Workers’ Perspectives on State-Constructed Vulnerability to Exploitation: Experiences of Migrant Fishers in Ireland

Guest post by Clíodhna Murphy and David Doyle. Clíodhna is Associate Professor at Maynooth University Department of Law. She teaches and researches on migration and human rights issues. David is Associate Professor at Maynooth University Department of Law. His research and teaching interests include criminal law, criminology and criminal justice, and legal history. The authors have jointly published numerous articles and book chapters on migrant workers’ perspectives on labour exploitation, including in The British Journal of Criminology and Industrial Law Journal.

There has been a growing recognition of the risks of labour exploitation, forced labour and human trafficking faced by migrant workers in the global fishing industry in recent years. In Ireland, the spotlight has been on these issues since 2015, when The Guardian newspaper reported severe and widespread abuse of migrant workers within the Irish fishing industry. These reports ultimately resulted in the adoption of an Atypical Working Scheme (AWS) for non-EEA crew in the Irish Fishing Fleet, an administrative immigration scheme which sought to formalise and regularise the workers’ immigration and employment status. Despite this intervention, problems of labour exploitation persist: the US Department of State’s Trafficking in Persons country report for Ireland 2021 concludes that “[m]igrant workers from Egypt and the Philippines are vulnerable to forced labor on fishing vessels”.

Research Study

Earlier this year, we undertook a socio-legal research study, funded by the International Transport Workers’ Federation (ITF), in which we explored the experiences of 24 non-European Economic Area (EEA) workers currently employed in the Irish fishing fleet (recruited through the ITF). We focussed on working conditions, immigration status, and experiences of enforcement of employment law.

The full report is available in English here and a condensed version is available in Arabic here.

Our findings, as set out briefly in this post, raise critical concerns about how the Irish immigration framework produces vulnerability to labour exploitation for marginalised economic migrants who suffer multiple layers of disadvantage. The report also has implications for understanding the relationships between immigration status, employment law compliance and enforcement, and discrimination.  

Construction of Vulnerability Through the Atypical Working Scheme

In this post, we provide a brief snapshot of our findings, focussing on the participants’ perspectives on and experiences of immigration law. The interviews suggest that the legal framework of the AWS creates fertile conditions for coercive and exploitative work relations. The dependence of the worker on the employer for the initial AWS permission, coupled with the need to renew the permission on an annual basis, creates a power imbalance which can be used to exploit and threaten workers, sometimes forcing them to accept excessive working hours and rates of pay far below minimum wage for hours worked.

Akin to precarious migrant workers in other jurisdictions and sectors, migrant fishers are, to use Mantouvalou's phrase, “in a position of special structural vulnerability created by the law”. The workers themselves emphasised the role of immigration rules (as opposed to employment protections, for example) as both the key to understanding vulnerability to exploitation and the potential route out of poor working conditions. The AWS was described by one interviewee as “like your visa into slavery”. In contrast, a secure and flexible immigration status was perceived to represent freedom: “if I have my documents, my stamp 4 . . . I can go wherever I go, I can work for land, I can work for fishing boats”.

Immigration Status and Experiences of the Atypical Working Scheme

Many of the fishers interviewed had been in Ireland for a long period of time: half the participants had been in Ireland for 10 years or more. Despite this, just two of the interviewees were living in Ireland under a long-term, secure immigration status (‘Stamp 4’). The other interviewees had a precarious one-year renewable status under the AWS (10) or were undocumented (8) or partly-documented (4). The majority of the undocumented interviewees had been working with an AWS permission which was not renewed for various reasons, including dismissal and injury.

Participants reported very few positive aspects of the AWS. One participant summed up the effect of the Scheme as follows:

“the only reason I stayed with them is because they kept on telling me they would sort the contract for me and I wanted the contract as soon as possible so I could go and see my family. I stayed for . . . months not getting paid”.

While the AWS allows for a change of employer in principle, if a new contract of employment is entered into, this was often not perceived as a viable option for workers in practice. Throughout the interviews, there was reference to the fact that if a worker left an employer, others would think that they were a troublemaker and would not employ them – further compounding the sense of being tied to the original employer.

Coercion

In its  2017 evaluation of Ireland, the Council of Europe’s Group of Experts on Action Against Trafficking in Human Beings (GRETA) welcomed the AWS in principle, but also noted that it created a dependency on the employer and asked the Irish authorities to review the application of the AWS with a view to ensuring that it contains sufficient safeguards against trafficking and exploitation of fishermen. Our research indicates that existing safeguards are not sufficient. The use of coercion as a means of control by the employer was a common feature of the experiences of the interviewees and centred around threats to refuse to pay the worker, to dismiss the worker, or to cancel or refuse to renew work permits.

The level of control was captured by some participants:

• “I had an idea about my rights, but we couldn’t do anything about them because we were scared that they would cancel our contract”.
• “some day if I am ill, I am sick and I can’t go to the work, he forces me to go, he says if you don’t work I will finish your contract”.
• “No violence, but . . . always like threatening me about if you don’t work I will cancel your permit”.

Workers’ proposals for change

When asked what would need to change to make conditions better for workers, the vast majority of interviewees focussed on immigration issues. A number of fishers suggested that a flexible immigration status, easily renewable and decoupled from the perceived control of the employer, would allow for easier mobility between employers. In the words of one participant: “workers should be free, not controlled by the working permit . . . because this permit controls them”.

Conclusion

At the time of writing, an inter-departmental group is conducting a review of the AWS, while it appears that some of the fully undocumented fishers interviewed for this study will be able to avail of the new Regularisation Scheme for Long Term Undocumented Migrants. This, of course, is very positive news for this particular cohort of fishers, but conversely fishers enrolled on the AWS will not be eligible to apply to the scheme. This is a rather regrettable development.  As one fisher put it, “we have been working here for five years, we pay taxes, we work full-time, so why we can’t take stamp 4”. In this context, it is apparent that the time is ripe to permanently retire the AWS, and in doing so, remove any suspicion that the Irish state is somewhat complicit – even inadvertently – in the exploitation of these migrant workers. 

Any comments about this post? Get in touch with us! Send us an email, or post a comment here or on Facebook. You can also tweet us.

__________   

How to cite this blog post (Harvard style) 

Murphy, C. and Doyle, D. (2022) Workers’ Perspectives on State-Constructed Vulnerability to Exploitation: Experiences of Migrant Fishers in Ireland. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2022/02/workers [date]