Non-EU nationals in irregular employment in Ireland

Irregular employment, broadly understood as employment that is insufficiently covered by formal arrangements either in law or in practice, presents problems for the State in terms of tax revenue and regulation, whether it is undertaken by Irish, EU or non-EU nationals. For non-EU nationals, working in an irregular situation can create additional precarity, due to difficulties in exercising labour rights and accessing social security. 

This study discusses policy, law and data related to the irregular employment of non-EU nationals in Ireland, updating a 2017 EMN study on the topic. Reliable data on the extent of irregular employment of non-EU nationals are generally not available, in Ireland or internationally. However, information from employment inspections indicates that it occurs across a variety of sectors in Ireland, with food service activities the most prominent. Measures in place to prevent and identify the irregular employment of non-EU nationals in Ireland are presented, as well sanctions and outcomes for employers and employees. 

Policy and law

Although addressing irregular employment in and of itself has not been a policy priority in Ireland in recent years, the regularisation of undocumented migrants emerged in this research as a pivotal strategy for curbing informal employment. Two regularisation schemes were held, one in 2018 targeting undocumented former students, and another in 2022: the Regularisation of Long-Term Undocumented Migrants Scheme. A further key development in recent years has been the closure of the Atypical Working Scheme for non-EEA fishers in 2022 in the context of allegations of forced labour and exploitation of migrant workers. Fishers can now access the employment permits system. 

In order to work in Ireland, non-EU nationals must hold an employment permit, or a residence permit that allows them to access the labour market under certain conditions (for example in the case of students or family members). Ireland does not participate in the main EU legislation on illegal employment of non-EU nationals, the Employer Sanctions Directive 2009/52/EC. The Employment Permits Act 2024 significantly reformed the employment permit system recently, consolidating previous legislation. 

Data

Due to its hidden nature, reliable data on the extent of irregular employment of non-EU nationals is a challenge in Ireland and internationally. In 2020, MRCI estimated that there were approximately 17,000 to 20,000 undocumented persons in the State (MRCI, 2020a). MRCI data and data on applicants to the 2022 Regularisation of Long-Term Undocumented Migrants Scheme confirm that the majority of irregularly staying non-EU nationals are employed. Of applicants to the regularisation scheme aged 18-64, 55 per cent were in employment and 11 per cent were self-employed. Among the 4,674 applicants who provided information on their employment history, half were employed in one of three sectors: ‘hospitality/tourism’, ‘food and drink’ and ‘cleaning/maintenance’. 

Employment inspections in Ireland are carried out by the Workplace Relations Commission (WRC). WRC carried out 4,727 employment inspection cases in 2023. Data from the Revenue Commissioners (Revenue) data indicate that there were 191,600 employers in the State in 2023 which gives an overall inspection rate of 2.5 per cent. In 2023, WRC detected 293 breaches of the Employment Permits Acts, mainly in food service activity, hair and beauty, and wholesale sectors. Of 166 employers identified as having breached the Employment Permits Acts in 2022, 83 per cent were small enterprises.

The Department of Enterprise, Trade and Employment (DETE) can revoke a worker’s employment permit if they are found to be working irregularly. If a permit is revoked due to an employer’s breach of legislation, the worker can apply for a reactivation permit. Both the number of revocations (277 between 2017 and September 2023) and reactivation permits (422 in the same period) are low. By way of context, in the period 2017-2023 almost 145,000 employment permits were issued.

Prevention and identification

The WRC plays an important role in preventing situations of irregular employment and works with the Department of Justice and DETE, among others. It monitors key sectors, including the food and service sectors, the fishing sector, services in households and agriculture. However, the low number of WRC inspectors has been identified as a challenge to effective prevention by Migrant Rights Centre Ireland. As of January 2024 there were 63 inspectors employed by the WRC for the country and this number was set to increase to 80 during 2024. DETE has an internal risk indicator list for employment permits which is used when processing applications for new and renewal employment permits. 

The identification of a situation of irregular employment typically occurs either through WRC inspections or through a migrant worker making contact with an NGO for assistance. Cooperation between state bodies is important in ensuring inspections are effective, for example, in the form of joint inspections involving the WRC, the Garda National Immigration Bureau (GNIB), the Garda National Protective Services Bureau (GNPSB), as well as administrative cooperation and information sharing with the relevant Departments. MRCI argue however that inspections should not be carried out jointly with the GNIB because undocumented people experiencing exploitation are unlikely to come forward due to a fear of deportation. 

Among the good practices identified by the WRC was the presumption of employment (now) under section 61 of the Employment Permits Act 2024, which means that if a person is observed to be engaging in activity consistent with being employed, they will be treated as such. Migrant Rights Centre Ireland (MRCI) and International Transport Workers’ Federation (ITF) identified the number of inspectors relative to the size of the workforce as a challenge also for identification. 

Sanctions and outcomes

When a situation of irregular employment is detected, WRC directs legal actions towards the employer and not the individual migrant worker. For an employer, a breach of the Employment Permits legislation can result in the revocation of the permit by DETE, the resultant loss of the employee, and possible fines or imprisonment on conviction. The Workplace Relations Act 2015 has provisions to sanction employers for offences relating to a failure to uphold the terms and conditions of an employee’s contract and failure to pay minimum wage, among others. 

Challenges in pursuing and enforcing sanctions, reported by DETE, include in identifying offending employers due to changes in corporate names and directors, as well as instances of false documentation. The MRCI also highlighted difficulties with the enforcement of sanctions including court orders and labour inspector decisions, while the International Transport Workers’ Federation observed that convictions are not dissuasive. 

The consequences of detection in irregular employment for a non-EU national can depend on their immigration status. Non-EU nationals who are undocumented in the State and found to be working irregularly may be subject to deportation under section 3, Immigration Act 1999. Persons found to be working irregularly while residing regularly in the State are considered to have breached the conditions of their immigration permission and could be liable to having their immigration permission withdrawn or not renewed. 

In terms of access to remedies, a non-EU national with permission to reside in the State can take a case against an employer to the WRC, with the aim of claiming compensation for instance. Non-EU nationals who are undocumented and in employment cannot lodge a complaint with the WRC. For undocumented non-EU nationals, there is a provision under employment permits legislation that allows them or the Minister to take civil proceedings against an employer for compensation. However, it has not been widely used to date. The new Employment Permits Act 2024 seeks to bring further clarity to situations where the contract of employment is unenforceable due to the lack of an employment permit, meaning that some contractual protections are enforceable, however these provisions have yet to be tested.