A detailed response from the Department of Justice in Ireland to the Celtic League concern about the continuing plight of migrant fishermen. We wrote to Minister (Charles Flanagan TD) following concerns expressed by the (UN) Office of the HIgh Commissioner for Human Rights.
The text of our concern is in the press release (April 2019) on the main Celtic League web pages;
“Dear Mr Moffatt,
I refer to your correspondence dated the 8 April 2019 in relation to the communication received by this Department from the Office of the High Commissioner for Human Rights of the United Nations. The Minister for Justice and Equality, Charlie Flanagan T.D., has asked me to respond on his behalf.
I can advise that the Department of Justice and Equality has responded to the queries raised by the United Nations Special Rapporteurs in the appropriate manner.
Following a thorough pre-clearance process by the central depository of the Department of Agriculture, Food and the Marine, a non-EEA national fisher, who intends to take up work under this Scheme makes an application to the Irish Naturalisation and Immigration Service, an office of this Department for an Atypical immigration permission under the Immigration Act 2004. This permission is to enable the person to take up employment in the Irish fishing industry in a manner equivalent to employment permit regime operated by the Department of Business, Enterprise and Innovation.
Under the terms of Scheme, the atypical worker permission is given on the condition that the person has in place a certified contract of employment with a particular employer who is a licensed vessel owner registered as an employer under the Scheme.
The issue of employment permits and worker permission is a governmental issue and the position of the Department of Justice and Equality and the Department of Business, Enterprise and Innovation, with the support of the
Department of Agriculture, Food and the Marine, and the Department of Employment Affairs and Social Protection is that employees falling within the Atypical Scheme must have secured employment with a licensed vessel owner registered with the Department of Agriculture, Food and the Marine on the Irish Fleet Register.
It is the wider position of Government that the employee’s worker permission should remain strictly contingent on the contract of employment with that employer. This reflects long-standing Government policy and is in line with international practice for the granting of employment permission.
Any change to this policy is strictly a matter for government approval.
While the permission granted is not transferable to any other employment sector within the State, there exists considerable scope to apply to change to a different employer licensed within the Scheme and this has been done a number of times to date. A participant does not need to leave the State in
order to do this, however the application must be made before the expiry of the extant permission. In contrast to the Employment Permit system operated by the Department of Business, Enterprise and Innovation, where an employee must wait for 12 months before an application can be made under a new employer, applicants under the Atypical Working Scheme for non-EEA crew in the Irish fishing fleet can make a request to change their employer at any time throughout the duration of their permission. In light of this fact, the Atypical Working Scheme can be viewed as particularly liberal with regard to the ability to transfer employer, compared to similar schemes operated both within the State, and internationally.
It should be noted that, at the time of writing, the number of applications to change employer under the Scheme represents less than 10% of the total number of individuals taking part in the Scheme, and no request to change employer has been refused, for any reason, to date.
Investigation and enforcement of working conditions, and allegations of exploitation are a matter for the Workplace Relations Commission, and the Marine Safety Office and do not fall within the remit of the Department of Justice and Equality. The Workplace Relations Commission publishes the
decisions and determinations of the Labour Court on its website at regular intervals.
An Garda Síochána, in conjunction with this Department, investigate any and all claims regarding the trafficking of people, including allegations made in relation to the Atypical Working Scheme. As investigations are continuing, and in light of the independence of An Garda Síochána from the
Department of Justice and Equality, comment on the progress of these investigations would not be appropriate at this time.
The vessels encompassed by the Scheme are subject to regular inspection by a number of State Agencies. The Workplace Relations Commission (WRC) in particular has inspected almost all vessels within the scope of the scheme, and maintains a risk-based inspection and compliance regime which is informed by intelligence, including information from the International Transport Workers Federation (ITF) and other concerned NGOs. There have been five multi-agency specifically targeted operations within the sea fishing industry between October 2016 and the present, and robust engagement will continue.
As a result of this engagement, An Garda Síochána have identified 21 migrant fishermen as possible victims of human trafficking (19 in 2017 and 2 in 2018) and caused them to be admitted to the National Referral Mechanism. Admission to the National Referral Mechanism is based on a low threshold of possibility that trafficking may have occurred. Sixteen of
these persons had received immigration permission under the Atypical Working Scheme. While this is a matter of concern and is being treated with the utmost seriousness, these cases represent a small percentage of the overall number of fishers availing of the Scheme.
Assistance and services under the National Referral Mechanism have been afforded to all of these victims, including accommodation, medical and legal assistance. Investigations are continuing but no criminal proceedings
have been commenced to date.
Please note that the ratification of the International Labour Organisation C188 ‘Work in Fishing Convention 2007’ is not within the remit of the Minister for Justice and Equality and related queries should be directed to the Minister for Transport, Tourism and Sport.
Private Secretary to the
Minister for Justice and Equality”
In line with the observation in the final para Celtic League, which is an accredited NGO (ECOSOC) of the UN, will now be pursuing the question of ILO Convention C188 with Ireland’s Department of Transport.
Celtic League are grateful to the Minister and his staff for this comprehensive response
Assistant General Secretary