AOC Solicitors COVID-19 Hub - Read More

AOC
- Insights

AOC
- Insights

Employment Permits – Useful Tips for Employers

WHO NEEDS AN EMPLOYMENT PERMIT?

Non-EEA nationals require employment permits to work in Ireland. It does not grant a person entry into the country. An Employer will be deemed to be committing an offence if the employee is a non-EEA national and does not possess an employment permit pursuant to the Employment Permits Acts 2003 – 2014. Fines start from €3,000 and go up to €250,000 and could include a term of imprisonment.

Employment Permit holders can only work for the employer, a connected person or contractor, and in the occupation named on the permit. If their employment ceases for any reason during the period of validity of the permit, the original employment permit and the certified copy held by the employer, a connected person or contractor must be returned immediately and no later than 4 weeks from the date of cessation/termination to the Department of Jobs, Enterprise and Innovation (DJEI).

EXCEPTIONS

Where the employee has been seconded from another member state in which they hold a valid employment permit this will be accepted pursuant to the Van der Elst case. However, Employers should note that the seconded employee will require a letter from the Employer, or an authorised person within the company, setting out the duration of the secondment and their position for the purposes of immigration. Immigration is governed by a separate organisation http://www.inis.gov.ie/.

Other exceptions are for example; if the non-EEA employee has been granted permission to remain in the State on one of the following grounds: Spouse of Irish/EEA Citizen, parent of an Irish Citizen, granted temporary Asylum, permission from the Department of Justice and Equality, registered Student who is permitted to work 20 hours during term time and 40 hours during holiday periods, granted permission under the terms of the Diplomatic Relations and Immunities Act 1967, Swiss National.

EMPLOYMENT PERMITS

All occupations are eligible unless excluded under the list of Ineligible Categories of Employment for Employment Permits.

Non-EEA nationals or a prospective employer can apply for an Employment Permit which is then issued to the foreign national, and a certified copy is sent to the Employer.

The required criteria are set out on the Department of Jobs, Enterprises and Innovation website. https://www.djei.ie/en/What-We-Do/Jobs-Workplace-and-Skills/Employment-Permits/

If the Company uses an Agency for hiring employees, then the Company should ensure that the agency advertise position appropriately and in the required media in order to meet the Labour Market needs test if applicable.

If the application is granted for the first time to a non-EEA national, then they must stay with the initial employer for a period of 12 months unless they are made redundant or unforeseeable circumstances arise that fundamentally change the employment relationship.

If the non-EEA candidate already holds an employment permit, this permit cannot be transferred. They will be required to return their employment permit upon leaving their current employment and will have to make a new application on acceptance of the job offer.

 

CATEGORIES OF EMPLOYMENT PERMITS

This was expanded under the Employment Permits (Amendment) Act 2014. There are now 9 categories:

 

APPLICATIONS

Application for any category of employment must be made on the prescribed form provided by the DJEI on their website. https://www.djei.ie/en/What-We-Do/Jobs-Workplace-and-Skills/Employment-Permits/ This can be done by the employer or the employee, however there is no obligation on Employers to make the application on behalf of the prospective employee nor pay for the permit.

An application for a work permits can only be made subject to a job offer and the process currently takes approximately 16 weeks or longer if there are issues with the application.

Often applications are rejected due to incorrect Employer/Company information. Therefore, it is important that the Employer provide all the relevant Company information for the purposes of the application at the job offer stage. As well as the usual company information, this must include the number of EEA or Swiss employees and non-EEA employees currently employed by the Company for the purposes of the 50:50 rule. Application forms can be found on the DJEI website.

Once the job offer is made, the Employer should give the prospective employee a deadline in which to make their application for an employment permit and provide proof to the Company. 4 workings days from the job offer would be recommended. This is to avoid any unnecessary delay in an already lengthy process.

THE PROCESS

Pre-check Stage: prepares the application for consideration by a decision maker. If incomplete it will be rejected, but this is not a refusal, merely a request to make the necessary amendments to complete the application.

Processing Stage: the application is considered by a decision maker who may request additional information. They should make their decision to grant or refuse the application within 28 days.

Appeal: an applicant may appeal a refusal within 28 days on the prescribed Submission of a Decision for Review Form. This will be considered by a more senior official.

(NOTE: Refusal of an application on appeal does not preclude the submission of a new application)

If an application is unsuccessful then 90% of the fee will be refunded to the applicant. The current policy restricts refunds to applicants only regardless of whether this was paid by a third party.

Processing Fee

New Employment Permit:                  €500 for 6 months

€1000 for 1 year

Permit Renewals:                                See DJEI website

RENEWAL OF EMPLOYMENT PERMITS

Application for the renewal of a permit must be submitted within 16 weeks prior to the expiry of the existing permit.

Holders of a valid general employment permit for 5 years or more whose permit issued before 1st October 2014 and has been working lawfully may not be required to apply for a new general employment permit and should contact the Department of Justice and Equality to apply for a temporary stamp 4.

If the non-EEA national does not qualify then provided they have been in continuous employment with their current employer for 5 years or more, they may apply for a Renewal Employment Permit for an unlimited duration and no fee will apply. Otherwise if they do not meet the above criteria, the normal renewal procedure and fees apply.

FAILURE TO RENEW

Should the employment permit holder fail to renew their permit, the employer should, in order to avoid any liability insert a clause into their contract of employment to the effect that the contract will cease in the event that they no longer hold a valid work permit

NOTE: Following the gaps in the legislation highlighted in Hussein v. The Labour Court & Younis case, the Employment Permits (Amendment) Act 2014 allows a non-EEA national, who has been employed illegally without an employment permit, to take civil action against their employer to recoup unpaid wages as long as they can show that they took all steps reasonably open to them to comply with the legislation.

RESIDENCY

Following successful application for an employment permit, an applicant should if they have not already done so, apply to their local Embassy/Consulate for an entry visa. An employment permit is not a Residence Permission. It is a requirement that all non-EEA nationals in possession of an employment permit must register with the Garda National Immigration Bureau. Immigration permission to remain should be renewed at least one month before the expiry date. If the non-EEA national already has obtained immigration permission prior to obtaining an employment permit, they must register their change in status with the Garda National Immigration Bureau. http://www.inis.gov.ie/

Anne O’Connell

Employment Law Solicitors

Article dated 14 March 2017

Related Articles