Michael McNamara (Clare, Independent) | Oireachtas source

I agree with some of the previous speakers from Fine Gael, in particular Deputies Colm Burke and Bruton. Given that Deputy Bruton was a Minister in the Department I urge the Minister of State to listen carefully to what he had to say. We are introducing seasonal work permits. People are coming here to pick a commodity but we must be very careful that they do not become a commodity or that they are not treated like a commodity because they are human beings with inalienable rights. According to the Judaeo-Christian philosophy behind the Constitution, they are made in the image and likeness of God, but that is certainly not how they are treated by Irish bureaucracy and Departments. While I very much welcome Deputy Bruton’s presence during the debate and his contribution, I am disappointed that neither the Minister of State at the Department of Justice, Deputy James Browne, nor the Minister for Justice, Deputy McEntee, is present because there is a significant disconnect between the employment permit regime, as good or bad as it is and how the Department of Justice treats this issue. I acknowledge that there have been improvements in the operation of the employment permit scheme in the past 12 months, in particular with the reactivation of the employment permit scheme, which is very important. However, there is a disconnect between the Department of Enterprise, Trade and Employment and the Department of Justice. I want to give a couple of examples in the time available to me.

A number of criteria must be examined when the Minister for Justice is determining whether to issue a deportation order in respect to somebody who is here unlawfully. One of the criteria we look at when determining whether it is in the best interests of the State to deport somebody is his or her employment prospects. I have seen numerous decisions as a practitioner in the area of immigration where it was said that their employment prospects were poor because it is not lawful for them to work. Of course their lawful employment prospects were poor if they could not lawfully work, but that is an incredibly circular argument. It is one on which there is a certain divergence of case law in the courts. A policy must be put in place to deal with the matter. In a country of full employment, where somebody has demonstrated that he or she has offers of employment, how can an official in the Department of Justice say a person’s employment prospects are poor because he or she cannot work in circumstances where the person has offers of work if the person could lawfully work? It is not a criticism of the individual who is doing his or her job. He or she is applying a version of the law but it seems to be State policy. Even in a case where a person might have five different offers of work, often a deportation order is made in respect of the person. I am not saying deportation orders do not have to be made in certain instances. There are other criteria, as there should be, in determining whether a deportation order is made, but the sort of bland assertion that the employment prospects of anybody who is not here lawfully are poor is contrary to common sense at a time of full employment when we have heard numerous examples across the floor where people simply cannot get somebody to work. That is something that must be examined.

A person’s good character is looked at in a citizenship application. In the case of Martins v. the Minister for Justice and Equality, Mr. Justice David Keane found that the fact somebody had worked unlawfully led to him deciding that he was of bad character. The person was here for several years and had a PPS number. He paid tax throughout his life in Ireland. The decision was based on the fact that the person was breaking the law of the State. I want to be very clear that this is not a criticism of Mr. Justice Keane’s judgment in any way. The judge is there to determine what the law of the land is and to apply it. If we do not like the law of the land, then it is our job to change it. Mr. Martins came here as a minor to join his parents who had a work permit. He entered employment and worked for a very long period but was found to be of bad character because he was working unlawfully in the State. There was very little prospect for him to work lawfully in the State or to apply for a permit because, generally, once a person is unlawfully in the State, whether he or she comes on a tourist visa or otherwise, one cannot apply for an employment permit. I understand the reasons the Department of Justice does not want that, although the Department of Enterprise, Trade and Employment might be less concerned as it is not within the Department’s remit. The Department does not want to incentivise people to come here and then apply, it wants people to arrive at the frontiers of the State with an employment permit. Even at that, there are cases currently before the courts where the Department has granted an employment permit for somebody on the basis of the need for workers in a particular area, and it is happy a person has fulfilled the criteria for working in the area, but when a person applies for a visa to come to the State because he or she is not from a visa-exempt country, the Department of Justice states it does not believe the person has the skills necessary to fill the job. I do not know what training and skills the officials in the Department of Enterprise, Trade and Employment have in determining first, that there is a necessity to bring in employees in a particular area or somebody’s suitability for a job, but whatever training they have to so do, I would have thought it was closer to the central remit of the Department of Enterprise, Trade and Employment, rather than the Department of Justice, yet the latter can turn around and say that it is interesting that a person has an employment permit but it does not think the person fulfils the criteria and he or she will not be given a visa. The employer and the employee have gone through the rigmarole of getting the work permit, only for someone in the Department of Justice to say he or she does not think the person is suitably qualified.

There is always going to be a degree of subjectivity, but how suitably qualified does a person have to be? In a time of critical need and shortages in the workforce, I am sure employers are employing people they wish were a little better qualified. They might have some qualifications and be able to be trained up but it seems the Department of Justice does not like that approach. That has also been challenged before the courts and upheld in a number of judgments because the courts, including under Mr. Justice David Keane and in more recent cases, have found that two completely different statutory regimes are in place and that it is for the Department of Enterprise, Trade and Employment to determine the work permit issue and for the Department of Justice to determine the other one. There have been judgments suggesting that if the Legislature does not like that, it can, of course, amend that.

I do not like that idea; it is incredibly bureaucratic and it is a huge waste of resources in both Departments. Perhaps more important, it is a waste of the resources in that potential employee's life and in his or her employer's life because, as far as they are both concerned, one of them is going to work and the other has a worker and then suddenly they are told that is not the case. I ask the Minister of State to consider this. I appreciate he cannot bring in legislation amending something within the remit of the Department of Justice but he might pick up the phone and see whether all these anomalies can be sorted out because they are a blockage.

