On 30 August, the Luxembourg Parliament (“Chambre des députés”) tabled draft law No.8304 (the "Draft Law") amending the law of 29 August 2008 on the free movement of persons and immigration (the "Law").
The Draft Law aims at transposing into national law Directive (EU) 2021/1883 of 20 October 2021 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment and repealing Council Directive 2009/50/EC (the "Directive").
The main purpose of the Draft Law is to update the previous rules on the EU Blue Card as set out in Directive 2009/50/EC, now repealed by the Directive, and to provide the EU with a targeted legal migration system capable of addressing skills shortages and making it easier for highly qualified workers to join the workforce.
More specifically, the Draft Law provides, to the benefit of EU Blue Card holders:
- more flexible and inclusive admission criteria;
- more extensive rights;
- more favorable conditions for family reunification;
- facilitated intra-EU mobility.
More flexible and inclusive admission criteria
Currently, the Law requires applicants for an EU Blue Card to present a valid work contract for a highly qualified employment of at least one year. The Draft Law suggests to adapt this duration to at least six months.
The others admission criteria, i.e. proof of higher professional qualifications and remuneration at least equal to an amount to be set by Grand-Ducal regulation, remain unchanged. It should nonetheless be noted that:
- with regard to the requirement for higher professional qualifications, it will have to be attested by:
- higher education qualifications, where the studies needed to acquire those qualifications last at least three years (bachelor's degree); or
- higher professional skills, i.e. knowledge, skills and competences attested by at least five years of professional experience at a level comparable to higher education qualifications and which are relevant to the profession or sector concerned. For the occupations of manager and ICT specialist, this period is limited to three years in the seven years preceding the application for an EU Blue Card;
- with regard to remuneration levels, in order to harmonize admission criteria throughout the EU, the Directive suggests that each Member State should determine, after consulting the social partners, a salary threshold based on the average gross annual salary in the Member State concerned. This salary threshold, which may not be less than 1.0 times the average gross annual salary in the Member State concerned, nor exceed 1.6 times this salary, should determine the minimum salary that an EU Blue Card holder should receive.
This salary threshold may be lowered for specific professions, particularly where there is a shortage of available workers, or for third-country nationals who have recently obtained their qualifications. Currently, in Luxembourg, the salary threshold is set at 1.5 times the average gross annual salary, or 1.2 times this salary for professions for which the Government has identified a shortage of workers.
Finally, the Draft Law intends to formally enshrine the administrative practice whereby any residence permit issued by the Minister entitles its beneficiary to obtain the required visa, where applicable. Thus, once an application for an EU Blue Card has been approved, the Minister will also have to issue the necessary entry visa to the worker concerned.
Enhanced rights for EU Blue Card holders
- Enhanced rights during the renewal procedure: in principle, the EU Blue Card is valid for four years, renewable for the same period of time. In this respect, the Draft Law supplements Article 45-1 of the Law, specifying that if the EU Blue Card expires during the renewal procedure, the third-country national nevertheless remains authorized to reside on Luxembourg territory as a highly qualified worker until the Minister has ruled on the renewal application.
- Extended access to the labour market: the Law currently provides that during the first two years of employment, EU Blue Card holders’ access to the labour market is limited to the activity for which they have been admitted, with any employer. After the first two years, the Law grants EU Blue Card holders equal treatment with nationals, except for jobs related to the exercise of public authority, for which Luxembourg nationality is required.
The Draft Law aims to significantly extend access to the labour market of EU Blue Card holders: during the first 12 months of legal employment and unless the EU Blue Card holder benefits from the right to free movement, he/she will have to inform the Minister prior to any change in his/her professional situation (such as a change of employer, which would therefore in principle be possible). The Minister may object to the change within 30 days.
After the first 12 months, EU Blue Card holders will benefit from equal treatment with nationals, except for jobs linked to the exercise of public authority, for which the condition of Luxembourg nationality is required.
- Enhanced rights in the event of unemployment: during the initial 12-month period mentioned above, the Draft Law specifies that the EU Blue Card holder will also be authorized to seek and accept employment, provided that he/she complies with his/her obligation to inform the Minister, in particular of the beginning and, where applicable, the end of the period of unemployment, as well as of any new employment relationship.
The Draft Law also reinforces the conditions for withdrawing an EU Blue Card in the event of unemployment. The Law currently provides that the EU Blue Card is withdrawn if unemployment lasts for more than three consecutive months, or if it occurs more than once during the period of validity of the residence permit.
