Permit Applications

Context

A key objective of Irish labour market policy is to ensure that labour and skills needs are met from within the Irish and European Economic Area (EEA — EU plus Norway, Iceland and Liechtenstein) labour markets. Employment permits can be issued however for the employment of non-EEA nationals where there are identified skills shortages and employers can demonstrate demand for labour cannot be met within Ireland or the EEA.

These strategic skills/labour shortages are in designated occupations in key economic sectors such as healthcare, information technology and financial services. The identification of occupations and areas of skills shortages drew principally on data collated by the Expert Group on Future Skills (EGFSN).

Under the Employment Permits Acts, an employment permit must be obtained in advance from the Department in respect of a non-EEA (and non-Swiss) national who is to be employed in the State.


Employment Permits

The Employment Permits Acts 2003-2006 provide for the grant of employment permits to non-nationals. The Employment Permits (Amendment) Act 2014 updated the legislation in line with the changes in immigration policy that occurred in 2009 and economic developments since 2007.

The Employment Permits Act prohibit the employment of non-nationals without permits.  A person may not employ a foreign national other than with and in accordance with the terms of an employment permit. A foreign national is defined as a non-national under immigration legislation.

A foreign national must not enter the service of an employer in the State or be in employment in the State other than in accordance with an employment permit.  This includes being employed by a person outside the State, to perform duties within the State, which are the subject of an agreement between the employer and another person (agency arrangement).

Where an entity enters an agreement with another to provide services and it is customary in the business or trade, or where must be in the contemplation of the parties that the services will be rendered by a third party (who may or may not be in a contractual relationship with that other party), then the  person so contracting must take reasonable steps to ensure that if the persons so employed by the third-party are foreign nationals, that they have work permits.


Offences and Legality

Breach of any of the above obligations is an offence.  It is subject on summary conviction to a fine up to €3000 or imprisonment of 12 months or both.  It is subject on conviction on indictment to imprisonment up to 10 years, and / or to a fine up to €250,000. It is a defence to show that the employer or other person took all reasonable steps open to him to ensure compliance.

A warrant may be issued to search a place at which it is suspected that persons are working without employment permits.  The warrant may authorise a member of An Garda Siochana to enter the premises, search persons found there and seize evidence.  It is an offence to obstruct or hinder a member of An Garda Siochana, acting on foot of such a warrant.  It is an offence to fail or refuse to comply with a requirement or to give false or misleading names or addresses.

The offence is subject on summary conviction to a fine of up to €3000 and /or imprisonment up to 12 months or both. A person may be arrested without warrant who is reasonably suspected of committing the principal offences.

It is an offence for a company to employ a person in breach of the above provisions.  In addition, any director, manager, officer with whose consent or connivance or attributable to whose neglect, an offence is committed. is independently guilty of an offence.


Exceptions and Defences to Offences

The requirement for and employment permit legislation does not apply to

  • a person, the subject of a declaration under refugee legislation
  • persons who are entitled to be employed in the State under European Union legislation (EU and EEA citizens)
  • persons who are entitled to remain in the State and who are in employment in the State pursuant to a condition of a permission that the person may be employed without employment permit.

It is a defence for a foreign national on a charge of having been employed without an employment permit, that proves that he national took all reasonable steps to ensure compliance with the obligation.  There is a similar defence available to an employer.


Enforcing a Contract in Breach

In August 2012, in Hussein v Labour Court, the High Court found a contract of employment unlawful by reason of the failure to have an employment permit.  The 2014 Act sought to address deficiencies in the existing legislation with the potential for employers to benefit from the unenforceability of employment contracts.

A foreign national without an employment permit may to take civil action for compensation and may enforce the employment contract against, the employer notwithstanding the illegality of the contract, where he can satisfy a court that he took all reasonable steps to comply with the requirements of having an employment permit.

