Bernard Durkan (Kildare North, Fine Gael)
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139. To ask the Minister for Jobs, Enterprise and Innovation if he will set out the procedure to be followed to regularise their position in the case of non-EU nationals employed here, in some instances for up to ten years, occasionally employed by State agencies and meeting their statutory requirements in respect of PRSI, income tax and all other obligations but due to lack of work permit or updated residency status are now being informed by their employers which have been contacted by the Revenue Commissioners to the effect that they must cease employment notwithstanding the fact that many such persons hold pivotal positions in the workforce, have made a major contribution to society and continue to do so; if in such circumstances their situation can be urgently examined with a view to regularisation of their position; and if he will make a statement on the matter. [51680/13]

Richard Bruton (Dublin North Central, Fine Gael)
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The employment of foreign nationals in the State is governed by the Employment Permits Acts 2003 to 2013. The law is clear on the matter of employment of 3rd country nationals - it is illegal for such a 3rd country national to be employed without the State's permission and it is an offence for both the 3rd country national and the employer concerned. Illegal employment of 3rd country nationals creates a serious problem for the employees concerned in that they do not have a legally binding contract of employment and cannot therefore rely on such a contract in asserting their rights under the contract and under the wide spectrum of employment rights legislation.

Migrant workers are a vulnerable class of people and language difficulties, cultural differences, and lack of social networks can disadvantage migrants and increase the potential for abuse by unscrupulous employers. Ireland has a very thorough employment rights legal framework. Careful consideration is given to the potential for abuse and many of the criteria in evaluating employment permits applications focus on the bona-fides of the employer and the protection of the employee. This feature of the employment permits regime will be preserved in the new Employment Permits Bill currently being drafted.

Following the result of the High Court Judgement of 31st August 2012 concerning Mr. Younis, I committed to amending the legislation in order to provide a defence for the employee which will then give the courts some discretion on the matter. Also, subject to Government approval, I intend to introduce new safeguards in the legislation that will ensure that the situation which arose in the Younis case will be prevented in future in a manner which does not undermine legal principles and ensures that an employer cannot benefit from the fact that a contract of employment is illegal and therefore not legally binding.

Another key feature of the new Bill, subject to Government approval, will be the establishment on a statutory footing of an Employment Permit for dealing with 3rd country nationals who have, to use a parlance, “fallen out of” the Employment Permits regime. I recognise that there can be situations where such a 3rd country national can find themselves falling out of the Employment Permits’ regime through circumstances beyond their control or even as a result of their omission to keep their Employment Permit up to date. Such people may have established roots in Ireland and it can be in the public interest to facilitate a reactivation of their inclusion within a legal employment framework through the granting of an Employment Permit.

There will be three overriding principles concerning an application for an Employment Permit of this type. Firstly, the application process and administration must be clear and approachable from the perspective of an applicant. Secondly, the employee concerned must have originally entered the labour market legally through the Employment Permits system. I do not want to create a mechanism capable of abuse or considered as an alternative to the normal Employment Permit process. Also, it is logical that an Employment Permits Bill deals only with Employment Permits matters. The third principle will be that the employee must not currently be in employment illegally – it would be counter-intuitive for an applicant to apply for a permit under one section of the Act whilst at the same time potentially committing an offence under another section of the Act.

I should also point out that it continues to be the case that an employer can be prosecuted for breaches of employment law including the Employment Permits Acts and it is the National Employment Rights Authority’s policy to pursue such breaches.

Finally, in terms of the current status of the Employment Permits Bill, the drafting process is almost concluded and I envisage submitting it to Government for approval at the earliest opportunity.