i INTRODUCTION TO THE IMMIGRATION FRAMEWORK
Ireland has become internationally recognised as the destination of choice for organisations across all industries to establish their operations globally, and more specifically in Europe, the Middle East and Africa. This has been influenced by factors such as Ireland's status as the only English speaking country in the Eurozone, guaranteed access to the European Single Market, strong local talent pool. The government's strategy is firmly in favour of supporting this trend, with entities such as IDA Ireland and Enterprise Ireland providing valuable supports to foreign and native businesses seeking to establish operations in Ireland.
The establishment of Ireland as an international business hub, as well as its status as an EU Member State and its unique relationship with the United Kingdom, has influenced the natural development of the framework governing the way in which individuals enter, live and work in Ireland. In light of the uncertainty surrounding Brexit, it is expected that the Common Travel Area will become a focus for many businesses seeking to deal with the conundrum of how to continue to do business in the United Kingdom.
Persons seeking to travel to Ireland for business purposes must have permission to enter Ireland, conduct business activities (including working on a long-term basis) and, if relevant, reside in Ireland. These three elements of immigration permission are governed by different rules and, in some cases, the permissions are administered by different departments.
From the outset, it is necessary to identify the nationality of the citizen, the activities that they propose to carry on in Ireland and the length of time that they will be carrying on these activities. These factors will determine what types of permissions are needed in the circumstances. For example, EU citizens do not require a visa or employment permit. Non-EEA citizens must apply for an employment permit if they wish to work in Ireland, but an agreement may be in place that means they do not need a visa to enter the state (such as the visa waiver programme for citizens of the United States).
Another important factor to take into consideration is the family circumstances of the citizen. Not all working permissions provide for automatic family reunification. Employers who anticipate that this may be in an issue for job candidates may wish to structure the role and its associated benefits to ensure that any applicant will be able to obtain a permission that allows for family reunification. An understanding of the rules relating to employment permits is critical to this exercise.
i Legislation and policy
Irish immigration control is governed by a range of legislation. The immigration authorities have a high level of discretion in enforcing these rules. The relevant legislation from a corporate immigration perspective (comprising legislation relating to visa requirements, EU Treaty rights and employment permits) is as follows:
- the Aliens Act 1935 (and related Aliens Orders);
- Immigration Acts 1999 to 2004 (and related Immigration Act (Visas) Orders);
- Employment Permits Acts 2003 to 2014;
- Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States;
- the European Communities (Free Movement of Persons) Regulations 2015; and
- Section 34 of the Civil Law (Miscellaneous Provisions) Act 2011.
At the time of writing, it is proposed to put in place arrangements between the United Kingdom and Ireland relating to the formalisation of the Common Travel Area (CTA) between Ireland and the United Kingdom. The development of this policy framework is expected to clarify the current position relating to the CTA, which is based on historic administrative arrangements, supplemented by Irish and British legislative instruments.
i The immigration authorities
The main immigration authorities in Ireland are as follows:
- the Irish Naturalisation and Immigration Service (INIS), an agency of the Department of Justice and Equality. INIS provides a one-stop shop for the administrative functions of the Minister for Justice and Equality in relation to asylum, immigration, citizenship and visa services. It also controls the registration of immigration permission for people living in Dublin and the greater Dublin area. Local registration outside Dublin is processed through local Garda National Immigration Bureau (GNIB) offices;
- the GNIB, an office headed by a Detective Chief Superintendent of the Irish police force (An Garda Síochána). The office is responsible for all police matters relating to immigration nationally, including registrations, granting permission to remain, deportations, border control and investigations relating to illegal immigration;
- the Border Management Unit, which maintains the immigration and border controls at Ireland's airports under the direction of INIS;
- the EU Treaty Rights Section, a section within INIS that processes applications from persons relating to free movement under Directive 2004/38/EC of the European Parliament and Council;
- the Investment and Start Up Section, a section within the Department of Justice and Equality (DJE) that processes applications from persons seeking residency rights through the Immigrant Investor Programme and STEP programme;
- the Employment Permit Section, a section within the Department of Business, Enterprise and Innovation that administers the employment permits system and Trusted Partner Initiative;
- the Workplace Relations Commission, a state agency that has an inspectorate division. The inspectors enforce employment law legislation, including legislation relating to employment permits;
- the Department of Foreign Affairs, which agrees the terms and conditions that apply to working holiday authorisations with the relevant state in question; and
- Irish embassies and consulates, which decide on visa applications from local applicants.
