Commission Warns that Ireland Risks Failing People Who Have Been Smuggled Here
Legislation necessary to bring Ireland in line with EU and UN standards on combatting the trafficking of human beings currently falls short on protecting people who have been smuggled, the Irish Human Rights and Equality Commission (“The Commission”) has told Oireachtas Members in a report published today.
In its first direct Oireachtas engagement since being designated under EU law as Ireland’s Independent National Rapporteur on the Trafficking of Human Beings, the Commission has published its recommendations to the Oireachtas Committee on Justice on the General Scheme of the Criminal Justice (Smuggling of Persons) Bill.
The Commission states that the Bill as currently set out is entirely silent on the rights and protections of smuggled persons, and warns that the State must ensure that legislation is designed in a manner which is compliant with human rights and equality principles.
The Commission further warns that the draft legislation is also silent on the need for an identification procedure for smuggled and trafficked persons. The lack of this kind of statutory identification process risks leaving people at risk of further abuse and exploitation, as they cannot gain access to necessary support and assistance.
Other recommendations from the Commission include that:
- the offence of people smuggling as currently drafted needs to be revised to ensure legal certainty;
- ‘humanitarian assistance’ should be clearly carved out as an exemption or, exclusion rather than a defence;
- aggravating factors for sentencing purposes should include a wider range of categories, including offences that involve children, women and people with disabilities,
- training must be provided for front-line officials to help both the prosecuting of offences and assist in the identification and provision of humane treatment to smuggled people;
- the State should accept and facilitate the voluntary returns of smuggled people;
- the State needs to collect and publish data about people smuggling under this law.
The Commission has previously used its legal powers to spotlight human trafficking issues in the significant ‘P Case’ of a Vietnamese woman arrested in Ireland, and more recently in relation to safeguards against trafficking and exploitation of fishermen.
Speaking today, Chief Commissioner Sinéad Gibney stated:
“Ireland is both a destination and source country for human trafficking, including people trafficked for sexual exploitation, domestic work, fishing, agriculture, the hospitality sector, waste management, and car washing services among others.
“Our recommendations to the Oireachtas make clear that more robust, consistent and thoroughly-documented response system to smuggling of persons is required for us to be able to take on this scourge.
“This proposed law needs to take a vital step in putting in place a system which is victim-centred, gender-sensitive and takes into account the experiences, support needs, and above all, the devastating impact of any related exploitation and abuse on the lives of those affected.”
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Editor’s Note
The legislative observation from the Irish Human Rights and Equality Commission is available at the following link:
The Commission has published these legislative observations in line with its mandate to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights and equality, and to make recommendations to the Government to strengthen and uphold human rights and equality in the State.
The National Rapporteur Role
Article 19 of the EU Anti-Trafficking Directive introduces a legally binding requirement for Member States to establish National Rapporteurs or equivalent mechanisms.
The Commission’s Role in the ‘P Case’
The Irish Human Rights and Equality Commission (’the Commission’) appeared before the High Court as amicus curiae (friend of the Court) in the judicial review proceedings entitled P. v. Chief Superintendent of the Garda National Immigration Bureau & Ors [2015] IEHC 222.
The case concerned a Vietnamese woman who was discovered by the Gardaí locked in a cannabis “grow house” and who was charged with drugs offences and spent two and a half years in custody. The woman claimed she was a victim of trafficking and that the failure of the Garda to recognise this deprived her of her right to avail of the protection regime for such victims.
The Commission’s submissions in the case questioned the adequacy of the protection regime for persons who claim to be victims of human trafficking and, in particular, the administrative scheme for the identification of such victims, and whether it met relevant human rights standards. The Court found that the State’s administrative scheme for the recognition and protection of victims of human trafficking was inadequate to meet its obligations under EU law aimed at combatting trafficking in human beings.
The Commission’s Role in the ITF v. the Minister for Justice and Equality Case
In April 2019, the Commission welcomed a settlement reached in a case relating to human trafficking and other severe forms of labour exploitation on the Irish fishing fleet. The Commission exercised its function as amicus curiae (friend of the court) in the case.
The International Transport Worker’s Federation (ITF) brought the case having identified a number of individuals who arrived in Ireland on foot of permits granted under the atypical work permit scheme, who it alleged were subsequently subjected to human trafficking and other severe forms of labour exploitation on Irish fishing vessels. The ITF and the Minister for Justice and Equality presented the terms of a mediated settlement agreed between them to the High Court. The agreement made a number of changes to the atypical work permit scheme for non-EEA fisherman working on the Irish fishing fleet, including:
- Flexibility for non-EEA fishermen to move to another vessel within a defined time period without risk of visa cancellation and deportation. Their previous employer cannot veto such a move.
- Inter-agency collaboration between the Workplace Relations Commission (WRC), Marine Survey Office MSO and the Gardaí if necessary to be streamlined to combat exploitation on board fishing vessels;
- Greater promotion of awareness among non-EEA fishermen of their rights and entitlements.
Irish Human Rights and Equality Commission
The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.
The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.