Employment Permits Act 2006

1. Interpretation. (Act Repealed)

1.—(1) In this Act—

F1["Act of 1963" means theRegistration of Business Names Act 1963;

"Act of 1967" means theRedundancy Payments Act 1967;

"Act of 1997" means theTaxes Consolidation Act 1997;]

"Act of 2003" means the Employment Permits Act 2003;

F1["Act of 2010" means theCivil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;]

"application" means an application under section4;

F2[…]

“citizen” means an Irish citizen within the meaning of the Irish Nationality and Citizenship Act 1956;

F1["civil partner" means a civil partner within the meaning of the Act of 2010;

"civil partnership registration" has the meaning assigned to it by the Act of 2010;

"connected", in relation to the connection between a connected person and a foreign employer, means—

(a) the connected person is a subsidiary of the foreign employer,

(b) the foreign employer is a subsidiary of the connected person,

(c) the connected person and the foreign employer are both subsidiaries of a holding company that carries on business in the State or outside the State, or

(d) the connected person and the foreign employer have entered into an agreement with another person whereby each of them agree to carry on business or provide services with each other in more than one state and to carry on business or provide services in the manner provided for in the agreement;

"connected person" means a person carrying on business in the State who is connected to a foreign employer;

"contractor" shall be construed in accordance with section 2(1A)(b) of the Act of 2003;

"contract service agreement" means the agreement referred to in section 2(1A)(b) of the Act of 2003;

"date of dismissal", in relation to a foreign national who is dismissed by reason of redundancy, has the meaning assigned to it by section 2 of the Act of 1967;

"dependant" means a foreign national who—

(a) has been determined by the Minister for Justice and Equality to be a dependant of a primary permit holder or a research project researcher,

(b) has, since he or she landed in the State, resided in the State on a continual basis,

(c) is not in full-time education, and

(d) resides with the primary permit holder or the research project researcher referred to inparagraph (a);

"Directive 2005/71/EC" means Council Directive 2005/71/EC^1of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research;

"dismissed by reason of redundancy" means—

(a) the dismissal by an employer from employment within the meaning of section 9 of the Act of 1967, and

(b) the dismissal is—

(i) attributable wholly or mainly to the condition specified in paragraph (a), (b), (c), (d) or (e) of section 7(2) of the Act of 1967, or

(ii) a dismissal referred to in section 21 of the Act of 1967;]

“economic sector” means a sector of the economy concerned with a specific economic activity requiring specific qualifications, skills or knowledge;

“employer” means the employer (as defined in the Act of 2003) who—

(a) employs a foreign national pursuant to an employment permit, or

F3[…]

“employment permit” means an employment permit granted under section8;

F2[…]

F1["enactment" has the meaning assigned to it by theInterpretation Act 2005;

"enterprise development agency" means Enterprise Ireland or the Industrial Development Agency (Ireland);

"exchange agreement" means an agreement, including an international agreement to which the State is a party, that provides for the reciprocal employment—

(a) of citizens, or certain citizens, in the state in which a contracting party is located, and

(b) in the State, of foreign nationals, or certain foreign nationals, of a contracting party;

"foreign employer" means a person carrying on business outside the State;

"health insurance" means insurance providing for the costs and charges of medical treatment;

"health insurer" means a person entered in the Register of Health Benefits Undertakings referred to insection 14of theHealth Insurance Act 1994;]

“holder”, in relation to an employment permit, means the foreign national to whom it has been granted;

F1["holding company" has the meaning assigned to it by section 155 of theCompanies Act 1963;

"medical treatment" includes medical services or medical care;]

“Member State of the EEA” means a state that is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as amended for the time being;

“Minister” means the Minister for Enterprise, Trade and Employment;

“national minimum hourly rate of pay” has the meaning assigned to it by the National Minimum Wage Act 2000;

“foreign national” has the meaning assigned to it by the Act of 2003;

“foreign national concerned” shall be construed in accordance with section 5 (1);

“prescribed” means prescribed by regulations made by the Minister under this Act;

F1["primary permit holder" means a foreign national to whom an employment permit in respect of the purpose referred to insection 3A(2)(a)—

(a) has been granted and is in force, or

(b) had been granted and has expired and following such expiration the foreign national has been given the permission referred to in section 2(10)(d) of the Act of 2003 to remain in the State and who is in employment in the State pursuant to the condition, referred to in section 2(10)(d) of the Act of 2003, of that permission;]

“public interest” includes—

(a) public order and the interests of national security,

(b) public health and safety,

F4[(c) the need to protect and strengthen the labour market, and

(d) supporting the economic growth of the State;]

F2[…]

F1["registered with the Revenue Commissioners" means registered with the Revenue Commissioners in accordance with regulations under section 986 of the Act of 1997;

