This article offers a high-level introduction to the basics of conducting right to work checks in Ireland, why they matter and where tensions between the two areas of law can surface in practice. It is not a comprehensive compliance guide. Instead, it sets the scene for topics we'll explore later in this series.

Why right to work checks matter

It is worth understanding why each "sibling" cares about right to work checks, because their reasons, and the consequences that may arise are different.

From an immigration law perspective, the logic is straightforward: the State has an interest in ensuring that its labour market rules are respected. The Employment Permits Act 2024 (“the 2024 Act”) prohibits a foreign national from working (in whatever capacity) in the State without permission. As a separate but related prohibition,  an employer cannot employ or engage a foreign national without permission.

Breach of these provisions is a criminal offence. On summary conviction, an employer can face a fine of up to €4,000 or imprisonment of up to 12 months, or both. On conviction on indictment, the fine increases to €250,000 and/or imprisonment of up to 10 years, or both.

Beyond criminal penalties, employers found to be employing or engaging individuals without the right to work may face reputational damage, more frequent inspections by the Workplace Relations Commission, and difficulties obtaining employment permits for eligible employees.

In other words, immigration law has a long memory.

From an employment law perspective, the concern is different but equally real. The Employment Equality Acts 1998–2015 prohibit discrimination on a number of grounds, including the ground of race, which encompasses nationality and ethnic or national origin. Where an employer conducts right to work checks in a manner that targets candidates by reference to their colour, nationality, accent, or the length of time they have lived in Ireland, it exposes itself to a potential discrimination claim.

Employment law's interest doesn't stop at the checking stage. Where an employer later dismisses an employee because of a perceived failure to satisfy right to work requirements, and does so without a fair process, it may face a claim for unfair dismissal or discriminatory dismissal before the Workplace Relations Commission. This means that getting the check wrong at the outset can create problems down the road that go well beyond immigration compliance.

The "reasonable steps" gap

One of the most striking features of the Irish right to work landscape is that Irish law does not prescribe specific procedures for verifying an individual's right to work. No formal guidance has been issued by the Department of Justice, Home Affairs and Migration, the Department of Enterprise, Tourism and Employment, or the Workplace Relations Commission. Unlike the UK, where the Home Office has issued detailed procedural guidance and prescribed document check processes for employers, in Ireland, employers must rely on the legislative framework.

The statutory defence available to an employer charged with an offence under the 2024 Act is to show that it "took all such steps as were reasonably open to [it] to ensure compliance." What those steps look like in practice is left to the employer to determine.

This creates a notable tension. Immigration law imposes a serious criminal penalty and reputational consequences for getting it wrong. Employment law imposes a requirement of fairness and non-discrimination in how you go about getting it right. And neither regime tells you precisely what "right" looks like in practice.

The siblings agree on the destination but haven't agreed on the route.

Carrying out right to work checks in practice

Despite the absence of a prescribed procedure, there is a well-established body of good practice that employers should follow. The core principles are as follows:

1. Check everyone, consistently. The single most important safeguard against both immigration non-compliance and discrimination claims is to carry out a right to work check for every new hire, without exception. This applies equally to an Irish national, an EEA national, a UK national and a non-EEA national. The type of documentation required will differ; an Irish or EEA/UK/Swiss national need only produce their passport, passport card, or EU National ID Card (or an equivalent certificate of nationality with photo identification), whereas a non-EEA/UK/Swiss national will typically need to present their passport and Irish Residence Permit ("IRP") card. Regardless of what needs to be checked, the check taking place should apply universally.
2. Check before employment begins. Checks should be completed in advance of the employee joining and before they are scheduled for their first day – not during their first day. A check completed moments before or after an employee starts work introduces unnecessary risk: if the individual turns out not to have the right to work, you are already in difficulty. Building adequate lead time into the right to work check process is a practical necessity, not a luxury.
3. Inspect original documents. Employers should, wherever possible, inspect original documentation rather than relying on copies. If an initial check is carried out virtually via video link or by accepting copies of documents electronically, a follow-up physical check or cross-check should be completed before the individual starts work. Only carrying out virtual checks increases the risk that documents may be forged or tampered with and makes it more likely that an employer will be found not to have taken reasonable steps to ensure an individual has right to work before they start employment.
4. Apply basic verification steps. When inspecting documentation, employers should ensure it is valid, in-date, and appears genuine. The individual's appearance should be consistent with photographs on the documents provided, and the details should match the information provided during the recruitment process. If there are inconsistencies e.g. names spelled differently, conflicting dates of birth, these should be queried before proceeding.
5. Keep a record. For every right to work check, the employer should maintain a written record of what was checked, when, and by whom. This record should include the type of document inspected, the nationality of the individual, the type of immigration permission held (where relevant), and when a repeat check is next due. For employment permit holders, the record-keeping obligation is statutory: under the 2024 Act employers must retain records in relation to the individual’s employment, its duration, the particulars of the permit, details of board and accommodation, remuneration paid, and the number of EEA and non-EEA nationals employment by the company at the time. These records must be retained for a period of five years from the date the permit was granted or for the duration of employment, whichever is the longer. Failure to keep these records is a criminal offence.
6. Don't delegate and forget. While third parties may provide support, the employer remains liable if it is found to be employing someone illegally. It is unlikely that an employer would be able to rely on the statutory defence if it wholly relies on a third party to complete checks on its behalf without any oversight or involvement.

