NEW CHANGES IN EMPLOYMENT PERMIT APPLICATIONS

The Irish Immigration Blog

The Department of Jobs, Enterprise and Innovation has set out an updated list of changes relating to employment permits. 

‘Following a review of the Employment Permits system and the current skills needs in the labour market, Employment Permits policies have been updated to ensure a balanced and renewed policy rationale for Employment Permits to facilitate access to skilled workers where there are skills shortages in the Irish and EEA labour market.

The primary changes are outlined below and will be made effective for all applications considered from 10th April 2013 onwards. It should be noted that any applications received before 10th April will be processed in line with the revised rules which are inherently designed not to disadvantage such applications.

1. The Highly Skilled Occupations List (previously referred to as ‘eligible occupations list for Green Cards’) has been broadened and updated to correlate with known shortages of key skills in the labour market. Whereas before eligibility in respect of a particular job title was confined to a particular sector, the highly skilled eligible occupations are now permissible across all sectors in recognition that a particular skill in short supply will be experienced across all sectors which require that skill.

2. The labour market needs test i.e. the requirement for advertising with the Department of Social Protection’s employment services (previously referred to as FÁS) has been reduced from 8 weeks to 2 weeks and the requirement to advertise in a national newspaper has been reduced to 3 days. Whereas before there was a further requirement to advertise in a local newspaper there is now an option to advertise in a local newspaper or on a job’s website for 3 days.

3. The Ineligible Categories of Employment for Employment Permits list of occupations has been updated to cater for particular shortages in relation to certain occupations involving the necessity of being able to communicate in a non-European Economic Area language.

4. The employment permits applications forms have been amended to reduce the requirements to submit additional documentation. In tandem with this there will be greater focus on the random checking of employment permits by the National Employment Rights Authority (NERA) to ensure adherence to the relevant legislation.

5. An initiative has been taken by this Department and the Department of Justice and Equality to provide a more coherent service across both the Employment Permits regime and the Visa regime. Certain categories of non-EEA immigration permission holders, who have been offered employment in an occupation included in the Highly Skilled Occupations List will now be allowed to apply for an Employment Permit, whilst already legally residing in the State. Also the Department of Justice and Equality (INIS) intends to facilitate job interviews for highly skilled candidates and provide measures to permit persons to be employed in the State on a short term basis i.e. between 14 and 90 calendar days. Further details are available on the Department of Justice and Equality (INIS) website.

6. Current holders of Intra-Corporate Transfer Provider Employment Permits and Contract Service Provider Employment Permits can now apply for other types of Employment Permit subject to the normal criteria.

7. The current employment permits website has been updated to improve information and customer service.

8. For IT graduates of foreign colleges and for technical or sales support roles with non-EEA language requirements, the remuneration threshold is reduced from the current €30k p.a. to €27k p.a. in respect of employment permits applications under the Work Permits category.

9. To assist clarity, income requirements will be based on ‘remuneration’ rather than ‘salary’ for all types of employment permits where items of remuneration are demonstrated on payslips or P60s.

10. The appeals process will be more efficient and transparent and will now, instead of reviewing the application afresh, only reference the stated reasons for a refusal as provided in a decision to refuse.

11. Changes have been made to our internal procedures to reduce the time it takes to process applications with a commitment to speeding up processing by at least 10 days.

12. To facilitate queries in relation to the new procedures, the Employment Permits call centre will extend its normal opening hours.

These changes mark the beginning of a programme of change now underway. It is intended that over the course of the next 6 months further enhancements will include:

• the use of a single application form which will electronically guide the applicant through the form;

• migration of website information to a new platform and better information linkages with the relevant aspects of the Department of Justice and Equality’s visa regime;

• new Department of Justice and Equality pilot initiatives to be announced in the Summer;

• online querying of an Employment Permit application’s status; and

• expanding the availability of the telephone Call Centre.

In the medium term, the Department also intends to conduct a Business Process Re-engineering review of its processing system in light of proposed legislative changes and to facilitate the development an online applications system.

The changes are engineered to ensure that Ireland has an attractive Employment Permits regime for employers and prospective employees to facilitate access to skilled foreign nationals in areas where there are demonstrable skills shortages especially in the ICT sector. The employment permits regime complements other Government initiatives especially in the education sector aimed at increasing the domestic supply of skilled labour and will therefore be adjusted accordingly over time as and when sufficient domestic supply becomes available.’