"relevant person" means the person referred to in section 2(1A)(b) of the Act of 2003 with whom a contractor has made the contract service agreement;]

F4[“remuneration”shall be construed in accordance with section 1A;]

F1["research project researcher" means a foreign national—

(a) who, pursuant to Directive 2005/71/EC, has been granted permission by the Minister for Justice and Equality to be in the State to carry out research pursuant to the Directive, or

(b) who, having been granted the permission referred to inparagraph (a), has been given the permission referred to in section 2(10)(d) of the Act of 2003 to remain in the State and who is in employment in the State pursuant to the condition, referred to in section 2(10)(d) of the Act of 2003, of that permission;

"subsidiary" has the meaning assigned to it bysection 155of theCompanies Act 1963.]

(2) For the purposes of this Act, a person (the “first person”) is not, by virtue of the following contract with another (the “second person”), an employer of the second person.

(3) That contract is one which—

(a) provides that the second person is to do work or perform a service for a third person (whether the third person is a party to the contract or not), and

(b) has been entered into by the first person in the course of carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971,

whether the contract is express or implied and if express, whether it is oral or in writing.

1A. F5[Definition of "remuneration" (Act Repealed)

1A.—(1) In this Act "remuneration" means—

(a) subject toparagraph (b), the total amount of—

(i) the salary that is paid to the foreign national, the hourly rate of which shall not be less than the national minimum hourly rate of pay or, where appropriate to the employment in respect of which the application is made, the hourly rate referred to insection 12(6)(b), and

(ii) a payment for health insurance in respect of a foreign national should he or she require medical treatment for illness or injury during the period for which the employment permit is in force and which is made to a health insurer by the person who made the offer of employment,

or

(b) in respect of an employment permit granted for the purposes referred to insection 3A(2)(d)and3A(2)(e), the total amount of—

(i) the salary that is paid to the foreign national, the hourly rate of which shall be not less than the national minimum hourly rate of pay or, where appropriate to the employment in respect of which the application is made, the hourly rate referred to insection 12(6)(b),

(ii) a payment for board and accommodation, or either of them, or the monetary value of board and accommodation directly provided by the connected person, foreign employer or contractor, and

(iii) a payment for health insurance in respect of a foreign national should he or she require medical treatment for illness or injury during the period for which the employment permit is in force and which is made by the foreign employer or the connected person or both of them or by the contractor to—

(I) a health insurer, or

(II) a person outside the State who provides insurance for medical treatment in respect of the foreign national that has the same, or similar, effect as the health insurance provided by a health insurer.

(2) In this Act—

(a) references to remuneration in relation to an application for the grant of an employment permit and the consideration of such application by the Minister shall be construed as the remuneration, specified in that application, that is proposed to be paid by—

(i) the person who has made the offer of employment in respect of which the application is made,

(ii) in the case of an employment permit for the purpose referred to insection 3A(2)(d), the foreign employer, in accordance withsection 3Dand the payments in respect of the remuneration to be paid, in accordance withsection 3D, by the connected person, or

(iii) in the case of an employment permit for the purpose referred to insection 3A(2)(e), the contractor in accordance withsection 3E,

and

(b) references to remuneration after a permit has been granted shall be construed as the remuneration paid to the holder of the permit by an employer, a foreign employer in accordance withsection 3D, a connected person in accordance withsection 3D, or a contractor in accordance withsection 3E, during the period for which the employment permit has been granted in respect of the employment for which the employment permit was granted.]

2. Amendment of section 2 of Act of 2003. (Act Repealed)

2.—Section 2 of the Act of 2003 is amended by substituting the following for subsections (1) and (2):

“(1) A foreign national shall not—

(a) enter the service of an employer in the State, or

(b) be in employment in the State,

except in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force.

(1A) Subsection (1)(b) applies whether the employment concerned results from—

(a) the foreign national’s being employed in the State by a person,

(b) his or her being employed by a person outside the State (the "contractor") to perform duties in the State, the subject of an agreement between the contractor and another person, or

(c) any other arrangement.

(2) A person shall not employ a foreign national in the State except in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force.

(2A) Where a person (the ‘first person’) enters into an agreement with another person (the ‘second person’) whereby the second person agrees to cause, or arrange for, services (whether of a specific or general kind) to be rendered on behalf of the first person and either—

(a) it is customary in the trade or business in which the agreement is entered into, or

(b) the circumstances in which the agreement is entered into are such that it must reasonably have been in the contemplation of the parties to the agreement,

that the means to be used by the second person for complying with the agreement would consist of or involve, in whole or part, the services being rendered by persons employed by a person other than the second person (and whether or not that person is in a contractual relationship with the second person) then, if those means are used, it shall be the duty of the first person to take the following steps.

