Mobility of Non-EU workers within the European Union

Oct 04, 2021

A single permit that allows a non-EU national to work in all EU States does not exist. Each State has its own national provisions for work visas and stays exceeding 90 days. There are however some EU Directives that grant some rights of movements — under certain conditions — to non-EU nationals settled in one EU State.

Stays up to 90 days in any 180-day period

Non- EU nationals (this country nationals, TCN) who hold a valid residence permit or visa in one Schengen State have the right to move freely within the Schengen area for business or tourism, but stays cannot exceed 90 days any 180 day period.

Working activities are, however, regulated by specific provisions of each Schengen country and therefore it will be necessary to check local regulations if TCN wants to work in a different country also for short period.

How to calculate 90 DAYS IN ANY 180 DAY PERIOD?

Read more ➞ How can I count my 90 days in the Schengen area? | Mazzeschi

Stays exceeding 90 days or for work reasons

The right to stay for more than 3 months, work and eventually obtain permanent residency in another EU country is subject to specific conditions and provisions set forth in national legislations. There are however common provisions as a consequence of several EU Directives that contain mobility provisions for TCN and their families.

Long-term residents in another Member State

Under Directive 2003/109, TCNs who hold a “long-term resident’s EC residence permit” in one EU Member State have the right to reside for more than three months in a second Member State to exercise an economic activity, to pursue studies or for any other purpose, subject to certain conditions being met.

A TCN holding such permit in another Member State:

  • can apply for a residence permit in another Member State without applying for a new visa
  • The right extends to their family members as long as the family was already constituted in the first Member State and they can present evidence they have stable and regular resources which are sufficient to maintain themselves without recourse to the social assistance of the Member State concerned.

Directive 2003/109 provides Member States with greater discretion to apply additional measures to grant the right of residence. These areas of discretion include the possibility of applying a labour market test, apply quotas, require to show evidence to have “appropriate accommodation”, to comply with integration measures and also to provide evidence that they have stable and regular financial resources and sickness insurance.

Subject to meeting the applicable conditions, long-term residents can obtain a residence title following simplified procedures as compared to the procedures that would apply to TCN arriving to the EU for the first time and may apply from within the territory of the second Member State without holding a visa if an application is made within three months of entering the host country.

Read more ➞ Long-term residents (europa.eu)

Highly Qualified Workers: EU Blue Card holders

Directive 2009/50/EC sets out the conditions of entry and residence of TCN for the purpose of highly qualified employment (i.e. EU Blue Card holders), and of their family members, for stays of more than three months in the territory of an EU Member State. Denmark, Ireland are not bound by the Directive.

The main requirements to obtain a Blue Card permit, according to article 5 of the Directive are:

(i) a work contract or binding job offer with a salary of at least 1.5 times the average gross annual salary paid in the Member State concerned (Member States may lower the salary threshold to 1.2 for certain professions where there is a particular need for third-country workers);

(ii) for regulated professions, documents establishing that the worker meets the legal requirements of the country;

(iii) for unregulated professions, documents establishing the relevant higher professional qualifications. Higher professional qualifications can be attested by a higher education qualification (i.e. diploma attesting the completion of a post-secondary higher education program of at least three years) or by having at least five years of professional experience in a level comparable to higher education qualifications and which is relevant in the position offered in the job contract.

Read more ➞ EU blue card — Consilium (europa.eu)

Blue Card holders can move to another Member State once they have legally resided in a first Member State for a minimum period of eighteen months, and in practical terms, all of the conditions set out in Article 5, which are determined in national legislation, must be reassessed and met in the second Member State. The mobility of EU Blue Card holders is also restricted to employment with one specific employer.

EU Blue Card holders are however allowed to accumulate periods of residence in different Member States, which count towards fulfilment of the requirements for long-term resident status. The conditions for admission under Article 5 are governed by the national laws and the Directive has been implemented with variable conditions amongst Member States.

