Tag Archive for: Employment permits

STAMP 0 PERMISSION ACCEPTED AS RECKONABLE RESIDENCE FOR NATURALISATION

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.

DEPARTMENT OF JUSTICE ANNOUNCE EXCEPTIONAL AWARD OF STAMP 4 PERMISSION TO NON-EEA CREW MEMBERS UNDER THE ATYPICAL WORKING SCHEME

DEPARTMENT OF JUSTICE ANNOUNCE EXCEPTIONAL AWARD OF STAMP 4 PERMISSION TO NON-EEA CREW MEMBERS UNDER THE ATYPICAL WORKING SCHEME

On the 3rd of January, 2023, the Department of Justice announced that all those currently holding valid Stamp 1 permission to work as a non-EEA crew member in the Irish Fishing Fleet on or after 1st January 2023 will be granted Stamp 4 immigration permission.

 

This permission will be granted on an exceptional basis due to the closure of new applications for the Atypical Working Scheme (AWS) for such non-EEA crew. The AWS Scheme closed following an agreement to transfer responsibility for work permissions in this sector to the Employment Permit system. The granting of Stamp 4 permissions has been announced to provide certainty and security to employees and employers in this sector during this transitional period.

 

Stamp 4 immigration permission will be granted to any individual non-EEA crew member who currently holds a valid IRP card expiring on or after 1st January 2023. Any individuals who hold a letter of permission under the AWS Scheme issued on or after the 3rd of October 2022, will also be eligible for Stamp 4, as such letters are valid for 90 days from the date of issue.

 

Eligible individuals are advised to make an appointment as soon as possible at their local GNIB Office to be granted this permission. Those attending an appointment should bring their current, in-date passport, their most recent valid in-date letter of permission under the AWS Scheme, and their current IRP card (if applicable).

 

Any crew member whose AWS permission expired on or before the 31st of December 2022, and who has not renewed their permission, will not be eligible for the granting of a Stamp 4 permission. We find this to be a very disappointing decision as many persons who have worked for many years under the AWS who may have fallen out of the system through no fault of their own are not included in this policy and will be required to continue to  make their own individual cases to the Minister for Justice for Stamp 4 permission.

 

The full announcement from the Department of Justice can be found here:

https://www.irishimmigration.ie/sea-fishers-atypical-working-scheme-update/

 

Information regarding the closure of the Atypical Working Scheme can be found here:

 

https://www.irishimmigration.ie/closure-of-the-atypical-scheme-aws-for-non-eea-crew-in-the-irish-fishing-fleet/

 

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.

STAMP 0 PERMISSION ACCEPTED AS RECKONABLE RESIDENCE FOR NATURALISATION

REVIEW OF THE ATYPICAL SCHEME FOR NON-EEA CREW IN THE IRISH FISHING FLEET

In a notice posted on the ISD Webpage on 14th October 2022 it was announced that a Review of the Atypical Scheme for non-EEA Crew in the Irish Fishing Fleet has been conducted and published.

The report is a detailed assessment of the Scheme and has taken into account the submissions and views of various stakeholders, including the fishing industry, the relevant state bodies and the permission holders themselves.

It is apparent from the report that this is a complex area, with many stakeholders.
The report has been jointly welcomed by the Minister for Justice, the Minster of State at the Department of Enterprise, Trade and Employment and the Minister for Agriculture, Food and the Marine.

The notice states that the key recommendation of the report is that:
‘the employment of non-EEA crew in the Irish Fishing Fleet be provided for under the Employment Permit system, instead of the Atypical Working Scheme.’

Since its inception in 2016 there have been multiple and serious concerns regarding the operation of the A typical working scheme for non-EEA fisherman in the State. The legality of the operation of the scheme has also been challenged through High Court litigation.

The report outlines that 337 persons have been granted permission under this scheme since 2016. Half of the persons are Filipino nationals, with 85% being from either Philippines, Ghana Indonesia and Egypt.

In 2019, a number of changes were made to the scheme to attempt to alleviate the concerns and the serious issues raised by permission holders and NGOs. It also followed a report by Maynooth University into the area , which can be accessed here https://www.maynoothuniversity.ie/sites/default/files/assets/document/Experiences%20of%20Non%20EEA%20Workers%20in%20the%20Irish%20Fishing%20Industry.pdf

The report also highlights the media coverage of the industry and the risk of Ireland facing sanctions by U.S. authorities after a U.S.-based human rights campaign group filed a report with American authorities alleging exploitation of migrant workers aboard Irish fishing vessels.

The report has concluded that the most appropriate course of action is to end the A typical working scheme for Non-EEA fishermen.

The recommendation is that persons may apply to work and reside in the State as fisherman, by obtaining an Employment Permit from the Department of Trade, Enterprise and Employment. This will involve the removal of fishermen from the ineligible employment list and will result in the salary required to employ a fisherman in the state rising in line with Employment permit legislation, the minimum allowable salary being €30,000 per annum based on 39 hours per week. It would also result in the oversight of granting permission to individuals to work in the Stats as fisherman would be with the DETE. This would seem appropriate given that Department’s responsibility for the oversight of compliance with employment legislation.

Many stakeholders in their submissions argued that Stamp 4 should be granted on a general basis to all individuals currently here in the State under the Scheme.

The report has concluded that it cannot recommend a general granting of Stamp 4 permission on a universal basis to the holders of A typical permission to work in the State as fisherman. It has been concluded that this would treat this group of persons more favourably that other persons resident in the State on A typical permission, such as nurses and locum doctors.
The report has stated that it is view of the relevant authorities that it would not be possible to grant Stamp 4 generally to all persons resident in the State on A typical permission, as to grant a general Stamp 4 to healthcare workers would be in breach of international commitments.