Compensation for work and services is to be calculated by reference to the national minimum hourly rate or any other rate of pay which is fixed pursuant to law.  The compensation is not treated as reckonable emoluments, so that an entitlement to claim for State benefits does not thereby accrue.

The compensation paid is subject to tax in the normal way.  The Taxes Consolidation Act provides a special income tax charge on the minimum payments by the way of compensation where there is an unlawful employment contract.

The Department may in its discretion, take civil action on behalf of a foreign national and bear the responsibility for its cost.  This is an additional ministerial power.


Applications

All applications whether from employer or employee are to be treated on the same basis and subject to the same rules in relation to application for an employment permit.  Regulations set out the process and information requirements on the making of an application for employment permit. The Minister has power to review the refusal of a grant of permit.

The documents required for the application are set out in the legislation.  The failure to furnish all the requisite documentations is a ground for refusal.  The power to restrict the grant of employment permits with reference to the labour market needs test was modernised by the 2014 Act.

The contractor or connected persons, generally the employer established in the State, applies for the permit in the case of a contract for service provider or intra-company transfer. The application must specify the purpose for which the employment permit is sought.  There must be a minimum job offer for two years for employment permits under the Green Card Scheme.


Trusted Partners

Under the Trusted Partner Initiative, a Person who will make an offer of employment / Employers/Connected Persons and EEA contractors may apply for Trusted Partner status. When Trusted Partner status is granted a unique Trusted Partner Registration Number is assigned. Applicants granted Trusted Partner status will have access to their own suite of employment permit application forms where they must only provide their Trusted Partner Registration number in lieu of all employer details.

Applications by Trusted Partners on the Trusted Partner employment permit applications forms only need to provide details relating to the employment and the foreign national when they are applying for a permit.

The objective of the initiative is to ease the administrative burden on employers/connected persons/EEA contractors in expansion mode and to remove the requirement that they replicate the same employer/connected person information in respect of each employment permit application made for grant or renewal.

The Trusted Partner Initiative is aimed primarily at high volume users of the employment permits regime.  This may include companies in expansion mode and start-up companies. The benefits of the Trusted Partner Initiative are: –

  • fast turnaround of Trusted Partner registration applications: within 2 working days for complete applications
  • status valid for 2 years
  • no fee
  • reduced paperwork for every permit applied for under the scheme
  • shortened employment permit application forms
  • faster turnaround of Trusted Partner employment permit applications.

General Tests Overview

The 50:50 Rule requires that the employer seeking to employ foreign nationals on an employment permit, must have at least 50% of the workforce in the EEA.  The 50:50 Rule is to be applied in all cases except in the case of a start-up company, where the development agency recommends that granting of the employment permit and where the Minister is satisfied that so to do, will help developed potential for further employment.

The LMNT (labour market needs) test applies irrespective of who makes the application.  It seeks to ensure that the offer of employment is first made to persons in the EEA labour market, before an application is made for an employment permits to employ a non-EEA national.  There are some exceptions. The principle applies to general employment permits and contract for services agreements.  Regulations may be made by the Minister in relation to the LMNT requirement.

The Minister may refuse to grant a permit if the remuneration offered is less than the minimum annual remuneration specified in the regulations in respect of the employment concerned.  This is regardless of whether or not the hours of employment are less than or equal to 39 hours a week.  If the weekly hours exceed 39 hours, the minimum annual remuneration must be increased proportionately.  This is designed to ensure that a foreign national should be earning a sufficient remuneration to prevent recourse to the social welfare system.


Labour Market Needs Test

The 50:50 Rule requires that employers seeking to hire foreign nationals on an employment permit have at least 50% of their workforce from the EEA.

Further employment permits will not be granted to employers in Ireland who have a workforce already consisting of a majority of non-EEA nationals. The amendment requires the 50:50 Rule to be applied in all situations except in the case of a start-up company (i.e. a company registered with the Revenue Commissioners within the two years preceding the application) where an enterprise development agency recommends the granting of the employment permit and where the Minister is satisfied that to do so would help develop the potential for further employment.