iii Exemptions and favoured industries
The rules and conditions governing the grant of employment permits are universally applied across all industries. However, the Department of Business, Enterprise and Innovation (DBEI) has created a list of highly skilled eligible occupations for employment permits. Applicants for roles on this list are eligible to apply for a critical skills employment permit, which has more favourable immigration conditions attached to it, particularly in relation to family reunification. The list includes highly specialised professionals across a range of fields from science to animation and design.
The DBEI has also created a list of ineligible categories of employment. Applications will not be accepted from persons who will fill a role falling within this list.
ii INTERNATIONAL TREATY OBLIGATIONS
Article 45 of the Treaty on the Functioning of the European Union provides for the rights of EU citizens to move and reside freely within the territory of EU Member States. The conditions attaching to these rights for EU citizens and any family members who accompany or join them are set out in detail in Directive 2004/38/EC. In Ireland, this is given effect by the European Communities (Free Movement of Persons) Regulations 2015.
Family members and dependents may apply for a residence card to remain in Ireland as a qualifying family member or permitted family member of an EU citizen. The EU Treaty Rights section of the DJE processes these applications. An application may only be made once the EU citizen and non-EEA family member have arrived in Ireland. Temporary permission may be granted to the non-EEA family member to remain in Ireland while a decision is pending on their application.
iii THE YEAR IN REVIEW
Brexit continues to dominate the immigration landscape in Ireland. Ireland shares both a land border and a joint history of immigration governance with the United Kingdom of Great Britain and Northern Ireland. On 6 December 1922, 26 counties of Ireland seceded from the United Kingdom and became a dominion of the British Commonwealth known as the Irish Free State. In 1937, the Irish Free State was renamed Ireland, and in 1949 Ireland explicitly became a republic under the Republic of Ireland Act 1948.
Given this shared history, a bespoke set of immigration arrangements developed between the two nations, which has since become known as the CTA. The CTA has developed since 1922 to comprise a series of publicised administrative arrangements and internal statutory instruments. While the existence of the CTA precedes the entry into the European Union of both Ireland and the United Kingdom, most of the related arrangements considered to comprise 'rights' that apply to the CTA (such as the right to work) have developed in tandem with free movement rights arising out of both countries being members of the European Union. The governments of both Ireland and the United Kingdom have indicated that their position regarding the future of the CTA, and what rights it comprises, are aligned. However, there is currently no bilateral treaty in place between Ireland and the United Kingdom that formalises these arrangements. Further clarity in this area is expected in the short- to mid-term future.
A more difficult problem posed by Brexit is that of frontier workers. It is estimated that 30,000 people cross the land border between Ireland and the United Kingdom (into Northern Ireland) every day to work in either state. While the agreement of a CTA framework may resolve the position for British and Irish citizens, it is unlikely that this will extend to EU citizens resident in either state. The United Kingdom has made unilateral commitments that EU citizens residing in the United Kingdom may be eligible to apply to its settled status scheme. The United Kingdom has also stated that it would like to ensure that frontier workers are protected in the event of a 'no-deal' Brexit, although there is currently no such protective mechanism in place.2
ii Spouses or partners of critical skills employment permit holders
Beyond Brexit, the most significant development this year has been a change to immigration arrangements for spouses and partners of critical skills employment permit holders and researchers under a hosting agreement.3 Previously, these persons were granted permission to reside in Ireland on Stamp 3 conditions (allowing them to reside, but not work, in Ireland) and had to apply for an employment permit to work in Ireland.
