Thursday, October 2, 2014

Overhaul Of The Work Permit Regime

The Employment Permits (Amendment) Bill 2014 came into force on 1st October 2014 implementing a significant changes to the employment permit regime in Ireland. Full details can be viewed the Department’s website which has now been updated to reflect the changes and this blog highlights some of the key changes. 

General Employment Permit

The General Employment Permit has been introduced and essentially replaces the previous Work Permit Employment Permit. There are three notable changes to this permit. 

Firstly the ineligible categories for employment permit list has been substantively amended. This list specifies occupations that are not eligible for a permit, in circumstances where the salary is under €60,000. The list is both more specific and expansive than the previous list and specifically names a broad range of occupations for which a work permit will not be available. Managers in a range of sectors including hospitality, health and retail are included together with a number of positions in financial administration. Several new occupations are included including legal associate professionals, estate agent and auctioneers and a range of technicians in the area of planning, architecture and engineering. A major change is the inclusion of chefs on this ineligibility list which covers chefs, butchers, fishmongers and bakers but makes an exception for executive chefs, head chefs, sous chefs and specialist chefs specialising in cuisine originating from a non-EEA state. This much expanded list is likely to have a wide ranging impact on potential applicants who may find that their occupation renders them ineligible for a work permit under the new provisions. 

A further change referred to in our previous blog post is the re-introduction of the 50:50 rule. In the guidelines the Department states that an employment permit will not issue unless at the time of application at least 50% of the employees in a firm are EEA nationals. The 50:50 rule is waived in the following circumstances: A start up company where the employer has been registered with the Revenue as an employer within the last two years and the employer has a letter of support from either Enterprise Ireland or IDA Ireland; an employment permit in force at the time of commencement of the 2014 Act i.e. the Act does have retrospective effect; where on the day of the application the employer has no employees and the foreign national would be the sole employee;

The final notable change is the re-introduction of the Labour Market Needs Test that it appears must be satisfied for all applications, although this is not expressly spelt out in the guidelines. We are seeking clarification on this point from the Department. The Labour Market Needs Test requires an employer to advertise the position for a specific period in order to establish that there are no Irish or EEA nationals available to take up the position. There are limited circumstances where the test need not be satisfied that are set out in the guidelines. 

Critical Skills Employment Permit

The Green Card has now been replaced by a Critical Skills Employment Permit. There have not been significant amendments to the eligibility criteria, however, the highly skilled eligible occupations list has been amended. There is again more precision and detail in the eligible occupations. It is still a requirement that when the annual remuneration is between €30,000 and €60,000 an applicant’s proposed occupation must be contained in the highly skilled eligible occupation’s list. Where the annual remuneration is over €60,000 the specific occupation is not relevant provided it is not included on the ineligible categories of employment list. 

Of note is the fact that an employment permit will not be granted to companies unless 50% or more of employees in the firm are EEA nationals at the time of application. There is again an exemption with respect of start up companies within three years of their establishment and which are supported by the Enterprise Development Agencies, Enterprise Ireland or IDA Ireland. 

Other changes

The new regime creates a number of new permits including a Sport and Cultural Employment Permit, an Exchange Agreement Employment Permit and an Internship Employment Permit. The system retains the dependence/partner/spouse Employment Permit, Intra-Company Transfer Permit and Contract for Services Permit and there is a specific Reactivation Permit, which is designed for situations where a foreign national, who entered the State on a valid employment permit but who fell out of the system through no fault of their own, can work legally again. 

It is now a requirement that business users make payments by electronic funds transfer but individuals can still make paper-based payments i.e. by cheque, bank draft or postal order. There are no notable changes in the fee structure. 

We will follow with interest how the new system operates in practice and provide further updates on our blog. 

Rebecca Keatinge

Wednesday, October 1, 2014

Immigrant Investor Programme Update

Individuals considering making an application under the Immigrant Investor Programme should be appraised of the current guidelines that apply a number of new criteria that must be satisfied for an application to be successful.

The most significant development is that investors must establish that they have a minimum net worth of €2 million. There is a specific net asset section on the application form that must be completed and applicants must also provide an explanation of all activities for the previous 12 months period indicating their income, investments and loans. It is clear that the Department requires a comprehensive picture of the applicant’s financial position over the last twelve month period so that they can be satisfied that the applicant has legally acquired a minimum net worth of €2 million. 

The eligible investments available to any applicant have not changed considerably and include one of six forms:- Immigrant Investor Bond, Enterprise Investment, Investment Fund, Real Estate Investment Trusts, Mixed Investment or Endowment. The current guidelines provide clarification and detail in relation to the various categories of acceptable investment. 

The same requirements still apply with respect to provision of evidence of funds for investment and evidence of the source of those funds. The Department will consider the following sources of funds:- business and investment activities, Deed of Sale, inheritance and divorce settlements. 

Evidence that the funds can be transferred to an Irish financial institution must be provided and there is now explicit reference in the guidelines to jurisdictions that have controls over the transfer of currency. Our own experience is that such controls may present an obstacle to certain applicants. 

