Tag Archive for: immigration policy

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.

IMMIGRATION TO IRELAND HITS 17-YEAR HIGH ACCORDING TO DATA RELEASED BY THE CENTRAL STATISTICS OFFICE

IMMIGRATION TO IRELAND HITS 17-YEAR HIGH ACCORDING TO DATA RELEASED BY THE CENTRAL STATISTICS OFFICE

The Central Statistics Office (CSO) has published data that shows that 149,200 people have immigrated to Ireland in the 12-month period between April 2023 and April 2024. Of these numbers, 30,000 were returning Irish citizens, 27,000 were EU citizens, and 5,400 were UK citizens. 86,800 immigrants were citizens of other countries.

In response, the Taoiseach Simon Harris has said that the government need to do more to prepare Ireland for population growth.

The figures released by the CSO reveal that the number of immigrants entering Ireland during this period was the highest since the period between April 2006 and April 2007.

The population of Ireland is now estimated to be 5.38 million, increasing by 98,700 since 2023.

The CSO also published data showing that more than 69,000 people emigrated in the same period. Of that figure, 34,700 were Irish citizens, 10,600 were EU citizens, and 21,500 were citizens of other countries. An estimated 10,600 people moved from Ireland to Australia; an increase of 126%, which represents the highest level of emigration to Australia since 2013. Just 6,400 people moved from Australia to Ireland. 15,200 people also left Ireland to live in the UK, while 20,500 people moved to Ireland from the UK.

Those aged between 25 and 44 accounted for 48% of all emigrants. According to the CSO, the number of emigrants from countries outside of the EU has risen by 49%, when compared to the 14,400 in 2023, however a significant number of these were Ukrainian.

According to the Irish Times, there were a positive net migration of 79,300 people in the 12-month period. There was also a natural increase of 19,400 people in the State, made up of 54,200 births and 34,800 deaths.

Speaking about the population growth in the State, Taoiseach Simon Harris stated, “there’s no doubt governments, the Government that I lead, will now need to do a better job in terms of forward planning, preparing for population growth, wondering what that means for public services, what that means for investment, what that means for staffing levels.” He also emphasised that “Inward migration is a good thing. We should be very clear about that. What Ireland needs to do is make sure it has the systems in place to properly process people, to provide people who are coming seeking international protection with a ‘yes’ or a ‘no’ more quickly.”

The full Irish Times article can be accessed here:

https://www.irishtimes.com/ireland/2024/08/27/immigration-to-ireland-hits-17-year-high-as-emigration-also-rises/#:~:text=Figures%20for%20year%20to%20April,State%20in%20three%20successive%20years&text=Some%20149%2C200%20people%20immigrated%20to,Central%20Statistics%20Office%20(CSO)

RECENT SUPREME COURT JUDGEMENT REGARDING THE BEST INTERESTS OF CHILDREN IN THE CONTEXT OF DEPORTATION DECISIONS

RECENT SUPREME COURT JUDGEMENT REGARDING THE BEST INTERESTS OF CHILDREN IN THE CONTEXT OF DEPORTATION DECISIONS

The Supreme Court delivered a judgement in the case of A.Z, M.Z and C.Z (a minor) v Minister for Justice and Equality [2024] IESC 35 on 25th July 2024.

The facts of this case surrounded the deportation order of a man who is the father of an Irish citizen child, and is also married to an Irish national. A challenge was brought by the family against the decision of the Minister not to revoke the father’s deportation order. Judge Phelan found in the applicants’ favour in the High Court and the matter was appealed by the Minister for Justice.

The Supreme Court upheld the decision of the High Court.

Several issues arose in the case, one being whether the Minister’s assessment of the father’s immigration application was in line with Article 42A of the Irish Constitution.

Article 42A was inserted into the Constitution in 2015.

Article 42A.1 states as follows:

  1. The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

 

Sections 2,3 and 4 of the Article are specific provisions as they relate to specific types of proceedings including adoption, custody and access.

Article 42A.1 is a provision of much wider application.

It can be argued that Article 42A.1 recognises and affirms the already pre-existing constitutional rights of children.

Whilst Article 42A.4 is a very specific provision requiring the Minister to legislate for specific types of proceedings, we would say that Article 42A.1 has general application.

Interestingly, in this case, the Minister’s decision in respect of the man’s immigration application contained no reference to Article 42A. In the proceedings, the Minister contended that the Minister had complied with her Constitutional obligations despite no specific reference to the Article being made in the decision.

The Court did not agree with this argument and held that Judge Phelan in the High Court was correct to find that she could not be satisfied, based on careful consideration of the decision, that the rights of the child where properly identified and assessed.

The Supreme Court affirmed the judgment of Judge Phelan which found that following the insertion of Article 42A into the Constitution “effective State protection for the rights of the child now required a greater focus on the child as an individual, separate from the family unit as a whole and not subordinate as part of the family unit. She held that the Supreme Court had found that Article 42A results in some recalibration of the protections which had already been available to children under the other provisions of the Constitution, not least Articles 40, 41 and 42…”

By virtue of Article 42A.1 the Minister is required to identify and assess the individual rights of the child, separate and distinct from the rights of a family as a whole.

It appears to us that the Supreme Court has also held that in the context of deportation decisions, resulting in indefinite separation between a parent and child, the Minister is obliged to consider the best interests of the child as a primary consideration, with each case being decided on its own individual merits. Whilst the Minister must consider the best interests of the child as a primary consideration, there are many considerations the Minister is entitled to have regard to and the requirement that the best interests of the child be a “paramount” consideration is confined to the specific provisions in Article 42A.4.

