Enlighten your future Employment third countries nationals
News regarding employment third countries nationals
Prohibition of employment of third-countries nationals in an irregular situation
The law of August 7, 2023 prohibits the employment of illegal third-countries nationals.
What is a third country national? This is any person who is not a citizen of the European Union or who does not enjoy the free movement right within the community;
What do we mean by “irregular third-country national”? It is a third country national present in the territory of the Grand Duchy of Luxembourg who does not comply or no longer complies the conditions relating to the work authorization provided for by the provisions of chapter 3 of the amended law of August 29, 2008 on the free movement of people and immigration.
The employer of a third-country national is obliged to hold on Luxembourg territory, for the entire duration of the third-country national's employment, a copy of the work authorization for possible inspection.
An employer who has employed one or more third-country nationals in an irregular situation risks an administrative fine of 10,000 euros per third-country national in an irregular situation.
The law also provides for 5 cases of aggravating circumstances:
- If the offense is persistently repeated;
- If the offense relates to the simultaneous employment of at least two third-country nationals in an irregular situation;
- If the offense is accompanied by particularly abusive working conditions as defined in article L. 572-2, point 8;
- If the offense is committed by an employer who uses the labor or services of an illegal third-country national knowing that this person is a victim of human trafficking;
- If the offense relates to the illegal employment of a minor who is an illegal third-country national.
In these cases, the employer risks 8 days to one year in prison and a fine of 2,501 EUR to 125,000 EUR.
The employer who has employed an illegal third-country national must pay:
- to this national the salary and any other remunerations, as defined in Article L. 221-1 of the Labor Code from which comparable employees would have benefited within the framework of an employment relationship governed in accordance with the provisions of the Labor Code;
- all unpaid social contributions and taxes, including, where applicable, administrative fines, as well as court costs and attorneys' fees.
Changes concerning the recruitment of third-countries national employees
The law of August 7, 2023 modifies the procedure relating to the certificate issued by the director of ADEM (the Employment Development Agency) which authorizes the employer to recruit for a position declared vacant an employee of his choice in particular a national of a third country.
The employer who wishes to obtain this certificate must request it from the director of ADEM.
Within two working days of receipt of the certificate request, ADEM issues an acknowledgment of receipt.
Upon receipt of the certificate request, ADEM checks whether the vacant position to be filled, for which the certificate is requested, corresponds to one of the professions appearing on the list of professions declared to be in serious shortage.
If the vacant position to be filled, for which the certificate is requested, falls under one of the professions appearing on this list, the director of ADEM issues the certificate within five working days.
From the date of issue of the acknowledgment of receipt, ADEM examines for a maximum period of seven working days whether the job offer can be filled by a job seeker registered with its services. If at the end of this period, ADEM concludes that no job seeker compliant with the profile required for the declared position can be offered to the employer, the director of ADEM issues the certificate within a period of five working days.
If at the end of the period of seven working days, ADEM concludes that a job seeker compliant the required profile can be offered for the declared position, ADEM offers for a new period of fifteen working days candidates corresponding to the desired profile. In the event of rejection of the candidate by the employer, the latter must provide ADEM, within one month of the candidate's proposal, with detailed motivation relating to the reasons for rejection. This motivation must be based on an analysis of the candidate's profile in relation to the job description. If the employer contravenes this obligation, the director of ADEM rejects the certificate request.
If at the end of this new period and on condition that the employer has fulfilled the obligation provided for in the previous paragraph, ADEM considers, after examining the detailed motivation provided by the employer, that the rejection of the proposed applications is justified, the director of ADEM issues the certificate within ten working days.
If ADEM considers, after examining the detailed motivation provided by the employer, that the rejection of the proposed applications is not justified, the director of ADEM rejects the certificate request within ten working days.
The certificate can only be issued once per job declared vacant to ADEM. It has a non-extendable validity of three months.
Free movement of people and immigration
Family members (spouse, partner with whom the Union citizen has entered into a registered partnership, direct descendants and direct descendants of the spouse or partner who are under the age of 21 or who are dependents and direct ascendants dependent on the citizen of the Union and direct ascendants dependent on the spouse or partner) who are nationals of a third country and who accompany or join the citizen of the European Union, have the right to enter the territory of the Grand Duchy of Luxembourg and stay there for a period of up to three months if they are in possession of a valid passport and, where applicable, a visa or travel authorization required for entry into the territory.
If they are in possession of a valid residence permit, family members are not subject to the entry visa or travel authorization requirement.
