An Act to provide for the grant of employment permits to certain foreign nationals for the purpose of permitting them to be in employment in the state, to enable the minister for enterprise, trade and employment to make, having had regard to certain criteria, regulations imposing a limit on the number of such permits that may be granted in a particular period and imposing certain other restrictions with regard to the grant of such permits, to otherwise regulate the employment of certain foreign nationals in the state and provide certain protections for foreign nationals in employment in the state, to amend the employment permits Act 2003 and to provide for related matters.
[23rd June, 2006]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
1-
Interpretation
(1)
In this Act—
“ Act of 2003 ” means the Employment Permits Act 2003 ;
“ application ” means an application under section 4 ;
“ application by a foreign national ” shall be construed in accordance with section 4 (4);
“ citizen ” means an Irish citizen within the meaning of the Irish Nationality and Citizenship Act 1956 ;
“ economic sector ” means a sector of the economy concerned with a specific economic activity requiring specific qualifications, skills or knowledge;
“ employer ” means the employer (as defined in the Act of 2003) who—
(a)
employs a foreign national pursuant to an employment permit, or
(b)
in the case of a permit granted on foot of an application by a foreign national, for the time being employs a foreign national pursuant to an employment permit;
“ employment permit ” means an employment permit granted under section 8 ;
“ employment regulation order ” means an order under section 48 of the Industrial Relations Act 1990 ;
“holder”, in relation to an employment permit, means the foreign national to whom it has been granted;
“ Member State of the EEA ” means a state that is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as amended for the time being;
“ Minister ” means the Minister for Enterprise, Trade and Employment;
“ national minimum hourly rate of pay ” has the meaning assigned to it by the National Minimum Wage Act 2000 ;
“ foreign national ” has the meaning assigned to it by the Act of 2003;
“ foreign national concerned ” shall be construed in accordance with section 5 (1);
“ prescribed ” means prescribed by regulations made by the Minister under this Act;
“ public interest ” includes—
(a)
public order and the interests of national security,
(b)
public health and safety, and
(c)
the need to protect the labour market;
“ registered employment agreement ” has the meaning assigned to it by section 25 of the Industrial Relations Act 1946 ;
“ remuneration ”, in relation to an employee, means—
(a)
any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment, and
(b)
any amounts the employee will be entitled to receive on foot of any pension scheme or arrangement.
(2)
For the purposes of this Act, a person (the “first person”) is not, by virtue of the following contract with another (the “second person”), an employer of the second person.
(3)
That contract is one which—
(a)
provides that the second person is to do work or perform a service for a third person (whether the third person is a party to the contract or not), and
(b)
has been entered into by the first person in the course of carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 ,
whether the contract is express or implied and if express, whether it is oral or in writing.
2-
Amendment of section 2 of Act of 2003
Section 2 of the Act of 2003 is amended by substituting the following for subsections (1) and (2):
“(1)
A foreign national shall not—
(a)
enter the service of an employer in the State, or
(b)
be in employment in the State,
except in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force.
(1A)
Subsection (1)(b) applies whether the employment concerned results from—
(a)
the foreign national’s being employed in the State by a person,
(b)
his or her being employed by a person outside the State (the ‘contractor’) to perform duties in the State, the subject of an agreement between the contractor and another person, or
(c)
any other arrangement.
(2)
A person shall not employ a foreign national in the State except in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force.
(2A)
Where a person (the ‘first person’) enters into an agreement with another person (the ‘second person’) whereby the second person agrees to cause, or arrange for, services (whether of a specific or general kind) to be rendered on behalf of the first person and either—
(a)
it is customary in the trade or business in which the agreement is entered into, or
(b)
the circumstances in which the agreement is entered into are such that it must reasonably have been in the contemplation of the parties to the agreement,
that the means to be used by the second person for complying with the agreement would consist of or involve, in whole or part, the services being rendered by persons employed by a person other than the second person (and whether or not that person is in a contractual relationship with the second person) then, if those means are used, it shall be the duty of the first person to take the following steps.
(2B)
Those steps are all such steps as are reasonable to ensure, in so far as one or more of the persons so employed is or are a foreign national or foreign nationals employed in the State for the purpose of rendering those services, that that foreign national or each of those foreign nationals is employed in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force.”.