Finally the good character requirement continues to apply. Any applicant as well as their nominated family members who are over the 16 years old must submit a statement of character from the police authorities of each country in which they have resided for six months during the 10 year period prior to making the application. 

The requirement that the individual evidence that they are of €2 million net worth is likely to limit the number of applicants eligible to apply under the scheme. Our own experience is that the Start Up Entrepreneurship Programme (STEP) is a more attractive alternative, requiring a minimum investment of €50,000. It remains to be seen whether a significant number foreign investors will avail of the investor scheme in Ireland when other countries offer comparable schemes that do not have such high financial thresholds.


Rebecca Keatinge

Thursday, September 25, 2014

Recent Developments in Immigration

Updates from the Minister for Justice and Equality

On the 16th September 2014, Minister Fitzgerald announced new plans to increase the number of civilians carrying out key immigration functions in border management and registration roles. These jobs are currently within the purview of An Garda Siochana but as part of the Minister’s push to get more Gardai out on the streets, these roles are expected to be undertaken by an additional 80 civilian staff. The new programme will see civilians carrying out checks at both Dublin Airport terminals, as well as the transfer of the immigration permission registration function from An Garda Siochana to the Irish Naturalisation and Immigration Service of the Department of Justice and Equality (INIS). The Minister noted that the Gardai “will continue to provide core policing functions at the Airport and support the civilian staff as appropriate”. The full text of the Minister’s press release can be found at: <http://www.inis.gov.ie/en/INIS/Pages/Minister%20Fitzgerald%20announces%20major%20immigration%20civilianisation%20initiative>

On the 2nd September 2014, the Minister announced major reforms of the student immigration and international education sector. This move comes in the wake of a number of private college closures this year. The reforms aim to protect the interests of genuine students, while reducing instances whereby the immigration system can be abused. A recent policy statement sets out three primary pillars of reform: only accredited programmes will be in a position to enrol international students, inspection will be increased to ensure education and immigration standards are maintained, and the non-EEA student work concession will be altered to mitigate abuse. In the course of her statement, Minister Fitzgerald also warned those students affected by college closures earlier in 2014 to regularise their status in the State and ensure they were abiding by current immigration laws. The full text of the Minister’s press release, along with links to the policy statement of the Task Force, can be found at: <http://www.inis.gov.ie/en/INIS/Pages/Ministers%20O%E2%80%99Sullivan%20and%20Fitzgerald%20launch%20major%20reform%20of%20student%20immigration%20and%20the%20international%20education%20sector>

Proposed reforms of Direct Provision Centres

Following increased media reportage into conditions in the State’s Direct Provision centres, in mid-August the Minister for Justice announced that a working group was to be established in the coming month to review the current system. The main issues outlined by the Minister include welfare payments, third-level education access, and support for children. Although Minister Fitzgerald has promised a more efficient application process would be in place by midway through 2015, she also ruled out the possibility of an absolute extension of the right to work to asylum seekers, citing the country’s unemployment issues as cause. While the establishment of a working group has been praised as a positive development by UN agencies, in more recent days that Minister has warned against “unrealistic expectations” in terms of reform. At present some 4,330 adults and children are being housed in Direct Provision centres around the country. Pressure is mounting on the Government to improve living standards, with recent weeks seeing asylum seekers protesting the system and calling for an end to Direct Provision entirely. Full articles on the above can be found at: The Irish Times “Government to review conditions for asylum seekers” 12th August 2014 <http://www.irishtimes.com/news/social-affairs/government-to-review-conditions-for-asylum-seekers-1.1894079> The Irish Times “Minister warns against unrealistic expectations on direct provison” 25th September 2014 <http://www.irishtimes.com/news/politics/oireachtas/minister-warns-against-unrealistic-expectations-on-direct-provision-1.1940425> The Irish Times “Asylum seekers mount protest at Cork direct provision centre” 15th September 2014 <http://www.irishtimes.com/news/ireland/irish-news/asylum-seekers-mount-protest-at-cork-direct-provision-centre-1.1929294>

Immigration, Residence and Protection Bill 2010
As part of her pledge to speed up the asylum process in the coming year, Minister Fitzgerald has committed to the introduction of a Single Procedure Mechanism, as distinct from the provisions of the currently dormant Immigration, Residence and Protection Bill. The Single Procedure Mechanism would allow claims for asylum and subsidiary protection to be made simultaneously. At present, claimants must first seek asylum, regardless of whether they meet the stringent criteria for refugee status. This procedure could theoretically save claimants years of waiting, and has been campaigned for by numerous organisations including the Irish Refugee Council and NASC. Publications and press releases on the above can be found at: “Press release: NASC welcomes renewed government commitment to reform of direct provision” 12 August 2014 <http://www.nascireland.org/latest-news/press-release-nasc-welcomes-renewed-government-commitment-reform-direct-provision/> “Roadmap for Asylum Reform” < http://irc.fusio.net/wp-content/uploads/2011/08/Roadmap-for-Asylum-Reform2.pdf


Brophy Solicitors

Thursday, September 11, 2014

APPLICATIONS FOR DE FACTO PERMISSION IN IRELAND

Since 21st March 2014, INIS have declined to accept applications for De Facto Partnership Immigration Permission in circumstances where the Applicant is present in the State on a C Visit Visa or on foot of the Irish Short Stay Visa Waiver Programme. INIS further clarify on their website that they will not accept applications from persons who are unlawfully present in the State and/or are in the asylum/protection streams at the time of making the de facto application. 

