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Employing Non-EEA Nationals – Your Questions Answered

by Laura Graham, Senior Associate in the employment law team at Reddy Charlton Solicitors

What should Irish Employers know before employing non-EEA workers?
To legally work in Ireland non-EEA nationals, unless they are exempted, are required to have an employment permit. An employment permit is a one page document confirming Employer/Employee details, duration, place of employment, the labour industry in which employment is authorised and permitted number of hours of work per week. An employment permit is processed by the Employment Permits Section at the Department of Business, Enterprise and Innovation.

In What Circumstances can an Employment Permit be applied for?
Before applying for an employment permit for a non-EEA national it is necessary that the employer has taken every reasonable effort to recruit an EEA national for the employment offered. Only in circumstances where there is no suitably qualified EEA candidate can an employment permit application for a non-EEA national applied for.

What is required in order to show that a reasonable effort to recruit an EEA national was undertaken?
To comply with the requirement that a reasonable effort to recruit an EEA national was undertaken an employer is required to advertise the vacancy through a number of different media. This exercise includes:-

  • advertising the vacancy with the Department of Employment Affairs and Social Protection Employment Services/EURES employment network for at least 2 weeks; advertising in a national newspaper for at least 3 days
  • advertising in either a local newspaper or jobs website (separate to Department of Employment Affairs and Social Protection/EURES websites) for 3 days.

The advertised vacancy must include the following information:-

  • a description of the employment;
  • the name of the employer;
  • the minimum annual remuneration;
  • the location/s of employment; and
  • the hours of work.

Are there categories of employment where a non-EEA national can be employed without compliance with the adverting requirements?
An employer is allowed to skip the advertising of the vacancy and can apply for an employment permit in the following circumstances:-

  • where the job is an occupation included on the Highly Skilled Eligible Occupations List;
  • where the job offer is in respect of an eligible employment with a minimum annual remuneration of €60,000;
  • where a recommendation from Enterprise Ireland or IDA Ireland has been made in relation to the job offer (this applies to client companies of Enterprise Ireland or IDA Ireland only);
  • where the job offer is for a carer of a person with exceptional medical needs and the non-EEA national has been providing care to the person before the application was made and that person has developed a high level of dependence on that non-EEA national.

What are the requirements for the Employer?
To apply for an employment permit for non-EEA national an employer must be a genuine employer registered with the Revenue, Companies Registration Office and other relevant agencies. The employer must be trading in Ireland (there is an exception where the concerned company has been operating for less than 2 years since its establishment in Ireland).
An employment permit will not be issued where the number of non-EEA employees exceeds the number of EEA employees at the date of the application.
The 50-50 percent ratio of the non-EEA and EEA employees is only waived where:

  • the company is a start-up company which registered with Revenue as an employer within previous two years and is a client of either Enterprise Ireland or IDA Ireland and either Enterprise Ireland or IDA Ireland have made a recommendation to that effect;
  • on the day on which the application is made the employer has no employees and the foreign national will be the sole employee.

What are the requirements for the non-EEA national?
There are a number of conditions which a non-EEA national must satisfy before an employment permit is issued. Conditions include:-

  • minimum annual remuneration of at least €30,000;
  • the employment for which an employment permit is applied is not on the list of Ineligible Categories of Employment;
  • the non-EEA national must have the relevant qualifications, skills or experience for the employment concerned

In some limited circumstances the Department permit the remuneration to be below €30,000. For instance non-EEA graduates can apply for an employment permit where the salary on offer is €27,000. In the case of an employment permit in the sector of sports and entertainment the requirement is that an employee is paid at least a minimum national hourly rate which is currently €9.55.

What occupations are eligible for the purpose of an employment permit?
All occupations which are not on the Ineligible Categories of Employment List and are not contrary to public policy are eligible for the employment permit.
The Ineligible Categories of Employment List encompasses some the following occupations which do not qualify for an employment permit:-

  • Managers in Hospitality and Leisure Services;
  • Managers in Health and Care Services;
  • Therapy Professional;
  • Welfare Professionals;
  • Sales, Marketing and Related Associate Professionals;
  • Administrative Occupations: Government and Related Organisations;
  • Skilled Metal, Electrical and Electronic Trades Supervisors.

Are there occupations which Ireland gives a special treatment for the employment permit purposes?
Highly Skilled Eligible Occupations List names all occupations which are eligible for a Critical Skills Employment Permit.
Most popular occupations which are on the Highly Skilled Eligible Occupations List are as follows:-

  • Natural and Social Science professionals
  • Engineering professionals;
  • ICT professionals;
  • Health professionals;
  • Teaching and Educational professionals;
  • Business, Research and Administrative professionals;
  • Sales, Marketing and Related Associate professionals.

A holder of a Critical Skills Employment Permit is entitled to have his family members join and accompany in Ireland. After two years on a Critical Skills Employment Permit a non-EEA national can apply for a Long Term Residency.

About the author
Laura is a Senior Associate in the employment law team in Reddy Charlton Solicitors. As an employment law specialist, Laura has significant experience in assisting employers and employees on the full range of legal issues that may arise during the employment relationship.
As well as providing advice on day-to-day issues such as employment contracts, managing grievance and disciplinary issues, workplace leave, restrictive covenants and reorganisations, Laura also has strong experience in advising on transfer of undertaking situations, and contentious employment disputes before the Workplace Relations Commission and the Irish Courts.
Working closely with the commercial team, Laura is attuned to the importance of seeking a balance between the commercial needs of business and the management of a business’ most valuable resource, employees.
As the firm’s risk management manager, Laura recognises the importance of having robust policies and procedures in place and has strong experience in drafting policies and procedures, handbooks and contractual documents.
Laura is a member of the Employment Law Association of Ireland and is a Registered Trade Mark Attorney.

Categories: Legal

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