This requirement has now been removed, and eligible spouses and de facto partners may now obtain permission to reside in Ireland on Stamp 1 conditions. This allows spouses to work. Persons who are resident on Stamp 3 conditions may apply to transfer their permissions.
iii Independent review of immigrant investor programme and start-up entrepreneur programme
The DJE have commissioned an independent review of the Immigrant Investor Programme (IIP) and Start-Up Entrepreneur Programme (STEP). These programmes allow high net worth individuals who invest significant sums of money into approved investment vehicles to receive immigration permissions to reside in Ireland. The schemes do not offer a 'fast track' route to citizenship – investors in receipt of these permissions seeking to obtain Irish citizenship must satisfy the same criteria as all other applicants.
The DJE have announced that both programmes will continue to accept applications pending the outcome of the review, and have issued revised application forms and guidelines relating to the operation of the IIP. Revised application forms and guidelines relating to the operation of the STEP are expected imminently.
iv Abolition of re-entry visa requirement
In April 2019, the Minister for Justice and Equality announced that the current re-entry visa system will be abolished from 13 May 2019. From this date, all visa required nationals who already have permission to reside in Ireland will be able to use their Irish Residence Permit or GNIB card in lieu of a re-entry permit. This reform does not affect children under the age of 16, visa-required nationals who are travelling to Ireland for the first time and who have not yet registered with INIS, and visa-required nationals visiting Ireland for less than 90 days.
iv EMPLOYER SPONSORSHIP
Ireland operates an employment permit regime based on job offers in skills shortage areas. The DBEI is responsible for processing employment permit applications. An employment permit is issued by the DBEI following an application by the employing company or the non-EEA national, in prescribed circumstances. A copy of a signed contract of employment must be submitted with all new and renewal employment permit applications.
The processing time for employment permit applications is currently around 12 to 14 weeks, but this fluctuates subject to general demand. Organisations who have a need to process many employment permits (for example, owing to the fact that they require workers with specific skill sets that are not readily available in Ireland or the EEA) may apply to become a Trusted Partner of the DBEI. This has the significant advantage of having all future applications dealt with as a matter of priority. Obtaining 'Trusted Partner' status can substantially expedite the processing time for employment permit applications – these applications generally take three to four weeks to process, subject to fluctuation as determined by general demand.
There are nine types of employment permit governed by the Employment Permits (Amendment) Acts 2003 – 2014 regime, which are summarised in greater detail below:
- the general employment permit (the GEP);
- the critical skills employment permit (the CSEP);
- the intra-company transfer employment permit (the ICTP);
- the dependant, partner or spouse employment permit;
- the contract for services employment permit (the services permit);
- the internship employment permit (the IEP);
- the reactivation employment permit (the REP);
- the exchange agreement employment permit (the EAEP); and
- the sport and cultural employment permit (the SCEP).
Alternative arrangements exist for work or business activities that take place for under three months. These schemes are summarised below and include the following:
- the Atypical Working Scheme, which provides permission to work on specific projects for under three months;
- Van der Elst immigration permission, which refers to immigration permission for employees of companies based in the EU/EEA or Switzerland who are transferred to Ireland temporarily; and
- the short stay 'C' business visa.
In addition, working holiday authorisations operate between Ireland and certain countries to allow students to visit Ireland for a specified period and work during that period. Such authorisations are permitted on the terms agreed between Ireland and the country in question, and applications are administered by the Department of Foreign Affairs.
i Work permits
For any employment permit to be granted, the following basic requirements must be fulfilled:
- the employer must be trading in Ireland and registered with the Revenue Commissioners (Irish tax authorities) and the Companies Registration Office;
- the applicant must have a signed employment contract relating to the role in question;
- the applicant must be an employee of the company (save in the case of the ICTP) and must have the relevant qualifications, skills or experience for the job in question;
- the role to be filled must not be on the list of ineligible categories of employment for employment permits; and
- employers seeking to hire non-EEA nationals must demonstrate compliance with the 50:50 rule: that they maintain a workforce comprising at least 50 per cent of EEA nationals. There is, however, some flexibility available for start-up companies or non-Irish companies who are seeking to establish operations in Ireland and who require the presence of certain key non-EEA nationals.
