Damien English (Meath West, Fine Gael)
Link to this: Individually | In context | Oireachtas source

We will have a discussion with Ms Claire Cumiskey from the Irish Immigrant Support Centre, Nasc, to discuss the Employment Permits (Amendment) Bill which comes before the committee on Thursday. Her presence is timely. She previously contacted Deputy Tóibín and he proposed that Ms Cumiskey should be invited to the committee. I thank her for attending at short notice. It is important that we would speak to her prior to Committee Stage.
Before she makes her presentation, I wish to advise Ms Cumiskey that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if a witness is directed by the committee to cease giving evidence in regard to a particular matter and continues to do so, the witness is entitled thereafter only to a qualified privilege in respect of his or her evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. I invite Ms Cumiskey to make her presentation.

Ms Claire Cumiskey:

I thank the Chairman and the committee for inviting us here today. I am the senior legal officer with Nasc, the Irish Immigrant Support Centre. Nasc is a non-governmental organisation working for an integrated society based on the principles of human rights, social justice and equality. Nasc, which is the Irish word for link, works to link migrants to their rights through protecting human rights, promoting integration and campaigning for change. Nasc was founded in 2000 in response to the rapid rise in the number of asylum seekers and migrant workers moving to the city of Cork. It is the only NGO offering legal information and advocacy services to immigrants in Ireland’s second city. Nasc’s legal team assists some 1,000 immigrants annually in navigating Ireland’s protection, immigration and naturalisation systems. We also assist migrants and ethnic-minority Irish people who encounter community-based and institutional racism and discrimination. Our campaigning strategy is informed by the issues emanating from our legal case work and our day-to-day work with migrants.
The Nasc legal service has considerable experience responding to inquiries from employment permit holders. The content of my presentation is drawn directly from the case work. Our service responds to the needs of employment permit holders by way of acting on behalf of this migrant group in individual cases to both to the Department of Jobs, Enterprise and Innovation, DJEI, and the Irish Naturalisation and Immigration Service, INIS, of the Department of Justice and Equality.
We welcome the publication of the Employment Permits (Amendment) Bill 2014. In particular, we welcome the intention to introduce legislative protection for migrant workers who do not hold an employment permit in cases of illegal employment contracts, in response to the High Court decision in the Younis case.The Bill proposes to legislate for a number of policies already in place concerning the current administration of employment permit schemes and we welcome the intention to provide legislative protection in these areas.
Nasc made submissions to the Department of Jobs, Enterprise and Innovation prior to the publication of the Bill, with a particular focus on the availability of a mechanism whereby undocumented migrant workers could regularise their immigration permission. The Nasc legal service has assisted a number of undocumented migrant workers to regularise their immigration status and obtain new employment permits. In our experience, the current process for regularisation of undocumented migrant workers in exceptional cases is currently subject to discretionary and inconsistent decision making. We therefore particularly welcome the proposal to introduce legislation that will provide for a reactivation employment permitfor migrant workers who previously held an employment permit but fell out of employment through no fault of their own.
I wish to provide more detail on reactivation employment permits. The provisions contained in section 6 propose to insert section 3(A)(2)(f) into the Act of 2006. That has the potential to ensure attainable pathways to regularisation for undocumented migrant workers. We particularly welcome the co-operation of the Department of Justice and Equality in that regard. However, we believe that the requirements proposed by section 3(A)(2)(f) are overly restrictive and a number of undocumented migrant workers would be unable to regularise their status in the State as a result. We submit that the section should include a provision where the requirement to have "previously held an employment permit that is no longer in force" could be waived in exceptional circumstances where the migrant worker has been exploited.
Section 3(A)(2)(f) also requires applicants to not be in employment when making an application under this section. It is submitted that this section should be removed as the majority of undocumented migrant workers have no option but to engage in black market employment while they seek to regularise their permission in the State. This provision could deter undocumented migrants from availing of the reactivation scheme. We submit that the requirement to have received an offer of employment "in respect of an employment for which an employment permit is required" should also be deleted as undocumented migrants in our experience are often low skilled and unable to satisfy the eligible job categories for the grant of an employment permit.

