Permits 2024 Act

Employment Permits Act 2024

The purpose of the Employment Permits Act 2024 Act is to consolidate and update the legislative provisions that regulate the Employment Permits system, namely the Employment Permits Acts of 2003 and 2006 (as amended in 2014). The conclusions of the Review of Economic Migration Policy (2018) endorsed the robust fundamental structure of the existing system.

To increase the responsiveness of the system, to modernise it and to ensure that it is capable of adapting to the changing needs of the labour market of the future, the Review recommended that new legislation be initiated. The changes proposed in the 2024 Act give effect to these recommendations, while retaining the key policy focus of supporting the economy and the labour market through evidence-based decision making.

There are ten types of employment permit; the majority are carried forward from the 2024 Acts of 2003 and 2006. The Dependent Employment Permit which applies to dependents of holders of a Critical Skills Employment Permit is amended from the previous Dependent, Partner Spouse Employment Permit. Partners and spouses of holders of the Critical Skills Employment Permit may apply for a Department of Justice permission instead. The new Seasonal Employment Permit is added for seasonally recurring roles specified in regulations.

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.

Grant of Employment Permit

The employment permit is granted to the foreign national and allows employment in the role specified on the application form and by the employer identified on the application form. For an Intra Company Transfer Employment Permit the permit is granted to permit the employment of the foreign national concerned to carry out duties or participate in training provided by the connected person.

The permit shall specify the duration for which the permit remains in force, subject to any maximum set out in regulations. A dependent permit shall remain in force for a maximum period prescribed in regulations or for the duration of the primary permit, whichever is the lesser. The foreign national must commence the employment within a certain period from which the permit is granted or comes into force, that period will be prescribed in regulations.

When the Minister grants an employment permit, he or she must cancel any other permit which is in force for that foreign national. The Minister shall notify the foreign national and the employer identified on that employment permit in writing that the permit is cancelled with effect from a date specified in that written correspondence.

The Minister is to issue a permit to both the foreign national and the employer identified in the application (or in the case of an Intra Company Transfer Permit, the connected person).

• The 2024 Act lists the information that will be provided on the employment permit such as the type of permit,
• the role for which it is granted, remuneration,
• the name of the employer, and information on the rights of the foreign national (such as the requirement to be paid in accordance with the National Minimum Wage Act 2000),
• a statement that a new application may be made for a new permit under the 2024 Act and any conditions pertaining.

This is not an exhaustive list. The permit shall also include a summary of the foreign nationals’ principal employment rights. The Minister is required to cancel any other permit for that foreign national that is in force. Employment permits may be issued in electronic form.

50% + Ireland, EEA UK Requirment

The 2024 Act prohibits the grant of an employment permit unless 50 percent or more of the employees of the employer, the contractor, subcontractor, relevant person or the connected person as the case may be, are nationals of the EEA, Swiss Confederation, citizens of the UK or a combination of these. This is commonly referred to as the “50:50 Rule”.

Post Brexit, citizens of the UK are included in the count with citizens of the EEA and Swiss Confederation pursuant to the conditions of freedom to live and work between Ireland and the UK emanating from the Common Travel Area.

Provision is made so that in the case of a contract for service agreement, the 50:50 Rule can be satisfied by the contractor, subcontractor or relevant person, in recognition of the fact that a contractor or subcontractor from outside the EEA may not have 50 percent EEA workers. Applications for General Employment Permits, Critical Skills Employment Permits and Intra Company Transfer Employment Permits have access to a waiver to the 50:50 rule if they are start-ups (registered with Revenue for a period to be prescribed in regulations), where there is a letter of recommendation from the employment development agencies and if the Minister considers that to grant the permit will contribute to the further development of employment in the State.

Applications for the Dependent Employment Permit, the General Employment Permit, the Reactivation Employment Permit and the Sports and Cultural Employment Permit also have access to a waiver to the 50:50 rule if on the day of application the employer has no employees and the foreign national will be the sole employee on the date the employment in the application begins. The waiver no longer applies only to employers who intend to limit themselves to one employee. It now applies even if the employer intends to expand in the future. The 50:50 rule will be triggered when a second application is made for an employment permit for the same employer.