In addition, both employers and the non-EEA employees must comply with the Labour Market Needs Test (LMNT) in respect of applications for the GEP and the services permit: it must be demonstrated that the role could not have been filled by an EEA national. The LMNT does not apply where the relevant employment is one of the specified shortage occupations (including occupations in healthcare, information technology and financial services), where gross annual remuneration is €60,000 or over, where the application has been recommended by an enterprise development agency (e.g., IDA or Enterprise Ireland), in the case of a former permit holder who has been made redundant, and where a GEP application is in respect of a carer with a proven history of caring for the sick person.
GEPs are the primary vehicle used in Ireland to attract foreign nationals for occupations experiencing a labour or skills shortage. The key conditions for GEPs are follows:
- GEPs are available for occupations with a salary of €30,000 or more and, in exceptional cases, in the salary range below €30,000.
- GEPs can be issued for an initial period of up to two years and can then be renewed for up to a further three years. Following the expiry of the five-year period, the employee can register with the Irish immigration authorities directly, and if a Stamp 4 permission is granted, the employee will no longer require an employment permit to work in Ireland.
- GEPs can also be secured in relation to offers of employment for under two years.
- The LMNT must be complied with, unless an exemption (as detailed above) applies.
- The 50:50 rule will apply at both the application and renewal stage.
- Family reunification for GEP holders is at the discretion of the DJE and generally workers must have been resident in Ireland for 12 months before family reunification will be granted.
CSEPs are designed to attract highly skilled people into the Irish labour market. Applications may be made for a CSEP in respect of two categories of occupation, based on salary level:
- where the gross annual salary on offer is €60,000 or more, and the applicant holds a third-level degree or equivalent experience to the relevant job, the CSEP is available for all occupations, other than those which are contrary to the public interest or listed in the ineligible categories of employment; and
- CSEPs are available in the gross annual salary range €30,000 to €59,999 for a restricted number of highly skilled occupations specified on the high-skills occupations list. Applicants are required to who hold a degree qualification or higher.
Employees must be offered a position with the Irish entity for at least two years on an initial basis. Following the expiry of the two-year period, the employees can register with the Irish Immigration Authorities for permanent residency and, if a Stamp 4 permission is granted, the employee will no longer require an employment permit. Steps must be taken to obtain a support letter from the DBEI (among other documents) prior to the expiry of the two-year period: no LMNT is required, the 50:50 rule will apply and CSEP holders can apply for immediate family reunification from INIS.
The ICTP allows for the transfer of senior management, key personnel or trainees who are foreign nationals from an overseas branch of a multinational corporation to its Irish branch subject to the following conditions:
- the employee has a minimum gross annual salary of €40,000 and remains on foreign payroll;
- the employee must have been working for a minimum period of six months with the overseas company prior to transfer, save where the individual is a trainee – in which case he or she needs to only have been working for the employer for a period of one month prior to the application;
- the employee must fall into one of the categories of senior management, key personnel or trainee;
- the foreign branch of the organisation in question must be bona fide and engaged in substantive business operations in the foreign country in question; and
- the Irish company must have a direct link with the overseas company by common ownership.
There are three parties involved in an ICTP; the foreign employer, the connected person (Irish Entity) and the foreign employee. The application is made by the connected person (Irish entity).The foreign employer is responsible for payment of salary.
After five years, the employee cannot apply for another ICTP, nor are they eligible to apply for a Stamp 4 with the immigration authorities. The 50:50 rule will apply. Family reunification for ICTP holders is at the discretion of the DJE.
Contract for services permit
The services permit is designed for situations where a foreign undertaking (the contractor) has won a contract to provide services to an Irish entity (relevant person) on a contract for services basis and to facilitate the transfer of non-EEA employees (the foreign employee) to work on the Irish contract in Ireland. The key conditions for a services permit are:
- The application for a services permit is made by the contractor.
- The foreign employee must have been working for a minimum period of six months with the overseas branch prior to the transfer.
- The duration of the transfer must be at least 90 days. Permission to work for less than 90 days may fall under the Atypical Working Scheme, which is administered by the DJE (described below).
- The contractor must be registered with the Revenue Commissioners as an employer and details of the registration must be provided. It must also be registered with the Companies Registration Office/Registry of Friendly Societies, if applicable.
