Luxembourg | Immigration | Widening access to the labour market

September 2023

Immigration

Luxembourg | Immigration | Widening access to the labour market

Impact High

Highlight

Key change: Dependents of third country nationals will now have free access to the Luxembourg labour market. These measures are retroactively effective for all holders of family member permits.

The new Law introduces a number of other key amendments to the Immigration Law to make Luxembourg more attractive and competitive to workers from third countries and their family members. It also increases the thresholds applicable to irregular situations and breaches of the law. There is a reduction of processing times for ADEM certificates (labour market test).

The Law of 7 August 2023 amends: 1) the Labour Code, 2) the law of 29 August 2008 on the free movement of persons and immigration (the “Immigration Law”) and 3) the law of 18 December 2015 on the reception of applicants for international protection and temporary protection has been published in the Luxembourg Official Gazette on 28 August 2023 and entered into force today, Friday 1 September 2023.

The Detail

Now family members of third-country nationals holding a “family member” permit in Luxembourg can access the labour market without the need to apply for a specific work authorization.

Up until now, family members of third country nationals had to obtain their own separate work permit to be able to work in Luxembourg – this process was time consuming and laborious. As of today, such individuals can start working immediately so long as they hold a dependent permit. The new measures apply to existing and future dependent permit holders and apply to Luxembourg resident individuals looking to work within the Luxembourg territory.

Other important new measures

• New work permit exemption for stays of less than 90 days for third country nationals providing a service on behalf of a company not belonging to the same group. Previously, this exemption was mainly applicable to third country nationals providing services within the same group of companies.
• The Law introduces a prohibition on the employment of third-country nationals in an irregular situation (e.g. who are residents and working without a valid work authorization, or working without a valid residence permit etc). Any third country nationals wishing to stay and work in Luxembourg for more than 3 months must hold a valid work permit. The Law also requires employers to hold a copy of the employee’s work permit throughout the entire period of employment in case of an inspection.
• The Law has increased the penalties for employers employing third country nationals who are illegally resident or in an irregular situation. The threshold for administrative fines has been raised to 10,000€ (previously 2,500€).The threshold for criminal fines has been increased to a maximum of 125,000€ (previously to a maximum of 20,000€). For the criminal fines to be applicable one of the following circumstances must be met:

1. the offence is persistently repeated;
2. the offence relates to the simultaneous employment of at least two illegally present third-country nationals or at least two third country nationals in an irregular situation;
3. the infringement is accompanied by particularly abusive working conditions;
4. the offence is committed by an employer who uses the work or services of an illegally present third country national or of a third country national in an irregular situation in the knowledge that this person is a victim of human trafficking;
5. the offence relates to the illegal employment of a minor.

The Law simplifies the vacancy declaration process (labour market test) that employers must submit to the Employment Development Agency (“ADEM”). There are 2 scenarios:

1. For the professions on the labour shortage list, ADEM is exempt from its obligation to carry out a market test and to check whether jobseekers corresponding to the profile sought by the employer are available. The certificate will thus be issued within five working days.
2. For jobs that are not on the list of labour shortage, the market test will continue to be carried out but with shorter deadlines. ADEM will have seven working days to check whether jobseekers fulfilling the profile required for the declared position are available. If no candidate can be proposed, the certificate will be issued, after the seven-day deadline, within the next five working days. If ADEM can propose candidates corresponding to the profile, they will have 15 additional working days to suggest candidates to the employer.

• As from 2024 the “ETIAS” travel authorisation (European Travel Information and Authorisation System) will be a compulsory precondition for entry into Luxembourg for visa-exempt non-EU nationals. The “ETIAS” obligation applies to stays not exceeding 90 days over a period of 180 days. For example, this obligation will apply to all visitors who are Japanese, US, Canadian, UK citizens – see here for a complete list of visa-exempt nationals MAEE Listing . The obligation to hold an “ETIAS” travel authorisation will extend to third country national family members of an EU citizen wishing to enter and stay in Luxembourg for a period of up to three months, unless they hold a valid residence permit. ETIAS will serve as a pre-screening process to help identify individuals who may pose a security or illegal immigration risk. ETIAS is a digital travel authorization, not a visa.

How can we help?

Vialto Partners Luxembourg’s immigration team is closely monitoring changes to the immigration landscape in Luxembourg to give our clients information on current legislation and upcoming changes. We assist clients with advisory and strategy planning on immigration related matters and posted worker declarations. We also support the submission of work and residence permit applications and posted worker declarations (ebadge).

Contact us

For a deeper discussion on the above, please reach out to Maud Aupetit (maud.loriquet.aupetit@vialto.com) or Rebecca Serval (Rebecca.serval@vialto.com).

Further information on Vialto Partners can be found here: www.vialtopartners.com

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