Does Fear of Losing the Common Travel Area with the UK Keep Ireland from Reforming Law on Migrant Workers?

On 19 October, a bright Tuesday, a group of fishermen sat in the lobby of Buswells Hotel on Molesworth Street, telling tales of labour exploitation.

They talked of bosses not letting them break fast on time during Ramadan or keeping them awake for more than 24 hours at sea.

Researchers from Maynooth University had invited the fishermen to the unveiling of astudy on conditions for workers from outside of the European Economic Area (EEA) in the Irish fishing industry, which they’d been interviewed for.

The study highlighted workplace abuse. But also how workers feared talking about cases with inspectors from the Workplace Relations Commission because of their precarious immigration statuses.

“We also found that when inspections do happen there are significant barriers to fishers engaging in a meaningful way with workplace inspectors,” said Clíodhna Murphy, one of the study’s co-authors, at the launch.

“These included language barriers and the fear of losing one’s job or work permit,” she said.

To protect undocumented workers or workers on unusual immigration schemes from labour exploitation, and to make it costly for employers who hire them to abuse, all EU countries except Ireland and Denmark have adopted theEmployers Sanction Directive.

A “directive” is a type of EU legislative act that sets out a goal, but leaves it to individual countries to pass laws to achieve it.

This one encourages member states to grant temporary residence permits to undocumented workers who cooperate with governments in holding abusive employers to account.

It also requires governments to inform employers of their duty to pay “outstanding remuneration, taxes and social security contributions to migrant workers in an irregular situation”.

Colin Murray, a reader in public law at the Newcastle Law School at Newcastle University, says participating in the directive would be useful.

“This is something that gives a fairly minimal level of protection to some of the most vulnerable and exploited people who live in Ireland,” he said.

In November, though, Damien English, the Fine Gael minister of state at the Department of Employment,told the Dáil that the directive falls within areas of freedom, justice and security.

“And Ireland availed of its right not to participate primarily because of its unique relationship with the UK,” he said.

English said the Justice Department calls the shots on any policy shifts. A spokesperson for the Department of Justice said in an email on 10 December that they were still working on a statement in response to queries sent on 1 December.

A spokesperson for the United Kingdom’s Home Office said that Ireland is free to make its own decisions. “As a sovereign state it is for the Republic of Ireland to decide on these matters.”

Fishing on the Scheme

All of the non-EEA fishermen who’d turned up to the study’s launch in October were working under theAtypical Working Scheme.

The scheme allows some skilled workers to travel to work in Ireland. Most can stay and work for up to 90 days, but others get to stay longer – including non-EEA crew members in the Irish fishing fleet, says the Justice Department’s immigration website.

Workers get a Stamp 1, an immigration permission thatcan’t be upgraded. While other workers who go on Stamp 1 can typically move on to the more secure Stamp 4 after a few years, those on the Atypical Working Scheme can’t.

One former fisherman, sitting at the lobby of Buswells Hotel, said it also confuses immigration officers.

When he tried to renew his stamp after three years, an immigration officer assumed he was upgrading and gave him a Stamp 4, which grants unlimited permission to work and self-employment.

The man pulls an expired Irish Residence Permit out of his wallet with Stamp 4 written on it. “They made a mistake,” he said.

He couldn’t change it, he says, because shortly after that happened he had to quit following an argument with a boat owner who mistreated him.

Tethered to one employer on the Stamp 1, he couldn’t change jobs either, he said. It left him undocumented.

Of the 230 people who had permission to remain under the scheme at the end of December 2019, 61 didn’t renew that permission, according to Department of Justice figures.

The Maynooth studyfound that it’s common for non-EEA fishermen not to get annual leave or public holidays off, and to have wages taken from their salaries unfairly or not get paid the minimum wage.

It says some fishermen who researchers interviewed were also working without any permission at all, leaving them more open to abuse.

A spokesperson for the Workplace Relations Commission said it had inspected almost 500 fishing vessels since it was founded in 2016, leading to 20 prosecutions against boat owners. “A further 50 investigations are on-going.”

Checking for compliance around workers’ rest periods and working hours falls under the ambit of the marine surveyors of the Department of Transport, they said.

