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Brexit and Free Movement of People – In Context


The various EU Treaties which provide for the free movement of EU nationals between the Member States will cease to apply to the UK two years from the date the Article 50 notice is given by the UK Government, or an alternative agreed date.  In the meantime, EU nationals (including UK nationals) can continue to avail of free movement rights under the EU Treaties to live and work freely within the Member States.  

Future of Common Travel Area 

The Common Travel Area (CTA) encompasses the UK, Ireland, the Isle of Man and the Channel Islands and predates the EU membership of both Ireland and the UK, having been in existence largely uninterrupted since 1923.   The CTA allows nationals of its covered territories to travel, live and work freely within its boundaries.  The UK and Irish Governments have each expressed a desire to maintain the CTA after Brexit, but some modification of the CTA policy will be needed for it to work.  The arrangement has been in effect only while the countries were both within or both outside of the EU.  Some practical issues arise if it is to be maintained, including the ability of EU nationals to secure Irish citizenship and in turn access to live and work in the UK through the CTA, as well as what could be perceived as ease of illegal migration facilitated by the maintenance of a ‘soft’ border. 

Resourcing beyond Brexit

Until there is more clarity on the matter, UK (re)insurers considering establishing an Irish operation to guarantee continued access to the EU market should consider how current Irish corporate immigration rules would cater for their resourcing needs. 
It should be remembered that irrespective of the outcome of Brexit negotiations, EU nationals currently working in the UK will be able to freely take up employment in Ireland. Unless the UK joins the European Economic Area (EEA), the CTA is maintained or different arrangements are bilaterally agreed, UK nationals proposing to work in Ireland after Brexit would come under the regime described below.  

Irish employment permits regime 

Any non-EEA national proposing to perform employment duties in Ireland requires an employment permit.  Applications are submitted to the Department of Jobs, Enterprise and Innovation (DJEI) which is empowered under applicable legislation to review and decide on employment permit applications.  

General requirements

Any employer proposing to second or employ non-EEA personnel to work in Ireland must be able to show that it is trading in Ireland and that 50% or more of its workforce is made up of EEA citizens.  This rule may be waived for start-up employers but is otherwise a strict requirement.  Summarised below in high level terms are the key types of employment permit available under the Irish regime.  Note that particular remuneration conditions and other eligibility criteria apply for all employment permits.  

Direct employment 

Direct employment by an Irish entity is facilitated by two distinct types of employment permit.  

  1. Critical Skills Employment Permit
    Persons proposing to take up employment in respect of which there is considered to be a skills shortage in Ireland can apply for a Critical Skills Employment Permit (CSP) which permits direct employment in Ireland for two years.  The holder can, subject to certain conditions, continue to live and work in Ireland in that same capacity beyond the expiry of his or her CSP, without the need to obtain another employment permit.  The CSP is conducive to long-term residency (after five years) and, ultimately, citizenship.  A CSP is available only where the employer commits to an initial period of employment of two years.  
    It is currently DJEI policy that actuaries, chartered/certified accountants, statisticians or economists, or tax professionals specialising in compliance, regulation, solvency or financial management, as well as persons qualified in risk or credit analysis are considered as having critical skills.  

    A non-EEA candidate for a role not recognised as involving the application of critical skills may be eligible for a General Employment Permit (GEP).  

  2. General Employment Permit
    A role proposed to be filled by a candidate for a GEP must generally first be advertised across Europe and in a national Irish newspaper to test local labour market needs.  Once this needs test has been discharged, subject to the role not being an ineligible occupation, a GEP may be granted.    

Secondment to an Irish associated entity

The Irish employment permits regime permits the secondment of a non-EEA worker from his employer to an associated company in Ireland, subject to certain qualifying criteria.  Eligible candidates are those who occupy senior management roles, perform ‘key’ functions essential to the business or who are proposed to undergo a structured training programme while in Ireland.   The regime facilitates secondment for an initial period of 90 days to 2 years, which may be extended for up to a maximum period of 5 years.   A candidate must generally have been employed by the overseas employer for at least six months by the time the application is submitted.  Short-term assignments to Ireland (of fewer than 90 consecutive days) are catered for under a bespoke scheme. 

Trusted Partner status 

An employer can apply for ‘Trusted Partner’ status which, if secured, allows a simplified and fast-tracked employment permit application process.  The DJEI has discretion as to whether a particular employer can be a Trusted Partner.  An employer who has created stable employment on a significant scale for EEA citizens in Ireland (or who has a tangible local jobs growth plan) can expect an application for Trusted Partner status to be reviewed favourably.  

Timing of permit applications 

Currently, employment permit applications can take up to 12 weeks for non-Trusted Partner employers. For Trusted Partner employers, the application process is considerably expedited.  

Business travel 

Non-EEA nationals can enter and remain in Ireland on business (for example to attend meetings, conferences or seminars) for a period of up to 90 consecutive days, determined at the discretion of the immigration authorities.  Unless the business traveller is a citizen of a visa-required country, there is no need to apply in advance of travel for this visa.  It seems inevitable that Irish immigration legislation will be amended to provide that UK nationals will not require a visa to travel to enter Ireland. 

Contributed by: Louise Harrison