EEA Labour Market Test

The 2024 Act prohibits the grant of an employment permit unless the Minister is satisfied that the employer (or the contractor or subcontractor, as appropriate) has published a notice of the employment as prescribed and has, before making the application, offered the employment to an Irish citizen (or a person in the State under Section 8 of the 2024 Act) or a citizen of the EEA or Swiss confederation.

It is commonly referred to as the Labour Market needs Test (LMNT). It is required that the role be advertised on the EU based jobs website EURES, and one or more additional online employment platforms in a manner and for a period to be prescribed in regulations. These platforms will be listed in regulations. It is no longer required to publish in hard copy newspapers. The minimum period for which the role must be advertised has been moved to regulations to allow for increased flexibility.

An exemption is provided subject to a recommendation from an enterprise development agency, which the Minister may take into account. Further exemptions are provided where the Minister is satisfied that the role is in an area where there is a shortage of skills as set out in regulations (occupations listed on the Critical Skills Occupations List), the application is in respect of a foreign national who was dismissed by reason of redundancy, or the application is in respect of the care of a person with exceptional medical needs. The terms of the LMNT will be set out in regulations and the Minister may make enquiries to satisfy himself/herself that the LMNT has been conducted as prescribed.

Remuneration

The hourly rate of remuneration in so far as it relates to salary paid by the foreign employer shall not be less than the national minimum hourly rate of pay or the hourly rate as referred to in the definition of the “Standard Working Week Remuneration”. Where the hourly rate of pay that the foreign national usually receives falls below this amount, an additional payment will be required to be paid for the duration of the employment permit, to meet the national minimum hourly rate of pay.

This is in recognition that in the case of an Intra Company Transfer Employment Permit the foreign national will remain on the payroll of the foreign employer. Board and accommodation or either of them can be paid by the foreign employer and the connected person or either of them.

Health insurance can be paid by the foreign employer and the connected person or either of them. This section requires a statement of earnings which breaks down the elements of the foreign national’s pay and provides detail on the remuneration information required for an application. The foreign national concerned must be employed by the foreign employer for a minimum period before an application for an employment permit may be made, that period will be prescribed in regulations.

Contractors

The hourly rate of remuneration paid by the contractor or if there is a subcontractor, the subcontractor, will not be less than the national minimum hourly rate of pay or the hourly rate as referred to in the definition of the “Standard Working Week Remuneration”. Where the hourly rate of pay that the foreign national usually receives falls below this amount, an additional payment will be required to be paid for the duration of the employment permit, to meet the national minimum hourly rate of pay.

This is in recognition that in the case of a contract for service agreement the foreign national will remain on the payroll of the contractor or if there is a subcontractor, the subcontractor. Board and Accommodation or either of them will be paid by the contractor or where there is a subcontractor, by the subcontractor.

The 2024 Act requires a statement of earnings which breaks down the elements of the foreign national’s pay and provides detail on the remuneration information required for an application. The foreign national concerned must be employed by the contractor or if there is a subcontractor, the subcontractor, for a minimum period before an application for an employment permit may be made, that period will be prescribed in regulations.

The Minister may amend the permit in the event of a transfer to which the European Communities (Protection of Employees on Transfer of undertakings) Regulations 2003 (S.I. No. 131 of 2003) applies.

Renewal of Employment Permit

The 2024 Act provides for the renewal of most employment permits, including specific requirements for different purposes. It sets out who may apply for renewal, allows for the providing of documents and information, exempts renewals from the Labour Market Needs Test and the Ineligible Occupations List, and provides for a renewal window to be prescribed and for the prescription of fees and fee waivers.

The maximum period for which an employment permit may be renewed will be set out in regulations. There are provisions on renewals of the Intra Company Transfer Employment Permit, the Contract for Service Employment Permit and the Dependent Employment Permit.

The 2024 Act provides for the refusal of a renewal application. In the earlier Acts, the refusal reasons for initial grant and renewal were combined; the 2024 Act separates the refusal of initial grant and refusal of renewals, as the scrutiny of a renewal application has a tighter focus.

There is a set of discretionary grounds for refusing an employment permit based on issues such as whether the employee was working in the role and for the employer for which the original permit was granted, remuneration paid, periods outside the state and adherence to the 50:50 rule.

Cessation of Employment Permit

There is a revocation of an employment permit in certain cases including in cases of fraud, convictions for offences under the 2024 Act or an enactment specified in Schedule 1, or where prescribed conditions where not provided.

