1st November 2019
Heather Humphreys TD, Minister for Business Enterprise and Innovation today published the General Scheme of the Employment Permits (Consolidation and Amendment) Bill 2019.
A Review of Economic Migration Policy conducted at the Minister’s request last year indicated that while the current employment permits vacancy led system provides a robust basis for the management of economic migration, the current legislation imposes considerable inflexibilities on the operation of the system.
Among its recommendations, the Review proposes that changes be made to the Employment Permit Acts to make the system more agile and easier to modify to meet changing economic circumstances and to keep pace with technological and process changes as they arise.
Publishing the General Scheme of the Bill, Minister Humphreys said, “The proposed legislation will increase the agility and responsiveness of Ireland’s economic migration system to meet skills and labour needs, while continuing to safeguard the labour market and support the employment rights of permit holders. I want to modernise the system and ensure that it is capable of adapting to changes in the future as well as fluctuations in demand across the economic cycle.”
An entirely new Bill is proposed as any further amendment to the Employment Permit Acts 2003-2014 would significantly increase the complexity of the current legislative framework. The Minister said “The consolidation of the existing legislation in this new Bill will enhance the statute’s accessibility and improve the transparency of our regulatory process. It will incorporate the recommendations of last year’s Review while retaining the core focus of a vacancy led employment permits system focussed on meeting the skills and labour needs in the State”.
The Minister continued “Among other things, I am proposing to introduce a seasonal employment permit. Ireland is outlier in not having this permit type and I want to better cater for short stay and recurrent employment in sectors like horticulture, farming and tourism”. She added: “In addition, I am providing for an extensive revision of the Labour Market Needs Test. This is a requirement whereby employers need to firstly advertise vacancies within Ireland and across the EEA. The overhaul will make it more relevant, efficient, and modernised to reflect current advertising practices. It will also ensure that the test is more targeted and effective in reaching Irish and European jobseekers in the first instance”
The Minister also intends to introduce a Special Circumstances Employment Permit. This will cater to a number of instances including bilateral reciprocal agreements with other States. It could be used, for example, to address a need for a very unusual but critically important skillset for which no formal training is available in Ireland.
As well as addressing recommendations from the Review, the General Scheme of the Employment Permits (Consolidation and Amendment) Bill 2019 will strengthen Ireland’s economic migration system in terms of operational issues. These include:
- Streamlining the processes for Trusted Partner and renewal applications.
- Improve the agility of the system by moving operational processes to Regulation for easier modification as circumstances require.
- Allow for the refund of fees where the employment permit cannot be taken up in prescribed circumstances.
- Simplifying the definition of remuneration and requirements around it as the current level of complexity has created difficulty for users of the employment permits system.
The Minister will be consulting widely with stakeholders on the proposals prior to the finalisation of the drafting process. The Department of Business, Enterprise and Innovation will now engage in Pre-Legislative Scrutiny and will work with the Office of the Attorney General in preparing the legislation.
ENDS
Note for the Editor
The General Scheme of an Employment Permit (Consolidation and Amendment) Bill 2019
The Review of Economic Migration Policy which was completed in September 2018 concluded that, while the employment permits system provides a robust framework to supplement skills and labour needs in the State, the current legislation imposes considerable inflexibility in its operation.
In order to increase the agility and responsiveness of the system, to modernise it and to ensure that it is capable of adapting to technical and process changes in the future and to fluctuation in demand, the Review recommended that new legislation be initiated.
In this regard the Review recommended that the system’s agility be increased to be able to more quickly respond to both growth and contraction in labour demand, and to align the criteria for employment permits to the changing needs of the economy by restructuring the legislation to ensure that the systems operational details and processes are prescribed in Regulations.
The policy underlying the economic migration system is one where the system should synchronise to the greatest extent possible with the skills and labour needs in the economy, while prioritising the Irish and EEA labour pool. The proposed changes are intended to improve the system’s flexibility without changing this variable.
Key changes proposed in the proposed new legislation
- A Seasonal Employment Permit to be introduced – Ireland is an outlier in not having this form of permission, it is proposed to design a short-term employment permit with criteria to cater for short-stay and recurrent employment situations in sectors where this type of employment occurs
- Changes to the labour market needs test to move operational features of the process into Regulations, in order to allow swift adaption to changing hiring practices used by enterprises. The current prescription in primary legislation for advertising in specified media e.g. national newspapers will be removed, and the advertising process will be set out in Regulations.
- The introduction of a special circumstances employment permit to address a need that may arise from time to time for grant of an employment permit in circumstances which do not conform to the standard criteria for an employment permit, but where such grant would nevertheless prove beneficial for social or economic development in the State. Examples include bilateral reciprocal agreements with other States or for occupations with an unusual unique skill set for which no formal training is available in Ireland.
- A change to allow the 50:50 rule (which requires that 50% of an employer’s staff be EEA nationals before an employment permit may be granted) be waived in all cases where the permit holder would be the sole employee. This would be subject to the employer demonstrating that they have made efforts to recruit from within Ireland and across the EEA in the first instance. The redrafting will impose the 50:50 requirement from the point at which a second employee is contracted.