The Draft Law provides that as a matter of principle, the EU Blue Card will not be withdrawn and that renewal will not be refused in the event of unemployment, except in the event of i) unemployment over a period of more than three months, if the holder has held an EU Blue Card for less than two years, or ii) unemployment over a period of more than six months if the holder has held an EU Blue Card for at least two years.
- Enhanced rights to long-term resident status: in order to apply for long-term resident status, an EU Blue Card holder will be able to rely not only on the years of legal and uninterrupted residence spent in the territory of the EU as an EU Blue Card holder (as currently provided for by the Law), but also as the holder of a residence permit as a researcher, student or beneficiary of international protection.
Long-term residents of another Member State holding a long-term residence permit as "Former holders of an EU Blue Card" will also have the right to engage in an employed or self-employed activity in Luxembourg without having to fulfil the conditions laid down in Articles 42 (1) and 51 (1) of the Law relating to the issue of residence permits with a view to exercise an employed or self-employed activity.
Finally, the Draft Law intends to grant EU Blue Card holders:
- the right to exercise a subsidiary self-employed activity in parallel with the main activity exercised in a highly qualified job;
- the right to education and vocational training (excluding scholarships and student loans);
- the right to recognition of diplomas, certificates and other professional qualifications.
Greater mobility within the EU
The Law currently stipulates that for stays of up to three months, all third-country nationals must have a residence permit in order to carry out an employed or self-employed activity, except in the case of business trips (such as trips to visit business partners, develop business contacts, negotiate and conclude contracts, take part in trade fairs, attend board meetings, etc.).
The Draft Law aims to introduce another exemption for holders of a valid EU Blue Card issued by another Member State who wish to stay and work in Luxembourg for up to 90 days in any 180-day period.
On the basis of the Draft Law, EU Blue Card holders would be exempt from the requirement to have a visa, a work permit or an authorization other than the EU Blue Card, in order to carry out a “business activity” in Luxembourg. The Draft Law defines “business activity” as a temporary activity directly related to the business interests of the employer and to the professional duties of the EU Blue Card holder, including attending internal or external business meetings, attending conferences or seminars, negotiating business deals, undertaking sales or marketing activities, exploring business opportunities, or attending and receiving training.
If the EU Blue Card was issued by a first Member State that does not fully apply the Schengen acquis (i.e. Romania, Bulgaria or Cyprus), the holder must, in order to work in Luxembourg for a maximum period of 90 days, carry their residence permit, a valid travel document and proof of the professional purpose of the stay (e.g. invitations, entry cards, documents describing the company's economic activities and the position held by the holder, etc.).
For stays of more than three months, the Law currently provides that after 18 months of residence in a first Member State, the holder of an EU Blue Card may move to another Member State for the purpose of highly qualified employment. No later than one month after entering Luxembourg territory, the third-country national must submit an application for an EU Blue Card to the Minister. Under the Law, the applicant is not authorized to work until the Minister has issued a new residence permit.
In this respect, the Draft Law aims to:
- reduce the period of residence in the first Member State for the purposes of mobility in a second Member State from 18 months to 12 months. This period is even reduced to six months of legal residence in the first Member State if the holder of the EU Blue Card makes use of his/her right to mobility for the second time;
- enable applicants to start working immediately after submitting their application for a residence permit in the second Member State, without having to wait for the Minister to issue a residence permit;
- introduce a maximum period of 30 days for the Minister to reach a decision. This initial period may be extended by 30 days in exceptional and duly justified circ*mstances linked to the complexity of the application.
Family reunification of family members of an EU Blue Card holder
The Law already provides for the possibility for certain family members of the holder of an EU Blue Card issued in a first Member State, and who have applied for mobility in Luxembourg, to accompany or join the latter.
To this end, family members must apply for a residence permit. Under the Law, this application can only be made if the family member concerned resides outside Luxembourg.
The Draft Law provides that the family members of an EU Blue Card holder may enter and reside in Luxembourg, before an application for a residence permit is submitted, if they hold a valid residence permit obtained in the first Member State as family members of an EU Blue Card holder.
With the aim of facilitating the swift entry of highly qualified workers, the Draft Law provides that residence permits to family members should be issued at the same time as the EU Blue Card where the relevant conditions are fulfilled and the applications were lodged simultaneously. Finally, if the family member joins the holder of an EU Blue Card after the EU Blue Card has been granted, the Draft Law provides for an accelerated procedure, and the residence permit will have to be granted no later than thirty days after the application is submitted.
Conclusion
The reform of the EU Blue Card aims at reducing the administrative burden on companies and better matching labour supply with demand by attracting skills. These provisions are more than welcome considering the labour and skills shortage faced by Luxembourg and the EU in key sectors of the economy.
