On 25 July this year, the Government granted approval for the drafting of a Bill along the lines of this general scheme of an employment permits (consolidation and amendment) Bill, which has been forwarded to the committee. The Government approval included a request that this committee undertake pre-legislative scrutiny, and we are grateful that the committee has agreed to devote time to this today.
On the background to the proposed Bill, a review of economic migration policy carried out at the request of the Minister for Business, Enterprise and Innovation last year indicated that the employment permits system, while robust, lacked flexibility and was in need of some updating, making it less effective than it might be. The review's recommendations included the drafting of a new Bill to adjust the legislative underpinning of the system to allow for swift responses to verified changes in labour supply and demand, or employment practices. The implementation of the review's recommendations was committed to by way of an action point in Future Jobs Ireland 2019.
This Bill incorporates both specific and general recommendations of the review while retaining the core focus and policy of a vacancy-led employment permits system oriented to meeting the skills and labour needs in the State. The conclusions of the review endorsed the robust fundamental structure of the existing system. The changes proposed are therefore concerned with increasing its agility and effectiveness, while retaining the key policy focus of supporting the economy and the labour market through evidence-based decision-making. The proposed Bill therefore does not represent a change in overall Government policy. The 2018 review involved widespread stakeholder consultation, and the key issues raised during that consultation are addressed in this general scheme.
Currently, there are two Employment Permit Acts and one amendment Act on the Statute Book, namely, the Employment Permit Acts 2003 and 2006 and the Employment Permits (Amendment) Act 2014. These Acts will be repealed following the enactment of the proposed Bill.
In addition to consolidating the existing legislation to make a more accessible statutory basis for our economic migration system, specific changes in this Bill include the introduction of a seasonal employment permit; extensive revision of the labour market needs test to make it more relevant and efficient; the introduction of a scheme to deal with occasional exceptional circumstances where an employment permit may be granted despite not meeting all of the criteria for the general employment permit; a number of housekeeping changes, including clarifications of particular provisions, the moving of operational criteria to regulations, and the streamlining of a number of requirements to make the grant process more efficient; and providing for additional conditions for granting an employment permit, such as training or accommodation support for migrant workers in some circumstances, or making innovation or upskilling a condition of a grant, where this may decrease future reliance on economic migration.
Ireland is an outlier both in the EU and among many developed nations outside the EU in not having made provision for granting seasonal employment permits. There is evidence that some employers are disadvantaged vis-à-vis competitors in other jurisdictions by not having this form of permission. Therefore, it is proposed to design a short-term employment permit to cater for short-stay and recurrent employment situations in sectors where this type of employment is common, such as horticulture.
Examination of systems of seasonal employment used by our international peers is under way so that an accurate sense of both risks and benefits of this kind of scheme will inform our structuring of the criteria for the permit type. We would welcome any views the committee might have in this regard.
Apart from those occupations on the critical skills list, or for intra-company transfers, employers must demonstrate that they have made a genuine effort to recruit from within the State and across the European Economic Area, EEA, before they apply for an employment permit. This is called the labour market needs test, LMNT. Currently, the way in which employers are obliged to advertise vacancies is prescribed in legislation and includes an obligation to use some outdated methods, an example being the need to take out advertisements in national newspapers for a set number of days.
The proposed Bill, while continuing to require an employer to carry out an LMNT before seeking to recruit from outside the EEA, will remove the detail of how this must be done, allowing for the setting out in regulations of the requirements needed to demonstrate real engagement with the jobs market in Ireland and across the EEA.
Specifically, the intention is to remove the operational requirements from primary legislation and instead allow the media for advertising of vacancies to be prescribed in regulations and varied where necessary. Some types of vacancies may be best advertised through social media, for example, while others may best be advertised in sector-specific journals or by a radio campaign. Allowing leeway to employers to advertise as best fits their industry will improve the coherence and utility of the LMNT. In tandem with this, it is intended to deepen the involvement of the Department of Employment Affairs and Social Protection in the LMNT process to maximise opportunities for resident and EEA jobseekers.
From time to time, an employer will seek a permit for a position that does not fall neatly within all of the usual criteria for granting an employment permit, but where the granting of the permit would clearly benefit the company and, by extension, the social or economic development of the State. Up to the present time, when such a circumstance has arisen, we have generally had no option but to refuse the permit. The circumstances in which such a permit might be granted will be clearly prescribed in regulations. A limit to the number of such employment permits that might be granted in any calendar year will be considered. Anchoring the prescription securely in primary legislation and setting the criteria precisely in regulations, so that this permit type cannot be used routinely to waive the requirements of the system, will be a priority.
The broad criteria we propose to prescribe are: where one or more criteria for grant of a permit cannot be satisfied, but no training for the occupation is available in Ireland, and where it requires an unusual skill set; for niche employments that do not occur with sufficient frequency to attract individuals into training or for which no formal training exists where the expertise is highly specialised and where training may not be replicated in Ireland, and where it is evident that the employment of the specific foreign national would benefit the competitiveness or development of the employing organisation and the economy as a whole; where a reciprocal bilateral agreement with another country may be made to allow for the employment in the State of a specified group of people for a particular purpose or for a specified period of time; and where an enterprise development agency has supported the application despite its failure to meet some of the criteria on the basis that the appointment of that specific individual will bring a significant benefit in terms of employment or competitiveness
There has been a general welcome from interested parties for this consolidating and amending legislation. The development of this general scheme into a final draft Bill will be effected through further extensive consultation and in line with advice given by the Attorney General’s office. We readily acknowledge that a number of the suggested changes currently set out in a general indicative format will require considered further drafting to ensure their parameters are in line with current jurisprudence, especially in the context of ensuring that the prescription of variables in secondary legislation, necessary to give the system the agility to respond quickly to changing conditions in the economy, should remain securely anchored in primary legislation.
I would like to address the issue of access to the labour market for spouses and partners of employment permit holders, as I understand the committee has an interest in this. Generally speaking, the economic migration system focuses on the skills and labour needs of the State, and wider immigration questions, including that of family reunification, are matters for the Minister for Justice and Equality. Those workers coming into the country on a general employment permit do not have an automatic right to immediate family reunification. An exception is made, with the consent and support of the Minister for Justice and Equality, in the case of critical skills employment permit holders and researchers in the State on hosting agreements. These permissions are granted to attract highly skilled individuals to migrate permanently to the State. This exception is made to encourage these permit holders to settle here with their families.
While the spouse or partner of a critical skills permit holder was always permitted to seek work in Ireland, they had to first find an eligible job and then apply for an employment permit. The system was cumbersome, unclear and caused significant confusion, and it needed to be changed.
Since March 2019, following agreement between our two Departments, the Minister for Justice and Equality has been granting permission directly to a critical skills employment permit holder's spouse or partner to reside and work in the State, obviating the need for him or her to apply for a permit. This streamlining of the process benefits all concerned, as it brings absolute clarity to the matter and significantly reduces the administrative burden for all concerned. The move was universally welcomed by all interested parties and got considerable positive media coverage at the time.
We appreciate the committee’s attention, and would welcome any guidance prior to and during the drafting process which would support the policy objectives underlying the general scheme. My colleagues and I are happy to answer any questions members might have on this general scheme.