Employment law governs the working relationship. It is concerned with employment rights: protection from unfair dismissal under the Unfair Dismissals Acts 1977 - 2015, protection from discrimination under the Employment Equality Acts 1998 - 2015, and statutory entitlements which may be enforced through the Workplace Relations Commission (WRC) and the Labour Court.

Immigration law exists in a parallel world, in which the State, acting principally through the Department of Enterprise, Tourism and Employment (DETE) and the Department of Justice, Home Affairs and Migration (DOJ) controls who may enter and work in Ireland. The Employment Permits Act 2024 prohibits a non-Irish or EEA/UK/Swiss national from working in Ireland without right to work and separately prohibits an employer from employing such a person without it. Breach is a criminal offence, carrying penalties of up to €250,000 and/or ten years’ imprisonment on indictment.

The tension between these two regimes is not theoretical. Recent decisions from the WRC and UK tribunals show how each body of law can pull in a different direction, and what happens to employers who misread the interaction.

Right to work checks: the Phakwago decision

Irish law does not prescribe specific procedures for verifying an individual’s right to work and there is no formal guidance issued by the relevant government bodies. Instead, employers must rely on the Employment Permits Act 2024, which simply requires them to take “all such steps as were reasonably open” to them to avoid employing someone illegally. What those steps look like in practice is left to the employer to work out. 
The recent WRC decision in Phakwago v Iarnród Éireann Irish Rail (ADJ-00067503, decided 7 August 2026) shows what can go wrong when an employer’s understanding of immigration law and policy does not match the legal reality.

Mr Phakwago, a South African national, discovered while visiting family in South Africa that his Irish Residence Permit (IRP) card had expired on 6 January 2026. When he tried to return to Ireland on 7 January 2026, he could not do so as the expired IRP card no longer entitled him to enter the State.
Following notification of this issue, Irish Rail supported Mr Phakwago with an application for a Critical Skills Employment Permit, which was granted on 3 February 2026. He then obtained a long-stay “D” employment visa on 6 February and re-entered Ireland on 8 February.

On entry, an immigration officer placed a landing stamp in his passport which confirmed his permission to enter the State for employment purposes and his obligation to register with the Immigration Service Delivery within 90 days. Effectively, the landing stamp acts as a temporary immigration certificate until a new IRP card is issued. Consequently, following his entry into the State, Mr Phakwago booked an appointment to register with the Immigration Service Delivery to obtain a new IRP card.

When Mr Phakwago attended for work on 10 February, Irish Rail told him to leave pending verification of his immigration status. Despite providing copies of his visa, the landing stamp in his passport, his employment permit, and confirmation from both an immigration officer at Cobh Garda Station and NASC (the Migrant and Refugee Rights Centre), the employer still would not let him attend for work.

Mr Phakwago even obtained a written opinion from an immigration solicitor supporting his right to work and disagreeing with Irish Rail’s position. 

Nonetheless, Mr Phakwago remained on unpaid leave for the remainder of February.

Mr Phakwago claimed that the non-payment of his wages for February 2026, amounting to €5,932.20, was an unlawful deduction from his wages in breach of the Payment of Wages Act 1991. He sought reimbursement of those lost earnings through the WRC.

Irish Rail stated that they had relied on legal advice from the CIÉ Solicitors Department that Mr Phakwago should not be allowed to work until he obtained a new IRP card. Irish Rail said they were obliged to take this approach to comply with immigration and employment legislation and avoid regulatory risk.
Irish Rail’s position rested on DOJ guidance concerning expired IRP cards which states that an individual whose IRP has expired before submitting a renewal application is considered “out of permission” and is not permitted to work in the State.

The WRC Adjudication Officer, Breiffni O’Neill, correctly found that this guidance was directed at a different factual scenario: it concerned persons already resident in the State who applied to renew their IRP card after their existing IRP card expired. Mr Phakwago’s circumstances were materially different. His expired IRP had been superseded by an entirely new immigration permission. He now possessed a Critical Skills Employment Permit and a long stay “D” employment visa.

