Complainant

Respondent

Parties

Jan  Phakwago

Iarnród Éireann Irish Rail

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00082283-001

27/03/2026

The Complainant is employed by the Respondent as a Structural Engineer and submitted that he was unlawfully deprived of wages after being prevented from returning to work in February 2026. He contended that the dispute arose from the Respondent's misunderstanding of Irish immigration law, specifically the distinction between an Irish Residence Permit ("IRP") card and legal immigration permission.

The Complainant stated that he had previously held permission to reside and work in Ireland and had been issued with an IRP card. While visiting family in South Africa, he discovered that his IRP card had expired on 6 January 2026. When he attempted to return to Ireland on 7 January 2026, he was prevented from travelling because the expired IRP no longer entitled him to enter the State. As a result, he was required to obtain new immigration documentation before returning to Ireland.

Following notification of the issue, the Respondent applied for a Critical Skills Employment Permit on his behalf, which was granted on 3 February 2026. The Complainant also applied for and obtained a Long Stay D Visa on 6 February 2026. He returned to Ireland on 8 February 2026 and was granted permission by an immigration officer to enter and remain in the State for employment purposes. On 9 February 2026, he applied to register that permission and obtain a new IRP card.

The Complainant maintained that, from the date of his re-entry into Ireland, he possessed valid immigration permission and was lawfully entitled to work. He submitted that the Immigration Act 2004 distinguished between "permission" and an IRP card. In his view, permission was granted by an immigration officer through a visa, passport endorsement or other immigration authorisation, whereas an IRP card merely recorded or evidenced that permission. Accordingly, he contended that possession of a physical IRP card was not a legal prerequisite to his entitlement to work.

When he attended for work on 10 February 2026, he was instructed to leave the workplace pending verification of his immigration status. The Complainant stated that he attended at Cobh Garda Station, where an immigration officer examined his documentation and confirmed that he was legally entitled to reside and work in Ireland. He further sought advice from NASC, the Migrant and Refugee Rights Centre, which confirmed the same position. Subsequently, he obtained a written opinion from an immigration solicitor who supported his interpretation of his immigration status and disagreed with the Respondent's position.

The Complainant submitted that between February and March 2026 he repeatedly contacted the Respondent seeking clarification of his status and requesting permission to resume work. He supplied copies of his visa, immigration stamps, employment permit and confirmation that he had applied for a new IRP card. Despite these efforts, he remained on unpaid leave and was not permitted to work. He maintained that he was ready, willing and available to perform his duties at all material times.

A central plank of the Complainant's case was that the Respondent incorrectly characterised his circumstances as an ordinary IRP renewal application. He argued that because his IRP expired while he was outside Ireland, he was required to obtain fresh immigration permission to enter the State. He said that the subsequent registration process was effectively a new registration rather than a renewal and therefore fell outside the circumstances addressed in the Department of Justice guidance relied upon by the Respondent.

The Complainant contended that, as he possessed valid immigration permission, a valid employment permit and confirmation from relevant immigration authorities that he was lawfully entitled to work, the Respondent acted wrongly in preventing him from working and placing him on unpaid leave. He therefore claimed that the non-payment of his wages for February 2026, amounting to €5,932.20, constituted an unlawful deduction from wages contrary to the Payment of Wages Act 1991 and sought reimbursement of those lost earnings.

The Respondent stated that they acted lawfully and appropriately in preventing the Complainant from working until such time as he obtained a renewed IRP card. They submitted that the wages claimed were not unlawfully deducted but were not payable because the Complainant was not legally entitled to work during the relevant period.

The Respondent explained that the Complainant was a non-EEA national who, like other employees in a similar position, was required to maintain valid immigration documentation to lawfully work in Ireland. The Complainant had been issued with an IRP card which expired on 6 January 2026. The Respondent stated that the Complainant did not apply to renew his permission before the expiry date and therefore could not avail of the temporary concession available to persons who submitted renewal applications before their existing permission expired.

The Respondent relied upon Department of Justice guidance dealing with employees awaiting renewal of an IRP card. They stated that the guidance permitted employees to continue working for a limited period while awaiting a renewed card only where a renewal application had been made before the expiry of the current permission. The guidance further provided that a person whose permission expired before submitting a renewal application was regarded as being "out of permission" and was not legally entitled to remain or work in the State. The Respondent contended that the Complainant clearly fell into this latter category.

