The High Court has refused to grant a temporary injunction preventing the Minister for Justice and Equality from granting further permissions for non-EEA citizens to work in the fishing sector in Ireland, which was sought because of fears of human trafficking in the industry.
The International Transport Workers' Federation (ITF) sought the court order following a number of international reports highlighting concerns about how Ireland enforces its human rights obligations in the area of human trafficking.
It argued that the "Atypical Working Scheme for Non-EEA crew in the Irish Fishing Fleet" requires an employee to remain in the employment of a particular employer or vessel - and that that contributed to a "real and immediate risk of trafficking and/or severe labour exploitation".
It said that these risks arose despite the availability, existence and ongoing pursuit of enforcement measures on behalf of the Government and its agencies to combat human trafficking, and failures to comply with labour, health and safety laws.
The court heard that An Garda Síochána is currently investigating whether 15 former participants in the Atypical Scheme were actually trafficked.
The ITF sought a temporary injunction preventing the Government from issuing further work permits until the full hearing of a case on the matter.
Sworn statements were submitted from four fishermen: three from Egypt and one from the Philippines - all of whom had made complaints to the ITF's representative in Ireland Ken Fleming.
Their allegations included that they had been trafficked, as well as experiencing "illegal and aggressive" actions by certain persons.
One fisherman outlined how he had been threatened with the cancellation of his employment contract when he tried to assert his rights.
In his judgement, Mr Justice O'Connor stated: "He makes very serious allegations, which, if proven and prosecuted, will lead to convictions meriting severe sanctions including imprisonment."
Another fisherman alleges he is owed €20,000 following serious breaches of labour law requirements.
The director of the Migrant Rights Centre of Ireland, Edel McGinley, also told the court that the Atypical Scheme encouraged paid discrimination, and that there was a lack of coordination between the relevant bodies i.e. the Marine Survey Office, the Workplace Relations Commission and the Health and Safety Authority.
She called for the Atypical Scheme to be wound down and replaced "due to it reinforcing exploitation instead of tackling it".
Mr Justice O'Connor stated of Ms McGinley's evidence: "She presents an awful picture of human misery caused by Irish employers which reminds one of work camps in eras of evil in previous centuries."
Mr Fleming of the International Transport Workers' Federation had told the court that it defied reason and consciousness that the minister should continue to grant permissions under the scheme while at the same time he is being told by senior gardaí that they have reasonable grounds to believe that many migrant fishermen participating in the scheme have been subject to human trafficking, one of the most serious crimes in Irish law.
However the evidence of the State was that if the Atypical Scheme was suspended or changed, it could place non-EEA fishermen in far greater danger and risk of exploitation - as WRC inspectors would have no power to inspect or enforce employment rights where workers are self-employed, that all future third country nationals in the sector could be the subject of deportation orders, and that suspending the scheme could impact some cases currently before the courts.
In his ruling, Mr Justice O'Connor said that he did not find the argument of the ITF so persuasive as to topple the Atypical Scheme with its benefits for some or all of its existing and potential subjects.
He said he could not ignore the "stark" warnings by responsible officers of State bodies about adverse and collateral effects on those who can benefit from the protections which come with having joined the scheme.
Mr Justice O'Connor refused the application for the temporary injunction, and reserved the matter of costs and further case management to the new year.
The ITF said it would consider the court's judgement and looked forward to an early hearing of the substantive case.