August 12, 2014
On Friday July 25, 2014 the President of Ireland signed the Employment Permits (Amendment) Bill 2014, which, most notably, will result in the implementation of new Employment Permit (EP) categories in September 2014, as well as new payment rules and notification requirements.
The approved Amendment bill amends the Employment Permit Acts of 2003 and 2006, and should make the system more flexible with regards to changes to the labor market, work patterns and economic developments. Regulations will be implemented in September which will further define for each EP category the names and fees, eligible and ineligible occupations, minimum levels of remuneration, document requirements, whether or not a Labor Market Needs Test (LMNT) is required, registration or accreditation requirements for occupations (where applicable), and application, notification and review forms.
New Employment Permit Categories
The previous EP system consisted of 4 main categories: the Green Card Employment Permit, the Intra Company Transfer Permit, the Work Permit Employment Permit (with several subcategories) and the Spousal and Dependent Employment Permit. After the implementation of the new Bill there will be 9 different Employment Permits:
• Critical Skills EP – This EP replaces the current Green Card and is designed to attract highly skilled people to the Irish labor market and subsequently to encourage them to take up permanent residency. The conditions to qualify for the Critical Skills EP have not changed with respect to the Green Card.
• Intra-Company Transfer EP – The purpose of the ICT EP is still to enable the transfer of foreign senior managers, key personnel and trainees from an overseas branch of an multinational company to the Irish branch. The conditions and requirements to qualify for this category are nearly identical to the current version of this category.
The foreign employee must have worked for the foreign entity for at least 6 months in order to qualify for this permit. One notable difference with the previous conditions is that the foreign employee will need to stay on home payroll and contract, while previously the Department of Jobs, Enterprise and Innovation not only preferred for the employee to go on Irish contract and payroll, but strict requirements were applied if the employee was staying on home contract. The salary requirements, on the other hand, as well as the initial validity and renewal conditions, remain the same. Holders of this type of EP are not eligible for permanent residency.
• General EP – The General EP replaces the current Work Permit EP, with the exception of some current Work Permit subcategories, which will now have their own EP categories (see below). All occupations qualify for this permit, unless they are included on the list of ineligible occupations. Therefore, this permit can be used as an alternative if the position or employee does not meet the requirements for the Critical Skills or ICT EP. Salary requirements and validity conditions are in line with those of the current Work Permit EP, including the possibility to apply for permanent residency after a continuous stay of 5 years.
As before, a LMNT will generally be required. Note that the LMNT requirement, for this and the Contract for Services EP (see below) to which it also applies, is no longer waived in case the employee files the application instead of the sponsoring entity. However, exceptions to the LMNT requirement are made if the position is one specified as shortage occupation, if the annual remuneration is EUR 60,000 or over, if the application has been recommended by the Industrial Development Agency (IDA) or by Enterprise Ireland (EI), or if the employee is a former permit holder who was made redundant.
• Contract for Services EP – Previously a subcategory of the Work Permit EP, this new category caters to the situation where a foreign entity (Foreign Contractor) has won a contract for services at an entity in Ireland (referred to as Relevant Person), and is sending non-EEA/Swiss nationals to Ireland to carry out (part of) the contract. As already mentioned, while previously a LMNT was not required for a Contract Service Providers Work Permit if the position was on the Highly Skilled Occupations List, it will now be required, unless one of the above listed exceptions apply.
The Foreign Contractor is responsible for filing the application and therefore will need to be properly registered in Ireland, and the employee must have worked for the foreign contractor for at least 6 months prior to the transfer.
The Contract for Services EP can initially be issued for a period between 90 days and 2 years, with the possibility of extending with another 3 years (maximum stay 5 years), but is further limited by the duration of the contract of services between the foreign contractor and the Irish client. Note that for transfers up to 90 days work authorization can be obtained through the Atypical Working Scheme.
• Internship EP – Also previously part of the Work Permit EP, this new EP category applies to students enrolled in a fulltime degree course or higher at an overseas institution, who will take on an internship in Ireland as mandatory part of their studies. The Internship EP is issued with a maximum validity of 1 year, unrenewable, and the intern needs to return home to continue their study after completion of the internship.
The position needs to be listed on the Highly Skilled Occupations List and the course of study must be in line with the position. A LMNT is not required and the remuneration needs to be the National Minimum Wage or higher.
• Dependent/Partner/Spousal (DPS) EP – Apart from the slight change in name of this permit, no changes are introduced to this already previously existing category. Only dependents of Critical Skills EP, Researchers and current Green Card EP holders qualify.
• Reactivation EP – The Reactivation EP provides a chance to work again to those previous Employment Permit holders who have fallen out of the system through no fault of their own or who have been badly treated or exploited in the workplace. In order to qualify, the former EP holder will need to have a Stamp 1 in their passport and a “Reactivation EP” Letter from the Department of Justice and Equality, which can currently be obtained through the Migrant Rights Centre Ireland.