The Respondent stated that they sought legal advice from the CIÉ Solicitors Department regarding the Complainant's status. Following receipt of that advice, the Respondent concluded that the Complainant should not be permitted to work until he had obtained a renewed IRP card. They stated that they were obliged to adopt this approach to ensure compliance with immigration and employment legislation and to avoid exposing itself to regulatory risk.

The Respondent rejected the Complainant's assertion that his circumstances should have been treated as those of a person making a fresh immigration application. In their view, the Complainant remained a person whose immigration permission had expired before any renewal application was stated. The Respondent argued that accepting the Complainant's interpretation would undermine the renewal framework by allowing individuals whose permissions had lapsed to leave the State and subsequently seek to bypass renewal requirements through new applications.

The Respondent also noted its obligations as an employer of non-EEA nationals. They pointed out that, during a Workplace Relations Commission inspection in 2025, they were required to demonstrate that all such employees were legally entitled to work in the State and to produce copies of valid immigration documentation, including current IRP cards. Against that background, the Respondent stated that its cautious approach was both reasonable and necessary.

The Respondent stated that the Complainant's employment was never terminated. Rather, he remained employed but was placed on unpaid leave pending confirmation of his entitlement to work. Once he obtained a renewed IRP card, he was permitted to return to work. The Respondent stated that this was an appropriate and proportionate response in the circumstances.

Accordingly, the Respondent argued that no unlawful deduction from wages occurred. They stated that the Complainant was not entitled to payment because he was not legally authorised to work during the period in dispute and asked that the complaint be dismissed in its entirety.

The Complainant stated that he was seeking compensation in respect of his outstanding wages from the Respondent. The approach to be taken when adjudicating on a claim under the Payment of Wages Act 1991 is set out in Marek Balans v Tesco Ireland Limited [2020] IEHC 55, approving Dunnes Stores (Cornelscourt) Limited v Lacey [2007] 1 IR 478. Specifically, a decision-maker must first determine what wages are properly payable under the employment contract before determining whether there has been a deduction under Section 5(1) of the Payment of Wages Act 1991.

Section 5(1) of the Payment of Wages Act 1991 provides:

“An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.”

The Respondent's position is that they were not entitled to permit the Complainant to work and therefore not pay him until they were satisfied that he held the necessary immigration permission. Accordingly, it is necessary to consider the Complainant's immigration status during the relevant period insofar as it relates to the question of whether wages were properly payable.

I acknowledge that the Respondent was faced with a difficult situation. Employers have obligations in relation to ensuring that employees who require immigration permission are entitled to work in the State. I accept that the Respondent's concerns were genuine and that its decision to seek clarification before allowing the complainant to return to work was taken in good faith.

I also accept that the expiry of the complainant's IRP card, together with the fact that an application had not been stated before that expiry, created circumstances which reasonably caused the Respondent to exercise caution.

However, the question for determination under the Payment of Wages Act is not whether the respondent acted reasonably in its initial response. The question is whether, during the period for which wages were withheld, the Complainant had wages properly payable to him.

Immigration permission

The Complainant's case was that the Respondent incorrectly treated him as being without permission to work because his previous IRP card had expired. He argued that an IRP card is evidence of immigration permission rather than the source of that permission and that he obtained a new permission following the grant of a Critical Skills Employment Permit, the issuing of a long-stay "D" visa and his admission to the State on 8 February 2026.

I accept that there is a distinction between permission to be in the State and the registration or recording of that permission.

The Respondent relied on the Department of Justice Notice to Employers concerning expired IRP cards and renewal applications. Having considered the evidence before me, I am satisfied that, properly construed, the guidance is primarily concerned with circumstances where an individual who is already resident in the State seeks to continue relying on an existing immigration permission while awaiting the completion of a renewal process.

In reaching that conclusion, I have had regard to the nature and purpose of the guidance. The guidance addresses circumstances in which continuity of an existing permission is preserved pending renewal. It is directed towards persons seeking to rely on the conditions attaching to an existing permission after the expiry of an IRP card where a renewal application has already been made, and sets out the circumstances in which such permission may continue during an administrative processing period.

