Work Permits

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.


Permit Offences

A person shall not—

  • forge a document purporting to be an employment permit,
  • alter an employment permit with intent to deceive,
  • use an employment permit with intent to deceive,
  • permit the alteration of an employment permit with intent to deceive,
  • permit the use of an employment permit with intent to deceive, or
  • use, with intent to deceive, a forged document purporting to be an employment permit.

A person who contravenes any of the above requirements is guilty of an offence.

Where an employment permit has been granted neither the employer or the employee shall purport to—

  • transfer the employment permit to another person,
  • use the employment permit to employ a foreign national other than the foreign national to whom it has been granted, or
  • use the employment permit in respect of an employment other than the employment in respect of which it has been granted.

A person who furnishes to the Minister, on an application for a permit, information that is false or misleading in a material respect knowing that it is so false or misleading or being reckless as to whether it is so false or misleading is guilty of an offence.


Power of Authorised officers.

The Minister may appoint in writing such and so many of his or her officers to be authorised officers for the purposes of all or any of the provisions of the legislation.

An authorised officer may, for the purpose of obtaining any information which may be required in relation to a matter under investigation—

  • at all reasonable times enter any premises, place or vehicle, on, at or in which there are grounds to believe that any trade or business or any activity in connection with a trade or business is being, or has been, carried on, or that records relating to such trade, business or activity are kept, and search and inspect the premises, place or vehicle and any records that are on, at or in such premises, place or vehicle,
  • secure for later inspection any, or any part of any, premises or place or any vehicle on, at or in which such records are kept or there are reasonable grounds for believing that such records are kept,
  • require any person who carries on such trade, business or activity or any person employed in respect of such trade, business or activity to produce to him or her such records and where such records are kept in a non-legible form to reproduce them in a legible form or to give to him or her any information as the authorised officer may reasonably require in relation to any entries in such records,
  • inspect and take copies of or extracts from any such records, files, papers or electronic information system on, at or in the premises, place or vehicle, including, in the case of information in a non-legible form, copies of or extracts from such information in a permanent legible form,
  • remove and retain such records for such periods as may be reasonable for future examination, subject to a warrant being issued for that purpose by the District Court,
  • require any such person to give to the authorised officer any information which the authorised officer may reasonably require in respect of such trade, business or activity or in respect of the persons carrying on such trade, business or activity or employed in connection with such trade, business or activity,
  • require any such person to give to the authorised officer any other information which the authorised officer may reasonably require in respect of such trade, business or activity,
  • require any person by or on whose behalf data equipment is or has been used or any person having charge of, or otherwise concerned with the operation of the data equipment or any associated apparatus or material, to afford the authorised officer all reasonable assistance in relation to it and assist in the retrieval of information connected with the operation of such data equipment, apparatus or material,
  • summon, at any reasonable time, any other person employed in connection with such trade, business or activity to give to the authorised officer any information which the authorised officer may reasonably require in relation to such trade, business or activity and to produce to the authorised officer any records which are in the control of that other person,
  • have photographs taken of anything on, at or in the premises, place or vehicle and remove the photographs from the place, and
  • inspect any vehicle relating to such trade, business or activity.

Further Search and Enquiry Powers

An authorised officer shall not, other than with the consent of the occupier, enter a private dwelling unless he or she has obtained a warrant from the District Court. Where an authorised officer, in the exercise of his or her powers, is prevented from entering any premises, place or vehicle, an application may be made for a warrant authorising such entry.

An authorised officer appointed, when exercising any powers conferred on an authorised officer by this Act, may be accompanied by such other authorised officers or members of the Garda Síochána or both as he or she considers necessary.

A person shall comply with any request or requirement of an authorised officer under this Act.

A person who—

  • obstructs or impedes an authorised officer in the exercise of a power under this section,
  • without reasonable excuse, does not comply with a requirement under this section, or
  • in purported compliance with such a requirement gives information that is false or misleading in a material respect,

is guilty of an offence.


Prohibition on deduction from remuneration

The employer shall not make any deductions from the remuneration of, or seek to recover from, the holder of the employment permit concerned any charge, fee or expense arising out of or concerning one or more of the following:

  • the application for the employment permit or a renewal of the permit or any matter relating to or concerning such an application or the grant or renewal of the permit;
  • the recruitment of the holder for the employment in respect of which the application was made; or
  • any amount previously paid to the holder in respect of travelling expenses incurred by the holder in connection with taking up the employment in the State.

The same applies to domestic connected party of the employer, where the employer is abroad.


No Retention of Personal Documents

An employer may not keep any personal document belonging to a holder. A connected person (see above) shall not seek to recover from the holder of the employment permit any charge, fee or expense arising out of the application for the employment permit or the renewal of the permit or any matter relating to or concerning such an application or the grant or renewal of the permit.

