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HIGH COURT DECISION ON REFUSAL OF EMPLOYMENT PERMIT FOR TRAINEE ACCOUNTANT

On 25th March 2020, Mr Justice Heslin delivered his judgment in Julia Olivera Rodriguez v The Minister for Business, Enterprise and Innovation.

This case concerned a Venezuelan national with a BSc. Degree in Public Accounting from Venezuela and a Certificate in Business Accounting which she obtained in Ireland through the Chartered Institute of Management Accountants in May 2018.

Ms Rodriguez’s application for an Employment Permit for the role of Trainee Accountant was refused by the Minister for Business, Enterprise and Innovation on the basis that the position of Trainee Accountant does not fall within the list of eligible categories of employment, as set out in the Employment Permits Regulations, 2017.

Ms Rodriguez challenged this decision in the High Court, arguing that the Minister had been incorrect in this finding and that the role of ‘Accountant’ should be interpreted to include those training for the position, as is the case in the UK.

Mr Justice Heslin in his decision stated:

“I am entirely satisfied that the 2017 Regulations cannot be interpreted in the manner in which the applicant contends. Doing so would involve this Court importing into the 2017 Regulations words which are simply not there and also ignoring the plain meaning of words which incontrovertibly appear in the 2017 Regulations.”

Mr Justice Heslin stated that the regulations very clearly set out employments of which there is a shortage and which are required for the proper functioning of the economy, including Accountants and Tax Consultants with particular specialisms and specified experience:

“Schedule 3 of the 2017 Regulations very clearly sets out those employments in respect of which there is a shortage in relation to “qualifications, experience or skills” required for the proper functioning of the economy and these include “Chartered and Certified Accountants” with particular specialisms, “Qualified Accountants” with particular experience and “Tax Consultants” with specified experience. As a matter of fact, the applicant falls into none of the categories specified in Schedule 3. For this Court to hold that she does, would be to do violence to the specific words used in Schedule 3 and would amount to this Court deciding, impermissibly, that someone who is unqualified comes within a category which explicitly addresses shortages in “qualifications”. This Court has no power to ignore the clear wording in Schedule 3 of the 2017 Regulations and to hold that shortages in the qualifications set out in Schedule 3 are met by unqualified persons.”

The court found that Ms Rodriguez does not fall within any of these categories and the decision to refuse her application for an Employment Permit was upheld.

The full text of the judgment can be found here.

If you would like more information on the application process for Employment Permits in Ireland, please do not hesitate to contact our office.

THE PROBLEM WITH STAMP 3 IMMIGRATION PERMISSION

Persons on Stamp 3 immigration permission are restricted from taking up employment or working in Ireland.

Our office has met many clients whose lives are severely negatively impacted by holding Stamp 3 permission.

Many adults, who wish to work and integrate into Ireland are prevented from doing so unless their area of expertise or work experience leaves the option of an employment permit open to them. Even then obtaining a work permit is not always possible. The vast majority of occupations are ineligible for employment permits.

Many people holding Stamp 3 have been offered secure employment but have been unable to take up their employment offers due to the restrictions placed on them by their immigration status.

We submit that to put adults, who are able and willing to work in this position is unnecessary and cruel.

It prevents individuals from getting to know people in Ireland and fully integrate. Employment gives people confidence and a sense of purpose. Being unable to work negatively impacts on a person’s mental well being. A large part of a person’s self-worth and sense of being is derived from their employment.

We submit that the Minister should promote the ideals of employment and self-sufficiency and should not leave adults who are able to work in such a position. Persons on Stamp 3 are required to remain dependent on family members well into their adulthood.

Young adults are most affected by the issuance of Stamp 3 permission at an extremely important and formative part of their lives. Our office is even aware of adults with children of their own being issued Stamp 3 permission to reside, leaving them unable to support themselves or their own families.

We submit that allowing persons to work serves in the best interests of the state as it will allow persons to contribute to the economy and promotes integration and the building of communities.

We submit that there is no risk to state resources, funding or expenditure in the granting of Stamp 4/ Stamp 1 without the need for a work permit to persons currently resident on Stamp 3 as the Minister can make it a condition of a person’s immigration permission that they cannot access State supports.

The absolute prohibition on work was found to be unlawful in respect of persons seeking asylum in Ireland in the case of  of N.V.H. v Minister for Justice and Equality and ors [2017] IESC 35 in which it was held that the ability to engage in work is connected to the dignity of the human person and that prohibiting a non-citizen, in this particular case an asylum seeker, from seeking employment is therefore contrary to the Constitution. We submit that the same reasoning should apply to individuals currently on Stamp 3 permission in the State.

We highlight in particular the Court’s judgment at paragraphs 15-17 in which it is stated:

“15…Much work is drudgery, often the subject of complaint rather than celebration, and most often an economic necessity as a means to live a chosen life rather than an end in itself. However even approaching the matter with a healthy dose of skepticism, it must be recognised that work is connected to the dignity and freedom of the individual which the Preamble tells us the Constitution seeks to promote.

Persons on Stamp 3 permission are not eligible to take up employment in the State until if and when he or she naturalises as an Irish citizen- given the current processing times this could amount to anywhere from 5 to 6 years if not more.

We submit that the restriction on work created by Stamp 3 immigration permission is unnecessary and unreasonable.

If you or a family member are affected by Stamp 3 immigration permission please do not hesitate to contact our office.

