I am very pleased to have the opportunity to introduce this Bill to the Seanad today. The Bill, which has passed all Stages in the Dáil, has been recognised as progressive legislation which will provide us with the flexibility required to keep pace with the global skills market while simultaneously prioritising the rights of foreign nationals who choose to work in the State. This amending legislation, and the new regulations which will support it, will enhance our employment permits system in order that we can continue to develop enterprise in the State for all of our benefit, while also protecting the Irish labour market and the employment rights of those migrants who come to work here.
The following are some of the key objectives in the Bill. First, it recognises the different types of employment scenarios which arise for enterprises, both Irish and multinational, in the modern workplace. It provides for a range of employment permit categories to facilitate foreign workers to enter employment legally in the State, thus meeting our demand for highly skilled personnel, as well as filling temporary gaps and accommodating intra-company transfers and contract service providers. It will allow for flexibility, by way of regulations, to provide for both eligible and ineligible employments for employment permits dependent on skills shortages and surpluses and efforts under way in the education sector. Second, it strengthens the requirement that preference must be given, wherever possible, to Irish and EEA nationals in the awarding of contracts of employment. This policy underpins the Government’s employment creation objectives by requiring employers in the State to hire in a balanced manner from the local labour market and fulfils our EU obligations regarding community preference under the treaties. Third, it amends the 2003 Act to provide a defence to a migrant who is in breach of employment permit legislation despite his or her efforts to work in line with statutory requirements. These amendments address the Younis case, which was delivered on 31 August 2012. Fourth, the Bill establishes a category of employment permit to assist those migrants who have fallen out of the employment permits system through no fault of their own. I am pleased to be in a position to facilitate my colleague the Minister for Justice and Equality in bringing forward proposed changes to legislation under her remit. The Minister wishes to make a number of technical amendments to the Immigration Act 2004 and to the Illegal Immigrants (Trafficking) Act 2000 which will provide for urgent and badly needed efficiencies in the operation of the immigration system.
I propose to outline the main provisions of the Bill, as passed by the Dáil. It consists of six Parts, and 39 sections. Part 1 contains the Short Title, collective citation, construction and commencement provisions, and interpretation. Part 2 amends the Act of 2003. Section 3 amends section 2 of the Act of 2003 to provide a defence to a foreign national to the offence of having been employed without an employment permit. It ensures the transfer of a foreign national in the intra-company transfer situation is included in the general requirement to have an employment permit, and it provides an exemption from the requirement for an employment permit for certain foreign nationals who are in the State under the terms of the Diplomatic Relations and Immunities Act 1967. Section 4 amends the Act of 2003 by inserting an additional section 2B and 2C which permits a foreign national, who can satisfy a court that he or she took all reasonable steps to comply with the requirement of having an employment permit, to take civil action for compensation against the employer, notwithstanding the illegality of the contract. This is in addition to potential criminal prosecution of the employer.
Part 3 amends the Act of 2006 to provide for nine new purposes for which I, as Minister, may grant employment permits, to strengthen the requirement for employers to consider EEA nationals before foreign nationals, and to focus on the particular needs of start-up companies by providing necessary flexibility with key sectors of economic growth and make provision for the role that IDA Ireland and Enterprise Ireland play in enterprise development and job creation.
Section 6 inserts new section 1A into the 2006 Act. That section which was introduced on Committee Stage in the Dáil, is a revised definition of remuneration for the purposes of the grant of an employment permit and provides for different components of remuneration for the different categories of employment permits.
Section 7 inserts new sections 3A, 3B, 3C, 3D, 3E and 3F into the 2006 Act. Section 3A sets out the different purposes for which employment permits can be granted. They cover critical skills employment permits for attracting foreign nationals with skills that are in short supply in Ireland and which are critical to our economic success, such as ICT skills, dependant-partner-spouse employment permits for attracting highly skilled foreign nationals or researchers, general employment permits for skills of a more general nature where the employer was unable to fill the position from the EEA labour market, intra-company transfer employment permits for facilitating transfers between branches of a company for a specified duration and project, contract for service employment permits for facilitating the temporary employment in Ireland of foreign nationals working in a company based outside of Ireland that has won a contract to provide services to an Irish company, reactivation employment permits for foreign nationals who entered the labour market on a valid employment permit but who have subsequently fallen out of the system for a variety of reasons, including redundancies, exploitation, and ignorance, through no fault of their own - this permit type is a direct response to cases that the Migrant Rights Centre of Ireland has brought to our attention over the years - exchange agreement employment permits for dealing with reciprocal international arrangements - the Fulbright Scholarship is among the best known of such programmes, sports and cultural employment permits for dealing with sports and cultural professionals, and internship employment permits for dealing with applications related to student internship programmes involving work experience in employments on the highly skilled occupations list.
Section 3B inserts a new provision in the 2006 Act which recognises the role that IDA Ireland and Enterprise Ireland play in giving advice on applications made by their client companies and provides for the Minister to consider their recommendations without being bound by them. Sections 3C to 3F, inclusive, set out a number of supplementary conditions applying to dependant-partner-spouse, intra-company transfer, contract for services and sports and cultural employment permits.