The LMNT seeks to ensure that an offer of employment is first made to people already in the local and European Economic Area (EEA) labour markets before an application is made for an employment permit to employ a non-EEA national (‘foreign national’). This supports Government policy to ensure that those currently in the labour market (be they employed or unemployed) are the first cohort of people that employers should look to.

The LMNT will, subject to the specified exceptions, apply to General Employment Permits and employment permits relating to Contract for Services Agreements  In effect, this will increase the current proportion of employment permit applications undergoing an LMNT after enactment. The Minister may make Regulations in relation to the requirements of the LMNT.


Remuneration Considerations

The Minister, when making regulations in respect of remuneration, can:  take into account the going rate in the marketplace for such employments and can take into account any other benefits provided by an employer in respect of the remuneration package; and  refuse to grant a permit if the remuneration offered is less than the minimum annual remuneration specified in regulations in respect of the employment concerned.

This refusal ground is regardless of whether or not the hours of work for the employment concerned are equal to or less than 39 hours per week. If the weekly hours of work for the employment concerned exceed 39 hours, the minimum annual remuneration must be increased pro rata. This underpins the public policy prerogative that a foreign national should be earning a sufficient remuneration to prevent his or her recourse to the social welfare system.


50:50 Test

The legislation sets out the circumstances in respect of which a permit may or may not be renewed. Importantly, the 50:50 Rule applies to all renewal applications. There are exemptions for  renewal applications of existing  permits from the 50:50 Rule on the basis that, at the time the initial application was made, neither the employer nor the foreign national could have foreseen this new requirement.

The Minister has an opportunity to verify that the waiving of the 50:50 Rule for start-up companies has not resulted in a negative effect in terms of the balance of the workforce concerned. The Minister is obliged to refuse to renew employment permits if the employer has not reached the 50:50 Rule threshold within two years of the first employment permit being granted, unless an enterprise development agency has made a recommendation and the Minister is satisfied that the renewing of the employment permit will contribute to further development of employment in the State. If the Minister renews a permit on foot of such a recommendation, the renewal will be for the period of one year and if then achieved, a further renewal of two years may be granted.

The Act gives an additional six months to a foreign national who has been made redundant to find employment and apply for a new permit. They also exempt them from certain rules that would otherwise apply (e.g. Labour Market Needs Test and eligibility criteria in relation to the job). All applications, be they from employers or employees, are treated on an equal basis and are subject to the same rules when being considered for an employment permit.


Regulations for Permits

The Minister may make regulations to provide for each type of employment permit and to regulate different requirements to apply depending on the nature of the permit and circumstances. The principal grounds of refusal of an employment permit are set out in the legislation and regulations. They are dealt with in other chapters.

When making regulations in respect of remuneration the Minister may take into account the going rate in the marketplace for such employment. He can take account of any other benefits provided by the employer in respect of the remuneration package.

The criteria to which the Minister in making regulations is amended.  This includes for making provision for important sectors from an economic and social development perspective and labour market surpluses and shortages.  The criteria of the foreign national’s experience are strengthened.


Application Documents for Employment Permit I

Applications made for the grant of employment permits, whether made by electronic means or in paper form, shall be in the relevant form for the time being provided for that purpose by the Minister and made available online at www.djei.ie.