It is our experience also that delays in processing applications can have a serious impact on the outcome of an application. The immigration permission extended to undocumented migrants by the Department of Justice and Equality to apply for an employment permit can often expire before a decision has been made. Then the lack of immigration permission may be stated as a reason for refusing the employment permit. The validity of immigration permission should not be used as a ground for refusal in cases where the applicant had a valid permission when the application was submitted. It is therefore submitted that section 3A(2)(f) should be amended to provide for permission from the Department of Justice and Equality to be valid at the time of submission of the application.
Section 14(1)(c) provides that an employment permit can be refused if the foreign national landed in the State without immigration permission and has not been given permission by the Minister for Justice and Equality under the 2003 Act and was employed when the application for an employment permit was made. Section 14(1)(c) also provides that refusal may be issued where the foreign national was previously employed in the State without a permit or immigration permission. It is submitted that section 14(1)(c) is overly restrictive and the requirement not to be in employment at the time of making an employment permit application should be removed
Section 14(2) amends section 12 of the Act of 2006 by inserting numerous provisions after subsection (1) that allow the Minister to refuse an application. Subsection (1I), as inserted by section 14(2), refers to applications made under reactivation employment permits sections. It allows the Minister to refuse these applications if an employment permit application was previously made for that purpose and no renewal application was submitted, and it is in the "public interest" to refuse the application. Employment permit holders are completely dependent upon their employer in relation to the submission of renewal applications and we have experience of cases where a failure to submit a renewal application results from no fault on the part of the employment permit holder. It is submitted that section 14(2)(1I) should be amended to include a provision that excludes a refusal on the basis that failure to submit a renewal application resulted from no fault on the part of the employment permit holder. It is submitted that the refusal of an employment permit on the basis of "public interest" should be deleted as it has the potential to allow for arbitrary and inconsistent decision-making.
I want to touch on spousal and dependant employment permits. The current legislation provides that permits will only be available for spouses or dependants of highly skilled workers holding an employment permit. This is to encourage this category of foreign national to take up employment in Ireland, Employment permits for dependants may also be granted to family members of a research project researcher resident in the State pursuant to Directive 2005/71/EC. We submit that spousal or dependant employment permits should be available to all categories of employment permit holders to ensure family members of migrant workers have an opportunity to become economically viable in Ireland and contribute to the economy. In addition, the extension of spousal or dependant employment permits to all categories of employment permit holders would be a mechanism whereby family members can integrate into Irish society and would ensure respect of migrant workers' private and family life.
Section 3(A)(2)(b)(i) provides that spouses or dependants who wish to apply for an employment permit must have obtained permission to land and reside in the State as a dependant. This provision would appear to exclude relationships that have formed in the State due to the requirement to have obtained a so-called permission to land. The requirement to have obtained both permission to land and to reside should be removed to allow for relationships that have formed in the State to avail of spousal or dependant employment permits. The availability of spousal or dependant employment permits are essential to attract and retain highly skilled and all categories of employment permit holders.
While the Bill does not make any provision in relation to sectoral employment permits, we wish to highlight the fact that a sectoral approach to the issuance of employment permits is provided for under existing legislation. We submit that section 4(1)(b) of the Employment Permits Act 2006 should be fully implemented to allow the permit holder to work in a particular economic sector as opposed to working for a specified employer, as is the current practice. In our experience this practice greatly increases the risks of workplace exploitation and limits labour market mobility. Correct implementation of the Employment Permits Act 2006 would allow all permit holders to change employer within the permitted economic sector and would remove the requirement to apply for a new work permit. The provision of sectoral work permits should protect migrant workers from becoming undocumented as they would have greater mobility within the labour market.
My final point refers to a general undocumented workers scheme for exploited migrant workers. We submit that provision for an open-ended undocumented workers scheme should be introduced in the Bill to cater for migrant workers who have been subjected to exploitation, fraud, deception and employer non-compliance and who do not qualify for the reactivation employment permit provided for in the Bill. Such a scheme should include concessions relating to salary thresholds and ineligible job categories to ensure low-skilled undocumented migrants are afforded an effective pathway to regularisation.
I thank the Chairman and members of the joint committee for the opportunity to make my presentation.

Damien English (Meath West, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thank Ms Cumiskey for her presentation.

Peadar Tóibín (Meath West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I am delighted that Ms Cumiskey has come before us to give us her perspective on the important work of Nasc as well as on this Bill. We have had difficulties in this area but in comparison with other European countries, we have managed some elements quite well. I think the proper drafting of this Bill is necessary to ensure we improve on it and do not have similar problems to what Britain and other countries have experienced. I think the people of Belfast will have a thing or two to say about the title of second city of Ireland. I just thought I would get that aside in there.

The Younis case has provided a watershed and has awoken a great many people to the exploitation. Mr. Mohammed Younis spoke at our committee last week and some of the information he provided would shock one to the bone about modern Ireland, and his experience bears out the necessity for improvement.