- Streamlined processes for Trusted Partner and renewal applications.
- Improve the agility of the system by moving operational processes to Regulation for easier modification as circumstances require.
- Make adjustments to allow for persons undertaking duties in the State on the basis of international free trade agreements to which the State, as a Member State of the EU, is party
- Allow for the refund of fees where the employment permit cannot be taken up in prescribed circumstances.
- The definition of remuneration and requirements around it are to be examined and simplified as its current level of complexity has created difficulty for users of the employment permits system.
Background
The Employment Permits System
The Irish State’s general policy is to promote the sourcing of labour and skills needs from within the workforce of Ireland, the European Union and other EEA states. Policy in relation to applications for employment permits remains focused on facilitating the recruitment from outside the EEA of highly skilled personnel, where the requisite skills cannot be met by normal recruitment or by training. Employment permit policy is part of the response to addressing skills deficits which exist and are likely to continue into the medium term, but it is not intended over the longer term to act as a substitute for meeting the challenge of up-skilling the State’s resident workforce, with an emphasis on the process of lifelong learning, and on maximising the potential of EEA nationals to fill our skills deficits.
The Occupations Lists
The employment permits system is managed through the use of lists designating highly skilled and ineligible occupations. The lists are reviewed twice a year to ensure their ongoing relevance to the State’s human capital requirements. The review process utilises research undertaken by the Expert Group on Future Skills Needs (EGFSN) and other experts in the labour market, including the Skills and Labour Market Research Unit (SLMRU) at SOLAS. The Department also invites submissions from industry representatives, other Government Departments and any other stakeholders who might have a case to make, via a twice-yearly open consultation on the Department’s website. Since the Review of Economic Migration Policy which took place in 2018, the Minister has taken advice on economic migration from the Inter-Departmental Group which managed the review process.
The Employment Permits system is designed to attract highly skilled workers from outside the EEA to Ireland, to meet skills demand in the economy where those skills can’t be accessed through the resident labour force. For the purposes of the employment permits system, occupations fall into three categories:
- Occupations listed on the Critical Skills Occupations List are highly skilled professional roles that are in high demand and are not always available in the resident labour force. Occupations on this list are eligible for a Critical Skills Employment Permit (CSEP) and include roles such as medicine, ICT, sciences, finance and business. Special “fast-track” conditions attach to this permit type including the eligibility to apply to the Department of Justice and Equality for family members to accompany the permit holder immediately; and after two years may apply for permission to work without the requirement for an employment permit. The current minimum remuneration thresholds for a CSEP are €30,000 and €60,000, differentiated by qualification and experience levels.
- Ineligible occupations are those with evidence that there are more than enough Irish/EEA workers to fill such vacancies. Employment permits are not granted for these occupations. Ineligible occupations are generally lower skilled occupations such as personal services and operatives.
- Every other job in the labour market, where an employer cannot find a worker, are eligible for an employment permit. For these occupations, the employer is required to undertake a Labour Market Needs Test (i.e. advertise the job for two weeks) and if no-one suitable applies for the job, the employer is free to apply for an employment permit. Occupations such as these may be skills of a more general nature and are eligible for a General Employment Permit (GEP). This permit type is renewable and after five years the applicant may apply to the Department of Justice and Equality for long term residency permission. The current minimum remuneration thresholds for this permit type are €30,000 plus €27,500, €27,000 and €22,000 as exceptions for certain categories of employment.
The Critical Skills and Ineligible Occupations Lists Review
It is vital that the employment permits schemes are responsive to changes in economic circumstances and labour market conditions. Therefore it is necessary to review the Critical Skills and Ineligible Occupations Lists on a regular basis, in accordance with the changing needs of the labour market.
The employment permits regime is designed to facilitate the entry of appropriately skilled non-EEA migrants to fill skills shortages. However, this objective must be balanced by the need to ensure that there are no suitably qualified Irish/EEA nationals available to undertake the work and that the shortage is a genuine one.
An occupation may be considered for inclusion on the highly skilled list or removal from the ineligible lists provided that:
- shortage exists across the occupation, despite attempts by industry to train and there are no suitable Irish/EEA nationals available to undertake the work;
- development opportunities for Irish/EEA nationals are not undermined;
- genuine skills shortage exists and that it is not a recruitment or retention problem;
- the Government education, training, employment and economic development policies are supported;
- the skill shortage exists across the occupation, despite attempts by industry to train and attract Irish/EEA nationals to available jobs.
ENDS
The Department of Business, Enterprise and Innovation (DBEI) plays a key role in implementing the Government’s policies of stimulating the productive capacity of the economy and creating an environment which supports job creation and maintenance. The Department has lead responsibility for Irish policy on global trade and inward investment and a remit to promote fair competition in the marketplace, protect consumers and safeguard workers.
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