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Pre-Employment Solicitors Dublin

 

Eligibility to Reside and Work in Ireland

Introduction

Permission to remain in Ireland is granted by the Department of Justice and Equality and consists of a special stamp on their passport called a “residence stamp”. If a person is granted permission to remain, a “certificate of registration” is endorsed on their passport.

If a non EEA national (i.e. the EU plus Norway, Iceland and Lichtenstein) is considering coming to live in Ireland, they will require a number of important pieces of documentation including:

  1. Passport – This must be valid for at least the duration of the person’s stay;
  2. Relevant visa – if they are a citizen of a visa required county;
  3. Employment permit, business visa or business permission if they intend to take up employment or self-employment.

It may be possible to obtain long term residence rights if a person has been legally resident in Ireland for five years or more.

 

Right to Work

In general, non-EEA nationals (i.e. the EU plus Norway, Iceland and Liechtenstein) must have an employment permit to work in Ireland.

Permission to remain in Ireland is granted by the Department of Justice and Equality and consists of a special stamp endorsed on your passport generally known as a residence stamp.

The Employment Permits (Amendment) Act 2014 changed the previous employment permits system. There are now a number of different types of employment permit however the main ones are outlined below.

  • Critical Skills Employment Permit;
  • General Employments Permit (formerly a work permit);
  • Intra-Company Transfer Permit; and
  • Dependent/Partner/Spouse Employment Permit.

 

  1. Critical Skills Employment Permit Scheme

The Critical Skills Employment Permit Scheme is generally designed to attract highly skilled people to the labour market. It is designed to attract those who may wish to take up permanent residence in Ireland. The following are eligible for this type of permit:

  • Jobs/Occupations which have a minimum salary of €30,000 and these are set out in the Highly Skilled Eligible Occupations List.
  • All occupations with a minimum salary of €60,000 other than those on the ineligible categories of employment for employment permits list or which are contrary to the public interest.

The applicant must have a job offer from a company or employer who is registered with Revenue, trading in Ireland and registered with the Companies Registration Office.

These permits are granted initially for a period of 2 years and those entitled can bring their spouse and families to join them immediately. Instead of applying for a formal renewal application, holders can secure a “Stamp 4 Protection which allows them to live and work in the State for a period of time subject to meeting relevant criteria outlined by the Irish Naturalisation and Immigration Service.

 

  1. General Employment Permits (formerly a work permit)

These applications are made to the Department of Business Enterprise and Innovation.

These are issued where there may be a shortage of jobs in certain areas and where the salary is above €30,000 (with some exceptions). The applicant must have the relevant qualifications, skills or experience required for the role. The permit is issued for an initial period of two years with a possibility of an extension for three years. It may be possible thereafter to apply for long term residency if criteria are met.

The Permits are issued to the employee and include a statement of the employee’s rights and entitlements. This is to ensure the employee receives all their entitlements and protections under Irish employment law legislation.

A labour market test needs to be undertaken must be undertaken for General Employment Permits to establish if the relevant role can be filled by an Irish national. The vacancy must be advertised with the Department of Employment Affairs and Social Protection (DEASP) employment services and various newspapers to ensure that an EEA or Swiss national cannot be found. This requirement can be waived if the application:

  • Is for a former permit holder who has been made redundant, or
  • Is for a job listed on the Highly Skilled Occupations List; or
  • Is for a job with an annual salary of 60,000 or more

Unlike critical skills permits, a partner or spouse of a general employment permits holder is not automatically eligible to join them in Ireland

 

  1. Intra Company Transfer (“ICT”) Permit

The ICT permit is designed to facilitate the transfer of senior management, key personnel or trainees who are non –EEA nationals from an overseas branch of a multinational corporation (Foreign Employer) to its Irish branch (Connected Person).

Many view this type of permit as the temporary injection of corporate or HQ personnel into an Irish entity and it can also be beneficial for the employee to remain on foreign payroll.

The eligibility criteria are strict as the Department’s preference is for all employment permit holders to be employed, salaried and paid under an Irish contract of employment.

The ICT permits are strictly limited to the following eligible positions:

  • Senior management earning a minimum annual remuneration of 40,000
  • Key personnel earning a minimum annual remuneration of 40,000; or
  • Personnel undergoing a training programme earning a minimum annual remuneration of 30,000.

For the purposes of the above categories, “Senior Management” includes those responsible for management of the organisation, supervision or control of work, who have authority to hire and terminate employees or to exercise discretion over the day to day operations. “Key personnel” refers to persons working within an organisation who possess specialist knowledge essential to the establishment’s service, research equipment, techniques or management. Personnel participating in a training programme refers to persons transferring for training purposes for a maximum of 12 months, provided it is adequately demonstrated that a detailed training programme will be undertaken.

The above personnel must have been working for a minimum period of 6 months with the overseas company prior to transfer. This is to ensure the person’s transfer is integral to the Irish branch,

When the assignment or permit expires or if they cease to be employed by the foreign employer, the permit holder must return to their country of origin.

Spouses/partners/dependents of ICT Employment Permit holders are not eligible for a Department/Partner/Spouse Employment Permit and must apply for an employment permit in their own right.

The connected person or the Irish branch must make the Employment Permit application for an ICT Employment Permit.