While the Adjudication Officer didn’t stress the point, a landing stamp was also endorsed on Mr Phakwago’s passport when he entered the State. This was his temporary immigration certificate for his immediate time in Ireland and until such time as he registered with the Immigration Service Delivery and obtained a new IRP Card. The Adjudication Officer accepted the complainant’s position, and that the guidance relied on by Irish Rail did not address his situation.

The WRC found that wages were properly payable from 10 February 2026 onwards and ordered the employer to pay €2,909.44 in respect of the unlawfully withheld wages for the days from when Mr Phakwago was prevented from returning to work.

The takeaway here is important. An IRP card is an individual’s immigration certificate for Ireland. While it is a critical piece of evidence when it comes to establishing right to work, it is only one piece of evidence in the broader immigration picture. Ireland’s immigration landscape is a complex multi-stage system and as such, the absence of a valid IRP card does not necessarily mean that an individual does not have right to work.

Employers who make decisions based on an incomplete (or lack of) understanding of the law or policy can risk far greater consequences than simply depriving an employee of their entitlements.

The Phakwago decision reinforces the importance of seeking specialist immigration advice before acting, particularly in non-standard cases where the DOJ’s general guidance may not apply.

Discrimination: Osborne Clarke and Gharabli

The intersection of employment and immigration law also creates discrimination risks.

Under the Employment Equality Acts 1998 - 2015, indirect discrimination occurs where an apparently neutral provision or practice puts people of a particular race or nationality at a disadvantage compared with others unless it is objectively justified by a legitimate aim pursued through appropriate and necessary means.

Irish, EEA, UK and Swiss nationals have an automatic right to work in Ireland but non-Irish or EEA/UK/Swiss nationals generally do not. Any employer policy that filters candidates by reference to right-to-work status will disproportionately affect that latter group and is, on its face, indirectly discriminatory on the ground of race.

There is no Irish case law directly testing this point. The leading authority remains the UK Employment Appeal Tribunal’s decision in Osborne Clarke v Purohit (2009), in which a law firm’s blanket policy of excluding candidates who did not already have the right to work for trainee solicitor roles was held to constitute unlawful indirect race discrimination. The firm thought that, because it was a training role, a work permit application was unlikely to succeed. In finding against the firm, the Employment Appeal Tribunal said that the firm’s policy amounted to unlawful indirect race discrimination which could not be justified. The Employment Appeal Tribunal rejected the firm’s cost-based arguments, especially considering the firm’s ample resources. The tribunal held that the firm should have conducted the recruitment process on merit and should only have turned to sponsorship questions towards the end of the process.

While Osborne Clarke is not binding in Ireland, its reasoning has clear relevance for employers here. The Employment Equality Acts 1998-2015 and the UK’s Equality Act 2010 share common European origins, and the analytical framework for indirect discrimination, i.e. identifying a neutral provision with a disproportionate impact on a protected group, followed by an assessment of whether it can be objectively justified, is substantively similar. There is a real prospect that the WRC, if confronted with a comparable claim, would follow a similar approach. Cost alone is unlikely to justify refusing to employ or support a candidate who needs an employment permit, particularly given that the application processing fee may lawfully be borne by the candidate rather than the employer.

The UK Employment Tribunal’s more recent decision in Gharabli v Cedar Hope Care Services Ltd (Case No. 6009247/2024) illustrates a different dimension of the discrimination risk, one that immigration compliance can produce. The tribunal found indirect race discrimination where a care services employer paid overseas workers on Skilled Worker visas £12.31 per hour while domestic workers in the same role earned £10.50 per hour. The disparity arose because the Home Office sets minimum salary thresholds for visa holders, while the employer paid domestic workers only the national minimum wage. Following her promotion, Mrs Gharabli, a domestic worker, earned only marginally more than overseas workers in junior roles.

The employer argued that it had simply paid every worker the rate legally required. The tribunal rejected that argument. It accepted that compliance with immigration salary thresholds was capable of being a legitimate aim, but held that compliance alone was insufficient to justify the pay disparity where the employer had not considered matching domestic workers’ pay to the overseas rate or produced evidence showing why doing so would be financially prohibitive. The tribunal awarded Mrs Gharabli £14,175 in compensation.

