The law of 4 June 2024 amending the law of 29 August 2008 on the free movement of persons and immigration (the « Immigration Law ») was published in the Official Journal on 27 June 2024 (the “Law”).
The Law entered into force on 1 July 2024.
The Law transposes into national law Directive (EU) 2021/1883 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (the “Directive”).
- more flexible and inclusive admission criteria;
- more extensive rights;
- more favourable conditions for family reunification;
- greater mobility within the EU.
More flexible and inclusive admission criteria
Until now, the Immigration Lct required applicants for an EU Blue Card to present a valid employment contract for a highly qualified work of at least one year. The Law adapts this requirement, and now foresees a duration of at least six months.
The other admission criteria, i.e. proof of highly professional qualifications and remuneration at least equal to an amount to be set by Grand Ducal regulation, remain unchanged. It should be noted, however, that regarding the requirement for highly professional qualifications, the Law supplements Article 45 (2) of the Immigration Law to fully reproduce the requirements of the Directive concerning the documents to be submitted in support of the application for an EU Blue Card. Highly professional qualifications will have to be attested by:
- a higher education degree, where the studies required to obtain this diploma last at least three years (bachelor’s degree);
- highly professional skills, i.e. knowledge, skills and abilities attested by at least five years’ professional experience at a level comparable to higher education qualifications, and which are relevant to the profession or sector concerned. For the manager and ICT specialist, this period is limited to three years in seven years preceding the application for an EU Blue Card.
Finally, the Law formally enshrines the administrative practice whereby any residence permit issued by the Minister entitles its beneficiary to obtain the required visa, where appropriate. Thus, once an application for an EU Blue Card has been approved, the Minister must also issue the necessary entry visa to the third-country national concerned.
Enhanced rights for EU Blue Card holders
Regarding the period of validity, the EU Blue Card is in principle valid for four years, renewable upon request for the same period.
However, the Law specifies that if the EU Blue Card expires during the renewal procedure, the third-country national remains authorised to reside on Luxembourg territory as a highly qualified worker until the Minister has ruled on the renewal application.
Regarding the access to the labour-market for EU Blue Card holders, the Immigration Act provided that during the first two years of employment, the holder’s access to the labour-market was limited to the activity for which he or she had been admitted, with any employer.
The Law considerably extends the EU Card holder’s access to the labour-market. From now on, a change of employer or a modification affecting the admission requirement laid down in the Immigration Act are possible during the first twelve months of legal employment on the territory. Such a change must be communicated in advance to the Minister, who may object within a maximum period of 30 days (during which the EU Blue Card holder’s right to change jobs is suspended).
In the case of unemployment, the Immigration Act provided the withdrawal of the EU Blue Card if the period of unemployment exceeded 3 consecutive months, or if it occurred more than once during the period of validity of the EU Blue Card. The law now makes these conditions more flexible, and stipulates that the EU Blue Card may be withdrawn and/or not renewed if:
- the period of unemployment exceeds 3 months for holders of an EU Blue Card for less than two years;
- the period of unemployment is more than 6 months for holders of an EU Blue Card for at least two years.
The Law also grants EU Blue Card holders:
- the right to exercise a subsidiary self-employment activity alongside their main activity in a highly qualified job;
- the right to education and vocational training (excluding scholarships and study loans);
- the right to recognition of diplomas, certificates, and other professional qualifications.
Finally, an EU Blue Card holder will be able, for the purposes of applying for long-term resident status, to rely not only on years of legal and uninterrupted residence within the territory of the EU as an EU Blue Card holder (as currently provided for by the Immigration Act), 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 holder of an EU Blue Card » will also be entitled to work as employed or self-employed persons in Luxembourg, without having to fulfil the conditions laid down in Articles 42 and 51 respectively of the Immigration Law on the issue of residence permits with a view to exercise an employed or self-employed activity.
Greater mobility within the EU
The Immigration Act so far provided that for a stay of up to three months, all third country nationals were required to have a residence permit in order to carry out an employed or self-employed activity, except in the case of business trips.
The Law introduces a new exemption for holders of a valid EU Blue Card issued by another Member State, wishing to stay and work in Luxembourg for up to 90 days in any 180-day period. This exemption also applies to holders of a long-term residence permit as « Former holder of an EU Blue Card », issued by another Member State.
These nationals are now 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 for a period of up to 90 days. Business activity is defined as a temporary activity directly related to the employer’s business interests 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 courses.
For stays of more than three months, the Immigration Law previously stipulated that after 18 months of residence in the first Member state, the holder of an EU Blue Card could 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 had to apply for an EU Blue Card to the Minister. The applicant was not authorized to work until the Minister had issued a residence permit.
Firstly, the Law reduces the period of residence in the first Member state for mobility purposes in a second Member state, from 18 months to 12 months. This period is even reduced to 6 months of legal residence in the first Member State if the EU Blue Card holder makes use of his/her right to mobility for the second time. An application for an EU Blue Card must still be made in Luxembourg within one month of the third-country national’s arrival on Luxembourg territory. However, the Law now allows applicants to submit their application while still residing on the territory of the first Member State, and especially to start working immediately after submitting their application for a full residence permit in the second Member State, without having to wait for the Minister to issue a residence permit.
With a view to introducing a fast-track procedure for processing EU Blue Card applications in the event of mobility, the Law introduces a maximum period of 30 days for the Minister to reach a decision. This initial deadline may be extended by a further 30 days in duly justified exceptional circumstances linked to the complexity of the application.
Family reunification for family members of an EU Blue Card holder
The Immigration Law already provides for the possibility of certain family members of an EU Blue Card holder issued in a first Member State, and who have applied for mobility in Luxembourg, to accompany or join the latter, if the family was already established in the first Member state.
To this end, family members must apply for a residence permit. Under the Immigration law, this application could only be made if the family member concerned resid outside Luxembourg.
The Law provides that even before an application for a residence permit is submitted, the family members of an EU Blue Card holder may enter and reside in Luxembourg if they hold a valid residence permit obtained on the first Member state as family members of an EU Blue Card holder.
With the aim of facilitating the swift entry of highly qualifies workers, the Law provides that residence permits to family members will be issued at the same time as the EU Blue Card, where the applications were lodged simultaneously. Finally, if the family member joins the holder of an EU Blue Card, an accelerated procedure is provided for by the Law, and the residence permit must be granted within 30 days pf the submission of the application.
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