- The services permit may be issued for an initial period for up to two years and may be extended at renewal stage for a further three years. The employee of the contractor may only remain in Ireland for a maximum of five years and is not eligible to apply for a Stamp 4 with the immigration authorities.
- The 50:50 rule will apply for new and renewal applications and can be satisfied by either the contractor or the relevant person.
- LMNT is required, but waivers may apply (as outlined above).
IEPs are designed to facilitate the paid employment in Ireland of foreign nationals who are full-time students enrolled in a third-level institution outside Ireland and pursuing a degree course or higher. They are designed to facilitate employees gaining work experience and conditions are as follows:
- The Irish entity must provide an offer of employment to the intern.
- The occupation to which the intern is temporarily assigned must be in the highly skilled occupations list.
- The course of study of the intern must be wholly concerned with the skills shortages identified on the highly skilled occupation list and completing the internship must be a requirement for the completion of their course of study.
- The intern's salary must be equivalent to Ireland's national minimum wage or higher.
- There is no requirement for the employing entity to conduct a LMNT.
- The 50:50 rule will apply.
- IEPs are issued for a maximum period of 12 months and are non-renewable. At the end of the internship, the employee must leave Ireland and return to the third-level institution to complete their course of study.
The REP is designed to assist a non-EEA national who falls out of the employment permits system through no fault of their own. An applicant can only avail of this permit if he or she originally entered the labour market legally on an employment permit; holds a temporary Stamp 1 and has a 'Reactivation EP' letter from the DJE, has a salary equivalent to the national minimum wage or higher; and is not working illegally and has a real offer of employment. Additionally, the DJE must be satisfied that the circumstances of the case merit consideration of an employment permit.
The EAEP allows reciprocal international arrangements facilitating the exchange of Irish nationals and non-EEA nationals (e.g., trade agreements including labour transfers and research or student-exchange agreements).
The SCEP allows non-EEA nationals with sporting or cultural expertise to work in Ireland (e.g., professional sportspersons).
Dependent spouse or partner employment permit
This permit is no longer required for the vast majority of applicants and it is being phased out.
For short-term assignments (generally under three months), it may not be possible to obtain an employment permit. In these circumstances, the following permissions should be considered:
The Atypical Working Scheme
This scheme is designed to deal with skills shortages that are not covered by the employment permits regime. Applications must be made from outside the state and permission, if granted, will last for a maximum of 90 days. It will be necessary to identify a specific skill shortage. The 50:50 rule applies to these applications. Only one permission may be allowed per individual in a 12-month period. Private medical insurance is a requirement.
Van der Elst
This permission derives from a ruling of the European Court of Justice.4 It allows non-EEA nationals who are employed by EU companies to provide services on a temporary basis to another EU company on behalf of his or her employer without requiring a work permit.
Short stay 'C' business visa
This visa allows person to travel to Ireland for up to 90 days for activities relating to a person's job including to attend meetings, negotiate or sign agreements or contracts and work for 14 days or less in a single 14-day period. Immigration authorities will closely examine the activities of individuals relying on this visa to cover their working activities in Ireland. Navigating this area can pose difficulties for employers – if numerous short-stay visas are applied for, the immigration authorities may request that the individual should apply for an employment permit, despite the fact that there is not always an appropriate permission available for such persons.
ii Labour market regulation
Compliance with employment law requirements, including right to work requirements, is monitored by the Workplace Relations Commission (WRC). The inspectorate division of the WRC has the power to investigate employers, which may involve, but is not limited to, examining or removing books, records and documents, procuring information from – and conducting interviews with – current and former employees and employers. Inspectors may enter any place of work or premises (if necessary by the use of reasonable force) if they have reasonable grounds for believing there are employees or employees' records on the premises. There is no requirement for the WRC to suspect that wrongdoing has occurred or may occur. Advance notice of an inspection is not required.
The Border Management Unit and the GNIB will also enforce immigration law at the point of entry into the country. Immigration officers have extensive discretion to determine whether individuals enter the country at all or, if they are allowed to enter, the conditions of entry (e.g., if they must leave the country within a certain period of time owing to a failure to demonstrate that they have permission to enter the country). The GNIB is responsible for other enforcement matters, such as deportation and investigations relating to illegal immigration.
