• Aaron Flynn

Working short term in Ireland? Then you need a permission. Here is what you need to do.

#ireland #immigration law #aaronflynnsolicitors #vanderlest #postedworkers #atypicalworkingscheme


If you are travelling to Ireland to work short term you will need a permission. The type of permission you will require depends on the duration of your time in Ireland and whether you are from a visa required country


Work for 14 days or less in any job or internship



If you are from a visa required country you will need to apply for a business visa in advance of travelling to Ireland. The work period must be one single 14 days (or you should apply for the atypical working scheme). The visa is applied for on the AVATS system. A written invitation from a host in Ireland is required to apply for this short stay business visa. The host may be a customer, a supplier or a company/organisation.


If you are not visa required you can request temporary permission when you arrive in Ireland. An employment permit or other permission is not required. You should have sufficient documentation to prove you work plans to the Border Management Unit ('BMU') officer on arrival. Again this can be an invitation letter, contract or supplier document. The BMU officer will place a stamp in your passport allowing you enter for 14 days to work.


This permission cannot be used more than once in 90 days. If further work is required an application for a Atypical Working Scheme permission should be made.


(Note: If you are working as a doctor, you must apply for permission via the Atypical Working Scheme or apply for an Employment Permit. You must register with the Medical Council of Ireland.)


Atypical Working Scheme ('AWS')


The AWS allows applicants to work in Ireland for up to 90 days and allows short term work for an Irish company or assignment to a related entity from outside Ireland in the same way as an Intra-Company Transfer Employment Permit ('ICT'). In addition an application can be made to perform a contract as a contract service provider. An AWS cannot be applied for by an applicant in Ireland or for an ineligible occupation or where this would lead to a breach of the 50/50 rule (the Employment Permits Acts prohibit the issue of an employment permit, irrespective of applicant, unless at time of application 50% or more of the employees are EEA nationals).


Presently it takes about 20 days to process an application for an AWS and once approved it will remain valid for 90 days. It the AWS permission is not activated in these 90 days a new permission will need to be applied for. Like the 14 day work permission visa required nationals should apply for a visa once the AWS is approved.


Van der Elst


The Van der Elst process derives from a ruling by the European Court of Justice regarding the right of an EU company to provide services within the EU. Generally a non-EEA national who is legally employed by a company in an EU country is allowed to provide services on a temporary basis to a company in another EU country on behalf of his/her employer without the need to obtain a work permit. The contract In Ireland should be specific as to duration and should not be for such a length of time that the individual loses rights of residency in the sending EU country or becomes an integral part of the workforce of Ireland.


Conditions


(i) Applications are assessed on a case-by-case basis.

(ii) Permission to work in the State under the Van Der Elst ruling will be granted for the duration of temporary/short term contracts up to a maximum of 12 consecutive months.

(iii) The employee must be:

(a) lawfully resident in the EU country in which the employer is established;(b) lawfully employed by the employer in the sending EU country;(c) on the payroll of the employer in the sending EU country.

(iv) Duration of permission to remain in the State in order to provide a service will never exceed the expiry date of the lawful residence of the employee in the sending EU country or the expiry date of the employee’s Passport.

(v) The employee may not take up any other employment in the State other than that for which permission was granted and on conclusion of the temporary/short term contract the employee must return to the sending EU country.

(vi) The employee is not entitled to permanently reside in the State.

(vii) Family members may not accompany or join the employee (except as visitors or having applied for and been granted an immigration permission in their own right).


A minimum employment period is not required before posting an employee to the State for the purpose of providing a service for a limited period.


Posted Workers


A posted worker is an employee who is sent by his/ her employer to carry out a service in another EU Member State on a temporary basis.


EU Directive 2014/67/EU on the enforcement of Directive 96/71/EC (“the Framework Directive”) concerning the posting of workers in the framework of the provision of services was adopted in May 2014. The new Directive was transposed into Irish law on 28 July 2016 in the form of S.I. 412 of 2016 - European Union (posting of Workers) Regulations 2016.


The key measures introduced in these Regulations include:


  • a new requirement on foreign service providers when posting workers to Ireland to notify the Workplace Relations Commission ('WRC'). The service provider must provide certain information (using a prescribed Form of Declaration) which will enable the WRC to monitor posting activity and ensure compliance with posting rules;

  • a new subcontracting liability in the construction sector to guard against posted workers being paid less than their minimum entitlements. Where a posted worker in construction is not paid the applicable statutory rates of pay by their direct employer, the contractor one step up the supply chain may also be held liable for the shortfall in the net remuneration payable;

  • the creation of a right for a posted worker to refer a complaint to the Director General of the WRC naming both the direct employer and the contractor one step up as respondents;

  • the introduction of a defence of due diligence for the contractor in any claim before the WRC. The regulations set out in detail the test or criteria which the contractor will have to satisfy in order to avail of the defence of due diligence;

  • new measures which allow for the enforcement of cross border financial administrative penalties and fines incurred in another Member State by a service provider in the Member State in which the service provider is based.

The Form of Declaration must be submitted no later than the date on which the employee commences work in Ireland and requires information such as name, work location and social security number. It is a criminal offence to fail to complete the Form of Declaration and a fine of up to €5,000 may be imposed upon summary conviction.



©2019 by Aaron Flynn Solicitors.