Tag Archive for: Department of Enterprise

EMPLOYMENT PERMITS ACT 2024 SIGNED INTO LAW

EMPLOYMENT PERMITS ACT 2024 SIGNED INTO LAW

The Department of Enterprise have now announced that the Employment Permits Act 2024 will come into effect from Monday, 2nd September 2024.

The new Act consolidates and updates employment permit law, which had previously been scattered across various Acts. The Act repeals the Employment Permits Act 2003 and the Employment Permits Act 2006, as well as the Employment Permit Regulations 2017. An information note on the key changes is available at https://enterprise.gov.ie/en/publications/publication-files/employment-permits-act-2024-information-note-on-key-changes.pdf.

CHANGES TO THE LABOUR MARKET NEEDS TEST (LMNT)

The criteria requiring employers to place adverts for vacancies in print media (newspapers) has been removed. The requirement to publish an advertisement with the Department of Social Protection Employment Services/EURES employment network for a minimum of 28 days (continuously) continues.

The new LMNT criteria require the applicant to publish the vacancy notice both with the Department of Social Protection JobsIreland/EURES online employment services, and on a second online platform for 28 days also. These online platforms can be any electronic system for the online publication of information that are easily accessible by Irish/EEA citizens including websites, software or any other electronic technology that provides for the online publication of information. Online platforms can include newspaper websites or dedicated employment websites. Any website, software, or electronic technology that provides online publication of information, with the principal purpose being to publish offers of employment, is eligible.

Both notices placed with the Department of Social Protection Employment Services/EURES employment network and on the additional second online platform must contain the following information:

  • a description of the employment
  • the name of the employer
  • the minimum annual remuneration
  • the location/s of employment
  • the hours of work

Our understanding currently, subject to the publication of the new Regulations in this matter, is that applications for employment permits must be made within 90 days from the day in which the Department of Social Protection notice was first published.

SEASONAL EMPLOYMENT PERMITS

The new Seasonal Employment Permit is a short-term employment permit for a non-EEA national to work for a maximum of 7 months per calendar year in a seasonally recurrent employment. The Permit will be first introduced under a limited pilot scheme for horticultural workers later this year, with the intention that it will commence in early 2025. There will be a requirement for employers to become registered as approved seasonal employers and to obtain annual pre-approval. There will be a prescribed minimum number of employees, turnover, and balance sheet total for the previous year for prospective seasonal employers. Seasonal employers will also need to provide accommodation and appropriate health insurance for their seasonal employees.

REVOCATION OF EMPLOYMENT PERMITS

A new provision also requires that a permit holder must commence employment within a period of six months from when the permit is granted or comes into force. This new requirement may have serious consequences for holders of employment permits who are visa-required but who are experiencing significant delays in the employment visa process.

There is no explicit confirmation that the employment permit will be cancelled if not taken up within 6 months, but that seems to be the clear implication from the legislation. The view of our office is that this is quite concerning for visa-required employment permit holders who may be unable to take up their permits within 6 months due to delays.

CHANGING EMPLOYER WITHIN THE SAME TYPE OF ROLE

The new Act allows employment permit holders to change employer by application to the Minister after a period of 9 months on their permit has elapsed (but before 22 months has elapsed) without the need to apply for a new employment permit or conduct a new Labour Market Needs Test. The permit will continue to last only for its initial duration.

Please note that this only applies to General Employment Permit holders seeking to change employers for the same type of role (identified by its 4-digit SOC code), or Critical Skills Employment Permit holders seeking to change employers within the same category of role (identified by its 3-digit SOC code). For example, a meat processing operative holding a General Employment Permit can move to another meat processing role, or an engineer holding a Critical Skills Employment Permit can move to another engineering role.

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. It is important to note that the new employment cannot be commenced until the employment permit has been reissued.
  • A change of employer request form will be available for the new employer and employee to sign and submit through a dedicated email address.