There is a process of reviewing a decision to revoke an employment permit; it allows representations, prescribing the period for submission for review and where new information or evidence comes to light that was not available to the decision maker, the reviewer shall refer the matter to the original decision maker for consideration.

There is provision for revocation of permit (and reversal of same) where an order is made by the Minister for Justice in relation to a foreign national. This aligns the immigration status of a permit holder with their permission to work.

Where an employment is terminated, regardless of whether the employment is terminated by the employer (or connected person) or foreign national, the holder of the permit and the employer shall both notify the Minister of the termination and cessation of the employment permit. This shall be done within a period specified in regulations.

Failure to comply constitutes an offence. It shall be a defence for a person charged with an offence under this section to show they took all reasonable steps to comply with this section.

Redundancy of Certain Permit Holders

In the case of a  Critical Skills Employment Permit holder who is made redundant, it allows a 6-month period for a job search, subject to certain conditions, and waives the application of the ineligible list and any change to the Critical Skills List where this arises. The provision eliminates the need for the permit holder to apply for a new permit and is restricted to movement within the occupation or occupation classification on the original permit.

In the case of a General Employment Permit holder who is made redundant, there is a 6-month period for a job search, subject to certain conditions. The 2024 Act waives the application of the ineligible list if the status of the occupation from which the permit holder was made redundant has changed to ineligible since the permit was first granted.

There is information to be provided to the Minister in a notification that a redundancy has occurred. It provides for information and documents to be prescribed by regulation in case of dismissal by redundancy in the case of a Critical Skills or General Employment Permit holder.

Regulations governing Grant

The 2024 Act sets out the regulation making powers of the Minister with regard to granting of employment permits. The subjects covered in the regulation making power include but are not limited to;

• the maximum number of permits for a type of employment permit or role,
• employments which are ineligible for an employment permit,
• minimum remuneration,
• certain conditions required as appropriate,
• qualifications and skills and hours of work,
• minimum and maximum periods for grant and
• renewal of a permit and the relevant fee (if any).

Where the Minister sets out a maximum number of employments permits for a class of employment, he or she shall define the period for which that maximum number of permits shall be granted. When making regulations related to remuneration the Minister may make a distinction between different employments.

The criteria for making regulations sets out the issues for which the Minister should have regard when making regulations. These include the qualifications and skills required and the economic sectors involved in the social and economic development, and competitiveness of the State.

Register of Employment Permits

There is a register of permits to be held by the Minister. Information is to be recorded.

There is provision for delivery of notices. There is an obligation on the parties to an employment permit (the permit holder, employer, connected person, foreign employer, relevant person, contractor and the subcontractor) to notify the Minister in the case of a change of address.

There is provision for data exchange with specified bodies – the Department of Social Protection, an Garda Síochána, the Department of Justice, the Department of Foreign Affairs and the Revenue Commissioners.

Seasonal Employment Permit

Employers wishing to apply for the new SEP will be required to apply annually to become registered pre-approved seasonal employers in order to access the scheme. Applications will be considered based on relevant criteria including the
need for the employment to be in a seasonally recurrent employment and the size of the employer.

Eligible employers will be granted ap roved status for a period of 12 months and issued with a certificate of approval as an approved seasonal employer. The Minister shall maintain a register of those approved which shall be published. Any breaches of conditions of the permits or noncompliance with rules will negatively impact on any subsequent approval

Seasonal employment permit holders will have the option to transfer their SEP to another Approved Seasonal Employer under the scheme through a simplified notification procedure. In addition to a simplified renewal process for the same
Seasonal Worker to remain with the same employer each season, during the working season the SEP holder can move to another approved seasonal employer. The Minister is provided with refusal reasons for consideration where prescribed conditions are not met.

Change of Employer

The 2024 Act introduces a new provision allowing certain employment permit holders to change their permit employer to another employer after a period of nine months has passed since commencing their first employment permit in the
State. The provision eliminates the need for the permit holder to apply for a new permit and is restricted to movement within the occupation or occupation classification on the original permit.

The Change of Employer applies to the General Employment Permit (GEP) and the Critical Skills Employment Permit (CSEP).

