Applications 2024 Act

Employment Permits Act 2024

The Employment Permits Act 2024 aims to consolidate the legislative framework, to improve its clarity and to retain the core focus of a vacancy led employment permits system oriented to meeting the skills and labour needs of the State. Additional improvements have been made such as

• the introduction of a seasonal employment permit,
• revision of the labour market needs test to make it more relevant and efficient,
• improved efficiency through moving operational criteria to regulations,
• providing for additional conditions for grant of an employment permit, such as training or accommodation support for migrant workers in some circumstances, or making innovation or upskilling a condition of grant, where this may decrease future reliance on economic migration,
• facilitating third party contracts (subcontractors),
• automatic indexation of salary thresholds

Prohibition on Employment without Employment Permit

A foreign national working or providing a service to an employer in the State must hold an employment permit. An employer shall not employ a foreign national except with an employment permit. Where there is a contract service agreement, it is normally expected that the contractor (the person providing the service) will ensure that relevant employment permits are in place.

Where there is a contract service agreement, and a service is being provided by a subcontractor then in that case the relevant person (the Irish entity for whom the service is being carried out) must take all reasonable steps to ensure that relevant employment permits are in place. Failure to comply is an offence. It shall be a defence to prove that all reasonable steps were taken to ensure compliance.

The 2024 Act sets out the cohorts of workers who are not required to hold an employment permit.

Application for Employment Permit

An application may be made by the foreign national or the employer. For a Contract for Service Employment Permit the application shall be made by the contractor, or where there is a subcontractor, then the subcontractor. For an Intra Company Transfer Permit the application is made by the connected person.

Where an application is made by an employment agency, as contained in the definition of contract of employment paragraph (b), the applicant shall be the employment agency. An application shall only be made pursuant to an offer of employment and specifically for that employment. The application shall identify who the employer will be and the type of permit for which the application is being made.

An application for a Critical Skills Employment Permit shall be for a minimum period of employment as prescribed. An application shall not be made for an Intra Company Transfer Employment Permit or a Contract for Services Employment Permit where the contract of employment is with an agency as defined in the definition of contract of employment paragraph (b). An application shall not be made for a role that was, within the preceding six months, the subject of a redundancy. The application shall be in writing and accompanied by such fee as maybe prescribed in regulations.

The 2024 Act sets out the requirement that an application to include, inter alia, the following: a description of the employment (including terms and conditions, and working hours), qualifications and skills required, relevant documents, the location(s) of the employment, remuneration and any deductions, information and evidence of conditions attached such as the provision of accommodation and training. Information is also required in relation to whether the foreign national has previously had permission to land in the State. Where they are currently in the State, then information is required on their permission to be in the State as well as information pertaining to any permissions to work in force or previous permissions to work.

Application Issues

A foreign national may apply for a Dependent Employment Permit (a) if he or she is the dependent of a Critical Skills Employment Permit holder (the primary permit holder) and that primary permit is in force and the primary holder is in employment in the role for which the primary permit was granted or (b) the primary permit is expired but the primary permit holder now holds a permission granted by the Department of Justice to reside and work in the State commonly referred to as a Stamp 4 immigration permission. This also applies to dependents of Researchers under Directive 2005/71/EC.

The 2024 Act provides the regulation making power for the Minister to make amendments to an application, as prescribed in regulations. The purpose is to avoid requiring an applicant to re-submit a new application and reduce the administrative burden on users of the employment permit system.

The Enterprise Development Agencies (IDA and Enterprise Ireland) may make a recommendation to the Minister in writing in support of the grant or renewal of an employment permit. The Minister must have regard to the recommendation but is not bound by it.

When making a decision on the grant of a Sports and Cultural Employment Permit, to consult with any person who he or she is satisfied has the relevant expertise to provide advice.

When making a decision on the grant of an Employment Permit, the Minister shall consider, inter alia, consistency with broader economic policy, relevance of the knowledge, skills, qualifications and experience to the role, relevant matters pertaining to the application or information provided and whether any of the mandatory grounds for refusal apply. The Minister may take steps to establish the accuracy or authenticity of the information provided.

The Minister may return incomplete applications without further consideration, with a written notification to the applicant, along with a portion of the fee, to be prescribed in regulations, and any documentation received. The Minister may give priority to the consideration of applications for certain employment permit types as he or she considers appropriate in light of the economic context.

Mandatory Refusal

The Minister must refuse an employment permit:

• If the foreign national concerned was made redundant from the same role within the preceding six months.
• Where the employer, (or in certain cases the contractor, subcontractor, foreign employer or as the case may be the connected person), is either not registered with the Revenue Commissioners or is not engaged in substantive business in the State.
• For a Contract for Services Employment Permit, where there are reasonable grounds to believe the foreign national will not be employed by the contractor or subcontractor.
• For an Intra Company Transfer Employment Permit and the Contract for Services Employment Permit the grounds for refusal include where the remuneration falls short of the requirements specified specifically for those permit types in the 2024 Act.

Discretionary Refusal

There are grounds under which the Minister has discretion to refuse an employment permit. These include but are not limited to:

• Where the applicant fails to provide information required under the Act or the prescribed fee.
• If the foreign national, or the employer (or in certain cases the contractor, subcontractor, relevant person, the connected person or the employment agency) has, in the preceding five years, been convicted of an offence under the 2024 Act or an enactment set out in Schedule 1.
• If to grant the permit would be inconsistent with Government’s economic policy.
• If the employee has been working for less than 12 months in their first employment in the State and an application for another permit is made within that time.
• Any irregularity with the permission of the foreign national to land or be in the State. Any issues related to fraudulent documents, remuneration levels, or the relevance of skills, qualifications knowledge or experience required for the employment.
• Failure by the employer to comply with conditions attaching to a previously issued employment permit, not necessarily for the same foreign national.
• The foreign national is not registered with a regulatory body or a Minister of Government where this is required for the occupation to be undertaken in the State.

The Minister may also refuse an Intra Company Transfer Employment Permit or a Contract for Service Employment Permit if the employer, foreign employer or connected person, or as the case may be the contractor or subcontractor, has not made adequate provision for board and accommodation (or either of them) or health insurance. The Minister may refuse to grant a permit if the employer as appropriate, does not comply with relevant company law.

The Minister must notify the applicant of the decision to refuse the application and reasons for it, in writing. Subsequent to a refusal or the withdrawal of an application the Minister shall return the portion of the fee as prescribed in regulations and the fee may be returned to the person who paid the fee or a nominated person.

Review of  Refusal

Where an application for an employment permit has been refused, the applicant may request that the Minister review that decision, within a period to be prescribed in regulations. A review shall be undertaken by a different officer to the original decision maker and that officer shall be of a grade senior to the original decision maker. The applicant will have the right to make representations in relation to the matter.

Where new information is provided during a review or where the reviewer is made aware of a change in circumstances, and where this is relevant to the refusal or grant of the permit, then the application will be referred back to the original decision maker for a new decision. That new decision will be eligible for review under the Act.

Regulations

The 2024 Act sets out the Minister’s regulation making powers with regard to the procedures around making an application for an employment permit and renewals. The Minister may also make such regulations specific to each permit type.

For example, regulations may prescribe the form of applications, documents and evidence to be provided regarding, inter alia, remuneration, detail of the employment, required qualifications and skills, detail of the foreign national’s identity and the period within which such documentation and evidence shall be furnished. The Minister may also require by regulations the providing of evidence that the employer is in compliance with certain enactments.