The Employment Permits Acts 2003 to 2014 permit the Minister to revoke employment permits and to bring and prosecute summary (i.e., less serious) proceedings for criminal offences under the Acts. The decision to prosecute more serious criminal offences under the Acts falls within the remit of the Director of Public Prosecutions.
iii Rights and duties of sponsored employees
Employees who obtain a work permit must book an appointment with the GNIB to allow them to register with the GNIB on their arrival into Ireland. The GNIB will place a stamp in their passport and subsequently issue them with an Irish residence permit (IRP), which indicates the stamp applying to that individual. This stamp indicates the permissions attaching to their right to remain in Ireland.
Employees must remain in Ireland in accordance with their employment permit and IRP conditions. It is possible for employees to obtain long-term residency in Ireland and, ultimately, Irish citizenship, provided that they have satisfied the conditions applying to acquiring these rights. Sponsored employees seeking to obtain either long-term residency rights or citizenship must be in a position to provide documentary evidence demonstrating their remaining in Ireland for a specified time period in accordance with the terms of their permission.
v INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
The DJE sponsors two programmes: the IIP and STEP. Successful applicants to these programmes will receive permission to reside for an initial two years, which may be extended for a further period of three years provided the applicant continues to meet the conditions of the scheme. After this initial five-year period, the investor will be free to apply for residence indefinitely in five-year tranches (subject to the conditions relevant to such permission).
The purpose of the IIP is to enable non-EEA nationals and their families who commit to an approved investment in Ireland to acquire permanent residency in Ireland. Applications are accepted in a number of windows communicated to applicants by the DJE.
There are two components to an IIP application: the person and the investment. The investment will be carefully assessed to ensure that it meets the aims of the IIP and is commercially viable. Applicants may invest a specific sum of money in four categories of investments as follows:
- enterprise investment (€1 million);
- investment fund (€1 million);
- real estate investment trust (€2 million); or
- endowment (€500,000, or €400,000 each if more than five investors apply together).
The DJE will also assess the character and personal information applying to the investor, paying particular attention to the source of the investor's funds.
STEP is in many respects similar to the IIP. It is suitable for entrepreneurs who have secured some funding for the purposes of a high-potential start-up. The application form and guidelines for STEP are currently undergoing review and it is expected that some changes will be made in this area.
vi OUTLOOK AND CONCLUSIONS
The most pressing issue from an Irish immigration perspective is the position after Brexit, whatever form Brexit ultimately takes. Certainty regarding the CTA is required, as well as clarification regarding the position of frontier workers.
While more work must be done regarding the latter issue, on 8 May 2019, Ireland and the United Kingdom entered into a memorandum of understanding that set out the rights pertaining to Irish and UK citizens in relation to the CTA. The text of the memorandum provides for reciprocal rights to reside and work for Irish and UK citizens, among other related rights. It states that the UK and Ireland are committed to entering into more detailed bilateral agreements to give effect to specific aspects of the CTA arrangements. However, the memorandum explicitly states that it represents a record of the current understanding of the CTA, and does not of itself create legally binding obligation. Further clarification may be necessary on certain aspects of the operation of the CTA in the near to mid-term future.
Certainty regarding the future of state sponsored immigration programmes, such as the IIP, is also expected in 2019. The independent review of the IIP provides the opportunity to create a programme that will support foreign direct investment in identified sectors while putting the structures in place to maintain robust oversight over key risk factors that apply to running such a programme, including anti-money laundering controls.
The DBEI has also committed to reduce the current waiting times for processing employment permits. It is anticipated that this will be an area of focus for the DBEI this year, together with its ongoing review of occupations on the highly skilled employment list.
1Cían Beecher is a partner and Rachel Barry is an associate at Arthur Cox.
2United Kingdom Department for Exiting the European Union, 'Citizens' Rights – EU citizens in the UK and UK nationals in the EU' – Policy Paper, 6 December 2018.
3As provided for under the EU Third Country Researchers Directive (Council Directive 2005/71/EC).
4Raymond Van der Elst v. Office des Migrations Internationales (C-43/93).