Read more ➞ Blue card | EU Immigration Portal (europa.eu)

See also the proposed changes to Directive 2009/50 — eu-blue-card-directive-compromise-text-council-8585–21.pdf (statewatch.org)

Intra-company transfers

Directive 2014/66 set forth the conditions of entry and residence of TCN in the framework of an intra-corporate transfer. The Directive’s goal is to make it easier and quicker for multinational companies to temporarily assign highly skilled employees to subsidiaries situated in the EU. Moreover, the Directive aims to facilitate mobility of intra-corporate transferees between Member States during their assignments and lays down a common set of rights for intra-corporate transferees when working in the EU in order to avoid their exploitation and distortion of competition.

The Directive’s main goals are:

(i) facilitation of intra-corporate transfers of managers, specialists and trainee employees to the EU. To be eligible for an intra-corporate permit, managers and specialists must have worked at least 3 up to 12 uninterrupted months for the multinational company immediately preceding their transfer. Member States retain the right to set the volumes of admission of intra-corporate transferees who apply to be admitted to their territory. The permit will be valid for a maximum of 3 years in the case of managers and specialists and 1 year for trainee employees;

(ii) intra-corporate transferees are exempted from the Schengen visa obligations. Subject to a number of conditions, they can enter, stay and work in Member States other than the one to which they were initially admitted with little or no interruption to their assignments. The conditions for long-term mobility (more than 90 days) are stricter than those for short-term mobility (less than 90 days in any 180-day period);

(iii) family members will be able to accompany the intra-corporate transferee from the start of the assignment if they apply at the same time. They also have the right to be employed or self-employed in the host member state throughout the duration of the transfer;

(iv) Member States must require, as a ground for admission, that the remuneration granted to the intra-corporate transferee is not less favourable than the remuneration granted to nationals occupying comparable positions. Equal treatment between intracorporate transferees and nationals applies to branches of social security, in practice, in particular to benefits related to sickness, invalidity and old-age.

Read more ➞ Intra-corporate transfers Directive | Migration and Home Affairs (europa.eu)

Posted workers (Van der Elst permits)

A “posted worker” is an employee who is sent by his employer to carry out a service in another EU Member State on a temporary basis. The posting of workers in the framework of the provision of services is regulated by Directives 96/71 and 2014/67 and 2018/1957 whichdefine a set of mandatory rules regarding the terms and conditions of employment to be applied to posted workers. In particular: (i) to guarantee that these rights and working conditions are protected throughout the EU; (ii) to avoid “social dumping” where foreign service providers can undercut local service providers because their labour standards are lower.

These rules establish that, even though workers posted to another Member State are still employed by the sending company and therefore subject to the law of that Member State, they are entitled by law to a set of core rights in force in the host Member State.

A milestone decision of the European Court of Justice (the so-called Van der Elst case), established in 1994 the principle that Member States may not impose administrative formalities or additional conditions on posted workers who are TCNS when they are lawfully employed by a service provider established in another Member State.

The principle established by the ECJ has been incorporated and implemented in different ways by Member States. In many Member States, posted TCN are exempted from obtaining a new work permit but certain conditions can apply. These include: meeting the national wage and working conditions as well as social insurance provisions, have a lawful right to residence of over three months in the first Member State and must be legally authorised to work there and hold a regular employment contract, to undertake the same type of work as in sending Member State; to return to the country of residence (or origin) at the end of the period of posted employment.

Read more ➞ Posted workers — Employment, Social Affairs & Inclusion — European Commission (europa.eu)

http://ec.europa.eu/social/BlobServlet?docId=11366&langId=en

Researchers

Mobility provisions for TCN researchers are governed by Directive 2016/801. If the researcher stays only up to three months in the second Member State, research may be carried out on the basis of the hosting agreement concluded in the first Member State. If the duration of stay exceeds three months, then the Member State may require a new hosting agreement, subject to the fulfilment of the same conditions that the researcher was asked to fulfil when he applied in the first Member State.

Read more ➞ Researchers — Your Europe (europa.eu)

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