Newsflash | Bill to amend the law of 29 August 2008 on the free movement of persons and immigration: between the desire for integration and the need to manage migratory flows

Bill No 8586 amending the law of 29 August 2008 on the free movement of persons and immigration (the "Bill") was submitted to the Chamber of Deputies on 21 July.

The Bill aims to transpose into national law Directive (EU) 2024/1233 of the European Parliament and of the Council of 24 April 2024[1] , which must be implemented by 21 May 2026 and whose provisions are already reflected to some extent in the current version of the 2008 law.

The Bill nevertheless proposes a number of significant amendments to the law of 29 August 2008 on the free movement of persons and immigration (the "Law"), in order to better align the regulatory framework with contemporary challenges, particularly in terms of migration management and integration.

More flexible conditions for exercising a residence permit for an employed person 

• Reduction in processing times: firstly, in order to comply with the new provisions of the Directive, the Bill seeks to reduce the processing time for residence permit applications for an employed person from four months to 90 days from the date of submission of a complete application. An additional period of 30 days may be added in duly justified exceptional circumstances (linked to the complexity of examining the application). In this case, the applicant must be informed.

• Extension of the period of validity: the Bill also proposes to extend the initial validity of the residence permit for employed persons (including the work authorisation), which is currently capped at one year (excluding renewals). The proposed validity period would be increased to two years, renewable for a maximum of four years (instead of the current three). If the residence permit expires during the renewal period, the third-country national will remain authorised to reside and work in Luxembourg until the Ministry has ruled on his or her application.
• Adaptation of the terms of access to the labour market: currently, the Law restricts third-country nationals holding a salaried worker residence permit from changing sectors or professions during the first year of employment, though they may work for any employer.

In response to the observation that many employees never actually begin working for the employer named in the labour market test submitted to the Ministry as part of the application for a residence permit, the Bill, guided by the Directive, proposes to require that third-country national salaried workers remain employed for a minimum period of six months with the "first employer".

While this term could benefit from a clarification to explicitly refer to the employer for whom the labour market test is submitted to the immigration authorities, the change has the merit of seeking to put an end to an illegal practice.

It should be noted that a change of employer before the expiry of this six-month period would only be possible in duly justified cases of violation by the employer of the "terms and conditions of the employment relationship" (e.g. failure to comply with legislation on working hours, the minimum wage threshold or health and safety conditions at work).

After this six-month period, it will be possible to change employer immediately (as opposed to the current one-year period), provided that the Immigration Department is notified. As already required by the current version of the Law, the Ministry will then check that the conditions of section 42(1) have been met, namely:

• no prejudice is caused to the hiring priority of national and European citizens (labour market test);
• The job serves the economic interests of the country;
• The third-country national has the required professional qualifications for the role;
• The third-country national holds of an employment contract concluded for a vacancy registered with the ADEM.

The application to change employer must be examined within 30 days, during which time the right to change employer is suspended.

• Residence permit and periods of unemployment: on the basis of the Directive, the Bill introduces rules applicable to the validity of the residence permit for employed workers during periods of unemployment, in line with existing rules for highly qualified workers (or European Blue Card).

  Thus, the residence permit for an employed person may be withdrawn or its renewal refused if the total period of unemployment exceeds:

  • Three months if the third-country national has held his or her residence permit for two years or less;
  • Six months if the third-country national has held his or her residence permit for more than two years.

If the third-country national finds another job within the periods of unemployment listed above, he or she will remain authorised to reside in Luxembourg pending verification by the Ministry that the legal conditions for changing employer have been met, even if the authorised period of unemployment has been exceeded.

• Withdrawal of residence permit: finally, the Bill reviews the conditions under which a residence permit for an employed person may be withdrawn or its renewal refused. This will occur if:
  • The third-country national has no personal resources (i) for three months in any twelve-month period, if he or she has been resident in Luxembourg for less than two years (currently three years), or (ii) for six months in any twelve-month period, if he or she has been resident in Luxembourg for at least two years (currently three years);
  • The third-country national does not comply with the procedure for notifying the Ministry of a change of employer during the first two years of employment, or if he or she does not declare periods of unemployment;
  • The third-country national does not have an employment contract for a post declared vacant to ADEM as part of an application to renew his/her residence permit;
  • The third-country national does not meet the six-month minimum duration requirement for changing employer.

Abolition of the residence permit for investors

The Bill proposes to completely eliminate the section of the Law relating to the investor's residence permit.

This proposal follows a clear observation: after being introduced in 2017, the investor residence permit has not been as successful as expected, with only nine third-country nationals having been issued with an investor residence permit in eight years.

Tightening the conditions for issuing a residence permit to a third-country national's family member

Currently, the Law allows beneficiaries of international protection (in particular refugees) to apply to the Luxembourg authorities for the reunification of their family members, namely:

• Spouse;
• Civil partner (PACS);
• Unmarried children under 18, provided the applicant holds custody or in cases of shared custody with the consent of the other parent;
• First-degree direct ascendants, where they are dependents and lack family support in their country of origin;
• Unmarried adult children who are unable to support themselves due to health conditions;
• Legal guardian or another relative of an unaccompanied minor who has been granted international protection, when no direct ascendants can be found.

As part of their application for family reunification, beneficiaries of international protection must currently demonstrate (i) that they have stable, regular and sufficient resources for themselves and their family, (ii) that they have suitable accommodation for themselves and their family, and (iii) that they have health insurance for themselves and their family.

However, the law stipulates that these three conditions do not apply if the application for family reunification is submitted within six months of being granted international protection.

In view of the large influx of third-country nationals who are family members of a beneficiary of international protection (1,409 residence permits issued over the last three years), the Bill intends to tighten up the conditions for issuing this residence permit.

Thus, the exemption currently provided for by the Law (and therefore the non-application of the three conditions listed above) will be limited to the family reunification of (i) the applicant's spouse or PACS partner, provided that the marriage or PACS predates the applicant's entry into France, and (ii) unmarried children under the age of 18, as defined above.