In the wake of President Trump’s 90-day immigration ban, we examine the scope of the new US immigration rules and the likely impact they will have for Irish employers. We also consider what enquiries Irish employers may now be required to make about their employees.

Due to Brexit and the recent changes introduced by President Trump, the immigration landscape has never looked so uncertain. Free movement of workers is no longer a certainty.

President Trump’s executive order puts in place a 90-day ban on entry to the US for nationals of Iran, Iraq, Syria, Yemen, Sudan, Libya and Somalia. It was initially unclear whether the measure would apply to citizens of those countries who already have permission to live and work in the US. It has since been clarified that individuals with dual citizenship as well as those who are legal permanent residents of the US (“green card holders”) are exempt from Mr Trump's executive order, subject to some limited exceptions.

This affects some 5,000 individuals living in Ireland who are nationals of the listed countries but also have Irish citizenship. For example, if an Iranian national is employed in Ireland with an Irish passport, as things stand, that person will be permitted to travel from Ireland to the US. However, if an Iranian national is employed in Ireland under an Irish working visa with an Iranian passport only, he/she will be prohibited from travelling to the US.

What is the Irish position in relation to the listed countries?

Citizens of over 100 countries require a pre-entry visa before travelling to Ireland. Nationals of the seven listed countries are amongst those requiring these visas and the current visa entry process will not change for these individuals. The process varies depending on where the applicant is based and the system operated by the relevant embassy / consulate to which they apply. Technically, applications can take between six and eight weeks to process, although in most cases applications can be processed quicker.

Apart from the entry visa step, any non-EEA and non-Swiss nationals seeking work in Ireland will also require valid permission from the Department of Jobs, Enterprise & Innovation or, in limited circumstances, from the Department of Justice.

Could the same thing happen in Ireland?

In short, it is very unlikely. The sole and exclusive power of making laws for the State is vested in the Oireachtas (Parliament). The Constitution confers primacy on Dáil Éireann as the directly-elected house in the passage of relevant legislation and, therefore, all legislation must be approved by Parliament. President Higgins is also required to sign any Bill presented to him once passed by Parliament. However, the Constitution does provide that the President may, after consultation with the Council of State, refer to the Supreme Court the question of whether the Bill or any of its provisions is unconstitutional. If the Supreme Court finds it to be unconstitutional, the President will decline to sign the Bill.

Know your employees

Due to the current benefit of immigration pre-clearance to the US from Ireland, over 6,000 people travel from Ireland to the US every day. Many Irish-based tech firms including Microsoft, Google, Apple and Facebook pride themselves on their diverse workforce and regularly need to send employees to the US.

The reality is that before an Irish employer sends an employee to the US to work for any duration, it may become necessary to enquire about their nationality and status. While this obviously raises a question of discrimination, as it will not be relevant to an employer’s entire workforce, it may now be necessary in order to avoid the employee being placed in a somewhat precarious position. Our legislation does not make explicit reference to this, i.e. having to alter your approach due to a change in another country’s immigration policy, so employers will need to carefully evaluate each situation individually with due consideration of our employment equality legislation.

The position is not clearly defined and we will continue to monitor the suspension rules as they develop.