With regard to the reactivation of permits, Ms Cumiskey referred to the fact that some people were not able to regularise their situation. Is it difficult to estimate how many people are finding it difficult to reactivate their permits? She referred also to delays in processing applications. Has she information on how long these delays are and the difficulties they are causing people? One of the concerns some people would have about the Bill is that if a person arrives in Ireland illegally and then applies for a permit to work, that might create a weakness in our regulations. It is contended that people should have the opportunity to apply legally for a permit from abroad, but if one states that people can regularise their situation in Ireland, it will mean that others will worry that people will flock here to regularise their situation. I always think of the other side of the coin, the Irish in America, when I hear that argument and how strong we are when looking for regularisation of the undocumented Irish in the United States. Will Ms Cumiskey address that fear that some people have about people flocking to Ireland for work permits?

The complete dependency of the permit holder on the employer in my view creates the opportunity for exploitation. We have tabled an amendment on the spouses issue and we have also tabled an amendment for those who have been separated or divorced because these individuals need confirmation of their eligibility to be regularised. We support the views on the sectoral approach.

Although we will not be able to submit some of the Irish Immigrant Support Centre’s suggestions on Committee Stage, we can submit them on Report Stage.

Ms Claire Cumiskey:

The current regularisation of undocumented migrant workers is ad hocand discretionary. This is the first time we have seen a policy introduced to have a scheme to re-activate these types of permissions. When one is working on these types of cases, one is working at the discretion of two Departments, namely, INIS, the Irish Naturalisation and Immigration Service, in the Department of Justice and Equality, and the Department of Jobs, Enterprise and Innovation. I cannot give the specific number of re-activations granted. Those figures are not published and we have to ask for them.
Over the past five years, we have assisted 25 migrants who were previously in the State on a work permit, became undocumented and wanted to get back into the system. They needed an employment permit to do that. To do this, one must make an application to INIS for an immigration permission because one cannot apply for a work permit from within the State without this permission. This step to get a decision on a temporary permission could take up to three to four months. Then one must submit an application to the Department of Jobs, Enterprise and Innovation for the actual work permit. This is a two-tiered approach but with this legislation it is essential both Departments will work together on this in a meaningful way.

Peadar Tóibín (Meath West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

It strikes me that the staff of INIS are doing the best they can. It also strikes me, however, that there is a major resourcing problem in the service. In any of the cases I have dealt with, it took a long time and the level of engagement was low with the agency. I have had cases of people whose work permits went out of date while waiting for INIS to provide a service to them.

Ms Claire Cumiskey:

When one is relying on having a valid permit for the purpose of another Department, it can create delays and can even expire while an application is pending. If a decision on a work permit has not been granted by the time an immigration permission expires, one has to go back to INIS to ask for another temporary permission. We would hope that some regulations will be put in place once these re-activation employment permits come into law to allow for a minimum processing time or a greater synergy between both Departments to ensure the applications come through efficiently.

On the question about the floodgates argument, applications for employment permits from within the State are absolutely exceptional. The majority of employment permits are made while the migrant worker is outside the State. The proposed scheme will only deal with people who were previously legally in the State but fell out of the system through no fault of their own. I cannot see any merit in the argument that it will result in floods of migrant workers suddenly coming to Ireland. What we are really dealing with in this legislation is the legacy issue of migrant workers who have been in Ireland for a long time. The current income threshold of €30,000, the ineligible job categories and the 50:50 rules mean there will not be a high grant level for applications for general or low-wage employment permits. The legislation is dealing with people who have been here for many years, who have been exploited, who have not been able to upgrade their immigration permission or attain Irish citizenship.

Michael Mullins (Fine Gael)
Link to this: Individually | In context | Oireachtas source

What sort of numbers are we talking about with the legacy issue and those who have fallen outside the system?

Ms Claire Cumiskey:

I cannot give that figure. It is estimated there are 30,000 undocumented migrant workers in the State. I cannot comment on the number of those who have fallen out of the system through no fault of their own. INIS introduced a scheme in 2009 for undocumented migrant workers who had been exploited and who previously held a work permit in the State to get back into the system which proved successful. We also had direct experience of that. It gave people the opportunity to become economically viable when they would not have the chance without the scheme.

Damien English (Meath West, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thank Ms Cumiskey for her presentation and answering members’ questions. Committee Stage of the Employment Permits (Amendment) Bill 2014 will be taken on Thursday but once issues are raised on that Stage, they can be brought forward on Report Stage.