Employers have always been required to carry out right to work checks on all new recruits, for the purpose of evidencing a right to work in Luxembourg of their employees. Following the withdrawal of the UK from the EU with effect as of 31 January 2020, and the end of freedom of movement for certain UK nationals as from 1 January 2021, employers shall now take into account the new Luxembourg immigration system, and carry out the necessary right to work checks.
Reminder of current obligations of employers
Employing an EU national (excluding UK nationals) does not require a thorough right to work check of the applicant. A simple check of the ID card or passport of the individual is sufficient. To the extent permitted by Luxembourg law and if required for the position to be held, the employer may also request the employee to produce a copy of his/her criminal record. It is recommended that the employer keeps a copy of these documents for the duration of employment, for possible inspections.
Employers’ obligations are enhanced when it comes to hiring a third-country national. Indeed, employers must comply with a three-stage process. The employer must first request, before employment commences, that the third-country national has a residence permit allowing him/her to work on the Luxembourg territory. The employer must then obtain a copy of the residence permit that must be kept for the duration of the period of employment for possible inspections. The employer must finally notify the minister responsible for immigration of the beginning of the period of employment of the third-country national within three working days from the first day of employment.
The employer that employs a third-country national unlawfully residing in Luxembourg may face several sanctions, including administrative and criminal fines, temporary closures and prohibition from exercising a professional activity.
New obligations in respect of UK nationals
Following the withdrawal of the UK from the EU in early 2020, a withdrawal agreement has been entered into between the UK and the EU, providing for the application of a transition period which ended on 31 December 2020. During the transition period, UK nationals as well as their family members covered by the withdrawal agreement, continued to benefit from the same rights as EU citizens with respect to access to the labour market. However, starting from 1 January 2021, freedom of movement of UK nationals within the EU came to an end.
This new regime unavoidably results in the implementation of new requirements for UK nationals wishing to come to work in Luxembourg, and therefore new obligations for employers in terms of right to work checks.
- UK nationals already residing in Luxembourg prior to 1 January 2021 may continue to benefit from their right to work in Luxembourg after 1 January 2021. These individuals must however apply for a specific residence permit attesting to their rights as beneficiaries of the withdrawal agreement, by no later than 30 June 2021.
This means that as from 1 July 2021, UK nationals will need to have obtained a new residence permit attesting to their rights as beneficiaries of the withdrawal agreement. Employers will therefore have to carry out further right to work checks in due time to ensure that the concerned UK nationals have complied with this obligation.
- UK nationals who entered Luxembourg after 1 January 2021 are now considered under Luxembourg law as third-country nationals, and hence do not enjoy the right of free access to the labour market. These individuals must apply for a residence permit in accordance with the provisions of the amended law of 29 August 2008 on immigration and free movement of persons. Companies seeking to employ UK nationals after 1 January 2021 must hence integrate this change in status and ensure that these individuals benefit from the appropriate residence permit.