Brexit: Further details on what to do in case of a deal

In a previous article, we have outlined what British citizens need to know (and do) to stay in Luxembourg in the event of a deal or in the event of a no-deal (the article can be found here).

A draft Grand-ducal Regulation (the “Draft Regulation”) has been published setting-out further details on the procedures and documents to submit for British citizens and their family members in the case of a Deal.

First of all, the Draft Regulation outlines the procedure for the submission of the applications and the issuance of the permits for beneficiaries of the Withdrawal Agreement, ie:

  • British nationals residing in Luxembourg as well as their family members (regardless of the nationality of the family members) at the time of the withdrawal from the UK,
  • British nationals, and their family members, arriving in Luxembourg as of the date the Withdrawal agreement of 30 March 2019 comes into force and before the end of the transition period, currently set to 31 December 2020 (with the possibility of an extension);
  • family members of a British national in the situation described above who arrive in Luxembourg after the end of the transition period.

According to the Draft Regulation, the permit to be issued to British citizens and their family members (if they are British citizens as well) will be valid for 10 years.

The permit to be issued to family members of British citizens who are third country nationals will be valid for 5 years. The validity of the permit to be issued for these family members may be shorter if the permit delivered to the British citizen who they are dependent on, is shorter than 5 years.

If and when the Draft Regulation becomes effective, will of course depend on the outcome of the Brexit negotiation.

For any questions regarding immigration issues, please do not hesitate to contact us.

What is the minimum salary to apply for a EU blue card in Luxembourg?

Third-country nationals that want to apply for a highly qualified work permit (EU Blue card) must meet certain requirements. One of the requirements, is to have an offer for a remuneration of at least:

Option 1: 1.5 times the amount of the Luxembourg average gross annual salary or;
Option 2: at least equivalent to 1.2 times the Luxembourg average gross annual salary for work in certain professions and for which the government has noticed a particular need to employ third-country nationals.

By Grand-Ducal Regulation of 13 September 2019, the requirements have now been set as follows:
Option 1: EUR 78,336 (previously EUR 73,998)
Option 2: EUR 62,668.80 (previously EUR 59,198.40)

Please do not hesitate to contact us, should you have further questions on the highly qualified work permit or need assistance with an application.

Self-employment in Luxembourg for third country nationals

The Grand-Duchy of Luxembourg, known, among others, for its stability and strong financial industry, has become a destination of choice for business over the years.

Nationals from an EEA country as well as Swiss nationals only have to fulfill very few conditions to open a business or become self-employed in Luxembourg (at least from an Immigration Law point of view).

The conditions are more restrictive for third country nationals.

The self-employment permit for third country nationals is subject to the following requirements:

  • The person must provide evidence that he/she is in possession of the professional qualification for the given activity,
  • He/she qualifies for a business license (if the activity is subject to such business license)
  • That he/she is in possession of sufficient resources to exercise the contemplated activity,
  • that the exercise of the given activity serves the interests of the country.

The interests of the country for the contemplated activity are assessed in terms of economic utility, ie:

  • a response to an economic need,
  • the integration of the activity in the national or local economic context,
  • the viability and sustainability of the project,
  • job creation,
  • investment (especially in research and development),
  • innovative activity or specialization,
  • or in terms of social or cultural interest.

Once the application has been approved, the third country national can request the self-employment permit if he/she proves to have an appropriate accommodation.

It should finally be noted that a director or manager of a Luxembourg company holding a business license or an agreement delivered by the Ministry, shall request a self-employed permit in case he/she is the legal representative of the company without relationship of subordination towards the company.

If this director or manager has a relationship of subordination towards the company and has concluded an employment agreement, he/she shall apply for a specific employment work permit (which is subject to other requirements both for the application and the company).

Please do not hesitate to contact us for any further questions.

Brexit: What it means for British citizens working or residing in Luxembourg

The outcome of the Brexit negotiations are still uncertain.

In the meantime, Luxembourg just published a bill of law on 8 February 2019 (n°7406) to protect British citizens working as civil servants or government employees in case of a hard Brexit.

What does it mean for British citizens not working as civil servants in Luxembourg?