PROMOTION OR INTERNAL TRANSFER IN THE ROLE

Where an employment permit holder has been granted a promotion in the same company, the Act includes a provision to allow for this where a permit holder would use the same skills and the employment remains eligible, without having to apply for a new employment permit. The situation will be assessed on renewal.

CHANGING EMPLOYERS TO ANOTHER TYPE OF ROLE OR A NEW ROLE WITH THE SAME EMPLOYER

The Employment Permits Act 2024 allows employment permit holders to apply for a new employment permit for a new type of role, whether with their current employer or a new employer, after a period of at least nine months.

The legislation provides discretion to grant prior to the nine-month period in cases evidencing a change of circumstances or instances of exploitation.

MINIMUM ANNUAL REMUNERATION

The new Act requires the Minister to carry out a yearly review on average weekly earnings in Ireland to calculate increases in the minimum annual remuneration for employment permits. This is likely to mean increases in the minimum annual remuneration for employment permit holders on an annual basis in line with increases in the average wage in Ireland. Our advice is that employers should start planning in anticipation of the new figures being announced. Please note that these increases will also apply to renewals, where the initial permit may have been applied for on the basis of a lower salary.

If you or your employer have any queries regarding the new employment permit rules, please do not hesitate to contact us.

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

DEPARTMENT OF ENTERPRISE ANNOUNCES 150 NEW WORK PERMITS FOR SEA FISHERS

The Department of Enterprise has announced a new quota of 150 employment permits for sea fishers in a bid to address skills shortages in the Irish fishing fleet.

This decision moves the role of sea fisher from the Atypical Working Scheme to the employment permit system. The role of sea fisher in the Irish fishing fleet is now eligible for a General Employment Permit with a minimum salary requirement of €34,000, up to a quota of 150 permits. This move will ensure that non-EEA sea fishers will have access to the same benefits and protections as other non-EEA nationals employed in the State.

For further information, please see the press release published by the Department of Enterprise, Trade, and Employment:

https://enterprise.gov.ie/en/news-and-events/department-news/2024/july/03072024.html

Berkeley Solicitors are available to provide support and assistance to any persons applying for an employment permit.

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted

EMPLOYMENT PERMITS ACT 2024 SIGNED INTO LAW

UPDATE REGARDING ELIGIBLE SPOUSES AND PARTNERS OF GENERAL EMPLOYMENT PERMIT AND INTRA-COMPANY TRANSFEREE IRISH EMPLOYMENT PERMIT HOLDERS

The Department of Justice and Department of Enterprise, Trade, and Employment recently announced that eligible spouses and partners of General Employment and Intra-Corporate Transferee Permit holders who have applied for and been granted family reunification in the State in accordance with the Department of Justice Non-EEA Family Reunification Policy will now be registered on a Stamp 1G rather than a Stamp 3 permission. In addition, spouses and partners of Critical Skills Employment Permit holders and Researchers on a Hosting Agreement currently on a Stamp 3 are also now eligible for Stamp 1G.

This development enables eligible spouses and partners of these permit holders to work without obtaining a separate employment permit. It does not, however, negate the need for current and future permit holders whose spouses and partners are not in the State to apply for family reunification after 12 months.

Effective immediately from 15th May 2024, eligible spouses and partners who already legally reside in the State and hold a Stamp 3 permission have had their permission to remain in the State varied to the same conditions as Stamp 1G, which are as follows:

  • Permitted to work in the State without the requirement to obtain an employment permit.
  • Permitted to undertake courses of study in the State.
  • Not permitted to establish or operate a business.
  • Not permitted to be self-employed.
  • Renewal of the Stamp 1G registration is required annually, and after 5 years on a Stamp 1G, you may be eligible for a Stamp 4 permission.

As such, they do not need to attend their local immigration office or apply online to obtain a permission to reside on Stamp 1G conditions. A new Irish Residence Permit on Stamp 1G conditions will issue to eligible persons when they seek to renew their current Stamp 3 permission upon its expiry.