The circumstances of the present complaint differed materially. The Complainant's IRP card expired while he was outside the State. Upon attempting to travel to Ireland, he was unable to rely on the expired IRP card and was required to obtain a Critical Skills Employment Permit and a long-stay "D" visa before returning. Following his arrival on 8 February 2026, he was admitted to the State by an immigration officer and granted permission to enter and remain in the State for employment purposes.

On the evidence before me, the Complainant was not seeking to continue relying upon the permission associated with the expired IRP card. Rather, his position was that he had obtained a fresh permission to enter and remain in the State arising from the visa issued to him and the permission granted upon arrival. The issue before me was therefore not whether an expired permission could continue pending renewal, but whether the immigration permissions and documentation held by the Complainant following his return to Ireland entitled him to work pending registration.

I am therefore not satisfied that the Department of Justice guidance directly addressed the factual circumstances of this case. While the Respondent relied upon guidance relating to expired permissions and renewal applications, I find that the Complainant's circumstances were distinguishable because he was no longer seeking to rely upon the expired permission referred to in that guidance. Following the grant of a Critical Skills Employment Permit, the issuing of a long-stay "D" visa and his admission to the State, the Complainant's entitlement to work fell to be considered by reference to those permissions rather than by reference to the expired IRP card alone.

Accordingly, I am satisfied that the permission granted upon the Complainant's return to the State was properly characterised, for the purposes of this complaint, as a new permission rather than merely a continuation of the previous permission associated with his expired IRP card.

I am also satisfied that the application submitted by the Complainant on 9 February 2026 was, in substance, an application to register that permission. The fact that the application was processed through an online system which may also be used for renewal applications does not determine the legal character of the permission being registered.

Whether wages were properly payable

The Complainant attended for work on 10 February 2026 and stated that he was ready, willing and able to perform his duties.

At that stage, the Complainant had obtained a Critical Skills Employment Permit, a long-stay visa, had been admitted to the State, and had commenced the process of registering his permission. He also provided information supporting his position, including confirmation obtained from an immigration officer and from a specialist organisation.

I accept that an employer is entitled, and indeed obliged, to satisfy itself that a non-EEA employee has permission to work. However, the evidence before me is not of an employee merely asserting an entitlement to work without supporting documentation. The Complainant had provided evidence of the steps taken to regularise his position and evidence supporting his contention that he held permission to work.

Having considered all of the evidence, including the Critical Skills Employment Permit, the long-stay "D" visa, his admission to the State by an immigration officer, and the confirmation he obtained from an immigration officer and from NASC, I am satisfied that the Complainant has established that he held permission to work from 10 February 2026 onwards.

Accordingly, I find that the Complainant had wages properly payable to him from that date given that the Respondent retained the Complainant in employment but did not permit him to return to work.

I therefore find that the failure to pay wages properly payable to the Complainant constituted a deduction within the meaning of section 5(6) of the Payment of Wages Act, 1991. I further find that the deduction was not authorised by statute, by any contractual term, or by the complainant's prior written consent and that the complaint is therefore well founded.

I find that the complaint is well founded for the reasons set out above.

Although the complainant claimed €5,932.20, representing his gross monthly salary, I do not consider that the full monthly salary is recoverable in circumstances where the complainant was outside the State and unavailable for work prior to his return on 8 February 2026, and where I have found that wages were properly payable only from 10 February 2026 onwards.

The appropriate calculation is therefore the wages attributable to the period from 10 February 2026 to 28 February 2026 inclusive. The complainant's net monthly remuneration, as recorded on his complaint form, was €4,287.56. February 2026 contained 28 days. The period from 10 February 2026 to 28 February 2026 inclusive comprises 19 days. The daily rate is therefore €4,287.56 divided by 28, being €153.13 per day. The amount payable is therefore €153.13 multiplied by 19 days, giving €2,909.47.

I direct the Respondent to pay the Complainant the sum of €2,909.44, representing wages properly payable to him for the period from 10 February 2026 to 28 February 2026 inclusive.