The holder of a GEP can apply to change to an employer within the type of employment for which they have been granted a permit (identified by its 4 digit SOC code).  The holder of a CSEP can change to an employer across a broader
category of employments, for example, different engineering roles (identified by its 3 digit SOC code). The additional flexibility for CSEP holders is due to the fact that their roles are identified on the Critical Skills Occupations List indicating a high demand for these skills in the labour market.

Application for Change

The permit must be in force and will remain in force for at least two months when making the application. The duration of the permit will remain unaffected. The provision provides the permit holder with greater freedom of movement to
employment with more attractive terms and conditions.

The Minister is provided with refusal reasons for consideration where prescribed conditions are not met. The following conditions apply to the change of employer process:

• The maximum number of applications for change of employer that may be granted to a permit holder has been set at three.
• A new contract of employment signed by both the new employer and employee is required to be submitted.
• The employee is required to commence employment with the new employer within one month of the new permit being issued.

Unlike applications for new permits, there is no requirement to conduct a labour market needs test before the permit holder applies to change their employer. The employment permit holder will be allowed to change employer provided that they are transferring to an occupation similar to the occupation for which they have been permitted to enter the State. This would be the occupation which has already been tested in the domestic and EEA labour market but failed to secure suitable candidates to fill the vacancy through the labour market needs test or is in critical short supply.

A change of employer request form will be available for the new employer and  employee to sign and submit through a dedicated email address. Information will be highlighted on the current EPOS online application landing page and the
website, where full information will be provided.

Changing Employment and Employment Permit

The Employment Permits Act 2024 upholds the option for employment permit holders to seek employment in another eligible role and apply for a new employment permit allowing them to take up that opportunity, whether with their
current employer or a new employer. The time restriction – where the permit holder is expected to remain with their first employer on the first employment in the State for a certain period – remains. However, the new legislation amends
that period from 12 months to a period of at least nine months before a new application can be made. This provision takes into account the employer’s efforts to source suitable candidates for employment.

The legislation provides discretion to grant prior to the nine-month period in cases evidencing a change of circumstances or instances of exploitation. This provision attempts to strike a reasonable balance between, on the one  hand, the employer’s expectations that the permit holder will remain in his or her employment for a reasonable period given the costs involved in recruitment and, on the other hand, not unduly binding the permit holder to the employer. The aim
is to provide flexibility and transferability to protect migrant workers who may be at risk of unfair treatment.

Progression within the Role

The Act aims to improve the status and employment opportunities of permit holders by providing a provision to allow for promotion and internal transfer in the same company where a permit holder would use the same skills and the employment remains eligible.  This removes the requirement for the permit holder to undergo a new employment permit application process where they remain with the current employer but have been granted a promotion or uplift.

At renewal this situation will now be assessed on the basis of what would previously have been considered a change of employment permit. This amendment should reduce the administrative burden for companies and permit holders and reduce accidental non-compliance with employment permits legislation.

Dependant Employment Permit

The Dependant/Partner/Spouse Employment Permit has been revised to cater  for the dependants of Critical Skills Employment Permit holders and Researchers under Directive 2005/71/EC. Spouses and partners of these non-EEA nationals may apply to the Department of Justice for immigration permission giving them access to the labour market without the need to hold an employment permit.

Non-consultant hospital doctors (NCHDs)

This new provision allows the Minister to provide a two year multi site General  Employment Permit to suitably qualified foreign nationals who take 6-month employment contracts as non-consultant hospital doctors (NCHD) in health  facilities in different locations. The introduction of the new multi side GEP eliminates the need for multiple applications for each employer hospital and ensures a smooth transition from one employment to the next, up to two years.

Transitional

The 2024 Act continues an employment permit granted under the Employment Permits Act 2006. Applications for grant or renewal of employment permits under Act of 2006 establishes the consideration under the 2024 Act of an application received under the Employment Permits Act 2006 where a decision has not yet been made.

An application for the renewal of an employment permit granted under the Employment Permits Act 2006 shall be renewed in respect of the purposes under the 2024 Act.

There is provision for review of refusal under the 2024 Act, of a decision to refuse to grant or renew an employment permit made under the Employment Permits Act 2006, where such decision has not yet been made.There is provision for review of decision to revoke an employment permit made under the Employment Permits Act 2006 where such decision has not yet been made.