Meanwhile, Workplace Relations Commission inspectors are trained to spot potential signs of exploitation and human trafficking, said the spokesperson.

Other protective measures include using translators, sharing contact details with workers on-site, and running social media campaigns targeted at precarious migrant workers, the spokesperson said.

The Fear Factor

Now that the United Kingdom has left the European Union, it means Ireland and Denmark are alone among countries in the union in refusing to participate in the Employers Sanctions Directive.

Murray, the reader in public law at Newcastle University, says that on the face of it, the directive is all about stopping undocumented workers from accessing jobs and to stop employers from hiring them.

But it’s also a powerful tool to protect workers when they are recruited, he says. “It tries to give some protection to undocumented workers and some abilities to them to complain.”

In testimony in October to an Oireachtas committee, Michael O’Brien, the fisheries campaign lead at the International Transport Workers Federation, urged the government to adopt the directive.

It would help the Workplace Relations Commission to bring abusive employers to justice, he said.

That said, labour inspectorates where the directive is in force are compromised in their abilities to compassionately deal with undocumented workers who are exploited, as it effectively requires them to report those workers to immigration authorities, he said.

Murphy, the researcher at Maynooth University, says that adopting the directive wouldn’t end labour exploitation but could help.

In particular, it “provides an important right to recover back pay for irregular migrants, which goes beyond the existing legislative mechanism for the recovery of back pay in Ireland”, said Murphy.

Why Not?

Murray, the reader in public law at Newcastle University, said that the directive criminalises exploitative labour practices.

“And because of that, a narrative developed around this directive that it might make it more attractive for undocumented workers to try to work in countries where this directive is in place,” he said.

That argument is not based on any compelling evidence, says Murray, but the UK worried that it could be a pull factor for migration so avoided adopting it.

This is despite the fact that the directive says it is meant to curb illegal immigration by countering the “pull factor” created by the possibility of getting work in the EU without the required legal status.

Murray said Ireland is equally motivated to curb migration pull factors to protect the Common Travel Area, which grants citizens of the Republic and the UK the right to freely move between the two countries without facing passport checks.

The Irish government worries that workers might come to Ireland, even if they’re not undocumented, because of this pull factor, says Murray. “And then be able to circulate around the Common Travel Area.”

That could prompt the UK, in an effort to keep migrants out, to end the Common Travel Area, they worry. But Murray says the fear that the UK would abandon the CTA agreement if Ireland were to partake in the directive is unfounded.

“There is very little to suggest that amendments to specific areas of law make any impact on how the movement of people happens in practice,” he said.

An Obstacle to Reform?

Murray says Ireland remains reluctant to adopt migrant-friendly measures, fearing they would count as migration pull factors and threaten the Common Travel Area.

Its hesitation to end the direct provision system, which is a communal accommodation for asylum-seekers while they await a decision on whether they’ll be allowed to stay, is one example, he said.

In February 2021, the government published a white paper on ending direct provision, promising to replace it with a new system by the end of 2024.

Liam Thornton, an associate professor of law at University College Dublin, says it wouldn’t surprise him if the UK ratcheted up pressure on Ireland if the government fulfills its commitment to end direct provision.

“Given the longstanding and vicious anti-asylum policies in the UK, it would not surprise me in the slightest if UK sought to exercise pressure on Ireland in this regard,” he said.

Daniel Holder, deputy director of the Belfast-based human-rights organisation Committee on the Administration of Justice, says it shares the same concerns.

“We have long been concerned about behind closed-doors cooperation between Irish and British immigration officials, and the extent to which this is holding back more progressive immigration policies on this island,” he said.

What about Ireland’s new amnesty scheme for undocumented people and long-term asylum seekers?

Murray said that that’s a one-off policy to clear a heavy systemic backlog. “And it will have been explained on those terms to the UK.”

The UK’s primary concern, he said, involves policies that it sees as bolstering migration pull factors within the attractive Common Travel Area.

“So this would be how the Employer Sanction Directive would be seen, and the pressure that the UK would continue to put on Ireland not to adopt,” Murray said.