We have several clients who submitted applications while they were lawfully present in the State but since their applications were submitted, their permission has expired or lapsed. We therefore recently sought clarification from INIS as to whether such applications will be processed, despite the current position of the applicant as someone not technically lawfully present in the State. 

INIS have now clarified that applications for a De Facto Relationship Immigration Permission received from non EEA nationals resident in the State who were legally present in the State at the time of application will continue to have their applications processed even in instances where they allow their existing registration or immigration permission to expire. 

In addition, INIS provided important clarification on the position of non visa required nationals. INIS confirmed that applications from non visa required nationals will be accepted provided that on the date the application is received the person concerned has a landing stamp endorsed on their passport permitting lawful entry to the State which is usually afforded for up to 90 days under visitor conditions. 

These changes and our own experience of dealing with many of these applications confirm an increasingly restrictive approach of INIS to De Facto applications. It is our own position that cases must be considered and determined on a case by case basis and absolute restrictions on certain individuals making the application, for example those in the asylum or protection streams, are legally questionable.

Thursday, August 28, 2014

EU TREATY RIGHTS: THE SURINDER SINGH ROUTE AND THE EFFECT OF O V THE NETHERLANDS

On the 9th of July 2012, the UK Home Office implemented major changes to the rules regarding family migration. These new rules make it much more difficult for British nationals to bring their non-EEA family members into the UK. The documentary requirements are cumbersome. The introduction of a £18,000 minimum income has caused a significant barrier with reports suggesting that 47% of the British population would not meet the minimum threshold. Further issues with the minimum income level arise due to the fact that the non-EEA nationals earning potential is not taken into account whatsoever. The rules regarding elderly dependant relatives make it almost impossible to unite with them. Where there is no cross border element to invoke European Union law, these tough and largely insurmountable domestic laws apply.

Paradoxically, if a UK citizen moved to Ireland for the purposes of economic activities, and wished to reunite with a non-EEA family member, EU free movement law applies, making the whole process much simpler and less cumbersome. An application for an EU Family residence card does not require excessive documentary evidence, and there is no minimum income level.

Basically, a case of reverse discrimination has been created between domestic Immigration law and the EU Free movement law. It is clearly more beneficial in terms of family reunification to be a UK citizen in Ireland, or an Irish citizen in the UK.

There is, however, an exception to this general rule.

The Case of Surinder Singh

The Court of Justice judgement in the case of Surinder Singh provides a means whereby EU Free Movement law can be applied for a Union citizen within their own member state. The basic principle derived from Surinder Singh states that the right for a Union citizen to move from one member state to another member state includes the right to return. If by returning, the Union citizen would not be able to take advantage of the more lenient free movement laws, it would be disadvantageous for them to return home. As such, the principle emerged that when the Union citizen returns to their home member state after exercising EU treaty rights in another member state, they are construed as exercising the rights of free movement under EU law. So, on their return, family reunification must be assessed under EU free movement law rather than domestic law.

The Effect of O V The Netherlands

The Surinder Singh principle was further developed by the Grand Chamber of the Court of the European Union in the case of O V The Netherlands. Despite not referring directly to the case, O V the Netherlands provides new, binding guidance on the Surinder Singh principle. Ultimately, O V the Netherlands set out that in order to take advantage of the Surinder Singh principle:

· A 3 month residence period is necessary;

· Holidaying or weekend visits do not qualify for the purposes of calculating the residence period;

· Any union citizen, not just workers or the self employed may benefit from the principle;

· During the required period of residence family life must have been ‘created or strengthened’;

· Abuse of the principle will not be allowed or tolerated.

The Reality
This seeming ‘get out of jail’ card isn’t perfect. The UK Government’s official interpretation of the effect of Surinder Singh is set out in the Immigration (European Economic Area) Regulations 2006 at regulation 9 (as amended) – and it requires that the Union citizen’s “centre of life” has transferred to the other member State. For many people moving their whole life so as to invoke the Surinder Singh route just isn’t an option when considering jobs, families, mortgages, etc.

In Ireland, we do not have specific statutory measures, or even stated policy, on the Surinder Singh principle. From our experience here at Brophy Solicitors; where we are working on a number of these cases, the Department has accepted and applied the principle where evidence has been provided that the Union citizen genuinely exercised their EU treaty tights in the other member state.

Brophy Solicitors