On 23 April 2014, the Minister for Jobs, Enterprise and Innovation (the "Minister") published the Employment Permits (Amendment) Bill 2014 (the "Bill"). The Bill proposes to significantly amend Ireland's permission to work regime currently governed by the Employment Permits Acts 2003 and 2006 (the "Acts"). The overhaul will address perceived deficiencies and update the current employment permit process. The expansion of the employment permits regime has been identified as a key facet of the Irish Government's Action Plan to create 100,000 jobs by 2016 and it is intended that the Bill will provide for a more flexible and robust application process. It is proposed that the Bill will be introduced by July 2014.
CATEGORIES OF EMPLOYMENT PERMIT
The Bill proposes the following changes to the number and category of employment permits available to non-EEA nationals:
- Critical Skills Employment Permit will replace the current Green Card Permit and will be provided to non-EEA nationals in sectors which have critical shortages of skills. Permit holders will be entitled to avail of immediate family reunification and a fast track to residency. (Part of the reasoning behind the renaming is to avoid confusion with the US Green Card regime.)
- General Employment Permit will replace the current Work Permit and will be issued in cases where a contract for a designated highly skilled occupation has been offered for a duration of less than two years, or for other occupations apart from those included on a list of ineligible jobs, subject to satisfaction of the Labour Market Needs Test (demonstrating that the role could not be filled by an EEA national) and the other relevant criteria.
- Intra-Company Transfer Employment Permits will be retained under the proposed legislation, which allows for the temporary transfer of employees between affiliated foreign and Irish companies on a temporary basis.
- Contract for Services Employment Permit will permit a foreign entity to send non-EEA service providers to Ireland pursuant to an agreement with an Irish entity.
- Dependant, Partner and Spouse Employment Permit will be available to family members of holders of Critical Skills Employment Permits and certain types of researchers who have entered Ireland under the Scheme for Admission of Third Country Researchers to Ireland, enabling the family members of such persons to work in Ireland. The Bill expressly extends the entitlement to apply for this permit to civil partners of holders of Critical Skills Employment Permits and researchers.
- Exchange Agreement Employment Permit will allow reciprocal international arrangements facilitating the exchange of Irish nationals and non-EEA nationals (e.g. trade agreements including labour transfers and research/student exchange arrangements).
- Sports and Cultural Employment Permits will permit non-EEA nationals with sporting or cultural expertise to work in Ireland e.g. professional sports players.
- Internship Employment Permits will replace the existing procedures and will enable students of foreign institutions to work in Ireland, where such employment is a key component of the course they are studying.
- Reactivation Employment Permits seek to address the current situation where a non-EEA national falls out of the employment permits system through no fault of their own. An applicant can only avail of this permit if he/she can establish that he/she originally entered the labour market legally on an employment permit, is not working illegally and has a real offer of employment. Additionally, the Minister for Justice and Equality must be satisfied that the circumstances of the case merit consideration of an employment permit.
OTHER PROCEDURAL AMENDMENTS
A key amendment to the current regime is the proposed change to the criteria for an employment permit. Notably, explicitly providing that the requirement to demonstrate compliance with the 50:50 rule (i.e. that employers seeking to hire non-EEA nationals on an employment permit maintain a workforce of at least 50% of EEA nationals) and compliance with the Labour Markets Needs Test will apply in respect of applications by both the employer and the non-EEA employee. This change should not cause significant issues for employers as this requirement is currently imposed on applications where the employer is the applicant. It is intended to remove a perceived loophole where the criteria may not have applied to employee applications.
The exemption for compliance with the Labour Market Needs Test for Critical Skills Employment Permits and/or IDA supported employment permit applications will remain in place.
An exception to the 50:50 Rule may be made in the case of start-up companies. Start-up companies will have up to two years from the date of the first employment permit being granted to comply with the 50:50 rule, where an enterprise development agency (such as the IDA) makes a recommendation in respect of the application and the Minister is satisfied that granting or renewing the employment permit concerned will contribute to the further development of employment in Ireland.
The Bill also seeks to rectify the deficiency in the current regime identified in Hussein v The Labour Court and Younis, where the High Court held that an illegally employed employee could not invoke the protection of Irish employment legislation as he did not possess an employment permit and consequently his contract of employment was illegal. If enacted, the Bill will extend the defence currently only available to employers that he/she took all reasonable steps to comply with the requirement of having an employment permit to employees. Additionally, the Bill provides that the Minister may take a civil action on the non-EEA national's behalf in respect of employment rights.
The Bill addresses another anomaly in the current system whereby a prospective employee, whose application is refused, can appeal the decision notwithstanding the fact that the application was made by or on behalf of the employer. The Bill proposes that where an applicant has not sought a review of the decision to refuse to grant an employment permit, the Minister may nonetheless direct that the decision to refuse to grant an employment permit be reviewed, where compelling information or evidence in relation to the application is received within 28 days of the decision to refuse.
THE TRUSTED PARTNER REGISTRATION SCHEME
One of the more innovative changes proposed to the employment permit scheme is the introduction of a Trusted Partner Registration Scheme (the "Scheme") jointly by the IDA and the Department of Jobs, Enterprise and Innovation. It is proposed to introduce the Scheme as a one year pilot scheme. The Scheme provides for a streamlined process for certain employers enabling a faster turnaround when applying for employment permits. The Department of Jobs, Enterprise and Innovation intends that processing time for permits under the Scheme will be reduced to five business days. There will also be a reduction in the supporting documents required for application.
Initially the Scheme will only be available to existing clients and new start-ups who have been nominated by the IDA or Enterprise Ireland, and will remain under review. In particular, if a company has been convicted of a criminal offence under the employment permits legislation or generally under employment legislation, it will not be eligible to apply for the Scheme.
The application for Trusted Partner status must be accompanied by an IDA letter of support. If the application is successful, then the employer will be granted a unique Trusted Partner reference number which will be valid for a two-year period. As part of the application for Trusted Partner status, the company will be required to make certain declarations. Once registered, the employer can continue to use an agent to submit employment permit applications for its employees. It is proposed to launch the Scheme by the end of Q3 2014.
2013–2014 has seen numerous changes and updates to the employment permit regime including a move to a declaration based online application form, increased customer service hours and a streamlining of advertisement requirements.
It is intended that the Bill will consolidate the current permission to work regime, and has been generally welcomed.
We will monitor the Bill's progress and issue a further update once it has been enacted.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.