Employment Permits Act 2003

Employment of non-nationals.

2

2.F3 [ (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,

F4 [ (aa) the foreign national being employed outside the State by a foreign employer and being required by the foreign employer to carry out duties for, or participate in a training programme provided by, a person in the State who is connected to the foreign employer, ]

( 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 2006 that is in force. ]

F4 [ (2C) A person shall not permit a foreign national who is employed outside the State by a foreign employer to carry out duties for, or participate in a training programme provided by, that person where that person is connected to the foreign employer, except in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force. ]

(3) A person who contravenes subsection (1) F5 [ , (2) or (2C) ] F6 [ or fails to take the steps specified in subsection (2B) ] shall be guilty of an offence and shall be liable—

( a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or

( b) if the offence is an offence consisting of a contravention of subsection F5 [ (2) or (2C) ] F6 [ or a failure to take the steps specified in subsection (2B) ], on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 10 years or both.

F7 [ (3A) It shall be a defence for a person charged with an offence under subsection (3) consisting of a contravention of subsection (1) to show that he or she took all such steps as were reasonably open to him or her to ensure compliance with subsection (1). ]

(4) It shall be a defence for a person charged with an offence under subsection (3) consisting of a contravention of F8 [ subsection (2) or (2C) ] to show that he or she took all such steps as were reasonably open to him or her to ensure compliance with F8 [ subsection (2) or (2C) ].

(5) Where, on the sworn information of a member of the Garda Síochána not below the rank of sergeant, a judge of the District Court is satisfied that there are reasonable grounds for suspecting that evidence of or relating to an offence under subsection (3) is to be found at a place specified in the information, the judge may issue a warrant for the search of that place and any persons found at that place.

(6) A warrant issued under this section shall authorise a named member of the Garda Síochána alone or accompanied by such other members of the Garda Síochána and such other persons as may be necessary—

( a) to enter, within 7 days from the date of the warrant, and if necessary by the use of reasonable force, the place named in the warrant,

( b) to search it and any persons found there, and

( c) to seize anything found there, or anything found in the possession of a person present there at the time of the search, which that member reasonably believes to be evidence of or relating to an offence under subsection (3).

(7) A member of the Garda Síochána acting in accordance with a warrant issued under this section may require any person found at the place where the search is carried out to give the member his or her name and address.

(8) Any person who—

( a) obstructs or attempts to obstruct any member of the Garda Síochána acting in accordance with a warrant issued under subsection (5),

( b) fails or refuses to comply with a requirement under this section, or

( c) gives a name or address which is false or misleading,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both.

(9) A member of the Garda Síochána may arrest without warrant any person whom the member reasonably suspects of having committed an offence under subsection (8).

F9 [ (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).

F10 [ (10A) This section shall not apply to a national of the Republic of Croatia who is entitled to be in employment in the State pursuant to section 2 (1)(a) of the European Union (Accession of the Republic of Croatia) (Access to the Labour Market) Act 2013, for the period referred to in section 2 (1)(a) of that Act. ]

F11 [ (10B) Without prejudice to any other provision of this Act, this section does not apply

(a) to a foreign national who is in the State pursuant to the Diplomatic Relations and Immunities Act 1967 , and

(b) where the Minister for Foreign Affairs and Trade has certified in writing that the foreign national referred to in paragraph (a) falls within a reciprocal arrangement that permits a foreign national who is a member of the family of an assigned person, forming part of his or her household, to be in employment F12 [ in the State, or ]

F13 [ (c) where the Minister for Foreign Affairs and Trade has certified in writing that the foreign national referred to in paragraph (a) is a member of the family of an assigned person forming part of his or her household, and that the assigned person is a national of another Member State, a Member State of the E.E.A. or the Swiss Confederation. ]

(10C) A foreign national referred to in subsection (10B) shall be entitled to be in employment in the State without an employment permit for the duration of the assignment to official duties in the State of the assigned person concerned.