Brophy Solicitors

The Irish Immigration Blog

Delays on Issuing Temporary Stamp 4 and EU FAM Five-Year Cards

We have noted considerable delays within the EU Treaty Section which is a cause for concern for many of our clients. Rather than decisions on their applications after 6 months, some have received temporary two month visas and a request for further documents! Original documentation was always returned rather promptly but we have daily requests from clients seeking the urgent return of important documentation which remains with the Department for several weeks. We hope that matters proceed as normal and within reasonable time frames as soon as possible as such delays cause genuine problems for clients who wish to travel, work and maintain their employment in the State.

EUTR and Dependent Family Members

CASE SYNOPSIS:

Secretary of State for the Home department V Muhammad Sazzadur Rahman, Fazly Rabby Islam and Mohibullah Rahman – Opinion of the Advocate General delivered March 27th 2012

 

We are frequently encountering cases concerning EU Treaty Rights Law relating to other family members and or so called permitted family members. The concept of dependency is often at the core of such cases many of which include dependent siblings of the spouse of the EU National who has already been permitted to reside in the State in conformity with Directive 2004/38EC. Many of our cases have proceeded to review stage for failure to establish that the non EEA family member is a ‘qualifying or permitted family member’ in accordance with the Directive. In other words, dependency has not been established. One of our cases concerns a 23 year old male suffering from brain damage pursuant to a life threatening operation he underwent in the State. His elder brother, who is the spouse of an EEA national lawfully residing in the State, together with his wife fully support the applicant both financially and emotionally. His medical bills and expenses are fully discharged by his brother and his brother’s wife who provide accommodation, money and full-time care to the applicant who remains unwell. We are currently awaiting a decision on whether the applicant will be permitted to remain in the State as a family member or a dependant on the EEA national and as a dependant on the spouse of the EEA national.

 

 

We draw your attention to last year’s decision of the ECJ in Rahman concerning the notion of a ‘dependant’ and Article 3 (2) of the Directive:

 

This case reviewed the conformity of UK legislation with Directive 2004/38EC.

 

The case involved a Bangladeshi national who married and Irish national who was working in the UK. His brother, half brother and nephew applied for residence permits in the UK as family members of a national of an EEA state.

 

Their original application was rejected by the Secretary of State for the Home Department (SSHD) and they appealed to the immigration judge who granted the application on the basis that they were dependants and directed that their case be considered in line 17(4) of the 2006 regulations which provides for the decision maker to exercise their discretion in such matters. The SSHD sought reconsideration of the case by the upper tribunal which decided to stay the proceedings stating that whilst the case raised a factual question as to whether or not there existed a situation of dependency, it also raised legal problems, the resolution of which required a clear understanding of the scope of the provisions of EU law. A number of different issues were raised.

 

 

The core issue was whether or no article 3(2) of the Directive requires a Member State to make legislative provision to facilitate entry to and or residence in a member state to the class of other family members who are not nationals of the European Union who can meet the requirements of article 10 (2) of that Directive?

 

Article 3(2) of the Directive stipulates that:

 

“ Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

 

Any other family members, irrespective of their nationality (…) in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union Citizen.

 

The Partner with whom the Union Citizen has a durable relationship, duly attested, The host Member State shall undertake and extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people. “The court held that the ‘fundamental right to private and family life may, in principle be relied on by all categories of person mentioned in Article 3(2) of Directive 2004/38.’ The Court concluded that in this case Mr Rahman’s private and family life had been impaired by the failure of the UK authorities to issue residence permits to his brother, half brother and nephew.

 

It so follows that Art 3(2) ‘must be interpreted as requiring Member States to adopt the measures necessary to facilitate entry and residence in their territory for all persons coming within the scope of that provision. Additionally, the primary law of the EU ‘precludes a member state from refusing a national of a non member country who comes within the scope of that provision residence in its territory in the case where that national wishes to reside with a member of his family who is a Union citizen, where such a refusal has the effect of unjustifiably impeding the exercise of the Union citizen concerned to move freely within the territory of the member states or causes disproportionate impairment of his right o respect for private and family life.’

 

The Court surmised that Article 3(2) of Directive 2004 /38 must be interpreted to the effect that:

 

• It precludes national legislation which limits the scope of that provision to other members who resided in the same state as the Union national before the Union national came to the host Member State
• The notion of ‘dependent’ does not imply that dependency existed shortly before the Union national came to the Host Member state and..
• It does not preclude national legislation which makes entry and residence for a national of a non-members country subject to conditions as to the nature or duration of dependency, provided that those conditions pursue a legitimate objective, are appropriate for securing the attainment of that objective and do not go beyond what is necessary to attain it.

 

 

We will keep you posted as to our further developments on cases concerning dependent family members of EU nationals.