Anne Ferris (Wicklow, Labour)
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To ask the Minister for Jobs, Enterprise and Innovation the steps he is taking to address the lacuna in the Employment Permits Act 2003 which has left undocumented workers vulnerable to exploitation as highlighted in a recent High Court judgement; and if he will make a statement on the matter. [38353/12]

Richard Bruton (Dublin North Central, Fine Gael)
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The issue raised by the High Court judgement is one which has important policy and legal implications in the area of Employment Permits and also in terms of Employment Rights.

As Justice Hogan noted in his judgement, “the Oireachtas must, of course, regulate the labour market by specifically deterring illegal immigrants from taking up employment, as failure to do so could have serious medium term implications for both employment and immigration policy”. The relevant provisions of the Employment Permits Acts of 2003 and 2006 hold that where an employee, who was required to hold an Employment Permit, has failed to do so then he or she is guilty of an offence. Furthermore, while an employer may also be guilty of an offence in this matter, Justice Hogan points out that the legislation provides for a defence with regard to an employer but fails to do so with regard to an employee.

As I understand it, this lack of defence affects the Courts’ scope to interpret the statutory provisions and compels the Court to hold that the legislation has created an absolute offence so far as an employee is concerned. Importantly, Justice Hogan found that it must therefore be taken that the Oireachtas intended that such a non-national employee automatically commits an offence if he or she does not have a work permit irrespective of the reasons for that failure and that this has implications so far as the civil law is concerned, in that such a contract of employment must also be taken to be void.

The question that arises for policy makers is to what extent such non-nationals should be dissuaded from working illegally in Ireland by virtue of there being a statutory offence to do so, versus, to what extent should certain employment rights protect vulnerable migrants which find themselves unwittingly in such employment positions.

The Deputy will recognise that this question requires careful consideration as the applicability of rights in one context can have far reaching consequences beyond that originally intended.

I wish to assure the Deputy that my Department is treating the matter with the utmost importance and that I would expect deliberations on the matter to be concluded within a matter of months.