knowledge 5 May 2020 |

COVID-19: Corporate Immigration and the Department of Business, Enterprise and Innovation’s Response

Corporate immigration continues to be an important area of concern for employers during this period of business disruption. The Department of Business, Enterprise and Innovation (“DBEI”) acted swiftly to put in place a contingency plan in response to the COVID-19 outbreak and it has been following this plan over a number of weeks now to ensure that the employment permit system continues to operate as smoothly as possible in the current circumstances. The following are some of the key takeaways for employers.

Employers of permit holders who are working remotely during COVID-19 restrictions

DBEI has confirmed that, while employment permit holders may work remotely from their place of residence in Ireland as opposed to from the location specified on their employment permit, the employer must notify DBEI of cases where this is occurring. DBEI says it only requires the name of the employer in such circumstances, as opposed to the names of the relevant employees. Furthermore, DBEI has said that, once the current “temporary measures have been lifted”, it expects permit holders to recommence working from the location cited on their employment permit. 

With many employers beginning to plan for a return to work, it is currently unclear to what extent this expectation will interact with any decision by an employer to implement a phased return to on-site working on a team-by-team basis, or to continue to implement a policy of all employees working remotely, despite an easing of government restrictions. While DBEI may issue further guidance in this respect, it is advisable for any employers whose current return to work plan involves an employment permit holder  continuing to work remotely after an easing of government restrictions to contact DBEI as early as possible to advise them of this and to seek further direction. 

Where an employment permit holder is working remotely from another country during the current period of restrictions as opposed to from his or her place of residence in Ireland, this period of extended absence will not be considered as grounds for revocation of the permit. However, employers should bear in mind – particularly if air travel remains at its current reduced level for a sustained period – that an employment permit holder must work at least 183 days in a full calendar year in the State to be considered employed here. 

Employers of permit holders who have been or will be laid off, placed on reduced hours, or made redundant as a result of COVID-19

DBEI has advised that where an employer intends to temporarily lay-off or reduce the working hours of an employment permit holder as a result of COVID-19-related disruption during the period of the employment permit, the employer should inform DBEI in advance of the temporary lay-off/reduced working hours so that this can be noted on the permit file. The idea behind this notification is that DBEI will take a flexible approach to renewal applications where the salary and working hours as per the conditions of the permit granted may not have been achieved, and will take into account the likelihood that this is related to the measures introduced to deal with COVID-19.

It follows that where a permit holder has already been laid off or placed on reduced hours without DBEI being notified in advance, the employer should notify DBEI of this as soon as possible. 

Where employers have no choice but to make permit holders redundant due to business disruption caused by the COVID-19 pandemic, they should inform these individuals that they may apply for the government’s COVID-19 Pandemic Unemployment Payment. Employers should also be aware that they may apply the Temporary Wage Subsidy Scheme to employment permit holders who meet the criteria to qualify for that scheme (see our briefing on the Temporary Wage Subsidy Scheme here). 

Employers of permit holders whose immigration permission and/or employment permit is due for renewal

The Department of Justice and Equality previously advised that all immigration permissions that are due to expire in the period between 20 March 2020 and 20 May 2020 are automatically renewed by the Minister for Justice and Equality for a period of two months. This automatic renewal of any such permission for two months is on the same basis as the existing permission and the same conditions attach.

DBEI has confirmed that the usual arrangement whereby an application to renew an employment permit can be submitted up to four months in advance of the employment permit expiry date and up to one month after the employment permit has expired, will continue. DBEI is advising employers that an employment permit holder may continue to work while their renewal application permit is being processed and in such instances no person will be asked to cease work or to leave the country, where their employment permit has expired. When an employment permit has issued, the permit holder may then apply to the Department of Justice and Equality to update their immigration permission.

With regard to the issuing of employment permits, DBEI has agreed temporary arrangements with Department of Justice and Equality’s Immigration Service Delivery whereby a PDF version of an employment permit will issue by email to the relevant employer/employee/agent as proof of an employment permit having been granted for the relevant employee. When employment permit operations return to normal, DBEI will then issue the original permit and certified copies to both the employee and the employer as per normal arrangements.

DBEI has also been following new procedures for the electronic processing of applications for Stamp 4 Letters of Support. These applications may now be submitted by filling out the required form and e-mailing it to EPStamp4@dbei.gov.ie. Any decision on an application, including the grant letter, will be communicated to the applicant by way of email. As part of its COVID-19 contingency approach, DBEI is accepting online submissions for new and renewal applications for the Trusted Partner scheme without the requirement to provide a hard copy of the application form within 10 days.

Employers considering hiring or postponing hiring

While DBEI continues to process online applications for employment permits and Stamp 4 letters of support, albeit at a delay (current waiting time for an employment permit application is 6 weeks for Trusted Partner applications and 12 weeks for Standard applications), it recognises that the uncertainty caused by COVID-19 may impact on the ability of new employees to take up employment. DBEI is therefore facilitating changes to employment permit applications that have already been submitted. 

DBEI is willing to hold applications in its processing queue until the situation becomes clearer and will allow changes to start dates where a permit application has not yet been processed.  In addition to these measures, an applicant may request at any stage up until the processing of an application has taken place that their application be cancelled, in which case a 100% refund will issue if the withdrawal is as a result of the COVID-19 crisis.

Finally, employers should be aware that the Department of Justice and Equality’s Immigration Service Delivery has temporarily ceased the processing of new visa applications, save in certain priority or emergency cases, such as applications from healthcare professionals or essential transport personnel. Accordingly, DBEI has been contacting employers and prospective employees to establish if they wish to proceed with any existing employment permit applications from visa-required countries (full list available here). As above, DBEI is willing to continue to hold the application in the processing queue, change the employment start date or facilitate a withdrawal of the application with a full refund of the application fee.

Conclusion

DBEI’s continued processing of employment permits during this period of business disruption and its commitment to a flexible approach to renewal applications (where the salary and working hours set out in the conditions of the permit granted may not be achieved due to COVID-related pay cuts, lay-offs, and/or reduced hours) are to be welcomed. As businesses begin to plan for their return to on-site working, however, employers should be cognisant of DBEI’s stated expectation that employment permit holders will work from the location stated on their employment permit once government restrictions are lifted. Where this expectation conflicts with an employer’s proposed ‘return to work’ plan, that employer should make contact with DBEI as soon as possible in order to seek further direction. 

How can we help?

The Employment, Pensions & Incentives Group at McCann FitzGerald is available to answer any queries you may have in relation to Corporate Immigration in the current climate, and can provide guidance on the legal consequences of measures being considered by your organisation to respond to the challenges posed by COVID-19.

Also contributed by Declan O’Rourke