3-
Further amendment of Act of 2003
The Act of 2003 is further amended—
(a)
in subsection (3) of section 2—
(i)
by inserting, after “subsection (1) or (2)”, “or fails to take the steps specified in subsection (2B)”, and
(ii)
by inserting in paragraph (b), after “subsection (2)”, “or a failure to take the steps specified in subsection (2B)”,
(b)
by substituting the following subsections for subsections (10) and (11) of section 2:
"(10)
Without prejudice to the other provisions of this Act, this section does not apply to a foreign national—
(a)
in respect of whom a declaration under section 17 of the Refugee Act 1996 is in force,
(b)
who is entitled to enter the State pursuant to section 18 or 24 of that Act,
(c)
who is entitled to enter the State and to be in employment in the State pursuant to the treaties governing the European Communities (within the meaning of the European Communities Acts 1972 to 2003), or
(d)
who is permitted to remain in the State by the Minister for Justice, Equality and Law Reform and who is in employment in the State pursuant to a condition of that permission that the person may be in employment in the State without an employment permit referred to in subsection (1),
but this section, subject to section 2A and any order under section 3A(1) for the time being in force, does apply to a foreign national who is a national of the Republic of Bulgaria or Romania (including at a time subsequent to the accession of the Republic of Bulgaria or Romania to the European Union).
(11)
The Minister, when determining which applications for employment permits should be granted, shall give preference to each of the following, namely—
(a)
applications in respect of nationals of a state in relation to which an order under section 3 is in force, and
(b)
applications in respect of nationals of the Republic of Bulgaria or Romania to whom this section for the time being applies.”,
(c)
by inserting the following section after section 2:
2A.
“Supplemental provisions in relation to section 2
(1)
Notwithstanding subsection (10) of that section, section 2 does not apply to—
(a)
a national of the Republic of Bulgaria or Romania who falls within the second or third subparagraph of paragraph 2 of Annex VI of the Treaty of Accession with the Republic of Bulgaria and Romania,
(b)
a person, whatever his or her nationality, who falls within paragraph 8 of that Annex.
(2)
Irrespective of whether the person falls within the second or third subparagraph of paragraph 2 of Annex VI of the Treaty of Accession with the Republic of Bulgaria and Romania, section 2 does not apply to a national of the Republic of Bulgaria or Romania on and from the expiration of—
(a)
unless paragraph (b) applies, 5 years from the date that the Republic of Bulgaria and Romania become members of the European Union (the ‘accession date’), or
(b)
if at, or during the 2 months before, the end of the period of 5 years referred to in paragraph (a) an order under subsection (1) of section 3A is revoked by a subsequent order under that subsection, 7 years from the accession date.
(3)
In this section ‘Treaty of Accession with the Republic of Bulgaria and Romania’ means the Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union signed at Luxembourg on the 25th day of April 2005.”,
and
(d)
by inserting the following sections after section 3:
3A.
“Non-application of section 2 to nationals of Bulgaria and Romania
(1)
Notwithstanding section 2(10), the Minister may, subject to subsection (2), make an order providing that section 2 shall apply neither to nationals of the Republic of Bulgaria nor to nationals of Romania and for so long as such an order remains in force that section shall not apply to such nationals accordingly.
(2)
The Minister shall not make an order under subsection (1) at a particular time unless, having regard to the conditions of the labour market in the State at that time, the Minister is of the opinion—
(a)
that it is desirable in the interests of the proper functioning of the economy to make such an order, and
(b)
that, in the 24 months following the making of the order, employment in the State is likely to become available on a continuous basis for nationals of the states referred to in subsection (1) contemplating entry into employment in the State.
(3)
An order under subsection (1) may not be revoked by a subsequent order under that subsection unless, in the opinion of the Minister, the labour market, at the time of the making of the second-mentioned order, is experiencing a disturbance or is likely thereafter to experience a disturbance.
(4)
Notwithstanding section 2(10), where an order under subsection (1) is revoked by a subsequent order under that subsection section 2 shall not apply to a national of the Republic of Bulgaria or Romania if he or she has been in employment in the State for a period of not less than 6 weeks immediately before the commencement of the second-mentioned order and has been in receipt of remuneration for such employment.
