Wednesday, 10 July 2013

Questions (155)

Bernard Durkan


155. Deputy Bernard J. Durkan asked the Minister for Jobs, Enterprise and Innovation if he will examine the situation whereby workers from non-EU countries who have been in full-time employment, paid their taxes and were of the understanding that their works permits had been updated and in order and who now find that they were/are illegally employed, obviously through no fault of their own, with a view to ensuring that they can regularise their position without discrimination; and if he will make a statement on the matter. [33662/13]

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Written answers (Question to Jobs)

The Deputy is referring to foreign nationals as defined under the Employment Permits Acts 2003 and 2006 as foreign nationals other than nationals of member states of the EEA and Switzerland, often referred to as 3rd country nationals. 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.

Following the result of this in the High Court judgement 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 nonsensical 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. I am expecting a further draft of the Bill this week and subject to it fully meeting policy objectives I envisage submitting it to Government for approval at the earliest opportunity.