UPDATE ON CHANGES TO IMMIGRATION RULES FOR FAMILY MEMBERS OF CRITICAL SKILLS EMPLOYMENT PERMIT HOLDERS

The new Pre -Clearance Procedure for family members of CSEP (critical skills employment permit) holders has commenced.

The recently welcomed policy change for the spouses and de facto partners of CSEP holders has been followed by another very encouraging update of a new Pre-clearance Scheme which was officially launched on April 1st 2019.

This Pre-clearance Scheme essentially allows for the spouses and de facto partners of CSEP holders to confirm their permission to enter the State in advance of arrival.

Prior to the launch of this Pre-clearance Scheme the spouses and de facto partners of CSEP holders who were also non-visa required nationals, did not have access to a procedure that would allow them to confirm their permission of entry to the State prior to arrival.

This may have been a cause for concern of a non-visa required spouse or partner, such that they must anticipate the possibility of refusal of permission to reside following their arrival to the State.

In addition, the maximum time frame of an approved visit entry is a 90-day period which is a seemingly unrealistic time-frame for many to successfully apply for and regularise their immigration status, particularly when taking into consideration the current waiting times for decisions.

The new Preclearance Scheme requires both visa exempt and visa required nationals who are the spouse or de facto partners of CSEP holders to ‘pre clear’ their entry before arriving in the State.

This scheme ultimately affords the spouse or partner much more certainty in their plans and concrete confirmation of their permissions to enter the State prior to their time of travel.  It allows the holders of pre clearance approval to enter the State and simply present for registration on Stamp 1G permission without the need to make any further application.

Furthermore, in following the previous update regarding the removal of the need to obtain a separate work permit for these family members of CSEP holders, this essentially allows the spouse or partner to acquire an almost instant access to the labour market upon arriving in Ireland- following their registration.

It should be noted that the rules for visa requirements in Ireland (outside of the aforementioned category of newcomers) still do not distinguish between short and long-term stays.  At present there is still no pre clearance procedure for non-visa required nationals outside of this new scheme.

This means that for foreign nationals who are non-visa required, the process of applying for permission to reside and/or work in the State can be an uncertain and understandably difficult experience.  Persons are required to come to the State, request entry at the border and if permitted entry make an application from inside the State. This usually results in a person becoming undocumented and being restricted from the labour force until their application is determined. It also comes with the risk that the application could be ultimately refused.

The unknowing and uncertain prospects for these applicants are wholly unsatisfactory and can ultimately become the cause of significant consequences for the applicant and the State.

We feel it could be in the best interests of all parties to further extend the pre clearance procedure in respect of non-visa required nationals, who are applying to reside in Ireland with their family.

 

IMPORTANT DEVELOPMENTS ON THE RIGHT TO WORK FOR ASYLUM SEEKERS

 

The Government is to lift some of the restrictions facing asylum-seekers seeking work and allow for greater access to social welfare payments and alternative accommodation. Last May it was declared by the Supreme Court that the ban on asylum seekers entering employment was unconstitutional “in principle” and the cabinet agreed to lift the ban last November, in line with a European directive.

Currently asylum-seekers who are in direct provision in Ireland currently have a weekly allowance of €21.60 and can buy food using a recently introduced points system. As of December 2017, there are 5,096 people within direct provision. Before the 20-year-old ban preventing people seeking asylum from working was lifted the direct provision program was undeniably restrictive and rigid. About 3,000 people face a wait of about a year and a half for a decision on their asylum claim.

The proposals regarding the conditions under which the ban will be lifted will be announced by Mr Flanagan and Minister of State David Staunton. The proposals come a year after the Supreme Court found the ban on asylum seekers working in this country was unconstitutional. The ban however is not lifted in its entirety. There are still restrictions on certain occupations that cannot be accessed by asylum-seekers within direct provision. Asylum seekers will be able to seek any form of employment except with An Garda Síochána, the Defence Forces or the Civil Service.

Government claim the decision to deny access to the Garda, the Defence Forces and the Civil Service was due to the permanent nature of the positions. “It is not clear whether all asylum seekers will become permanent residents and therefore until that is clear, they will not be in a position to work in those three sectors. However, they will be able to work elsewhere.” With this in mind it is still a massive step forward regarding the status of asylum-seekers. Access to social welfare payments will also be permitted to those who find employment.

Granting people, the right to work brings Ireland into line with other European countries. The governments justification for the ban in Ireland has been that it will create a pull factor, increasing the number of asylum seekers looking to seek refuge in Ireland. It is the topic of constant debate.

People can also be asked to pay towards the cost of their direct provision accommodation if their earning exceeds certain limits, but this contribution will be capped at around €35 per

day, the cost to the state of providing direct provision per person. If a person is granted permission to gain employment and have been working for over 12 weeks, their direct provision allowance of €21.60 will be reduced or withdrawn. Children’s allowance will not have their allowance taken and will not be charged for their accommodation if their parents are working.

Refugee support groups are welcoming new measures which open the Irish labour market to asylum seekers.

We at Berkeley Solicitors also welcome this development which we submit now brings Ireland in line with our legal obligations towards asylum seekers. We believe that it is logical that asylum seekers are given the opportunity to support themselves while they await the outcome of their application for protection. It will also create a fairer and more humane asylum system.

Berkeley Solicitors