WHEN CAN I APPLY FOR A CONTRACT SERVICE PROVIDER WORK PERMIT?

We have recently advised on a complex query in relation to contract service provider work permits. 

Our client is a foreign company who was seeking to make an application on behalf of three non-EEA nationals due to come to Ireland to complete work under a contract service provider agreement. The problem arising for our client is that while they are the employers of the non-EEA nationals, they are not party to the contract to provide services to a large Irish entity. A different foreign company was the contracting party. Our client was instead a sub-contracted third party and this presents difficulties with respect of the application for such a work permit. 

Contract service provider work permits are issued in circumstances where a foreign undertaking has won a contract to provide services to an Irish entity on a contract for services basis. The permits are designed to facilitate the transfer of non-EU employees to work on the Irish contract in Ireland provided certain criteria are met. These criteria are distinct to the criteria for a straight forward work permit and include the following requirements: 

• Employees must have worked for the foreign company for a minimum of six months prior to the application. 
• The duration of the transfer must be at least 90 days. 
• The employees should be in receipt of total remuneration of €40,000 or more, in circumstances where the employee is on a non-Irish payroll. 
• For remuneration between €30,000 and €40,000, the employees must be on an Irish payroll. 
• In the calculation of remuneration, the Basic Maintenance Allowance, per diems and housing and other benefits may be included. Each application must include a spreadsheet showing the calculation of remuneration details.
• If the occupation is one listed under the Highly Skilled Occupations List, then there will be no need to undertake any labour market needs test. The labour market needs test applies in the case of all other occupations.
• A Tripartite Agreement, between the foreign company, the employee and an Irish host entity is necessary where the employee remains on the foreign payroll.
• The Irish host company must be the applicant for the purposes of the application. 

It is essential to note that the contract for services must be a one to one contract with an Irish entity. This type of work permit will not issue in instances where work is being subcontracted to a third party and that third party is the employer of the applicant employees. In such circumstances, it will be necessary to consider other options such as an intra-company work permit application or straight-forward work permit application. 

Rebecca Keatinge

Brophy Solicitors

ROMANIAN AND BULGARIAN PARENTS OF IRISH CITIZEN CHILDREN TO HAVE UNRESTRICTED ACCESS TO THE LABOUR MARKET

We have been informed that a Government decision was reached on the 28^th February last to permit Romanian and Bulgarian parents of Irish citizen children unrestricted access to the Labour Market with immediate effect. We understand that notice of this change will be posted on the Department of Job, Enterprise and Innovation this week.

It seems that this change in the law will be automatic, and immediate; Therefore Romanians and Bulgarian who arrived in the State from 2007 onwards and who are the parents of Irish citizen children will not be required to apply for work permits in order to be legally employed in the State. For those already in employment, they will be automatically regarded as legally employed.

The decision comes following a number of cases, which have recently been issued in the High Court to challenge the State’s policy to exclude Romanian and Bulgarian parents of Irish citizen children from the ambit of the Zambrano judgement. In one such case taken by this office, we claimed on behalf of our client that the State had acted unlawfully in failing to give preference to him, as a citizen of the European Union, over third country nationals in respect of access to the labour market in the State. Furthermore, it was argued that the State had acted unlawfully by discriminating against the applicants as families consisting of Irish citizen children with a Romanian/Bulgarian parents by treating them less favourably in respect of the parent’s access to the labour market when compared with families consisting of an Irish citizen children with a third country national parent.

We very much welcome the State’s change in position to accept that all Romanian/Bulgarian nationals, who are parents of Irish citizen children, must have full access to the Labour Market.

Brophy Solicitors