Eligible spouses or partners therefore do not need to acquire a new Irish Residence Permit card to engage in employment but can instead provide prospective employers with the following letter in conjunction with their current IRP card: Download Stamp 3 to Stamp 1G Employment Notice. This temporary arrangement is valid until 15th May 2025.

The full announcement can be found here:

https://www.irishimmigration.ie/attention-eligible-spouses-and-partners-of-general-employment-permit-and-intra-corporate-transferee-irish-employment-permit-holders/

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

 

EMPLOYMENT PERMITS ACT 2024 SIGNED INTO LAW

RECENT REFUSALS OF EMPLOYMENT PERMIT VISAS

Late last year, Ms Justice Bolger of the High Court delivered a judgement in the case of S v Minister for Justice [2022] IEHC 578, which we discuss in detail in our blog post available here: https://berkeleysolicitors.ie/recent-high-court-judgement-refusal-of-travel-visa-for-employment-permit-holder/

 

The case concerned an Indian citizen who was granted a work permit to take up a position as a tandoori chef. The Applicant then applied for a visa to enable him enter Ireland to take up this employment position, but his visa application was refused. The Applicant appealed against this refusal; his appeal was also unsuccessful. The Applicant initiated Judicial Review proceedings in the High Court, seeking an order of certiorari to quash the decision. Ms Justice Bolger found for the applicant and granted the order quashing the decision.

 

We noted in our blog post that this case raises the conflict that can arise when a person has been granted an employment permit and requires an employment visa to enter the State.

 

The Department of Enterprise, Trade and Employment have responsibility for the issuance of employment permits. When a person who has been granted an employment permit is a national of a country that requires an entry visa to enter Ireland, their application to enter Ireland for the purpose of employment is subjected to a review by the Minister for Justice in their visa application.

 

The Minister in respect of the Applicant in the S case had found in the refusal decision that the Applicant had not provided sufficient evidence that they had the appropriate skills, knowledge, or experience for the employment position in Ireland. The High Court found that a work permit does not constitute prima facie evidence that the Applicant has the skills and experience required for the proposed employment. However, the Court found that it also cannot simply be ignored.

 

The Minister for Justice does not limit her assessment of a visa application to immigration matters only and will often undertake an examination of the Applicant’s suitability for the employment position they have been issued an employment permit for. We are now seeing a series of visa refusals which rely on the S case to allow the Visa Officer to re-assess the Applicant’s suitability for the prospective employment. Some refusals purport to state, in the case of roles such as horticultural workers, meat processing operatives, dairy farm assistants, and healthcare assistants, as such roles require no or few qualifications or experience in circumstances where the employer will provide training, that the Visa Officer is entitled, “in the absence of such safeguards” to “thoroughly assess” an applicant’s suitability to perform their duties. We believe that many of these decisions may unlawfully ignore the employer’s duty to provide training in respect of these roles, and that Visa Office may be inferring an additional requirement at visa processing stage to show qualifications and experience in roles where no qualifications or experience are required by the Department of Enterprise.

 

We further note that these decisions may place an undue reliance on the S case to ignore the Department of Enterprise’s role in assessing a candidate’s suitability for a proposed role. Bolger J. stated at paragraph 37 that: “I do not consider the work permit constitutes the type of prima facie evidence that is contended for by the applicant. However, neither do I accept that it can be ignored.” [emphasis added]. We note that the context to the above quote is that the applicant in that case contended that the Visa Officer “cannot look behind the grant of the permit or require an applicant for a visa to show that they are qualified to do the job for which they were granted that permit.” This would preclude the Visa Offer from having any consideration of the Applicant’s qualifications, skills, or experience in respect of the proposed role. This was not considered to be the case by the High Court. However, importantly, neither can the issuance of the work permit by the Department of Enterprise be ignored in considering an Applicant’s suitability for the proposed role. Therefore, while the issuance of a work permit cannot in and of itself constitute evidence of qualifications and experience or the offer of sufficient training, it is certainly persuasive, and cannot be ignored in the Visa Officer’s consideration of an Applicant’s suitability for the proposed role.

 

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.