State has no proper system to identify human trafficking, writes Ronan Mullen – – Our News, Your Views

State has no proper system to identify human trafficking, writes Ronan Mullen


An ESRI report published this recently identifies that the State has no proper system in place to formally identify victims of human trafficking.

Though much of the policy debate over human trafficking focuses on whether to criminalise the purchase of sex, Ireland has another problem. Partly due to the neglect of our Government, we now have a thriving trade in “convenience” or “sham” marriages, where non-EU nationals marry EU citizens for the purpose of gaining automatic residency rights within EU borders. Freedom of movement guaranteed by EU law is abused so as to circumvent immigration controls.

The problem is connected with trafficking for prostitution. According to submissions made to the Council of Europe and the UN Human Rights Council, women who are being trafficked into Ireland to participate in sham marriages often end up being exploited by the prostitution industry. The women, who are EU citizens, marry non-EU men, usually from Africa or Asia, and in return are promised a “new” life in Ireland. Latvia has been especially vocal about this problem because, it claims, a disproportionately high number of Latvian women trafficked via sham marriages are exploited in Ireland.

Sham marriages do not necessarily involve human trafficking. But some do. And unfortunately, there is little that the Gardai or marriage registrars can do about them. This was determined by the Irish High Court in a 2011 judgment involving

Ms. Justinia Izmailovic, a Lithuanian national and Mr. Mahmoud Elmorsy Ads, an Egyptian national who claimed to have met over the internet in early 2009 after Mr. Mahmoud Elmorsy Ads had unsuccessfully applied for asylum in the State in 2008.

Ms. Izmailovic came to Ireland in May, 2010 and the following October, the couple gave notice to the Civil Registration office in Cavan that they intended to marry. Meanwhile, the Minister for Justice issued a deportation order against Mr. Mahmoud Elmorsy Ads on 5th November, 2010.

On 12th January, 2011 Ms. Justinia Izmailovic and Mr. Mahmoud Elmorsy Ads travelled to Cavan with some friends for the marriage ceremony, and shortly before the marriage solemnisation, officers from the Garda National Immigration Bureau arrived on the scene, and Mr. Mahmoud Elmorsy Ads was arrested by An Garda Siochana on the grounds that he intended to avoid deportation.

When Ms. Justinia Izmailovic and Mr. Mahmoud Elmorsy Ads challenged the arrest and detention in the High Court, Mr. Justice Gerard Hogan ruled that registrars have no power to refuse to solemnise marriages even where it is obvious that the marriage is solely for the purposes of circumventing immigration control.

Anecdotal evidence suggests that there has been a rise in sham marriages in the wake of the Izmailovic judgment, while the ruling has also confounded Ministerial attempts to crack down on the phenomenon.

It is arguable that Mr. Justice Gerard Hogan in Izmailovic could have treated the case differently and, from at least one perspective, better. He assumed that marriage is exclusively a matter of private law and, since there is generally no recognition of an “abuse of rights” doctrine in private law, went on to state that motive is irrelevant to the validity of a marriage. However, marriage in the Irish constitutional order has a very public dimension – so motive and public policy considerations are perhaps more relevant than the court allowed for.

The only comfort to derive from the Izmailovic case is that it remains open to the Oireachtas to amend marriage law and prohibit sham marriages. In September, 2013 Minister for Justice, Alan Shatter, publicly stated that both his Department and the Department of Social Protection are examining ways to prohibit sham marriages. In November, 2010 the then Minister for Social and Family Affairs, Eamon O Cuiv, gave a similar commitment. So far nothing of note has happened despite the fact that sham marriages already lack legal standing in a host of countries throughout the EU.

A change in the law is surely not beyond the ability of this Government. One possibility would be to amend section 58 of Civil Registration Act 2004 by authorising the Minister for Social Protection, upon the furnishing of Garda evidence, to lodge an objection to the solemnisation of a marriage to the relevant registrar. In tandem with this, section 2 of the Act would be amended to include within the list of marriage impediments, a marriage entered into “for the sole purpose of circumventing immigration controls”. This would certainly give registrars more power to crack- down on bogus marriages entered into in an attempt to circumvent our existing immigration laws.

But why the lack of urgency? Is it because the Government sees these issues as ‘immigration’ problems, and lacks sympathy for the human victims of the trade?

What about the criminal aspect? And what about promoting the equal dignity of men and women? Can we ignore the very real possibility that the commercialisation of sex, since it clearly operates to the disadvantage of women, also promotes a culture of violence against women? Or have we forgotten that the industry is driven by pimps and riven with drugs?

The Immigrant Council of Ireland estimates that over 300 women have been trafficked into Ireland since 2008. Human trafficking, mainly for prostitution, nets criminal gangs in the region of 250 million euros each year in Ireland.

Criminalising the purchase of sex is essential if we are to lessen the demand, break the ‘supply chain’ that is at the root of human trafficking and protect women and children into the future. The Immigrant Council of Ireland supports this approach. As does Gerardine Rowley of Ruhama, an organisation which provides vital care to women caught up in prostitution who says: “We believe it is important that the Government addresses the demand in the sex trade if we are going to curb the growth that we have had in the sex trade over the last decade.

She says we need tougher sanctions against pimps and notes that the last legislation dealing with organised prostitution was in 1993. “We need to update that legislation with tougher sentencing to make organised prostitution less profitable and have stronger deterrents against pimps.” Gerardine Rowley also points to the success of criminalisation in Nordic countries.

Not surprisingly, the people who run websites for the Irish prostitution industry disagree. They argue that penalties for users of prostitution would push prostitution underground – as though much of what’s happening already isn’t dark, dangerous and sometimes deadly for the women and children involved.

We think of slavery as long gone from our world, but it isn’t. It’s time it was.

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