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What has changed for UK nationals working and living in Luxembourg after Brexit?

Written by
CASTEGNARO, your partner in labour and employment law in Luxembourg.
Authors
Luxembourg
05.01.21
5
A new regime applies to UK nationals living and working in and travelling to Luxembourg from 1 January 2021. This Q and A gives details.

1. GUIDANCE

1.1 Has any guidance been issued on how UK nationals can obtain settled residence status and permission to work from 1 January 2021 and what proof of residence is needed for current residents to maintain their status?

Yes.

The Luxembourg Government published guidance to provide information on the situation of UK nationals in Luxembourg from 1 January 2021:

  • UK nationals and members of their family who fall within the scope of the WA have the same rights as EU citizens and keep these rights from 1 January 2021. In order to exercise the rights covered by the WA, they will need to apply for a specific residence document, which certifies their status as beneficiaries of the WA.This document replaces their current residence document. It is different from the document issued to EU citizens. The application for this new residence document became mandatory as of 1 January 2021 and must be submitted no later than 30 June 2021. UK nationals and members of their family who have dual nationality (nationality of another EU or EEA Member State or Swiss nationality) as well as UK nationals who are holders of a diplomatic card (or equivalent) do not have to replace their resident document.
  • UK nationals who do not fall within the scope of WA, in particular those arriving in Luxembourg as of 1 January 2021, or residing either in another EU Member State or in the UK and wishing to start work in Luxembourg as of 1 January 2021, will be subject to the rules governing residence in Luxembourg and access to the labour market for third-country nationals. They must therefore apply for a residence/work permit for one of the categories provided for by the law of 29 August 2008 on the free movement of persons and immigration.

 

2. BUSINESS TRAVEL

2.1 Do UK employees need a business visa from 1 January 2021?

No.

Regulation (EU) 2019/592 of 10 April 2019 exempts UK citizens from the requirement for a Schengen visa. The Schengen exemption applies from 1 January 2021 (under the WA, UK nationals kept their EU free movement rights until 31 December 2020). UK citizens can enter and stay in the Schengen area for a maximum of 90 days in any rolling 180-day period.

2.2 What documents are needed on arrival for business travel from 1 January 2021?

Travel documents (passport valid for at least three months after arrival in Luxembourg).

Proof of duration and purpose of stay, as border control may ask additional questions concerning duration and purpose of stay.

Unless they stay in a hotel or guesthouse, UK business travellers will need to notify the appropriate communal administration of their presence within three working days from arrival.

2.3 Do UK nationals need additional permission to work for business travel from 1 January 2021 in the event of no deal?

Yes, even if allowed to enter and stay visa free they might nonetheless need a work permit.

However, individuals on business trips (such as travel to visit business partners, to explore and develop professional contacts, to negotiate and conclude contracts, to participate in fairs, shows and exhibitions as well as to take part in meetings of the board of directors and general meetings of the company) are exempted from the requirement for a work permit for a stay for a maximum of three months.

 

3. EMPLOYMENT AND RESIDENCE

3.1 Do UK nationals need permission to work and stay in Luxembourg from 1 January 2021? 

Yes, unless they can rely on an exemption such as:

  • business meetings (for stays shorter than three months);
  • intra-group provision of services excluding subcontracting (for stays shorter than three months);
  • family members of an EU national who works in Luxembourg;
  • intra-corporate transfer (subject to the condition that the UK employee holds an ICT residence permit in another member state);
  • posting (subject to conditions);
  • UK nationals and members of their family falling within the scope of the WA (in particular, those who arrived in Luxembourg before 1 January 2021 can freely access the labour market).

 

3.2 If permission to work is needed after 1 January 2021, do any quotas apply to the employment of third-country nationals? 

No

However, for specific categories of work permits, Luxembourg applies the labour market test in order to check whether the vacant position (for which the third-country national filed a work permit application) can be filled by a person available on the national or European labour market.

3.3 If permission to work is needed from 1 January 2021, what categories of permission are commonly granted?        

The most common categories are:

  • workers who are employees;
  • highly qualified workers (annual remuneration of at least EUR 78,336, or EUR 62,668.80 for specific professions; employment contract of at least one year and high-level qualifications);
  • workers temporarily assigned to Luxembourg on an intra-corporate transfer (ICT); and
  • workers temporarily assigned from abroad to Luxembourg under the terms of a cross-border services agreement (posting of workers).

 

3.4 If permission to work or stay is needed from 1 January 2021, how long does the procedure take?    

Depending on the category of work permission requested, the time required for a response from the Ministry of Foreign and European Affairs to a work permit application may vary from three to four months maximum.

For ‘employee’ work permission, a certificate from the Employment Administration needs to be submitted at the start of the procedure. Sufficient preparation time should be factored into employment plans.

3.5 If permission to work and stay is needed from 1 January 2021, what Government fees are payable?

A residence permit requires that the applicant fulfils two main steps:

  • An application for a temporary residence permit to submit from the country of origin. This application is free of charge.
  • An application for a definitive residence permit once the employee arrives in Luxembourg. This application is subject to a fee of EUR 80.

 

4. FRONTIER WORKERS

4.1 What formalities apply to UK frontier workers working in Luxembourg but living in another country from 1 January 2021?

British nationals who reside either in another EU Member State or in the UK and who were working in Luxembourg before 1 January 2021 may request a document attesting their right to exercise their salaried activity in Luxembourg as of 1 January 2021.

British nationals who reside either in another EU Member State or in the UK and who wish to start work in Luxembourg as of 1 January 2021, are subject to the rules governing access to the labour market for third-country nationals. They must therefore have a work permit to work in Luxembourg and must wait for the work permit to be issued before they can start work.

 

5. PERMANENT RESIDENCE

5.1 From what date are third-country nationals entitled to apply for permanent residence?       

After a regular and uninterrupted stay of five years in Luxembourg, a third-country national may acquire the status of long-term resident, subject to certain conditions. In this case, the third-country national obtains a ‘long-term residence permit – EU’ valid for a period of five years and renewable automatically on request (for British citizens, the calculation of the five-year period takes into account the stay before the transition period, the stay during the transition period and the stay after this period).

A third-country national who is a family member of a EU citizen has a permanent residence right after a five-year regular and uninterrupted stay in Luxembourg under certain conditions and can obtain a permanent residence permit.

6. SECURING RESIDENCE AND WORK STATUS

6.1 What steps could UK nationals take currently to secure their residence and work status?  

UK nationals and members of their family currently residing in Luxembourg are still entitled to reside in Luxembourg from 1 January 2021. Although entitlement to residence and associated rights will remain similar to those they currently enjoy as EU citizens, they will be required to obtain a new residence document attesting that they are beneficiaries of the WA. This new resident document must be obtained before 30 June 2021 at the latest, and replace the current residence permit.

UK nationals and members of their family who have dual nationality (nationality of another Member State of the EU or EEA or Swiss nationality) and those who are holders of a diplomatic card (or equivalent), do not have to obtain this new resident document.