• Sports and Cultural EP and Exchange Agreements EP – These two new Employment Permits are applicable to foreign employees going to work in the field of development, operation and capacity of sporting and cultural activities, or will be working based on international reciprocal agreements (e.g. Fullbright Programme for Researchers and Academics), respectively, and are therefore not likely to be applicable to Pro-Link GLOBAL’s clients. However, do not hesitate to contact your Pro-Link GLOBAL Immigration Specialist for details in case you or one of your employees might qualify for either permit.
The 50/50 rule states that an Employment Permit will not be issued if at time of application more than 50% of the employees at the relevant entity* are non-EEA/Swiss nationals. This rule now generally applies to all the Employment Permits, and, as for the LMNT, this requirement is no longer waived if the employee files the application instead of the sponsoring entity. However, there are a few exceptions to the 50/50 rule:
• In the case of a Critical Skills, General or Intra-company Transfer EP: enterprise start-ups with IDA or EI support are exempt from the 50/50 rule for a period of up to two years from the date of registration as an employer with Revenue. Note that the authorities might initially limit the duration of the EP to verify if indeed the sponsoring company will start hiring EEA/Swiss nationals to balance the amount of non-EEA/Swiss nationals;
• Employers with a sole employee e.g. in case of a carer in a private home, are exempt; and
• Renewals of EPs which have been issued before the implementation of this amendment do not fall under this rule.
* The 50/50 rule needs to be satisfied by the Employer in case of the Critical Skills or General EP, the Irish entity in case of the ICT EP, and either the Foreign Contractor or the Irish client for Contract for Services EP applications.
Changes to Highly Skilled and Ineligible Lists
The Amendment Bill also introduces changes to the Highly Skilled Occupations List and the Ineligible List. Both lists will be based on the Standard Occupational Classification System (SOC), which is used worldwide, and will therefore include SOC codes for each listed position.
Twice a year both lists will be reviewed and, if necessary, updated to ensure that they continue to be in line with the current skills needs. The biannual reviews will be based on data collected by the Expert Group on Future Skills (EGFSN) and the Skills and Labor Market Research Unit of SOLAS.
New Notification Obligations
After implementation of the Amendment Bill both the employee and the employer are subject to a new Notification Obligation:
• Employee: Redundancy Notification – Holders of a Green Card/Critical Skills EP or a Work Permit/General EP will need to notify the Minister within 28 days if they are made redundant. They will then have 6 months from date of dismissal to find a new job and apply for a new Critical Skills or General EP.
• Employer: TOU Notification – If the company undergoes a name change after a Transfer of Undertaking (TOU), the Minister will need to be notified of this change, after which the EP will be re-issued with the new company name. The notification needs to be made either by the Irish entity or foreign entity in case of an ICT EP, by the foreign contactor in case of a Contract for Services EP, and by the employer in all other cases.
Refunds and Payments
Electronic Funds Transfer (EFT) will be introduced for Business Users. The EFT payment will be requested at time of receipt of a correctly completed application. If the EP application is rejected or withdrawn before issuance, then 90% of the application fee will be refunded to the applicant, instead of the full fee as currently.
Upcoming Improvement – Trusted Partner
The Ministry also announced the upcoming implementation of another change, which is not part of the Amendment Bill. In the fourth quarter of 2014 a Pilot Scheme is planned to start, which introduces the concept of a Trusted Partner. A company can register as a Trusted Partner with the Ministry for a period of 2 years at a time. The registration is free of charge and a Trusted Partner will be able to enjoy faster processing times for EP applications, as well as a reduction in the amount of documents required to file an EP application. The first companies to participate in the pilot scheme have been selected by the IDA and EI amongst their clients.
ACTION ITEMS FOR EMPLOYERS
Although the official structure of the Employment Permits has undergone a significant change, the actual conditions to qualify for an EP and the possibilities the various EPs offer have not undergone drastic changes. Employers therefore do not need to expect major changes to the application process, or to the possibility of sponsoring Employment Permits for their foreign employees.
However, HR should be aware that new ICT applicants will need to stay on home contract and payroll as of September 2014, which, depending on previous practice, might require a shift in internal assignment policy for Ireland.
The Trusted Partner registration promises to significantly streamline the process for EP applicants. Please reach out to your Pro-Link GLOBAL Immigration Specialist if your company has been selected by the IDA or EI to participate in this pilot scheme. Pro-Link GLOBAL will advise if and when the Trusted Partner Scheme will be opened up for other companies that are not hand-picked by the IDA and EI.
Lastly, sponsoring companies should note that going forward they are required to notify the Minister of any change of name due to a TOU, and will need to pay the EP fees by EFT.
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Caveat Lector | Warning to Reader
This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that Immigration laws are fluid and can change a moment’s notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification. This alert was prepared by Pro-Link GLOBAL’s Knowledge Management team. Pro-Link GLOBAL worked with our PLG | KGNM Correspondent Office in Ireland to provide you this update.
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