In 2022, there were several interesting developments in the immigration landscape in Ireland which will be of interest to employers. These included:

• revisions to Ireland’s employment permit system;

• updates to the critical skills occupations list and ineligible list of occupations for employment permits to address labour and skills shortages in Ireland; and

• an end (finally!) to the automatic extension of Irish Residency Permit cards in place since the commencement of the pandemic in March 2020 and the suspension of re-entry visas for children.

In this article, we take a look at what developments employers and investors should look out for in the immigration space in Ireland in 2023 that may impact their workforce planning and operations or investment planning.

Employment Permits Bill

In 2018, the Department of Enterprise, Trade and Employment published its report on the Review of Economic Migration Policy which concluded that Ireland’s employment permit system provided a robust framework to supplement skills and labour needs in Ireland. However, it also noted that the current legislation is considerably inflexible in its operation.

When the Irish government then announced in 2022 that it would be publishing new employment permit legislation to consolidate existing employment permit legislation, and to create a more accessible statutory framework for Ireland’s migration system to remedy the issues identified by that review, this was met with a very positive response. In October 2022, the promised legislation, the Employment Permits Bill 2022 (“the Bill”), was published. The Bill does reflect many of the promises the Irish government touted when it first announced it would be introducing new employment permit legislation.

The Bill, as published, proposes to do the following:

• consolidate existing employment permit legislation;

• create a new type of employment permit for seasonal workers, known as a “seasonal employment permit”, which is designed to facilitate non-EEA nationals’ employment in “seasonally recurrent employment”, which will be specified in separate regulations.

• permit the granting of a contract for services employment permit to a subcontractor, (these permits can only currently be granted to the main contractor);

• give the Minister the power to specify conditions relating to the grant of an employment permit (specifically a general employment permit and seasonable employment permit) which may include accommodation, training or expenses. The Bill also specifies that the Minister can make regulations and measures to be taken by the employer of a non-EEA national to whom either of those employment permits are granted, in order to:

(a) increase the skills, knowledge, qualifications, or experience of employees (other than the foreign national) in respect of the employment including the employment of new trainee or apprentices in that employment, or

(b) otherwise reduce reliance on the employment of foreign nationals including by way of technical changes to work processes.

This is very interesting in that, not only does the Bill propose that the Minister can make regulations setting conditions regarding the training or upskilling of employment permit holders, but conditions can also be applied to the training and upskilling of employees other than the employment permit holder. This section is likely driven by the overriding immigration policy that vacancies in Ireland should first be offered to Irish and EEA nationals. However, this power may need to be reserved for the time being as the primary purpose of the employment permit system is to service skills and labour shortages in Ireland and many businesses currently need to look beyond Irish and EEA nationals for talent to fill labour shortages. Therefore, it will be interesting to see what conditions and measures might be implemented by the Minister in the future if this section within the Bill is retained.

• revise the current Labour Market Needs test. Currently, to satisfy the Labour Market Needs test, an employer must advertise the vacancy:

(a) with the Department of Social Protection Employment Services/EURES employment network for at least 28 days (i.e. JobsIreland.ie);

(b) in a national newspaper for at least 3 days; and also

(c) in either a local newspaper or jobs website (separate to Department of Social Protection/EURES websites) for 3 days.

As drafted, the Bill proposes to remove the requirement to publish an advertisement for a vacancy in a national or local newspaper. It only requires the advertisement to be published on two online platforms, the first being one for which its principal purpose is to publish offers to Irish citizens and EEA nationals (i.e. EURES/JobsIreland.ie).

The current legislation provides that where the Minister makes regulations for the publication of such an advertisement (i.e. one on EURES/JobsIreland.ie), the regulations must provide that the advertisement cannot be for less than 14 days. The current regulations set a 28-day time period. The Bill does not set this minimum threshold. Accordingly, if the Bill is enacted as drafted, it is possible that regulations which specify how long the vacancy must be advertised for on JobsIreland.ie, could be much shorter than the current 28 days, and possibly less than 14 days.

While these revisions don’t address all of the issues the Labour Market Needs Test can create, shortening the amount of time a vacancy needs to be advertised for would certainly be welcomed by employers who are still facing an ongoing challenge for attracting talent into Ireland and getting employment permits quickly.

As drafted, the Bill would help improve efficiency in the system by moving much of the operational details for the employment permit system to regulations to be made under the primary legislation which can be introduced more quickly in order to keep up with evolving recruitment practices. Therefore, we will likely see further interesting developments through regulations following the enactment of the Bill.

Immigrant Investor Programme (‘IIP’)

The IIP was launched in 2012 after the last recession in Ireland, to encourage foreign investment into the country for the creation of business and to stimulate employment. The IIP offers non-EEA nationals a route to residency in Ireland in return for an investment or endowment so long as they satisfy certain criteria – namely, that they are of good character and have a minimum net worth of €2 million. If you want to learn more about the IIP, please read our previous article which you can find here.

Since its inception, the popularity of the IIP has steadily increased with close to €1.2 billion being contributed to the Irish economy by 1,613 investors through the programme.

The accelerated uptake in the IIP in 2022 is particularly interesting. Between January and September 2022 the number of applications rose to a record 812. The highest number previously recorded was in 2019 when 435 applications were submitted. Of the 812 applications submitted in 2022, 785 were from Chinese nationals (more than 90% of the number of applications). This is more than triple the number of applications received in 2021 from the same cohort.

The surge in popularity in the IIP comes at a time when these types of programmes and similar schemes are being scrutinised internationally. Within the EU, many member states operate programmes granting residence in return for investment (like the IIP) while others offer the potential to receive passports.

In 2022, the European Parliament called for stricter rules and more stringent background checks on programmes which offer residence in return for investment over fears such programmes are being manipulated. While MEPs have sought the closure of schemes which offer passports or citizenship in return for investment they acknowledge that programmes offering residence in return for investment pose less risk than those which offer passports in return for investment.

Closer to home, the Department of Justice (which administers the IIP) carried out a review of the IIP but declined to comment on the recommendations of that review as they are still under consideration. However, the Department did deny the ongoing speculation that the IIP will be wound down. This means it is more likely that the IIP will be refined with greater control mechanisms and enhanced due diligence processes around applications possibly being introduced. While there has been some condemnation of the IIP both here and abroad, it has also generated its fair share of positive PR. In late 2022, it was reported that 37 investors each pledged €400,000 (a total of €14.8 million) to fund the development of Louth GAA’s new 14,000-seater stadium at a greenfield site on the Dundalk bypass. Many were questioning whether the ambitious project was feasible after previous efforts to raise the necessary finance by Louth GAA failed to generate the necessary outlay for the project. The IIP solved the problem and garnered needed investment for a great local cultural amenity.

It is expected that the popularity of the IIP is likely to continue to grow in to 2023.

Conclusion

In addition to the continuing developments and trends outlined above, the Department of Enterprise, Trade and Employment and the Department of Justice are continuing to review their systems in ongoing efforts to improve the delivery of their services. For example, the Department of Enterprise, Trade and Employment recently introduced its new Return and Refund process which involves the Department screening all new employment permit applications across mandatory criteria to ensure compliance with the requirements of the employment permit type. Only applications which satisfy this initial screening will move forward for formal processing. This, it hopes, will allow the Department to improve processing times of applications by returning applications to the applicant which are initially deemed invalid.

Our immigration team will continue to keep you informed of any further developments and emerging trends over the course of 2023.