In the event an ICT permit is no longer valid, i.e. the non EEA national ceases to be employed, the permit and the connected person’s certified copy must be returned to the Department within 4 weeks from the date of termination or cessation.

 

  1. Dependent/Partner/Spouse Employment Permits

This permit replaces the old spousal/dependent employment permit and is designed to be attractive to those holders of Critical Skills or green card employment permit holders.

The Department have stated that eligible unmarried children, recognised partners (by the Department of Justice and Equality), civil partners and spouse who have been admitted to the State as family members of holders of these categories may apply.

This permit allows the dependents, civil partners and spouse of certain categories of employment permit holders and researchers to apply for an employment permit to work in the State.

The following conditions apply

  • They can apply for a permit in respect of all occupations, including certain carers in the home, and excluding all other occupations in a domestic settting;
  • They can apply for a permit with a remuneration of less than 30,000.
  • The prospective employer is not required to undertake a labour market test.

The permit is issued to the foreign national and a certified copy is sent to the prospective employer and will allow his or her employment in the State by the employer in the occupation and locations specified in the Permit. The applicant is expected to remain with the employer for an initial period of 12 months.

A letter is required from the employer of the primary permit holder/researcher dated within the last three months from the date of receipt of the Dependent/Partner/Spouse employment permit application confirming that the primary permit holder/researcher is still in employment with that employer and their job title.

Dependent means a foreign national;

  • Whom the Department of Justice and Equality has determined is a dependent of a primary permit holder or a researcher;
  • Who has, since he or she has landed in the State, resided in the State on a continual basis
  • Who is not in full time education and
  • Who resides with the primary permit holder or the researcher

In general, the permit can only be issued for a period of two years.

Dependent/Partner/Spouse Employment Permits can only issue to persons who are residing in the State on the basis of being a dependent/partner/spouse of the primary permit holder or researcher. It is also a requirement to inform the Garda National Immigration Bureau if an employment permit is received.

If you have any queries in respect of the above please contact Wendy Doyle of our Tully Rinckey team.

 

Contracts of Employment

An employee who agrees to undertake work for an employer in return for a regular wage or salary automatically has a contract of employment. A contract can be oral or written however it is always recommended that a contract should be in writing.  It is in fact a legal requirement that a statement of terms and conditions is provided to an employee as outlined below.

The majority of employees are employed under permanent or open ended contracts of employment. In other words, the contract continues until such time as the employer or employee ends it with the required notice. It is always recommended that a probationary period of approximately six months is inserted into a permanent contract to ensure the employee is a “good fit” for the employer. A probationary period can be extended in certain circumstances however it is recommended that this does not exceed 12 months as an employee may automatically accrue rights under the Unfair Dismissal Act 1977 (as amended).

Many other employees work under fixed-term or specified-purpose contracts which are contracts which end on a specified date or when a specific task is completed. Fixed term contracts are governed by the Protection of Employees (Fixed Term) Work Act 2003. Further information is available on this under our Section “Fixed Term Work”.

Part time workers are those who work less than full time employees and this relationship is governed by the Protection of Employee (Part Time Work) Act 2001 (as amended). Further information is available on this under our section “Part Time Work”.

As outlined above, an employer is under a legal obligation to provide a written statement of terms and conditions of employment to an employee within 2 months of the employee commencing employment. This is provided for in the Terms of Employment (Information) Act (1994) (as amended).

 

What information should be contained in a contract of employment?

At a minimum the following information should be included:

  • the full name of employer and employee;
  • the address of the employer;
  • the place of work or where there is no fixed place of work, a statement providing that the employee is required or permitted to work at various places;
  • the title of job or nature of work (job description);
  • the date of commencement of employment;
  • details of rest period(s) and breaks as required by law;
  • remuneration of the employee (including when it is paid and the pay reference period for the purposes of the National Minimum Wage Act 2000(as amended);
  • hours of work including overtime;
  • duration of a temporary contract;
  • that the employee has the right to ask the employer for a written statement of his/her average hourly rate of pay as provided for in the National Minimum Wage Act 2000
  • details of paid leave;
  • sick pay and pension (if any);
  • period of notice to be given by employer or employee;
  • details of any registered employment agreements or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order.

 

What An Employer Must Provide

An employer must provide additional information to an employee who may be required to work outside Ireland for example, terms and conditions governing any secondment arrangement.

It should also be remembered that an employer cannot simply change an employee’s terms and conditions of employment without engaging with the employee to obtain their consent otherwise this may result in a unilateral breach of contract. An employer is obliged to notify an employee of a change in any terms and conditions within one month of the change taking effect however it is always good practice to engage with the employee well in advance of any changes being made.

The statement of these terms must be signed and dated by the employer and it is always recommended that an employee signs this also. The employer must keep a copy during the period of the employee’s employment and for at least a year after it ceases. It is recommended however that a copy is kept for up to six years pursuant to the Statute of Limitations 1957 (as amended).

It is always recommended that advice is obtained at the outset when drafting the terms and conditions of employment for a new employee as additional terms may be required such as restrictive covenants, confidentiality and intellectual property law to name but a few.

In the event of a breach of the Terms of Employment (Information) Act 1994 (as amended), an employee may have the option to lodge a claim with the Workplace Relations Commission where compensation can be awarded for failure to provide a statement of terms at commencement or for any other breach of the Act.

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