The full judgements in this case can be accessed below.

https://courts.ie/acc/alfresco/5e689789-56c6-481a-b63b-b74248a1d14b/2024_IESC_35_(Woulfe%20J).pdf/pdf#view=fitH

https://courts.ie/acc/alfresco/0fb290b4-95f9-4e60-b296-8f18398ec7ac/2024_IESC_35_(Collins%20J)_Unapproved.pdf/pdf#view=fitH

UPDATE TO ELIGIBILTY REQUIREMENTS FOR STAMP 4

UPDATE TO ELIGIBILTY REQUIREMENTS FOR STAMP 4

The Department of Justice have recently changed the eligibility requirements for a Stamp 4 upgrade for employment permit holders. Please note that Stamp 4 support letters are no longer required for this upgrade, and your Stamp 4 permission can be registered at your registration office.

Effective from 3rd April 2024, employment permit holders with a Stamp 1 or 1H permission who have completed 21 months of employment are eligible for a Stamp 4 upgrade at their registration office.

The eligible categories include Critical Skills Employment Permit holder, individuals resident on the basis of a Hosting Agreement as a Researcher, or a Multi-Site General Employment Permit holder as a Non-Consultant Hospital Doctor.

General Employment Permit holders can now obtain a Stamp 4 after 57 months as opposed to 60 months. This means that General Employment Permit holders do not have to apply for long-term residence to the Immigration Service Delivery and can instead upgrade their permission to a Stamp 4 at their registration office.

A significant change to this is that the time period is now judged from date of commencement of employment, rather than the date of registration of Stamp 1 permission, as it had been previously. This had been a significant issue for employees recently due to long delays in registration. Commencement of employment in the State will be determined via your Employment Detail Summary, available on revenue.ie/myaccount.

This blog has been drafted with reference to the following website:

https://www.irishimmigration.ie/update-to-eligibility-requirements-for-stamp-4-upgrades/

For further details on immigration permissions or stamps please visit the following link:

https://www.irishimmigration.ie/registering-your-immigration-permission/information-on-registering/immigration-permission-stamps/

Berkeley Solicitors are available to provide support and assistance to any employment permit holders looking to upgrade to a Stamp 4.

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.

RECENT HIGH COURT JUDGMENT UPHOLDS DECISION TO REFUSE IRISH PASSPORT TO CHILD OF SUBSIDIARY PROTECTION HOLDER

RECENT HIGH COURT JUDGMENT UPHOLDS DECISION TO REFUSE IRISH PASSPORT TO CHILD OF SUBSIDIARY PROTECTION HOLDER

The High Court has recently delivered a judgement in T.R.I. (A Minor Suing by his Mother and Next Friend L.B.) v The Minister for Foreign Affairs and the Minister for Justice [2024] IEHC 96.

The case concerned a minor child born in Ireland in September of 2019, whose mother holds a declaration of subsidiary protection status.

Subsidiary protection is granted to individuals facing a real risk of suffering serious harm if returned to their country of origin, or their country of former habitual residence.

In August of 2021, the Applicant’s mother applied for an Irish passport on behalf of her child.

Section 6A(1) of the Irish Nationality and Citizenship Act 1956 states that a person born on the island of Ireland “shall not be entitled” to Irish citizenship unless their parent has, during the four years immediately preceding the birth, a period of reckonable residence of not less than three years.

However, Section 6A(2)(d)(i) qualifies that section 6A(1) does not apply to a child born on the island of Ireland if one parent is entitled to reside in the State “without any restriction” on their residence.

As the mother is a subsidiary protection holder, it was argued that she fell within this subsection of persons who are entitled to reside in the State without any restriction on their period of residence. This would mean the child was entitled to Irish citizenship by birth, even though the mother had less than three years’ reckonable residence in the four years immediately prior to the child’s birth.

This application was refused on the 15th of November 2022, on the basis that Section 6A (2)(d)(i) of the 1956 Act does not apply to a person with subsidiary protection.

The Applicant, through his mother, challenged this decision by way of Judicial Review proceedings in the High Court. It was argued that the mother is entitled to reside in the State without restriction, as the relevant law states that her permission “shall” be renewable, and it is not in any way restricted by time.

The Applicants relied on the Court of Appeal decision in AJK v The Minister for Defence [2020] 2 IR 800, where the Court found that subsidiary protection was “in effect an open-ended right of residence.”

Ms Justice Bolger considered the decision in AJK and stated that she did not consider it established an open-ended right of residence for a person with subsidiary protection. She stated that the comments of Donnelly J must be read in context of the entire judgement and highlighted that the case did not concern citizenship.

Ms Justice Bolger stated that although the law states that the subsidiary protection permission “shall be renewable”, its renewal is in fact conditional; firstly on the continuation of the circumstances that justified the grant of subsidiary protection in the first place, and secondly on there being no compelling reasons of national security or public order.

The Judge stated:

“The mother’s right to renew her permission to reside in the State via her grant of subsidiary protection… is and always was for a temporally restricted permission of a period less than three years subject to conditions.”

Ms Justice Bolger therefore upheld the decision of the Respondent to refuse the child’s application for an Irish passport.

The full judgement can be found here.

If you or a family member have any queries regarding Citizenship, 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.