.

Is Ireland to go down the same error-ridden path as Poland?

Secondly, the scheme may even fail to successfully regularise the maximum number of target applicants due to overly restrictive eligibility criteria. The hefty €700 application fee, the short timeframe to inform the target group and to gather all necessary documents may prevent some of those who are otherwise eligible from applying. It was similarly restrictive criteria which led to the failure of Poland’s 2003 regularisation scheme which had to be repeated in 2007 and, again, in 2012. Is Ireland to go down the same error-ridden path as its eastern neighbour?  

A better way?

Instead of undertaking narrowly focused and ad hoc regularisation programmes, the Irish authorities would do better to establish a mechanism allowing for automatic transition to legal status for irregular migrants who have spent a specified minimum period of time, say five years, in the state. While such a mechanism may justifiably be accompanied by requirements like the absence of a criminal record, such limitations should be few in number to ensure that as broad a swathe as possible of the irregular migrant population can avail of the regularisation measure.

Regardless of the walls or fences that some may seek to erect as a barrier to migration, irregular migration is a feature of today's globalised world which is here to stay. The Irish government would do well to acknowledge this reality and to tailor its responses to the presence of undocumented migrants in Ireland accordingly.

Alan Desmond is a lecturer in law at the University of Leicester. He recently edited Shining New Light on the UN Migrant Workers Convention (Pretoria University Law Press) which is available to download for free here.

The views expressed here are those of the author and do not represent or reflect the views of RTÉ