There are currently two foreseeable options:

  1. Either the UK remains in the EU or concludes an agreement with the EU that ensures that the same rules with regard to immigration apply in the future (as this was foreseen by the rejected UK-EU Withdrawal Agreement)
  2. Or the UK and the EU conclude no agreement, which leaves the UK with the option of a hard Brexit.

In the second option, a UK citizen could be treated, with regard to Luxembourg Law, as a third country national.

Luxembourg Government, announced in January 2019, that British citizens and their family members residing in Luxembourg will be allowed to continue residing in Luxembourg after 29 March 2019 under their current authorisations which will remain valid until 30 March 2020.

British nationals will however need to apply for a residence permit before 31 December 2019 (conditions and procedure of this simplified procedure are yet to be announced).

After this date, unless, in the meantime, a different regime is negotiated with, the rules for third-country nationals would apply to British nationals.

We have shortly summarized below the main differences between the obligations of EU citizens and third country nationals to stay in Luxembourg.

Stays of less than 3 months

  1. EU citizens

Every EU citizen has the right to reside freely in Luxembourg for a stay of up to 3 months if he is in possession of a valid ID card or passport.

 2. Third country nationals

Third country nationals however who intend to stay in Luxembourg for a period of less than 3 months, are legally required to be in possession:

  • Of valid travel documents,
  • of a valid passport with a valid visa (unless otherwise provided in a bilateral agreement),
  • a valid medical insurance applicable in Luxembourg,
  • the proof of sufficient resources for the duration of stay and the return to the country of origin.

This being said, the EU Commission has published a proposal for a regulation exempting British nationals from visa requirements in the Schengen area for stays less than 3 months (subject to reciprocal visa-travel of Schengen area nationals to the UK).

Stays of longer than 3 months

  1. EU citizens

EU citizens are allowed to stay in Luxembourg for longer than 6 months if they fulfill one of the following conditions:

  • exercise a remunerated activity in Luxembourg (as an employee or self-employed), or
  • prove to be in possession of sufficient resources for themselves and their family and a have valid health insurance, or
  • be registered in a public or private educational institution accredited by the Luxembourg authorities in order to pursue studies or professional training together with the prove of sufficient resources and a valid health insurance.

Although the authorization is limited in time, it is renewable and permanent residence may be requested after 5 years under certain conditions.

2. Third country nationals

Third country nationals are allowed to stay in Luxembourg for longer than 6 months, only if they are in possession of one of the following authorizations:

  • As employees (regular, highly qualified or ICT worker) (see our article here on ICT workers)
  • Sportspeople
  • Students, trainees, pupils or young au pairs
  • Researchers
  • Family members
  • Investors (see our article here on the investor status)
  • Personal reasons

Strict conditions apply to each of these authorizations.

For example, for one of the most common authorizations, as regular employees, the following conditions must be fulfilled:

  • the job must be declared vacant with the Luxembourg Unemployment Agency (ADEM),
  • Have all the required qualifications for the job,
  • Luxembourg nationals and EU citizens have priority for the given activity. Only if the employer is unable to find an appropriate candidate for its activity and after a certain period, he may consider employing a third country national,
  • The activity exercised must serve the interests of the country.

Conclusion

While the outcome remains uncertain, Luxembourg has already started foreseeing a temporary protection regime for British citizens, at least until 2020.

For any questions regarding immigration issues, please do not hesitate to contact us.

Residence permit in Luxembourg for temporary Intra-company transfers (ICT)

Besides introducing a new regime for certain investors, the law of 8 March 2017 (modifying the law of 29 August 2008, the “Law of 2008”) foresees a new status for third-country nationals (“TCN”) in the case of temporary Intra-company transfer (“ICT”). This new law implements the Directive 2014/66/EU on the conditions of entry and residence of TCNs in the framework of an intra-corporate transfer (“Directive 2014/66/EU”)

An Intra-group temporary transfer is defined, by the Law of 2008 (in identical terms to the definition provided by the Directive 2014/66/EU), as the temporary secondment for occupational or training purposes of a TCN who, at the time of application for an intra-corporate transferee permit, resides outside the territory of the Member States, from an undertaking established outside the territory of a Member State, and to which TCN is bound by a work contract prior to and during the transfer, to an entity belonging to the undertaking or to the same group of undertakings which is established in that Member State, and, where applicable, the mobility between host entities established in one or several second Member States.

