The black economy seemed to be disappearing a while ago. My impression is based on anecdotal evidence but what other evidence is there for the black economy? In middle-class Dublin cleaners and gardeners were a thing of the past. This could only be a cause for celebration. Women pushed into house cleaning by family circumstances, poor health or early school leaving found themselves in demand for mainstream jobs in supermarkets or contract cleaning firms. It wasn't a glamorous career change, but it gave them paid holidays, sick leave, even pension entitlements. Men marginalised by redundancy and whose gardening income depended on the weather found full-time jobs with landscape gardening firms or even started their own gardening businesses under the back-to-work scheme.
It seemed for a while as if these service jobs were about to be formalised, as if anyone who wanted their house cleaned or their garden tended would have to go to a company for the service, probably paying more but ensuring that the provider of the service had rights and protections.
But the contract cleaning companies and gardening firms have waiting lists for clients now. Since nature abhors a vacuum, the black economy has returned in a new form. Like tidal water filling rock pools, the lower crevices of the economy - cleaning jobs, corner shops, cafes - are being filled silently and steadily by the most powerless among us, illegal immigrants and asylum-seekers.
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Some asylum-seekers benefited from an amnesty allowing them to work before they received asylum, but most of those now waiting for their status to be determined may not work. If they work, they face possible criminal prosecution and a one-month jail term under the Refugee Act provisions in force since last November. No one has been prosecuted under the Act yet, but in 1999 two asylum-seekers were prosecuted under existing aliens legislation for working in a Dun Laoghaire shop. The prosecution was dropped last year. The men and their supporters could only guess why.
Immigrants from outside the EEA (the EU plus Norway, Iceland and Liechtenstein) who were not seeking asylum could always be jailed for up to six months for working without a permit under the 1930s aliens legislation. In 1999, there were 80 prosecutions under this legislation, according to the Garda. These could have been students from the US working a few hours a night in a bar. Last year there were only a handful of prosecutions. In neither year was anyone jailed, according to the Garda. The courts opted instead to apply the Probation Act or fine offenders.
There is no provision for prosecution of employers under any of the legislation. Employers, whether they are hoteliers or householders, are apparently under no obligation to inquire about the residency status of their employees. In Britain there are sanctions for employers. "If it is a criminal offence for someone to be working, surely there has to also be some obligation on employers," comments Dug Cubie, legal officer of the Irish Refugee Council.
How distasteful it must be for the Garda to prosecute workers - people who merely want to improve their situation - knowing that their employer faces no sanction and has possibly been exploiting them in the knowledge of their powerlessness. The employer may be open to prosecution for failing to pay tax or PRSI for his immigrant employees but the illegal immigrants may well be on the books as legitimate employees.
It is perhaps no accident that we have this kind of legislative regime and that at the moment we do not appear to be enforcing it. It suits us. Everyone knows that the economy is continuing to prosper because the low-skilled jobs for which we Irish are now too well-qualified are being filled by immigrants. Like the Californian fruit farmers, however, we don't want to have too many obligations to our migrant workforce. In the next downturn we want to be able to send the wetbacks back over the Rio Grande. In the meantime, if they are working with the fear of criminal prosecution hanging over them, then they will have to stay in low-paid, insecure jobs which we couldn't otherwise fill.
The employers' organisation, IBEC, last week called for a new policy on immigration, pointing out what a high proportion of future job growth was likely to be provided by immigrants. Analysis by the National Economic and Social Forum has suggested that over the next six years some 48,000 immigrants, including returning Irish, will be needed each year to meet the Republic's employment needs. Immigration has averaged 44,400 and emigration 25,000 per annum since 1996.
Last year, more than 27,000 people came into the State from outside the EEA. Some 16,000 were in effect imported by employers who applied for one-year work permits for them on the basis that their staffing needs could not be met within the EEA. Another 650 people received the so-called "Harney visas" to work in areas of the economy where specific skill shortages had been identified. And nearly 11,000 people - 8,600 of them adults - applied for asylum.
If immigration is going to remain a fact of life, we need to come to terms with it. Immigrants come because jobs are going a-begging. We want them. Our present legislation is fostering a sinister new black economy, in which the cleaner or the gardener, the waiter or the woman at the check-out, is risking a month in jail.
mawren@irish-times.ie
