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

UPDATE - GOOD NEWS ON WORK PERMIT APPLICATION

Many clients have attended our offices recently and expressed concern about how difficult it is to secure a work permit at present. We are pleased to report however that we recently received another positive decision in a work permit application. 

Our client has been in the State since 20007 and has resided as a student on Stamp 2 permission. Our client had made two previous applications for a work permit that had been rejected partly on the basis that the proposed job was not suitable and did not fit within the work permit criteria. Our client is extremely well-qualified however and with our advice, was able to show that the job offer did fit within the criteria and he was indeed eligible. 

The key to success in this and other recent cases we have dealt with is ensuring that the applicant provides sufficient supporting documentation and squarely addresses any issues arising in the previous applications that have been refused. 

Our client is extremely pleased with the outcome as is his employer, who believes the particular skills and experience of his new employee will help grow the business and create more employment in the future.

Rebecca Keatinge

Brophy Solicitors

Failure to conform with Work permits and Vocational Training Commitments.

A review of Ireland’s compliance with the European Social Charter has found that fees for work permits are ‘excessive’ while there is a lack of equality of access to vocational education. A Council of Europe report found that Ireland is failing to conform with international commitments on access to work and vocational education for migrants, according to the Immigrant Council of Ireland.Work permit fees have dramatically risen from the range of €65-500 in 2007 to the present levels of €500-2,250. The Committee ruled the fees being charged are excessive and are likely to prevent or discourage foreign workers from gainful employment as well as leaving them open to exploitation my employers who are unwilling to pay the fees. This increase is on top of the doubling of the immigration registration fee for many people from outside the European Economic Area implemented last November. These fees are being applied to people who are legally here and contribute to our economy.

This report shows that there is much work required to ensure Ireland is more welcoming to those who wish to contribute to our society. The failure to ensure equality of access to vocational education and grant support as highlighted in the report makes for disturbing reading and shows a lack of equality which must end. It is necessary that the Government ensures Ireland becomes fully compliant with international commitments made under the European Social Charter, so as access to work and education is fair and open to all.

To access the statement of the Immigration Council in relation to the report: http://www.immigrantcouncil.ie/media/press-releases/630-council-of-europe-report-raises-serious-equality-issues-ireland-fails-to-conform-with-work-permit-and-vocational-training

Brophy Solicitors

05.02.13

Social Welfare Benefits Refused on basis of Delay in Seeking Judicial Review and not holding a Work Permit in the State

Case Study: Solovastru & Anor v The Minister for Social Protection [2011] IEHC 532

The first named applicant sought a judicial review of a number of decisions in relation to his application for jobseekers allowance, welfare allowance and rent supplement.

The second named applicant sought to judicially review the decision in relation to her application for child benefit.

The first named applicant, a Romanian national, arrived in the state in September 2004. He first worked as a carpenter, then for a company and was subsequently self-employed from 2007 to 2008 as a metal fixer. He stated that he was not aware that a work permit was required to work in the state. The second named applicant came into the state in February 2007 with her three children, and a further three children were born to her in the state.

The first named applicant was refused jobseekers allowance in 2009, and his appeal was refused in 2010. He was also advised that he did not meet the requirements to receive welfare allowance and rent supplement. The second named defendant was refused child benefit in April 2009.

The respondents contended that the applications for leave to apply for judicial review were not made promptly and consequently the applicants were not entitled to bring their applications. The second named applicant failed to explain why she did not make an application for judicial review promptly. Due to this delay the High Court was satisfied that she was not entitled to seek leave to apply for judicial review in respect of the decision to disallow her the provision of child benefit

The respondent contended that the first named applicant failed to act promptly in bringing an application for certiorari. The High Court held that the applications for relief by way of certiorari could be maintained as there was correspondence taking place between the solicitors on behalf of the applicant and so he was trying to deal with the matter and acting promptly.

The first named applicant was permitted to reside in the jurisdiction as a self-employed person, but since he is no longer self-employed he is no longer entitled to a right of residence. The High Court acknowledged that under EU regulations the right of EU citizens to reside in another member is restricted. The first named applicant was unlawfully present in the country prior to the accession of Romania to the European Union. He was subsequently engaged in paid employment, but by virtue of the transitional measures contained in Annex 7 in relation to Romanian nationals, he was still bound by existing national rules and obliged to have a work permit to enter into employment.

This means that he was not lawfully employed in the jurisdiction and did not have a right of residence and so is not entitled to seek jobseekers allowance without a work permit.

The issue in relation to supplementary welfare allowance and rent supplement was dependent on the outcome of the situation in relation to jobseekers allowance. Therefore the court concluded that the first named applicant was not entitled to those allowances either and there is no basis for challenging the decisions made by the respondent in respect of those allowances.

Brophy Solicitors

22.05.12

     

“IMMIGRATION IS, ON THE WHOLE, GOOD FOR ECONOMIES”

We were interested to read the article 'Let Them Come' in this week’s Economist that concludes: “Immigration is, on the whole, good for economies.”  

The Economist argues that migrants are generally good for rich countries, even in these recessionary times. The flexibility and willingness of new workers migrating in can boost productivity and encourage innovation. But when economies are at low ebb, governments are reluctant to leave migration flows to the labour market and are quick to reintroduce limited border controls, they argue.

Such a response is starkly illustrated in the UK with the introduction of the points based immigration system and the recent so-called ‘cap’ on inward immigration. But even such efforts to control inward migration do not always work. An article in the Guardian newspaper last week commented on the actual rise in immigration into the UK as EU migrants arrive to fill gaps in the employment market.

Meanwhile, here in Ireland, we have seen a progressive tightening of the rules on employment permits. Our own experience shows that it is becoming increasingly difficult for applicants to obtain permission to work in the State. In visa refusals, we see the oft-repeated argument that the applicant risks becoming a burden on the State: economic considerations are alive and well in the Department.

But the Economist makes some sound arguments in favour of flexibility and leaving economic migration flows to the labour market. Migrants are needed to fill skills gaps; they provide a flexible, mobile work force. When they are here, they work hard and are valued employees. Concerns about public services and immigration in such hard times are understandable. But immigration is generally good and even in these tough times, the government should think twice before tightening border controls any further.

Brophy Solicitors

30.08.11

Work permits for Romanian and Bulgarian Nationals

ROMANIAN AND BULGARIAN NATIONALS

EEA nationals become lawfully resident in other Member State if they exercise their EU Treaty Rights in one of the following ways - work/self employed/study/self sufficient. This is set out in Directive 2004/38, the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended). Romanian and Bulgarian nationals are an exception to this general rule because the Irish government opted to place special restrictions on the right to work for Bulgarian/Romanian nationals. Since 1 January 2007 nationals of Romania and Bulgaria, although EU nationals, may be required to have an employment permit for a continuous period of 12 months to work in Ireland.  All Romanian and Bulgarian nationals, other than those who have been resident in the State on a employment permit, expiring on or after 31 December 2006, for a continuous period of 12 months, are required to have employment permits. Applications for work permits for them will be given preference over those for non-EEA nationals. However, the restrictions are specific to employment permits.  Therefore, it seems to be that if the Romanian or Bulgarian national becomes self employed, they avoid the employment permit restrictions and acquire lawful residency on the basis of Directive 2004/38.

This point is currently being challenged in the High Court, in a case taken by Mr Solavastru and family. See Irish Times Article dated 3rd March 2011.

Karen Berkeley, Brophy Solicitors

10.03.11