Introduction
Very often, non-EU or EEA nationals will legally come to Ireland to undertake a short period of work or study. Many return to their home countries. Others seek and obtain permission to continue studying, working or residing in the State. However, for a small minority, for various reasons, their applications to remain in the State is denied, and they find themselves working on an undocumented basis.
An interesting case recently came before the Supreme Court of Ireland which examines a number of issues these undocumented workers face (Sobhy -v- The Chief Appeals Officer & Ors [2021] IESC 81).
Ms Sharda Sobhy was a national of Mauritius who arrived in Ireland in 2008 under a foreign student visa scheme. She resided in the State on a lawful basis until 2012.
She subsequently made a number of applications to remain in the State, however each of these applications were unsuccessful.
Notwithstanding her unsuccessful applications, she continued to live and work in the State on an undocumented basis. Despite being undocumented, she continued to pay PAYE and PRSI. She subsequently brought a challenge against the State on foot of her being denied maternity benefits under the Social Welfare Consolidation Act, 2005, despite having made the necessary contributions to that fund.
The Supreme Court had to determine whether an employee working on an undocumented basis, paying the relevant social welfare contributions, was entitled to the benefits of a State social welfare fund.
Employment Permits Act, 2003
Section 2(1) of the Act of 2003 requires that a foreign national who wishes to work in the State shall have the benefit of a work permit granted under its provisions:
“2.— (1) A foreign national shall not —
(a) enter the service of an employer in the State, or
(b) be in employment in the State,
except in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force.
Non-EU / EEA students are permitted to reside in the State on a stamp 2 permission and can typically work up to a maximum of 20 hours per week. Ms Sobhy did have the benefit of a student work permit from 2008 until 2012 but it expired and she continued to remain in the State without permission continuing her work uninterrupted.
However, the Supreme Court noted that an employer had an obligation not to hire an individual without them having sufficient credentials to work in the State.
Section 2(2) prohibits an employer from employing a non-national who does not have a work permit:
“(2) A person shall not employ a foreign national in the State except in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force.”
Section 2(3) provides that a foreign national who works without a permit, and a person who employs a foreign national without a permit, shall be guilty of an offence:
(3) A person who contravenes subsection (1) (2) or (2C) or fails to take the steps specified in subsection (2B) shall be guilty of an offence and shall be liable—
(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or
(b) if the offence is an offence consisting of a contravention of subsection (2) or (2C) or a failure to take the steps specified in subsection (2B), on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 10 years or both.
Section 2(3A) of the Act of 2003, inserted by the Employment Permits (Amendment) Act 2014, provides that in each case a defence of taking reasonable steps is open to a person charged with the offence, and before that amendment that defence was available only to a person employing a foreign national, and not to the person working without a permit.
The Supreme Court noted, and all parties accepted, that Ms Sobhy did not have a work permit for the relevant years in which she worked in the State post-2012 but did continue to make PAYE and PRSI contributions in the ordinary manner.
Immigration Act, 2004
Control of entry into, and the conditions for residence in, the State is primarily governed by the Immigration Act 2004 (“the Act of 2004”) and for the present purposes the provisions of s. 5 of the Act of 2004 govern entry into and residence in the State of non-EU and EEA nationals.
A person who wishes to obtain leave to be in the State must apply under s. 4 of the Act of 2004 for permission under s. 4(1) and the criteria applicable are set out in s. 4(3). One of the reasons for which an immigration officer is entitled to refuse entry into the State is that the non-national “intends to take up employment in the State, but is not in possession of a valid employment permit (within the meaning of the Employment Permits Act, 2003)”.
Ms. Sobhy did not have permission to be in the State during the relevant years.
Section 5 of the Act of 2004 provides that a non-national, other than a refugee or an asylum seeker, who is in the State without ministerial permission under s. 4 is “for all purposes” unlawfully present in the State:
“5.—(1) No non-national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act, or a permission given under this Act after such passing, by or on behalf of the Minister.
(2) A non-national who is in the State in contravention of subsection (1) is for all purposes unlawfully present in the State.”
Maternity benefit is payable by reason of the provisions of s. 47(5) of the Act of 2005
“(5) Subject to this Chapter, maternity benefit shall be payable to—
(a) a woman, who is an employed contributor, for the period of maternity leave to which she is entitled under section 8 of the Maternity Protection Act 1994 (including any extension of that period by virtue of section 12 of that Act)” (emphasis added).
The phrase “employed contributor” was a key to the issue at the heart of this appeal.
The judgment in Foras Áiseanna Saothair v. Abbott (unreported, Supreme Court, Egan J., 23 May 1995) (“FÁS v. Abbott”) was cited, in that under the then relevant provisions of the Social Welfare legislation, a contract which was prohibited by statute could not be termed a “contract of service”, or contract of employment, under the Labour Services Act 1987 or the Social Welfare Consolidation Act 1981.
Exploitative Consequence of Statutory Illegality
The unfairness and potential exploitative consequence of statutory illegality in the enforcement of an employment contract, as set out in Hussein v. The Labour Court [2012] IEHC 364, [2012] 2 I.R. 704, was also highlighted.
The Supreme Court noted that the implication of the above legislation and case law was that there is afforded to employees some protection against employers exploiting their undocumented status by affording them redress to enforce their contractual rights before forums such as the Workplace Relations Commission, Labour Court and civil courts.
However, the Supreme Court noted that the State could not endorse a contract of employment that was founded upon an illegal basis.
“The essential element of a contract is missing, as it cannot be said that either the employer or the employee have chosen to enter into a contract with the State, and the entire social welfare code and the structure of payments, of contributions and benefits created thereby falls outside any contractual nexus but rather arises from the imposition of an obligation and the creation of a fund (the Social Insurance Fund provided by s. 9 of the Act of 2005) where payments are made at a level and subject to conditions and qualifications determined by legislation from time to time.
In a very broad sense there might exist a “contract” in the sense in which Rousseau used the expression “social contract”, but the concept of a contract at common law, or even a contract recognised by statute, is of one between parties who freely by the exchange of promises, or a mutuality of payments, agree that a certain state of affairs is binding upon each of them, and that each of them is entitled to enforce those agreed obligations and rights.
The element of mutual promises, whether supported by separate consideration or the mutuality of the promises, is missing.”
Conclusion
For that reason, the Supreme Court concluded that Ms Sobhy was not entitled to the benefit of maternity payments under the Social Welfare Consolidation Act, 2005.
The Supreme Court noted that the decision could perhaps unwittingly make it once again attractive for an employer to employ an undocumented worker as PAYE and PRSI may not need to be paid.
The Supreme Court further noted that the consequences of criminal prosecution may not be a sufficient deterrent for many employers hiring undocumented workers. It was therefore stated that further legislative clarity or intervention may be required.