The following information and documents shall be provided with an application for the grant of an employment permit:

  • Where an application is made  in paper form, a photograph, or by electronic means, a digital passport photograph in jpeg format,of the foreign national in respect of whom the application is made, of the same size and form as the photograph required by the Minister for Foreign Affairs and Trade to be contained in a passport issued by that Minister to a citizen of the State;
  • clear copies of the relevant pages of the passport of the foreign national in respect of whom the application is made, showing his or her picture, personal details, passport expiry date 12 months or more after the date of application, and his or her signature;
  • a clear copy of the current immigration stamp and visa, if applicable, of the foreign national in respect of whom the application is made or, if available, his or her Garda National Immigration Bureau pin;

Application Documents for Employment Permit II

The following are also required

  • in the case of an application for employment in a listed  profession, a copy of the registration of the foreign national in respect of whom the application is made with the appropriate regulatory body listed in that Schedule or, if available, his or her registration number, licence number or pin with that regulatory body;
  • in the case of an application for employment in a list profession, a copy of the registration or recognition of qualifications of the foreign national in respect of whom the application is made with the appropriate regulatory body or Minister of the Government listed in that Schedule;
  • in the case of an application for employment as a carer in a private home copies of qualifications confirming that the foreign national in respect of whom the application is made is a trained medical professional in a profession listed in Part A of Schedule 2 and a letter from a registered medical practitioner specialising in the area of illness of the person for whom the foreign national will be caring, confirming that that person has a severe medical condition, or a copy of a P60, payslips, a notarised letter or an affidavit establishing that the foreign national in respect of whom the application is made has a long history of caring for the person concerned and a letter from a registered medical practitioner specialising in the area of illness of the person for whom the foreign national will be caring confirming that that person has special care needs;

Application Documents for Employment Permit III

The following are also required

  • in the case of an application for employment in a restaurant or fast food outlet copies of any certified qualifications of the foreign national in respect of whom the application is made, and) in the case of an application for a Critical Skills Employment Permit, General Employment Permit, Sport and Cultural Employment Permit or Intra-Company Transfer Employment Permit in respect of employment as— an executive chef, a head chef, a sous chef, or a specialist chef,specialising in cuisine originating from a state that is not a Member State of the EEA, a statement from the person who makes the offer of employment, or the connected person, confirming that the foreign national in respect of whom the application is made shall be employed in an establishment other than a fast food outlet;
  • where applicable, a copy of the registration, held by the foreign national in respect of whom the application is made, with the American Institute of Certified Public Accountants (AICPA), the Philippine Institute of Certified Public Accountants (PICPA) or the Institute of Chartered Accountants of Pakistan (ICAP);

Application Documents for Employment Permit IV

The following are also required

  • in the case of an application for employment as a heavy goods vehicle driver, a copy of the category CE or C1E driving licence held by the foreign national in respect of whom the application is made;
  • in the case of an application for employment as a nurse or midwife on completion of the Clinical Adaptation and Assessment Programme or the RCSI (Royal College of Surgeons of Ireland) Examination, as the case may be, evidence of permission from the Minister for Justice and Equality given to the foreign national to remain in the State for the purpose of completion of the programme or examination, and to subsequently apply for an employment permit; and
  • where the application is made by electronic means, copies of signed declarations as may be required.

In addition to the information and documents prescribed Above under paragraph (2), the following information and documents are prescribed for the purpose of section 6(g)(i) of the Principal Act and shall be provided with an application made for the grant of an employment permit, other than an application made by a Trusted Partner.


Employer Requirement

A where the person who makes the offer of employment, or, as the case may be, the contractor or connected person, has not yet made returns to the Revenue Commissioners in respect of employees, a statement in writing provided by the Revenue Commissioners is required confirming registration with the Revenue Commissioners and stating the said person’s ERN (Employer Registered Number);

Wwhere the person who makes the offer of employment, or, as the case may be, the contractor or connected person, does not come under the above and has not provided one of the following documents in respect of a different application, and in respect of which an employment permit was granted or renewed, within the 12 months preceding the application, a copy of—

  • a P30 returned to the Revenue Commissioners within the 3 month period preceding the application, or a receipt for such return, whether issued through ROS (Revenue Online Service) or otherwise, or
  • evidence of P30 SEPA monthly direct debit payments made within the 3 month period preceding the application;
  • where the person who makes the offer of employment is required to obtain permission from the Minister for Justice and Equality to operate a business in the State, a copy of the appropriate permission.