For Irish employers, section 17(2) of the Employment Equality Acts provides that action taken in accordance with the Employment Permits Act 2024 is not unlawful nationality discrimination. That carve-out protects compliance with the employment permit system, but it does not extend to pay policies beyond what immigration law strictly requires. An employer whose pay for employment permit holders creates a two-tier pay structure with domestic workers earning less for the same work cannot assume that compliance with immigration rules will shield it from an indirect discrimination claim under Irish equality legislation. The prudent approach is to match pay rates for equivalent roles across the workforce and to document the evidential basis for any difference.

Unfair dismissal: Poliane Fernandes Lima and An Employee v An Employer

The hardest practical difficulty at the intersection of these two regimes comes when an employee’s right to work expires or appears to lapse during the employment relationship. The employer faces a stark dilemma: continue the employment and risk committing a criminal offence under the Employment Permits Act 2024, or terminate and risk an unfair dismissal claim before the WRC.

Section 6(4)(d) of the Unfair Dismissals Act 1977 provides that a dismissal is not unfair where the employee is “unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.” On its face, this looks like a straightforward defence where an employee lacks right to work.

Unfortunately, the case law shows that section 6(4)(d) is not a free pass. It does not relieve the employer of the obligation to act reasonably or follow fair procedures before terminating the employment. Nor does it relieve the employer of any obligation to understand the DOJ’s laws and policies on right to work or to offer a defence when they are misconstrued.

In Poliane Fernandes Lima v Elland Distributors Limited t/a Born Clothing (ADJ-00049872), Ms Lima applied to renew her IRP card in November 2023, well before its expiry on 23 January 2024. Born Clothing sought legal advice and, on the basis of that advice, terminated her employment on 25 January 2024, two days after expiry. Three days later, on 28 January, her permission was renewed.

The Adjudication Officer found that the employer’s legal advice had failed to mention the DOJ’s grace period. Where an IRP card has expired before a renewal comes through, the employee can remain in the State on their existing conditions with right to work for up to 12 weeks (previously eight weeks at the time of the complainant’s termination), provided they applied before the expiry date and submitted all required documentation. Ms Lima had applied well before expiry and had provided Born Clothing with proof of her application. She met the criteria for the grace period. However, Born Clothing, by acting on incorrect information and denying Ms Lima fair procedures, had unfairly dismissed her.

The earlier Employment Appeals Tribunal decision in An Employee v An Employer (UD1676/2011) follows a similar pattern and adds a further dimension. A security guard on a student visa was terminated after his visa expired. He had been told by the Garda National Immigration Bureau in December 2010 that a new immigration policy was being introduced on 1 January 2011 and that he should wait for the changes. Through no fault of his own, his visa was not issued until 23 March 2011. His employment was terminated by letter on 6 April 2011, just before the employer received a copy of the renewed visa on 7 April.

The Tribunal found the dismissal to be unfair but took into account the employee’s contribution to the situation, noting that the employee had a duty to keep his employer updated and informed about the status of his renewal application. Applying the “just and equitable” standard under section 7 of the Unfair Dismissals Acts, the Tribunal awarded €2,000 in compensation.

Read together, these decisions establish several clear principles:

1. Before acting on a suspected right-to-work issue, employers should understand the immigration rules and DOJ’s policies around right to work following the expiry of permission.
2. Legal advice should be sought on a case-by-case basis. 
3. Fair procedures are essential. Investigate the employee’s immigration status, meet with them, and give them an opportunity to respond before reaching a decision. 
4. Suspension may not reduce immigration risk, as the individual remains employed. 
5. Employers should maintain open communication with the employee, and should not act precipitously.
6. Premature termination based on a misunderstanding of the rules will not prevent a successful unfair dismissal claim.

Conclusion

The case law discussed in this article confirms that compliance with one regime does not automatically ensure compliance with the other. Employers who approach right-to-work issues through the lens of immigration law alone and without considering employment law obligations around discrimination, fair procedures and unfair dismissal — risk exposure on both fronts. The message is consistent across each of these decisions: get specialist immigration and employment law advice before acting, apply processes consistently and fairly, and do not act impulsively on the basis of assumptions about what immigration law requires.

Declan Groarke is managing associate and Emma Quinn is senior associate at Lewis Silkin Dublin