The rules around the immigration and employment status of fishermen are complex and there is considerable confusion among those wanting to use migrant workers from outside the European Economic Area (EEA) as to what is required.
The Irish Department of Jobs, Enterprise and Innovation told us when we asked last month that to work on an Irish fishing vessel that operates within Ireland’s 12-mile territorial waters, or to work on trawlers or on the dock while they are in Irish ports, non-EEA migrants need an Irish work permit. But since 2006, non-EEA seafarers have been not been eligible to apply for Irish work permits.
In 2009 the Irish government prepared a draft scheme for non-EEA permits for fishing because the industry said it couldn’t find enough Irish workers, but it was ditched after the 2008 crash to protect local employment. Some Asian migrant workers we met told us they had applied for permits but had been refused.
However, the department later told us that as all seafarers work in a self-employed capacity, the employment permit legislation does not apply to them. We asked the department to clarify this apparent contradiction but it declined to do so.
Irish legal experts advise that non-EEA nationals wanting to enter Ireland must present themselves to Irish immigration. Those wanting to stay should have an Irish visa. Those crossing the border between Northern Ireland and Ireland without presenting to immigration are in breach of the law. Anyone helping them to do so could be regarded as facilitating illegal immigration.
Non-EEA crew trying to enter Ireland without permits or visas have been turned back by Irish immigration.
There are special internationally agreed arrangements for seafarers who need to transit through countries to join vessels that operate in international waters outside the 12-mile limit. They were designed for crew on merchant vessels who stay at sea for months, not for fishing boats, but it is these loopholes that are being exploited by some to get crew from Africa and Asia.
Crew may be given transit visas, usually of only 48 hours, to pass through a country straight out on to a vessel. To get transit visas, fishermen must have contracts of employment showing their terms and offering a guarantee of repatriation by the employer if there are problems. In other words, they cannot be self-employed.
There is also a UN ILO convention C108 that allows seafarers to transit countries to join vessels working in international waters using recognised seafarers’ identity documents instead of transit visas. They may not leave the vessel if it enters territorial waters or comes in to harbour except with express permission on each occasion. The C108 only applies to nationals of countries that have ratified the convention although Ghana has, Egypt and the Philippines have not. The ILO confirmed to us that C108 in any case applies to merchant seamen, not fishermen.
The purpose of a transit visa in maritime immigration is for entering and leaving a country. It is not for working purposes. Fishing in territorial waters is a work activity, not a transit, explained leading maritime immigration law expert Diego Archer at Fragomen Worldwide.
Irish fishermen have traditionally been paid by way of a share of the money made from the catch, divided in the proportions agreed by the owner. Share fishermen have been considered self-employed. Those who are self-employed are responsible for their own tax and insurance. They are not subject to work permit requirements or working condition legislation. Simply declaring someone self-employed or a share fisherman does not, however, get employers out of their obligations if workers are in reality employed. How a worker is classified in law depends on what degree of autonomy they have. If someone receives a fixed wage, and is under the control and direction of someone, they are more likely to be an employee in law than a worker (intermediary category) or self-employed.
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