Moreover, we have a big problem attracting foreign doctors. I appreciate that the Minister for Health has done something about this, given they could not get on trainee schemes because they were not from Ireland or even the European Economic Area, so they did not qualify for training schemes to advance their careers. Generally, there is a predictable career progression for doctors and they want to stay on that path so, naturally, they do not stay in Ireland. That is being sorted out but there is also the issue of their family members. I recall when I was previously a Deputy, between 2011 and 2016, dealing with the case of a doctor who eventually asked why on Earth he would stay here with this nonsense and try to get his wife and children in here while he was working in our quite crappy healthcare system. He admitted he might be getting well paid for it but he had no prospects of career advancement, he could not get his family here and he could not advance his life.

This is with regard not just to doctors but to any worker who comes here. People are more than workers; they are human beings with a life and we need to acknowledge that. People's life circumstances change. How many Irish people have left Ireland to go on holidays and ended up happily married in another country, with a life, years thereafter? Likewise, how many people have come to Ireland and ended up married, with a life, years thereafter? Some, however, have a very different life from that of others, and that is largely determined by an accident of birth. If they were born in the European Economic Area or they hold a purple passport, they will get on fine. If they are American, we will generally treat them okay because we would like the US to treat us okay, but if they are Asian, South American or African, the hurdles they will encounter as they try to develop a life here are a different story. They are all human beings who deserve the opportunity. They are not commodities, even if they might be here to pick a commodity in the case of seasonal workers.

I am concerned about the seasonal workers aspect of the legislation, which needs to be teased out more. There is already a differentiation between general work permit holders and critical skills work permit holders in the right to bring in family members and I wonder how justifiable that is. Would it be found to be discriminatory under the European Convention on Human Rights? I do not know. It might not be; who knows? In any event, I do not think that discrimination should exist. Are we to introduce a further tier of discrimination? If a seasonal worker here ends up overstaying his or her permit - I presume a person’s visa will be linked to his or her permit - will he or she be able to avail of the reactivation scheme, which I have welcomed for specific reasons I will come to presently? Will such a seasonal worker be able to avail, or apply for, a general work permit while being a seasonal worker or thereafter? These are important considerations. It seems to be fundamentally wrong to bring somebody across the world and into the State and then to say they are just here to pick apples. I have been talking about fruit workers, although there is not a huge horticultural sector in Ireland. Nevertheless, it came very much to the fore earlier during Covid, when there was general uproar that people would be coming here to pick fruit for us to eat. I just never understood it. The people who brought them in, rather than allow the fruit to rot into the ground, were vilified in the media and in certain sections of this Parliament, and to this day I do not understand that. Seasonal workers are not just people who will pick fruit; it is far broader than that.

Each and every one of them is a human being. Life goes on for all of them, as it does for us, and we cannot deprive people of the opportunity to move forward and develop a life. Sometimes within the Department of Justice there is almost a paranoia whereby before we know it, these people will be having kids and will have a right to stay under the Zambrano case or something like that, but people move on with their lives and have children and our laws need to acknowledge and facilitate that, rather than, as some are prone to do, cast them into the shadows of society. Doing that is dangerous and I do not think is not beneficial. From a societal perspective, it is damaging, but also from an economic perspective. People who want to work should be allowed to do so, people with something to contribute to our society should be able to do so and people who have something to contribute to our economy should be able to do that.

Even so, the system has improved, not least with the reactivation scheme. I recall asking the Minister, Deputy Varadkar, a parliamentary question once about an issue in my constituency. Deputy Carey was in the Chamber earlier and he, like me, will be aware there is a large Brazilian community in Gort. Most of them came here to work in a meat plant, the meat plant shut and many of them found themselves in precarious, if not unlawful, employment. Many of them are renowned for how hard they work, yet some of them are horrendously exploited, including by farmers, I might add as a farmer from Clare who, in the long-distant past, has sometimes employed them. It is next to impossible to get workers as a farmer but I paid them, which was the least I could do after the work they did, even if it was not for very much. It is common for farmers to have to resort to that, although the phrase "have to resort" makes it sound as though farmers are almost dirtying themselves by giving work to people who want to work, but that is not how it should be. In any event, there was a firm that wanted to employ people and because these workers were already in Ireland, some of them for most of their adult lives, it could not employ them. They did not hold work permits at the time and were not lawfully in the State, even though they had been here for most of their adult lives. At least the reactivation scheme goes some way in that regard because, where such workers have ever held a valid work permit, it seems that if they apply under the reactivation scheme, they can have it reactivated. I welcome that, but we need to be clear that other categories, and at the very least seasonal workers, will be able to avail of it. If not, what we are doing, I regret to say, is just treating them in the same way as the commodity they are here to harvest, and that is unacceptable, although I do not want to be negative and I acknowledge the advances that have been made.

When we talk about exploitation, the Covid pandemic shone a light into many crevices in Irish society, one of which related to the exploitation of people who hold a work permit tied to their employer, in particular in the meat sector. I am sure the phenomenon of a person being exploited because his or her work permit is tied to a particular employer is not unique to the meat sector but it certainly became very apparent there, as did the appalling work conditions of some of those workers as well as their appalling living conditions. For many of them, it was all perfectly lawful because they were agency workers. Like most Deputies, I think our economy needs people to come and work.

Indeed, our economy needs more people to come and work but no economy can sustain itself based on exploitation. I worry that is the road we risk going down unless we fundamentally reform the work permit scheme, in conjunction with the Department of Justice, in a way that this Bill, in my view, does not fully do at the moment. I invite the Minister of State to look at how it might be strengthened on Committee Stage, perhaps in conjunction with the Department of Justice.

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