A personal document includes a passport, a driving licence, an identity card, a document relating to any account held with a financial institution, a document relating to the skills, qualifications or experience of the foreign national and travel documents.

A person who contravenes these provisions is guilty of an offence.


Surrender of employment permit.

If the employment of a foreign national pursuant to an employment permit is terminated by the employer or the holder of the permit or otherwise, for whatever reason, ceases, there shall be surrendered to the Minister, within 4 weeks from the date of termination or cessation—

  • by the holder — the original of the permit, and
  • by the employer — the copy of the permit.

In the case of an employment permit granted for the training purpose, if  the employment of the foreign national is terminated by the foreign employer or the holder of the permit, or the foreign national ceases, for whatever reason, to carry out duties for, or participate in a training programme provided by, the connected person, there shall be surrendered to the Minister within 4 weeks from the date of termination or cessation by the holder — the original of the permit, and  by any domestic  connected person the copy of the permit.

A person who fails to comply is guilty of an offence. It is a defence for a person charged to show that he or she took all reasonable steps to surrender the original or, as the case may be, copy of the employment permit concerned to the Minister within 4 weeks from the date of cessation or termination of the employment concerned.


Prohibition on Penalisation.

In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.  “Penalisation” includes—

  • suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts), or the threat of suspension, lay-off or dismissal,
  • demotion or loss of opportunity for promotion,
  • transfer of duties, change of location of place of work, reduction in wages or change in working hours,
  • imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and
  • coercion or intimidation.

An employer shall not penalise or threaten penalisation against an employee for—

  • making a complaint to a member of the Garda Síochána or the Minister that a provision of the Act is not being complied with,
  • giving evidence in any proceedings under the legislation, or
  • giving notice of his or her intention to do any of the above things.

Retention of records.

The employer shall keep, in relation to the foreign national to whom an employment permit has been granted a record of the employment concerned, the duration of the employment and particulars of the permit and that record shall be kept. The period is 5 years, or if the relevant foreign national remains in the employment of the employer for a period exceeding 5 years from the date of the grant of the permit, a period equal to the duration of the period for which the foreign national remains in such employment.

The employer shall—

  • keep and have available for inspection by an authorised officer exercising his or her powers under this Act such books and records, including accounts, as may be prescribed concerning the employment of the foreign national to whom the employment permit concerned has been granted at the premises or place of business of that person in or at which the employment is carried out in the State, and
  • furnish, when requested by the Minister to do so, information to the Minister concerning the books and records.

If one or more foreign nationals are employed by the employer concerned under an employment permit], records of the number for the time being, if any, of those foreign nationals who are nationals of a Member State of the EEA, or a state other than a Member State of the European Union or a Member State of the EEA.


Records

A connected domestic person shall keep, in relation to the foreign national to whom an employment permit for training purposes has been granted, a record of the employment concerned, a record of the duties carried out by the foreign national or the training programme concerned, the duration of the employment and particulars of the permit and that record shall be kept for the period specified.

Where the connected person makes, payment for board and accommodation, or either of them, or health insurance, the connected person shall keep and have available for inspection by an authorised officer exercising his or her powers under this Act the records, in respect of the foreign national to whom the employment permit has been granted at the premises or place of business of that connected person in or at which the duties or training programme is carried out in the State, and furnish, when requested by the Minister to do so, information to the Minister concerning the records.  The records are

  • records relating to the payment for—
  • board and accommodation, or either of them, and health insurance,

If one or more foreign nationals are, pursuant to an employment permit granted for training purposes, carrying out duties for, or participating in a training programme provided by, the connected person, records of the number for the time being, if any, of those foreign nationals who are nationals of a Member State or other nationals.

A person who fails to comply is guilty of an offence.


Register of Employment Permits

The Minister shall establish and maintain a register of employment permits granted under this Act and shall cause to be entered in such register—

  • the name of the foreign national in respect of whom the employment permit has been granted, and the employer or in the case of an employment permit granted for training purposes, the connected person and the foreign employer, or
  • in the case of an employment permit granted in respect of a contract service agreement, the contractor and the relevant person,
  • the employment or economic sector in respect of which each employment permit has been granted,
  • the address of the foreign national, as specified in the application for the employment permit, in respect of whom the employment permit has been granted, the employer (or contractor / connected person).
  • the place at which the employment is to be carried out and where such employment is to be carried out at more than one place, the address of each such place]
  • the duration of each employment permit and its commencement and expiry dates,
  • in the case of a renewal of a renewed employment permit, the fact of its renewal, the period for which it has been renewed and the commencement and expiry dates of that period,
  • in the case of a revocation of an employment permit, the fact of its being revoked, the date and reason for its revocation and, if a review occurs, the fact of the decision being reviewed and the outcome of the review, and
  • if the employment permit is surrendered, the date and reason for such surrender.