This statement by the Minister for Justice is undoubtedly laden with good intentions – but is it wise?
On RTÉ Radio 1's Morning Ireland, Minister for Justice Helen McEntee said that undocumented victims of human trafficking who report to authorities will not be deported | Read more: https://t.co/UNgPLjiZ0s pic.twitter.com/V7kGjKEtF6
— RTÉ News (@rtenews) November 6, 2023
The plight of somebody who has been trafficked here for prostitution, or other work, and been deprived of their documents is an understandable one: Going to the Gardai and explaining your situation involves essentially admitting to either committing a crime, or being party to a crime. A person in that situation might well worry that there would be serious consequences for themselves, to add to the terrible situation in which they find themselves. Telling such people that they can come forward, with deportation being taken off the table if they do, should in theory result in more arrests and convictions of human traffickers. Which should – again in theory – reduce the number of people trafficked into the country over time.
There’s also a natural justice element to it: A lot of these people – both those condemned to prostitution and those working as trafficked labourers – will have been exploited by Irish people. Let’s not pretend for one second that the demand for prostitution, for example, is something exclusive to foreigners. The people paying money to have sex with these people are often Irish, and are creating the very demand for their trafficking in the first place. There’s a strong argument that granting them residency, if they wish to stay, is the least we can do. Especially since the Gardai and the justice system have always seemed relatively reluctant to prosecute and name men who use prostitutes.
On the other hand, people will rightly worry that this is just another way for people to come up with a reason to avoid deportation. In the comments under RTE’s tweet above, you’ll read many people cynically wondering whether the number of trafficking victims is about to explode. That’s a legitimate concern, and one that McEntee herself nods at in the clip – saying that a false claim would be treated differently. But how – and how quickly – can you establish that such a claim is false? And if somebody has made a false claim, surely deportation is a minor sanction, since they’d also have committed the crime of making a false report and wasting Garda time. In addition, this premise probably undermines the whole point of making the statement in the first place, because it carries with it the implication that you may not be believed.
Essentially, you can come forward, but you must have evidence. But what if the Gardai simply cannot stand up a prosecution, or make arrests? Who then decides whether the complaint was genuine, or false? It’s not hard to imagine human rights lawyers having a field day with that one in front of the courts, making the case that it’s not their client’s fault if the authorities couldn’t stand up their claims, and it’s unfair to deport them because of that.
There’s also a pragmatic question: You do hear, from time to time, inspirational stories of people who’ve been subjected to human trafficking who go on to build very successful lives for themselves, overcoming the odds. But those stories are inspirational precisely because they are rare. Experts in this area, such as those at FreedomUnited, a cross-border agency working in the area, note that many victims of trafficking simply never go on to live normal lives. They suffer, through no fault of their own, mental health issues and addiction and various other deeply unpleasant side effects. That those who traffick them should be punished is something we could all agree on, but does it make sense to simply suspend immigration laws for one class of people? Wouldn’t the more humane, as well as practical thing, be to return a victim of trafficking to their home country, and family, rather than leaving them alone in Ireland to fend for themselves?
Finally, there’s the question, as there often is with the Minister for Justice, of whether it was wise for her to say what she said at all. The policy she announced essentially amounts to granting immunity from prosecution, in the US style, in return for evidence. There’s nothing wrong with that policy by itself, but the Minister has dramatically widened it with her words.
Were it simply the position that Gardai had the discretionary power to grant immunity from deportation, that would be one thing. But with her words, the Minister has essentially made that grant of immunity mandatory, and made it based on a claim rather than on evidence. She could have said something like “in cases like these, the Gardai have the power to take any threat of deportation off the table if it helps bring human traffickers to justice”.
That would have accomplished much of the same in terms of sending a message to victims, without committing the state to a blanket policy which is very far short of perfect. She could have given herself – and the rest of us – a little wiggle room for all the grey areas. Far be it from me to criticise, but perhaps the Minister for Justice offering a blanket immunity from prosecution to a whole class of people in a radio interview isn’t the best way to make policy.
Alas, doing differently would also have required some nuance from the Minister. And nuance isn’t really Minister McEntee’s thing.