The tension in practice: thoroughness versus discrimination

This is where the siblings really start to squabble.

Immigration law creates a powerful incentive to be thorough, to ask questions, to query inconsistencies, to err on the side of caution. The penalties for employing someone without the right to work are serious, and the "reasonable steps" standard implicitly rewards proactive, diligent checking.

But employment law warns against over-scrutiny, particularly where it is applied unevenly. Asking additional questions of candidates who appear to be of a particular nationality or ethnic background, while waving through others without equivalent inquiry, is precisely the kind of conduct that gives rise to a race discrimination claim. While a legitimate business justification defence might exist to a discrimination claim, employers must still resist the instinct to be more thorough with some candidates than others based on their appearance, accent or background.

The practical resolution of this tension lies in systems, not instincts. Difficulties tend to arise where employers lack a consistent system for completing right to work checks and instead leave it to individual managers or recruiters to carry out checks on a case-by-case basis using their own judgment, without oversight or a set process to follow.

Having a right to work policy and checklist avoids this.

An employer that applies the same checking procedure to every new hire, regardless of perceived nationality, and documents its process consistently, will be well placed to defend both an immigration prosecution (by demonstrating it took reasonable steps to ensure compliance) and a discrimination complaint (by demonstrating it applied its process even handedly).

Conditional offers of employment

One of the most effective tools for managing how to check right to work, and for ensuring the siblings play nicely together, is to make all offers of employment expressly conditional on the candidate satisfactorily demonstrating their right to work in Ireland.

A conditional offer allows the employer to begin verification before the employment relationship becomes binding. It creates a clear, pre-agreed basis for the employer to withdraw the offer if the condition cannot be met, usually without significant consequence. Crucially, if this condition is applied uniformly to every offer the employer makes, it insulates the process against an allegation that the condition was imposed selectively by reference to a candidate's perceived nationality or background.

When a candidate cannot satisfy the condition, the approach to withdrawing the offer should be fair, consistent, and documented. Candidates should be given a reasonable opportunity to produce evidence of their right to work. Where documentation is ambiguous or a candidate claims to have permission that they cannot immediately evidence, for example, because they are in the process of renewing their IRP card, the employer should engage with the candidate, allow a reasonable period for resolution, and seek legal advice before making a final decision.

The key safeguard is consistency. If the consequences for not satisfying the right to work preconditions is the same for every candidate, the employer is in a strong position to demonstrate that its process is driven by legitimate compliance objectives rather than by assumptions about any individual's nationality or background.

Repeat checks

Right to work verification is not a one-off event. Where the initial check does not demonstrate a right to work for the duration of employment, which will commonly be the case for non-EEA/UK/Swiss nationals on time-limited immigration permissions, repeat checks will be required.

Employers should have a robust system of reminders in place to track the validity of employees' permissions and to ensure that rechecks are triggered before existing permission expires. Not all permits are renewable, and it may not always be possible for an individual to obtain new permission to work with the permit they hold. This means that when the right to work is rechecked, employers may on occasion find themselves back at the difficult intersection between immigration compliance and fair employment practice, a topic we explore in detail in our later article on investigating and responding to a loss of the right to work during employment.

Looking ahead

This article has set out the basics. In the articles that follow, we will look at what happens when the checking process surfaces more difficult questions, including whether and how employers can lawfully account for immigration status when recruiting and what to do when an employee's right to work expires during employment.