(2B) Those steps are all such steps as are reasonable to ensure, in so far as one or more of the persons so employed is or are a foreign national or foreign nationals employed in the State for the purpose of rendering those services, that that foreign national or each of those foreign nationals is employed in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006that is in force.”.

3. Further amendment of Act of 2003. (Act Repealed)

3.— The Act of 2003 is further amended—

(a) in subsection (3) of section 2—

(i) by inserting, after “subsection (1) or (2)”, “or fails to take the steps specified in subsection (2B)”, and

(ii) by inserting in paragraph (b), after “subsection (2)”, “or a failure to take the steps specified in subsection (2B)”,

(b) by substituting the following subsections for subsections (10) and (11) of section 2:

“(10) Without prejudice to the other provisions of this Act, this section does not apply to a foreign national—

(a) in respect of whom a declaration under section 17 of the Refugee Act 1996 is in force,

(b) who is entitled to enter the State pursuant to section 18 or 24 of that Act,

(c) who is entitled to enter the State and to be in employment in the State pursuant to the treaties governing the European Communities (within the meaning of the European Communities Acts 1972 to 2003), or

(d) who is permitted to remain in the State by the Minister for Justice, Equality and Law Reform and who is in employment in the State pursuant to a condition of that permission that the person may be in employment in the State without an employment permit referred to in subsection (1),

but this section, subject to section 2A and any order under section 3A(1) for the time being in force, does apply to a foreign national who is a national of the Republic of Bulgaria or Romania (including at a time subsequent to the accession of the Republic of Bulgaria or Romania to the European Union).

(11) The Minister, when determining which applications for employment permits should be granted, shall give preference to each of the following, namely—

(a) applications in respect of nationals of a state in relation to which an order under section 3 is in force, and

(b) applications in respect of nationals of the Republic of Bulgaria or Romania to whom this section for the time being applies.”,

(c) by inserting the following section after section 2:

“Supplemental provisions in relation to section 2.

2A.— (1) Notwithstanding subsection (10) of that section, section 2 does not apply to—

(a) a national of the Republic of Bulgaria or Romania who falls within the second or third subparagraph of paragraph 2 of Annex VI of the Treaty of Accession with the Republic of Bulgaria and Romania,

(b) a person, whatever his or her nationality, who falls within paragraph 8 of that Annex.

(2) Irrespective of whether the person falls within the second or third subparagraph of paragraph 2 of Annex VI of the Treaty of Accession with the Republic of Bulgaria and Romania, section 2 does not apply to a national of the Republic of Bulgaria or Romania on and from the expiration of—

(a) unless paragraph (b) applies, 5 years from the date that the Republic of Bulgaria and Romania become members of the European Union (the ‘accession date’), or

(b) if at, or during the 2 months before, the end of the period of 5 years referred to in paragraph (a) an order under subsection (1) of section 3A is revoked by a subsequent order under that subsection, 7 years from the accession date.

(3) In this section ‘Treaty of Accession with the Republic of Bulgaria and Romania’ means the Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union signed at Luxembourg on the 25th day of April 2005.”,

and

(d) by inserting the following sections after section 3:

“Non-application of section 2 to nationals of Bulgaria and Romania.

3A.—(1) Notwithstanding section 2(10), the Minister may, subject to subsection (2), make an order providing that section 2 shall apply neither to nationals of the Republic of Bulgaria nor to nationals of Romania and for so long as such an order remains in force that section shall not apply to such nationals accordingly.

(2) The Minister shall not make an order under subsection (1) at a particular time unless, having regard to the conditions of the labour market in the State at that time, the Minister is of the opinion—

(a) that it is desirable in the interests of the proper functioning of the economy to make such an order, and

(b) that, in the 24 months following the making of the order, employment in the State is likely to become available on a continuous basis for nationals of the states referred to in subsection (1) contemplating entry into employment in the State.

(3) An order under subsection (1) may not be revoked by a subsequent order under that subsection unless, in the opinion of the Minister, the labour market, at the time of the making of the second-mentioned order, is experiencing a disturbance or is likely thereafter to experience a disturbance.

(4) Notwithstanding section 2(10), where an order under subsection (1) is revoked by a subsequent order under that subsection section 2 shall not apply to a national of the Republic of Bulgaria or Romania if he or she has been in employment in the State for a period of not less than 6 weeks immediately before the commencement of the second-mentioned order and has been in receipt of remuneration for such employment.

(5) In this section—

‘disturbance’ shall be construed in accordance with the Treaty of Accession with the Republic of Bulgaria and Romania;

‘labour market’ shall be construed in accordance with the Treaty of Accession with the Republic of Bulgaria and Romania;

‘Treaty of Accession with the Republic of Bulgaria and Romania’ has the same meaning as it has in section 2A.

Non-application of certain requirement of Employment Permits Act 2006.