Renewal of Certificates

There is provision for the renewal of employment permits. The circumstances in respect of which a permit may or may not be renewed are amended.  The 50:50 Rule applies to all renewal applications made after the legislation commenced.  It exempts renewal applications of existing pre-legislation permits from the 50:50 Rule on the basis that the new requirement could not have been foreseen at the initial take up of employment.

The Minister is to refuse the renewal of an employment permit if the employer has not reached the 50:50 threshold within a period of two/ three years.  Where the 50:50 requirement was waived on the basis that it was a start-up company, the obligation to refuse renewal does not apply if an enterprise development agency has made a recommendation and the Minister is satisfied that renewing the permit will contribute to further development of employment.  The renewal is for a year only in this case If the condition is achieved, a further renewal of two years may be granted.


Application for Renewal of Employment Permit I

Applications for the renewal of the employment permits, whether made by electronic means or in paper form, shall be in the relevant form for the time being provided for that purpose by the Minister and made available online at www.djei.ie.

The following information, documents and evidence shall be provided with an application for the renewal of an employment permit:

  • where an application is made in paper form, a photograph, or by electronic means, a digital passport photograph in jpeg format,of the permit holder, of the same size and form as the photograph required by the Minister for Foreign Affairs and Trade to be contained in a passport issued by that Minister to a citizen of the State;
  • clear copies of the relevant pages of the permit holder’s passport, showing his or her picture, personal details, a passport expiry date of 3 months or more after the date of application for renewal and his or her signature;
  • a clear copy of the permit holder’s current immigration stamp and visa if applicable, or, if available, his or her Garda National Immigration Bureau pin;
  • a copy of 3 recent payslips of the permit holder dated within the 4 month period prior to the application;
  • a copy of the P60 issued in respect of the permit holder for each year that he or she has been employed pursuant to the employment permit, or, if the P60 is not available, the 21 issued in respect of the permit holder;

Application for Renewal of Employment Permit II

The following are also required

  • in the case of an application for employment in a listed profession listed , a copy of the permit holder’s registration with the appropriate regulatory body listed in that Schedule or, if available, his or her registration number, licence number or pin with that regulatory body;
  • in the case of an application for employment in a listed profession, a copy of the permit holder’s registration with, or recognition of qualifications by, the appropriate regulatory body or Minister of Government listed in that Schedule;
  • in the case of an application for employment in a restaurant or fast food outlet an up-to-date tax clearance certificate in respect of the employer or the connected person;
  • where applicable, a copy of the permit holder’s registration with the American Institute of Certified Public Accountants (AICPA), the Philippine Institute of Certified Public Accontants (PICPA) or the Institute of Chartered Accountants of Pakistan (ICAP);
  • in the case of an application for employment as a heavy goods vehicle driver, a copy of the permit holder’s category CE or C1E driving licence; and
  • where the application is made by electronic means, copies of signed declarations as may be required.

Application for Renewal of Employment Permit II

In addition to the information and documents prescribed above), the following information and documents shall be provided with an application made for the renewal of an employment permit, other than an application made by a Trusted Partner:

In the case of an employer, or, as the case may be, a contractor or connected person, who has not provided one of the following documents in respect of a different application, and in respect of which an employment permit was granted or renewed, within the 12 months preceding the application, a copy of a P30 returned to the Revenue Commissioners within the 3 month period preceding the application, or a receipt for such return, whether issued through ROS (Revenue Online Service) or otherwise, or  evidence of P30 SEPA monthly direct debit payments made within the 3 month period preceding the application;

Where the person who makes the offer of employment is required to obtain permission from the Minister for Justice and Equality to operate a business in the State, a copy of the appropriate permission.

An application for the renewal of an employment permit shall be made within the period of 4 months ending on the day of expiry of the period for which it has been granted (or for which it has last been renewed under that section), or within the period of 1 month after the expiry of that period.