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.