Automatic Extensions – An explainer for Employees and Employers

We have been consistently approached by employers and employees – particularly HR associates – seeking information, advice, and clarity, over the operation of the automatic permission extensions announced by the Minister for Justice since the start of the pandemic. The automatic extensions are unique, and highlight practical difficulties involved in immigration compliance.

As with every aspect of the Irish immigration system, the documentation side of immigration control and compliance can be a confusing landscape, such as the relationship between permissions, visas, employment permits, IRP/GNIB cards and ‘stamps’, and this has been clearly been the case for people seeking to navigate what they can and cannot do under the automatic extensions.

We have set out below a summary explanation as to what the automatic extensions are, how they operate, and the employment implications involved.

            Immigration Law – the Basics of Permissions.

Firstly, it must be understood that the primary basis for determining whether a non-national is lawfully in the State is the question of whether they have a valid permission (which effectively acts as an authorisation to be in the State) granted by or on behalf of the Minister for Justice. So long as a non-national has a valid permission, they are in the State lawfully. This is made clear by Section 5 of the Immigration Act 2004, which provides that “No non-national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act, or a permission given to him or her after such passing, by or on behalf of the Minister”.

The Minister has both a statutory and executive power to grant, renew, vary, or revoke permissions. Following from this, the Minister may attach conditions to an individual’s permission, which will determine their employment entitlements or other restrictions. An example would be a student with a valid permission on Stamp 2 conditions, meaning they are here lawfully for the purposes of study but can only work 20 hours per week in certain times of the year. Another instance would be an individual with a valid permission on Stamp 4 conditions, which typically allows for full-time employment without the requirement of an employment permit.

Once an individual has a valid permission, this will generally be reflected in an IRP – an Irish Residence Permit – and is a card with the details of the person’s permission thereon, including their employment entitlement. However, the IRP is not the lawful basis of the individual’s residence, it is merely an administrative requirement under Section 9 of the Immigration Act 2004 to possess one. It is not the instrument or mechanism which authorises residence in the State. The absence of a valid IRP does not mean the individual’s underlying permission is invalid. So long as the permission validly exists – even without an IRP – the individual is still in the State lawfully and work accordingly, depending on the conditions attached to the permission.

Automatic Extensions.

During the beginning of the COVID-19 Pandemic, immigration registration offices around the country closed, including the Burgh Quay registration office in Dublin. This meant that many people could not renew their permission. In light of this, the Minister – pursuant to her executive powers – announced an automatic permission extension, typically on the same conditions as the person’s original permission. This meant that a person’s Stamp 2 permission was automatically renewed as a matter of law on the same Stamp 2 conditions. The same case for Stamp 3, Stamp 4, Stamp 5 etc.

The latest – and current – permission extension was announced on the 17^th December 2021. The Minister’s announcement, as outlined on the Immigration Service website, states the following:

“This temporary extension of immigration permissions means that people who held a valid permission to be in the State in March 2020 are legally permitted to remain until 31 May 2022, even if their Irish Residence Permit (IRP) card has expired and they are awaiting a new one. Renewal is on the same basis as the existing permission and the same conditions will continue to apply.”

Persons who held a permission after March 2020 – such as newly arrived students – are also captured by previous automatic extensions. By announcement dated the 24th December 2021, the Immigration Service Delivery issued a statement titled ‘Notice to Employers regarding temporary extension of permissions announced on the 17^th December 2021’. This notice states that

“This temporary extension of immigration permissions means that people who held a valid permission to be in the State in March 2020 are legally permitted to remain until 31 May 2022, even if their Irish Residence Permit (IRP) card has expired and they are awaiting a new one. Renewal of the permission is on the same basis as the existing permission held and the same conditions will continue to apply. Those covered by the extension are entitled to remain, reside and work in the State if their previously granted permission allowed them to do so.”

The automatic permission extensions have given much needed relief to many non-nationals and their employers. They have temporarily removed the burdensome and stressful requirement of seeking an appointment to renew the permission, and instead allows many people to remain lawfully in the State, and lawfully employed (if applicable) while they make attempts to secure a new IRP.

The current extension expires on the 31^st of May 2021. For persons who do not renew their permission before that date, or if there is not a new extension, they may then be unlawfully in the State. As mentioned above, a permission is what determines the validity of a person’s residence in the State. No valid permission means no valid residence and no right to work. Despite the respite afforded to the Immigration Service by way of the automatic extensions, there are still significant delays in obtaining new IRP cards and renewing other permissions, with some waiting months to secure an appointment or receive a new IRP.

Key for Employers

A sound understanding of the automatic extensions and the legal status of a permission, an IRP, a stamp, etc. is vital in knowing whether a person may continue working beyond the expiration date of their IRP. A number of persons have been unfairly dismissed from employment due to not having a valid IRP but having a valid permission allowing employment, with same evidenced by a passport stamp from a time when the automatic extension announcement was applicable to them. Employers in that situation may face claims in the Workplace Relations Commission for unfair dismissal or discrimination actions under employment protection legislation.

So long as a person has a valid permission authorising employment, even without a valid IRP, then they may take up or continue employment, even if the permission exists by virtue of the automatic extensions. This is made clear by and expressly stated in the Minister’s announcement for employers dated the 24^th December 2021. In any case, employers should be slow to dismiss employees on immigration compliance grounds, particularly in the unique situation involving automatic extensions – which we accept is complicated for those unfamiliar with immigration compliance to understand – without having first obtained specific legal advice on immigration and employment rights.

If you have been impacted by employment issues – either as an employer or an employee – feel free to get in contact with us and we are happy to advise employees on their employment rights, and employers on their employment obligations.