Therefore, it is not considered ‘prudent to make one cohort of holders of permission under the Atypical Working Scheme eligible for a permission which cannot, due to international commitments, be made available to other holders of identical permission.’

Through the employment permit system, persons can apply for Stamp 4 permission after two years of holding critical skills permit and after five years of holding a general employment permit.
The recommendation is that non-EEA sea fishers could be eligible to apply for Stamp 4 permission after two years, which is the same criteria applied to critical skills permit holders.

We submit that the individuals who have already resided in the State for five years under this scheme should be granted Stamp 4 at this stage on an individual basis. We submit that the Minister has the ability to grant such permission in an individual case pursuant to Section 4(7) of the Immigration Act 2004 in an individual case.

The report states that 120 persons appear to be eligible to apply for naturalisation at this stage, given their period of residence in the State under this scheme. We submit it would be fair and reasonable that those individuals would be granted Stamp 4 pursuant to Section 4(7) of the Immigration Act 2004, given the processing time for naturalisation application and also the potential impact of absences from the State for the purposes of being granted naturalisation.

The full review can be accessed here
https://www.irishimmigration.ie/wp-content/uploads/2022/10/Report-of-the-Review-Group.pdf

The Minister’s notice can be accessed here:

Non-EEA Sea Fishers in Irish fleet to become eligible for employment permits

If you have been impacted by the above, please do not hesitate to contact Berkeley Solicitors.

PROPOSED CHANGES TO IRISH EMPLOYMENT PERMIT SYSTEM

The general scheme of the Employment Permits (Consolidation and Amendment) Bill 2019 has been published.

This is the result of a review conducted last year by the Department of Business, Enterprise and Innovation on economic migration policy review, which found inflexibilities in the current employment permit system.

The current system is governed by the existing Employment Permit Acts 2003-2014.

Speaking about the proposals, the Minister for Business, Enterprise and Innovation, Heather Humphreys, has said:

“The proposed legislation will increase the agility and responsiveness of Ireland’s economic migration system to meet skills and labour needs, while continuing to safeguard the labour market and support the employment rights of permit holders. I want to modernise the system and ensure that it is capable of adapting to changes in the future as well as fluctuations in demand across the economic cycle.”

The aim of the Bill is to consolidate existing legislation, as the Government believes any further amendment to the existing Employment Permit Acts 2003-2014 would significantly increase the complexity of the current system.

Major changes proposed by the Bill including streamlining the processes for ‘trusted partner’ and renewal applications, and making the system more agile and easier to modify to meet changing economic circumstances, technological advances and process changes as they arise.

Another proposal is to modify the ‘50:50 rule’, which currently requires that 50% of an employer’s staff be EEA nationals before an Irish employment permit may be granted, allowing it be waived in cases where the permit holder would be the sole employee. However, this change is subject to the employer demonstrating that they have made efforts to recruit from within Ireland and across the EEA in the first instance. The 50:50 requirement would resume from the point at which a second employee is contracted.

The Bill also proposes the introduction of new categories of employment permit, namely a Seasonal Irish Employment Permit and a Special Circumstances Employment Permit.

The Seasonal Irish Employment Permit would cater toward those working in the short-stay and recurrent employment sectors. Ireland is an outlier in not offering this type of permit, which would allow individuals to come to the State to work in sectors such tourism, farming and horticulture on a short-term basis.

The Special Circumstances Employment Permit would allow for bilateral, reciprocal agreements between Ireland and other States and could be used, for example, to address a need for a niche, but critically important skillset, for which no formal training is available in Ireland.

The proposals also include an extensive revision of the Labour Market Needs Test, the requirement whereby employers need to firstly advertise vacancies within Ireland and across the EEA.

Ms Humphreys has said:

“The overhaul [of the Labour Market Needs Test] will make it more relevant, efficient, and modernised to reflect current advertising practices. It will also ensure that the test is more targeted and effective in reaching Irish and European jobseekers in the first instance.”

The primary aim of Irish government policy when it comes to the labour market is to promote the sourcing of labour and skills from within Ireland, the EU and other EEA States first and from there look at alternatives from further afield. Permits for highly skilled personnel from outside the EEA can be granted where the requisite skills cannot be met by normal recruitment or training.

The aim of the proposed changes, according to Ms Humphreys, is to enhance accessibility and improve the transparency of the employment permit process while “retaining the core focus of a vacancy led employment permits system focused on meeting the skills and labour needs in the State.”

At present, these proposals are at a very early stage and are subject to change as the Bill moves through the legislative process.

The full text of the general scheme of the Employment Permits (Consolidation and Amendment) Bill 2019 can be found here.

 

 

MINIMUM SALARIES RAISED FOR EMPLOYMENT PERMITS FROM JANUARY 2020 AND OTHER IMPORTANT CHANGES

The Employment Permits (Amendment)(No.2) Regulations 2019, 9th July 2019 amend the Employment Permit Regulations 2017-2019.

A number of the new regulations are now in force and a number will come into force in the new year, on 1st January 2020.

The required period of validity of an applicant’s passport has been reduced from 12 months to 6 months. There has also been a change to the numbers of employment permits that can be issued in respect of particular professions- dairy farming and the meat industry.

The most notable amendment is that there is to be an increase in the minimum salary required for a critical skills employment permit from €30,000 to €32,000 for an occupation on the highly skilled occupations list and from €60,000 to €64,000 for other professions.

In respect of General Employment permits, the period of time a job has to be advertised with the Department of Employment Affairs and Social Protection to satisfy the Labour Markets Needs test will also be increased from 14 days to 28 days.