Section 8 amends section 4 of the 2006 Act. The amendment provides for application requirements following on the new categories of employment permit. It also provides for a minimum period of employment for the critical skills employment permit, and transitional arrangements for the spouse, dependant or partner of current so-called green card holders. Section 9 replaces the current section 6 and section 7 of the 2006 Act concerning information to be provided with an application. Section 10 amends section 8 of the 2006 Act in line with the new employment permit categories. It sets out what employment permission the employment permit grants to the foreign national and the duration of the employment permit.
Section 11 amends section 9 of the 2006 Act which concerns the type of information to be included on an employment permit and permits the Minister to include any additional information considered appropriate. Section 12 amends section 10 of the 2006 Act which provides powers to restrict the granting of an employment permit on the basis of what is commonly known as the labour market needs test and the 50-50 rule. The labour market needs test is now dealt with in the new section 10A which is inserted by section 13 of the Bill. The 50-50 rule requires that employers seeking to hire foreign nationals on an employment permit have at least 50% of their workforce from Ireland or the EEA. The amendment requires the 50-50 rule to be applied in all situations except in the case of a start-up company. Section 23 of the Bill provides for safeguards by imposing a limit on the duration of the renewed permit.
Section 13 amends the Act of 2006 by inserting a new section 10A to deal with the labour market needs test. The labour market needs test seeks to ensure an offer of employment is first made to people already in the local and EEA labour markets and will ensure that such tests will apply to relevant applications for employment permits irrespective of who makes the application.
The labour market needs test will, subject to the specified exceptions, apply to the general employment permits and employment permits relating to contract for services agreements. Section 10A also provides that the Minister may make regulations regarding the requirements of the labour market needs test.
Section 14 amends section 11 of the 2006 Act, which concerns the matters to which the Minister must have regard when considering an application. The amendment adds a provision in order that consideration will include the nine new purposes specified in section 3A(2) inserted by section 7 of the Bill. Section 15 amends section 12 of the 2006 Act, which provides the grounds for refusing to grant or renew an employment permit. There are two classes of amendment. First, those relating to issues identified in the operation of the current Acts and second, those which are consequential to the amendments to the Acts made by the Bill and in particular those made by section 3A. Some of the amendments introduce new grounds and others broaden the scope of existing grounds. Section 16 amends section 13 of the 2006 Act to give the Minister the power to review a refusal to grant a permit. Section 17 amends section 14 of the 2006 Act, which provides the Minister with regulation-making powers to provide for each type of employment permit and to regulate for different requirements to apply depending on the type of employment permit and the different circumstances.
Section 18 inserts a new section 14A into the Act of 2006 which ensures that when making regulations in respect of remuneration, the Minister can take into account the going rate in the marketplace for such employments and can refuse to grant a permit if the remuneration offered is less than the minimum annual remuneration specified in regulations in respect of the employment concerned, regardless of whether the hours of work for the employment concerned are equal to or less than 39 hours per week. If the weekly hours of work for the employment concerned exceed 39 hours, the minimum annual remuneration must be increased pro rata. This underpins the public policy prerogative that a foreign national should be earning a sufficient remuneration to prevent his or her recourse to the social welfare system.
Section 19 amends section 15 of the Act of 2006 and identifies the criteria which the Minister may consider in regulating under section 14. The amendments strengthen the provisions of the existing Act by providing regulation-making power in respect of the experience of a foreign national as a criterion. Section 20 amends section 16 of the Act of 2006 by providing for additional grounds for the revocation of an employment permit. Section 21 amends section 17 of the Act of 2006 by providing for the intra-company transfer situation. Section 22 amends section 19 of the Act of 2006 by deleting the distinction in that Act in respect of applications by foreign nationals. Various other sections of the Bill make similar deletions, including sections 25 and 26. This has the effect of ensuring that all applications are treated on an equal basis and are subject to the same rules when being considered for an employment permit. Section 23 amends section 20 of the Act of 2006, which deals with the renewal of employment permits and sets out the circumstances in respect of which a permit may or may not be renewed. Importantly, the amended section 20 exempts renewal applications of existing, pre-enactment, permits from the 50-50 rule on the basis that, at the time the initial application was made, neither the employer nor the foreign national could have foreseen this new requirement. In addition, the amendment provides for renewal of applications in the case of start-up companies and sole employees.
Section 24 inserts four new sections, namely, sections 20A, 20B, 20C and 20D, into the Act of 2006. These sections give an additional six months to certain permit holders who are made redundant to find employment and apply for a new permit. They also exempt them from certain rules that would otherwise apply such as, for example, the labour market needs test and eligibility criteria with regard to the job. This provision is inspired by cases brought to the Government's attention over the years by organisations like the Migrant Rights Centre and Nasc in Cork. Sections 25 and 26 amend sections 23 and 24 of the Act of 2006, respectively, by removing references to applications by foreign nationals. It also clarifies the obligations in an intra-company transfer situation. Section 27 tidies and updates the provisions of section 27 of the Act of 2006 with regard to the requirements on an employer to retain records for inspection. It also clarifies these obligations in an intra-company transfer situation.