(5)
In this section—
‘disturbance’ shall be construed in accordance with the Treaty of Accession with the Republic of Bulgaria and Romania;
‘labour market’ shall be construed in accordance with the Treaty of Accession with the Republic of Bulgaria and Romania;
‘Treaty of Accession with the Republic of Bulgaria and Romania’ has the same meaning as it has in section 2A.
3B.
Non-application of certain requirement of Employment Permits Act 2006
(1)
The Minister may, subject to subsection (2), by order provide that section 10 of the Employment Permits Act 2006 shall not apply to an application for an employment permit in respect of a national of the Republic of Bulgaria or Romania and for so long as such an order remains in force—
(a)
that section 10 shall not apply to such an application accordingly, and
(b)
the other provisions of the Employment Permits Act 2006 shall be construed and have effect subject to the order,
but without prejudice to any regulations for the time being in force under section 14 of that Act.
(2)
The Minister shall not make an order under subsection (1) at a particular time unless, having regard to the conditions of the labour market in the State at that time, the Minister is of the opinion that it is desirable in the interests of the proper functioning of the economy to make such an order.”.
4-
Application for employment permit
(1)
An application for the grant of an employment permit in respect of the employment in the State of a particular foreign national may be made, other than in a case referred to in subsection (2), by—
(a)
the person proposing to employ the foreign national, or
(b)
subject to subsection (3), the foreign national.
(2)
In a case falling within section 2(1A)(b) or (c) of the Act of 2003, such an application may be made by, as appropriate—
(a)
the contractor referred to in that subsection, or
(b)
any person party to the arrangement concerned relating to the foreign national.
(3)
A foreign national may not make an application under this section in respect of his or her employment in the State unless an offer of employment in the State has been made in writing to him or her within such period preceding the application as may be prescribed.
(4)
An application under this section by a foreign national in respect of his or her employment in the State is referred to subsequently in this Act as an “application by a foreign national”.
5-
Foreign national is grantee of permit, general provisions as respects applications, etc
(1)
In all cases, irrespective of who the applicant for the grant of the permit under section 8 is—
(a)
an application for the grant of an employment permit under section 8 shall be expressed to be an application for the grant under that section of such a permit to the person proposed to be employed pursuant to the permit (in this Act referred to as the “foreign national concerned”), and
(b)
a grant under section 8 of an employment permit shall be to the foreign national concerned.
(2)
An application for an employment permit shall be in writing and be accompanied by such fee as may be prescribed.
6-
Application (other than by a foreign national) for permit — information to be provided
An application for an employment permit (other than an application by a foreign national) shall—
(a)
provide a full and accurate description of the employment in respect of which the application is made (the “employment concerned”) and the terms and conditions, including the hours of work in each week, of the employment, and the duration of the employment,
(b)
provide information in respect of the qualifications, skills or experience that are required for the employment concerned,
(c)
provide information and, where appropriate, any relevant documents in respect of the qualifications, skills or experience of the foreign national concerned,
(d)
specify the place at or in which the employment concerned is to be carried out,
(e)
specify the remuneration and any deductions, where agreed, for board and accommodation or either of them in respect of the employment concerned,
(f)
in respect of the foreign national concerned—
(i)
specify whether or not he or she has sought permission to land in the State on a previous occasion or has been in the State on a previous occasion without permission to land,
(ii)
where he or she is in the State at the time of the application, provide information and documents relating to the permission granted to him or her to land in the State,
and
(g)
provide such other information as may be prescribed, or which the Minister may request and which, in the Minister’s opinion, might materially assist in the making of a decision on the application.
