With the globalization phenomenon of the labour market not slowing down, many employers struggle to fill certain positions, notably positions requiring specific skills. When the suitable profiles cannot be found on the Luxembourg labour market, many employers contemplate the recruitment of a third country national (“TCN”). Such recruitment requires to comply with the applicable procedures and the specific obligations provided by the law of 29 August 2008 on the free movement of persons and immigration, as amended, and the Luxembourg Labour Code.
In fact, while EU nationals and nationals of assimilated countries (Norway, Iceland, Lichtenstein and Switzerland) have a direct access to the Luxembourg labour market, TCNs need in principle to obtain a specific immigration document authorizing them to work on Luxembourg territory. Any employment of TCNs illegally staying on Luxembourg territory exposes the employer to a risk of administrative and/or criminal sanctions.
- Main Obligations
Article L. 572-3 of the Luxembourg Labour Code provides for three specific obligations:
- Check that the individual, before taking up employment, has a valid immigration document authorising him/her to work in Luxembourg;
- Keep a copy of the relevant immigration document for the purpose of potential inspection;
- Notify the Ministry of Foreign & European affairs of the beginning of employment period of each newly hired TCN within 3 working days.
By complying with these obligations, the employer can usually avoid ending up in a situation of illegal employment. To further mitigate the risk, it is recommended to ensure that the employment contract includes relevant provisions highlighting the TCN’s obligations in relation to his/her immigration status.
- Determining the appropriate immigration category
Another key element to ensure a successful recruitment of a TCN is to determine the appropriate immigration category for the candidate. Such category needs to be assessed based on the personal situation of the TCN, his/her place of residence and the employment set-up.
Depending on the circumstances, the appropriate immigration document to be obtained by the TCN may be for a “salaried activity” (requiring a prior market test involving the Agence pour le développement de l’emploi – ADEM), a “highly-qualified employee” status (requiring a legal minimum remuneration threshold to be reached) or an “intra-corporate transfer” (requiring an intra-group context). Each category covers different situations and an adequate assessment of the suitable category for a candidate will minimize the risk of unnecessary delays and potential operational issues for an organization.
- Expected legal changes
Practitioners and employers’ associations have continuously pointed out that several aspects in the current legal framework, such as the absence of a right to work for family members accompanying the third country national, tend to jeopardize the recruitment process of highly skilled candidates. It is interesting to note that Directive (EU) 2021/1883 of 20 October 2021 on the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment – to be transposed in Luxembourg by 18 November 2023 – provides for a possible relaxation of certain rules. It is undeniable that a more flexible legal framework would be positive news for the continued attractiveness of Luxembourg.
Nathaël Malanda / Laurie Lougsami
Allen & Overy
Société en commandite simple
5 avenue J.F. Kennedy
L-1855 Luxembourg
PO Box 5017
L-1050 Luxembourg
Tel.: +352 44 44 55 1
Fax: +352 44 44 55 222
https://www.allenovery.com