(10D) In subsections (10B) and (10C)

assigned person means a person who is assigned, by a government of another state, to carry out official duty in the State on behalf of the government of that other state;

reciprocal arrangement means an arrangement (whether in the form of a memorandum of understanding or otherwise) that is entered into by the Government with another state. ]

(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. ]

(12) Article 4 of the Aliens Order 1946 (S.R. & O., No. 395 of 1946 ) is revoked.

(13) Where an offence under this Act has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of the person being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(14) Where the affairs of a body corporate are managed by its members, subsection (13) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

F14 [ (15) In this section

connected has the meaning assigned to it by the Employment Permits Act 2006 ;

foreign employer has the meaning assigned to it by the Employment Permits Act 2006 ;

F15 [ Member State of the E.E.A. 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; ]

place includes any dwelling or any building or part of a building. ]

Annotations:

Amendments:

F3

Substituted (1.01.2007) by Employment Permits Act 2006 (16/2006), s. 2, S.I. No. 682 of 2006.

F4

Inserted (30.09.2014) by Employment Permits (Amendment) Act 2014 (26/2014), s. 3(a), (b), S.I. No. 430 of 2014.

F5

Substituted (30.09.2014) by Employment Permits (Amendment) Act 2014 (26/2014), s. 3(c), S.I. No. 430 of 2014.

F6

Inserted (1.01.2007) by Employment Permits Act 2006 (16/2006), s. 3(a), S.I. No. 682 of 2006.

F7

Inserted (30.09.2014) by Employment Permits (Amendment) Act 2014 (26/2014), s. 3(d), S.I. No. 430 of 2014.

F8

Substituted (30.09.2014) by Employment Permits (Amendment) Act 2014 (26/2014), s. 3(e), S.I. No. 430 of 2014.

F9

Substituted (1.01.2007) by Employment Permits Act 2006 (16/2006), s. 3(b), S.I. No. 682 of 2006.

F10

Inserted (1.07.2013) by European Union (Accession of the Republic of Croatia) (Access to the Labour Market) Act 2013 (21/2013), s. 3, commenced on enactment.

F11

Inserted (30.09.2014) by Employment Permits (Amendment) Act 2014 (26/2014), s. 3(f), S.I. No. 430 of 2014.

F12

Substituted (13.12.2017) by Diplomatic Relations (Miscellaneous Provisions) Act 2017 (33/2017), s. 11(a)(i), commenced on enactment.

F13

Inserted (13.12.2017) by Diplomatic Relations (Miscellaneous Provisions) Act 2017 (33/2017), s. 11(a)(ii), commenced on enactment.

F14

Substituted (30.09.2014) by Employment Permits (Amendment) Act 2014 (26/2014), s. 3(g), S.I. No. 430 of 2014.

F15

Inserted (13.12.2017) by Diplomatic Relations (Miscellaneous Provisions) Act 2017 (33/2017), s. 11(b), commenced on enactment.

Modifications (not altering text):

C3

Application of subs. (11) clarified (1.01.2007) by Employment Permits Act 2006 (16/2006), s. 14(4), S.I. No. 682 of 2006.

Regulations governing grant of permits, etc.

14.— ...

(4) To avoid doubt, during a period such as is referred to in subsection (3), the preference required to be given by section 2(11) of the Act of 2003 to an application in respect of a foreign national referred to in that provision shall only be given if an employment permit, the subject of the application, could, consistently with the regulations referred to in subsection (3), be granted to the foreign national.

C4

Application of section made subject to presumption (1.01.2007) by Employment Permits Act 2006 (16/2006), s. 34, S.I. No. 682 of 2006.

Presumption that a person is being employed.

34.—In proceedings for an offence under section 2(3) of the Act of 2003, where evidence is given by—

(a) a member of the Garda Síochána

(b) an immigration officer (within the meaning of the Immigration Act 2004), or

(c) an authorised officer under section 22,

that he or she observed a person doing an act in a particular place, being an act the doing of which, in the circumstances concerned, is consistent with that person’s having been employed to do that act in that place, then it shall be presumed, until the contrary is shown, that that person was employed to do that act in that place.