7-
Application by foreign national — information to be provided
An application by a foreign national shall—
(a)
provide such information and documents concerning the foreign national’s qualifications, skills and experience as the Minister may request,
(b)
specify whether or not he or she has sought permission to land in the State on a previous occasion or has been in the State on a previous occasion without permission to land,
(c)
where he or she is in the State at the time of the application, provide information and documents relating to the permission granted to him or her to land in the State,
(d)
provide such information and documents concerning the offer of employment referred to in section 4 (3) as the Minister may request,
(e)
provide information in respect of the qualifications, skills or experience that are required for the employment referred to in section 4 (3),
(f)
provide a full and accurate description of the employment that will result if that offer of employment is accepted (the “employment concerned”) and the terms and conditions, including the hours of work in each week of the employment, and the duration of the employment,
(g)
specify the place at or in which the employment concerned is to be carried out,
(h)
specify the proposed remuneration and any deductions, where agreed, for board and accommodation or either of them in respect of the employment concerned, and
(i)
provide such other information as may be prescribed, or which the Minister may request and which, in the Minister’s opinion, might materially assist in the making of a decision on the application.
8-
Grant of employment permit by Minister
(1)
Subject to sections 10 , 12 and 14 and section 2(11) of the Act of 2003, the Minister may, on application made to him or her, grant an employment permit.
(2)
The employment permit so granted shall, save in a case falling under subsection (3), operate to permit the employment in the State (being the employment specified in the application) of the foreign national concerned by—
(a)
the applicant, or
(b)
in the case of an application made under section 4 (2), the other relevant person.
(3)
In the case of an application by a foreign national, the employment permit so granted shall operate to permit the employment in the State of the foreign national concerned in an economic sector specified in the permit.
(4)
An employment permit shall specify the period for which the foreign national concerned may be employed in the State pursuant to the permit and the permit shall, subject to the provisions of this Act, remain in force for that period accordingly.
(5)
The period that shall be specified in the employment permit for that purpose shall not exceed 2 years beginning on the date of the grant of the permit or such longer period as may be specified by regulations under section 14 .
9-
Original of permit to be issued to foreign national, information to be included in permit, etc
(1)
The Minister shall cause—
(a)
the original of an employment permit granted under section 8 to be issued to the foreign national concerned, and
(b)
a copy of the permit so granted (unless granted on foot of an application by a foreign national) to be issued to the person who will employ the foreign national concerned pursuant to the permit.
(2)
An employment permit shall include the following information:
(a)
if the permit has been granted other than on foot of an application by a foreign national, a description of the employment in respect of which the permit has been granted and a statement of the remuneration and any deductions, where agreed, for board and accommodation or either of them in respect of the employment;
(b)
if the permit has been granted on foot of an application by a foreign national, a description of the economic sector in which the foreign national concerned is permitted, pursuant to the permit, to be employed in the State;
(c)
a statement of the requirement under the National Minimum Wage Act 2000 that the foreign national concerned be paid the national minimum hourly rate of pay by his or her employer and the effect of subsections (1), (3) and (4) of section 23 ; and
(d)
a statement that a new application for the grant of an employment permit may be made in respect of the foreign national concerned subject to, and in accordance with, the Employment Permits Acts 2003 and 2006.
(3)
An employment permit shall include or be accompanied by a summary of the principal employment rights of the employee.
(4)
Subsections (2) and (3) are in addition to any other provision of this Act, or any provision of regulations under section 29 (2), specifying matters or information to be included in an employment permit.
10-
Restriction on grant of employment permit
(1)
This section applies to an employment permit other than one granted on foot of an application by a foreign national.
(2)
An employment permit to which this section applies shall not be granted unless the applicant satisfies the Minister that—
(a)
he or she has taken all such steps as were reasonably open to him or her to offer the employment in respect of which the application is made to a citizen or a foreign national referred to in any of paragraphs (a) to (d) of section 2(10) of the Act of 2003 or to whom section 3 of that Act applies, and
(b)
at the time of the application, more than 50 per cent of the employees of the applicant are nationals of any of the following, namely—
(i)
one or more Member States of the EEA, or
(ii)
the Swiss Confederation, or
(iii)
a combination of any of the states referred to in subparagraphs (i) and (ii).
(3)
This section is—
(a)
in respect of subsection (2)(a), supplementary to Council Regulation (EEC) No. 1612/68 of 15 October 1968 on freedom of movement for workers within the Community, and
(b)
in addition to the other requirements that this Act specifies must be satisfied with respect to the grant of an employment permit and is without prejudice to—
(i)
any regulations for the time being in force under section 14 , and