Section 28 includes new terms used in the Bill, such as "relevant person", who is the person who has entered into a contract with a foreign service provider, and "connected person", who is the linked company in the State into which the foreign national is transferred under an intra-company transfer arrangement. Section 29 amends section 29 of the Act of 2006, which provides for regulations setting out the process and information requirements for the making of an application for an employment permit. Section 30 amends section 30 of the Act of 2006 and sets out further provisions concerning regulations. Section 31 amends section 31 of the Act of 2006 to allow for the issue of notices or documents by ordinary prepaid post instead of registered prepaid post. Section 32 amends section 37 of the Act of 2006 to provide for the sharing of information with the Garda Síochána. Section 33 amends Schedule 1 to the Act of 2006 to update references to various employment enactments that are relevant in the context of prosecutions under employment permits legislation.
Part 4 provides for amendments to the Illegal Immigrants (Trafficking) Act 2000, which I am taking on behalf of my colleague, the Minister for Justice and Equality. Section 34 substitutes section 5 of the Act of 2000. The amendments include the removal of the "on notice" provision in section 5 and for a number of other amendments and new subsections. These other amendments provide for the inclusion of certain safeguards that are considered necessary owing to the removal of the "on notice" provision. They also take account of other developments relating to judicial reviews in the asylum and immigration area.
Part 5 provides for amendments to the Immigration Act 2004 and Aliens Order 1946, which I also am taking on behalf of my colleague, the Minister for Justice and Equality. Section 35 amends the Immigration Act 2004. The amendments primarily concern the registration of non-nationals in the State to achieve the following aims. First, to provide for the transfer of the registration function from An Garda Síochána, which currently responsible is for it, to the Irish Naturalisation and Immigration Service, INIS, in the Department of Justice and Equality. Second, to provide registration facilities to non-nationals, which may be from a single central location or through a number of regional locations around the State and third, to remove the exemption to register for persons under 16 years. Section 36 is a consequential drafting amendment to the Aliens Order 1946.
Part 6 makes an amendment to the Taxes Consolidation Act 1997, repeals a number of provisions of the 2006 Act and provides for transitional arrangements in respect of employment permits already in force. Section 37 amends the Taxes Consolidation Act 1997. Section 37(a) inserts a new section 124A in the 1997 Act and seeks to impose an income tax charge on any payments made under a court order under new section 2B of the Act of 2003 and to have the PAYE system applied to the payments. Section 37(b) puts beyond doubt that the exemption provided for in section 192A of the 1997 Act does not apply to payments made under a court order under section 2B of the Act of 2003. Section 38 repeals a number of existing provisions primarily to remove the distinction between applications by foreign nationals and employers. It also repeals section 35(2) of the Act of 2006, which provides for evidence given in proceedings for an offence under the Act to be video-recorded, as video recording is no longer required. Section 39 provides for transitional arrangements and savings in respect of employment permits that are in force or applications on hand immediately before the coming into operation of the Bill.
In conclusion, I thank Members for providing time to consider this Bill. I am sure we will have an extensive discussion on the issues here. The background to this legislation essentially is that in a modern global economy, it is necessary to have a modern system for identifying the critical skills that must be provided in the Irish economy and for allowing employers who need to find those skills to find them overseas if they are not available in the European market. Moreover, a system is needed that is quick and easy to operate. Through the officials of my Department, that system has been streamlined on an administrative basis quite considerably and I believe the turnaround time to deal with an application has halved. The Department continues to try to make it more user-friendly and in this Bill, the Government recognises that companies supported by Enterprise Ireland and the IDA are trusted partners in the context of work permits. Where companies are being supported by the aforementioned agencies, they will be recognised as having some form of a fast-track for dealing with permits.
At the same time however, the Government recognises that Ireland still is a country with high unemployment.
Many people are struggling to find skills. That is also true of the rest of the European Union. We have to make sure such people have the chance to avail of employment opportunities. This Bill strikes a balance between the needs of certain employers to recruit scarce skills and other sectors where there is an ample supply of skills at home. That is the background for the labour market needs tests, but in certain skilled occupations, such needs tests are lifted. It provides us with a flexible tool that allows us to respond to the challenges of a changing environment. Reference has been made to the war for talent, which drives many location decisions because the success of enterprises depends on the flow of change. We need to be in a position to ensure our enterprises can grow. One of the strengths of Ireland in recent years is the sheer variety of skills available here. We have a truly global environment in many areas, particularly in our cities, with a great mix of skills and backgrounds. That has created a good hub for starting and developing enterprises. We need to make sure we can retain that.
This Bill modernises our legislation but it also responds to a report on employment by the Joint Committee on Jobs, Enterprise and Innovation, the rapporteur for which was the former Senator, Deirdre Clune, MEP. The report identified this as an area in which we needed modern legislation that is capable of responding to changing needs. As this has been identified as an area that we need to modernise, I am glad to have the opportunity to present this Bill.