This new regime applies to qualified executives, experts and trainees (as defined by the Law of 2008).

The application is filed by the host entity that shall, among others:

  • provide proof that the host entity and the company established in the third country belong to the same undertaking or group,
  • provide evidence of employment within the same company or group from 3-12 months (for managers and experts) and 3-6 months (for trainees)
  • provide a work contract containing certain information on the details of the transfer and the work conditions (e.g. duration, location, remuneration, required qualification, etc…)

The authorisation of stay as ICT is granted for a minimum of 1 year up to the duration of the assignment (however max. 3 years). For trainees, the authorisation of stay is limited to 1 year maximum.

A new application by the same TCN for an ICT work permit is possible, however only after a period of 6 months after the end of the validity of the ICT work permit and the new application.

Once issued, this authorisation to stay gives an employee and his/her family members the right to reside and to work in Luxembourg. The authorization of stay of the family members expires simultaneously with the ICT work permit.

With regard to intra-EU mobility, the ICT regime foresees the following:

For short term mobility:

A TCN that holds a valid ICT work permit of another EU country is entitled to work in Luxembourg in a company part of the same group for a period of up to 90 days in any 180-day period, provided certain notification requirements are fulfilled.

For long-time mobility:

A TCN that holds a valid ICT work permit of another EU country may also be authorized to work in Luxembourg in a company part of the same group for a longer period than 90 days. Such authorization is however subject to a separate authorization and a simple notification to Luxembourg authorities is not sufficient. In certain cases, the TCN may already start working in Luxembourg also before the Luxembourg authorities have decided upon the application.

 

Access to Luxembourg Working Market for highly skilled workers

Highly skilled workers from third countries (i.e. outside of the EU or the EEE) may apply for a special residence permit subject to an advantageous regime.

The residence title for which highly skilled third-countries nationals (“TCN”) can apply for after entering the country (a temporary authorisation to stay is mandatory before entering the territory) is referred to as « EU blue card ».

  • Requirements

To be considered as a highly skilled worker, the applicant shall meet the following requirements:

  • Have concluded an employment contract for a duration equal to or longer than 1 year ;
  • Provide documentary evidence for the required high professional qualifications in the relevant sector or activity ;
  • Receive a salary at least equal to an amount determined by Grand-Ducal regulation (depending on the activity, 1,2 – 1,5 times the average gross annual salary g. in 2016: EUR 58.636,80 or EUR 73,296)

 

  • Duration of the European blue card

With the latest reform in 2017, the duration of validity of the EU blue card was brought from 2 to 4 years (or the duration of the employment contract plus 3 months if the employment contract has been concluded for a period inferior to 4 years).

The EU blue card can be extended for 4 more years.

  • Advantages

Some of the advantages of the EU blue card are:

Full access to the Luxembourg working market

After 2 years, the EU blue card gives unlimited access to the Luxembourg labor market for all highly qualified jobs in the private sector (public sector is partially excluded)

Extension to family members

The family is allowed to immediately accompany the highly skilled workers when the person who has been delivered the residence permit arrives in Luxembourg or to join him afterwards.

Intra-Europe mobility

Under certain conditions, the card facilitates intra-European mobility and makes it possible to cumulate stays in different EU Member States in order to obtain long-term resident status.

Indeed, after 18 months of legal residence in the country that issued the EU blue card to a TCN, the TCN and his family members may move to another European Member State to exercise a highly qualified activity.

Maintain the status after termination of employment

Should the person face unemployment, the EU blue card is not automatically withdrawn. Indeed, the European blue card is not withdrawn if the unemployment lasts less than 3 months and occurs only once during the period of validity of the card.

  • Administrative steps

Before hiring a highly qualified TCN, the employer shall make a declaration of vacancy to the Luxembourg Unemployment Administration (ADEM) in advance, but the job will not be tested on the job market.

This means that the ADEM will not verify if the vacant position could be filled by a person available on the national or European labour market.

  • What to do in case of refusal

The residence permit for highly qualified TCN’s shall be delivered within 90 days as of the application (provided the application is complete).

If the applicant did not receive the residence permit within 90 days, the application is considered as rejected and the applicant may issue a claim against the refusal decision.

If the application was formally rejected, a claim may be issued within 3 months of the refusal.