International Transport Workers' Federation v Minister for Justice and Equality

JurisdictionIreland
JudgeMr. Justice Tony O'Connor
Judgment Date07 December 2018
Neutral Citation[2018] IEHC 695
CourtHigh Court
Docket Number[2018 No. 5398 P]
Date07 December 2018

[2018] IEHC 695

THE HIGH COURT

O'Connor Tony J.

[2018 No. 5398 P]

BETWEEN
INTERNATIONAL TRANSPORT WORKERS” FEDERATION
PLAINTIFF
AND
MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

ATTORNEY GENERAL
DEFENDANT

Interlocutory injunction – Immigration - Human trafficking - Plaintiff seeking interlocutory injunction requiring a condition of the Atypical Scheme to be removed – Whether degree of risk to workers potentially affected by condition outweighed risk to those currently benefitting from Atypical Scheme

Facts: The pllaintiffs, an international federation of transport workers’ union with a dedicated section for the fishing industry, sought an interlocutory mandatory injunction requiring the Minister for Justice and Equality to alter the Atypical Scheme. The plaintiffs argued that the requirement of the Atypical Scheme for an employee to remain in the employment of a particular employer or to be employed by a particular vessel constituted a real and immediate risk of trafficking and/or severe labour exploitation of migrant fishermen. The defendant asserted that the temporary removal of this condition would result in the Atypical Scheme not being implemented and therefore would place non-EEA migrant workers in greater danger and risk of exploitation and resulted in an uncertain situation with the possibility of immediate repatriation. Furthermore, the defendant argued that removing this condition could impact broader immigration policy as the requirement to have a written offer of employment before being admitted to the workforce is necessary of any non-EEA national seeking to work in the State.

Held by O’Connor J that the court must evaluate the degree of risk claimed by each side and assess where the greatest risk of injustice would lie. Balancing the hypothetical risk identified by the plaintiffs of the effect of the offending condition against the warnings by State bodies of the adverse and collateral effects on those currently benefitting from the scheme, O’Connor J stated that the plaintiffs at this stage did not provide evidence sufficient to satisfy the standard for an interlocutory injunction.

Relief refused.

JUDGMENT of Mr. Justice Tony O'Connor delivered on 7th day of December, 2018
Form of Interlocutory Injunction Sought
1

The plaintiff applies for an interlocutory injunction restraining the first named defendant (‘the Minister’) ‘from granting and/or reviewing any further permissions under the Atypical Working Scheme for Non-EEA crew in the Irish Fishing Fleet [‘the Atypical Scheme’] which are conditional on an employee remaining in the employment of a particular employer or being in employment on a particular vessel pending the determination of the proceedings’. The application is effectively for an interlocutory mandatory injunction requiring the Minister to alter the Atypical Scheme pending the determination of these proceedings.

2

The plaintiff is an international federation of transport workers” unions with a dedicated section for the fishing industry. Two Irish registered unions are identified as ‘affiliated’ to the plaintiff but those Unions are not parties to these proceedings. The lack of standing of the plaintiff to bring an application by way of judicial review seeking similar relief was mentioned by Counsel for the defendants. While undoubtedly the locus standi of the plaintiff will be a significant issue for the plenary hearing, the Court at this stage will concentrate on the urgency alleged on behalf of migrants who may become subject to human trafficking. This should not encourage parties who do not have locus standi to bring interlocutory injunction applications to protect third parties in the way adopted by the plaintiff.

3

The Irish Human Rights and Equality Commission (‘the Commission’) was given liberty by order of Barniville J. on 15th October, 2018, to intervene as amicus curiae in these proceedings. It was represented at the hearing of this interlocutory application which was heard over three days. The Court understands the Commission to advocate the importance of the issues raised as opposed to supporting the application for interlocutory relief. Partly on account of that intervention, the Court moves onto the main assessment for this type of application. The Commission will be represented at the plenary trial. It, like the other parties, agreed to case management in order to ready the claims for an early trial date.

4

The plaintiff submits that the Atypical Scheme which requires an employee to remain in the employment of a particular employer or to be employed on a particular vessel contributes ‘ to a real and immediate risk of trafficking and/or severe labour exploitation’ of migrant fishermen despite the availability, existence and ongoing pursuit of enforcement measures by or on behalf of the defendants to combat human trafficking and failures to comply with labour, health and safety laws. The plaintiff emphasises that An Garda Síochána (‘the Gardaí’) is presently investigating whether fifteen former participants in the Atypical Scheme were actually trafficked.

Trafficking
5

Section 4 of the Criminal Law (Human Trafficking) Act 2008 (‘2008 Act’) sets out how it is a criminal offence to traffic another person. It does not necessarily mean that the offence of coercing, threatening, abducting or using force against the trafficked person must occur outside the jurisdiction. However one looks at the situation, it is clear that evidence of trafficking can be prosecuted. The plaintiff claims that the contracts of employment required under the Atypical Scheme contributes substantially if not causes trafficking in the Irish fishing industry.

Deponents as to Fact
6

Three fishermen born in Egypt and one born in the Philippines swore affidavits on 12th June, 2018, in support of the application wherein:-

(a) One confirms his status as an undocumented immigrant from 2008 until April 2016 when he got permission under the Atypical Scheme. In May 2017, he went to Ken Fleming (one of two employees of the plaintiff based in Ireland) who made an application to the Garda National Immigration Bureau (‘GNIB’) for identification of that deponent as a suspected victim of trafficking in human beings (‘suspected victim’) on 27th September, 2017. Thereafter, this particular deponent has had a temporary residence permit while maintaining his belief that he has been a victim of an offence under s. 4 of the 2008 Act.

(b) The second fisherman, having learnt of others from his country ‘ working as fishermen in Ireland … were making good money’, travelled to Ireland in the summer of 2013. He gave up the fishing to work as a kitchen porter until April 2016, due to the ‘ hard and unstable work’ in fishing. He then identifies the specific motor fishing vessel (‘MFV’) on which he worked and a person who offered him a contract of employment in June 2016 to obtain a permission to work under the Atypical Scheme. He complains that as a share fisherman, he suffered an injury which required hospitalisation and prompted his return to his home country. He returned later in 2016 and describes illegal and aggressive actions undertaken by a named individual. He brought a case to the Workplace Relations Commission (‘WRC’) in March 2017. On 28th July, 2017, he made an application through his solicitors to the GNIB for identification as a suspected victim. On 28th September, 2017, he was granted a temporary residence permission which was renewed on 16th April, 2018.

(c) The third fisherman came to Ireland in June 2015 as an undocumented immigrant. He worked on two MFVs for single trips as a share fisherman. He then identified a trawler and its owner before explaining how that owner failed to honour a contract of employment which he executed in April 2016. He continued to outline how he was threatened with the cancellation of his contract after asserting his rights. He was told that he would be returned to his home country. He makes very serious allegations which, if proven and prosecuted will lead to convictions meriting severe sanctions including imprisonment. He also made an application to the GNIB and has been granted a temporary residence permission. He was interviewed by the Garda National Protective Services Bureau (‘GNPSB’) in April 2018.

(d)...

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1 books & journal articles
  • The Rhetoric of Slavery in the 21st Century
    • Ireland
    • Irish Judicial Studies Journal No. 2-19, July 2019
    • 1 July 2019
    ...2018, the Trafficking in Persons Report downgraded Ireland to a Tier 2 ranking. This ranking is the same as that given to countries 72 [2018] IEHC 695. 73 ibid [4]. 74 Group of Experts on Action Against Trafficking in Human Beings, ‘Report concerning the implementation of the Council of Eur......

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