Changes in Immigration Status and Purpose of Stay

Section 1 offers an overview of the Luxembourg immigration legislation which provides for the possibility to switch between categories of authorisations of stay in Article 39 of the amended Law of 29 August 2008 on the Free Movement of Persons and Immigration (hereafter referred to as Law on Immigration). Third-country nationals wishing to stay in Luxembourg for more than three months are required to apply for an authorisation of stay before arriving in Luxembourg. The third-country national applying for a permit for more than three months has to submit to a medical examination before requesting the delivery of the permit. After the medical exam, a certificate is delivered detailing whether the third-country national fulfils the conditions of entry to the territory or not. This certificate has to be enclosed to the residence permit application. The third-country national must also fulfil conditions pertaining to his/her registration in the municipality of his/her future residence as well as appropriate accommodation.In regards to changes of statuses, the third-country national with an authorisation of stay for more than three months has the possibility to apply for a different permit provided s/he fulfils the conditions for the category of permit s/he is aiming to change to. The Law on Immigration sets up this principle in its Article 39 (3) and excludes from its application the following categories: students, trainees, volunteers, au pairs and pupils. The rationale behind those exceptions is that those permits are considered temporary by definition, as they are linked to an activity which is limited in time.A special provision, Article 59 of the Law on Immigration, allows young graduates after the expiry of their student permit to change into the category of salaried worker and have a first work experience in Luxembourg for the limited, non-renewable, duration of two years. After this period the third-country national has to return in his/her country of origin. This provision and its conditions were debated by stakeholders during the elaboration of the Law on Immigration, concerns surrounding the limit of two years’ work experience or the limiting condition of having a contract linked to the diploma obtained in Luxembourg were mentioned.
Article 59 is however the result of a compromise between fostering a young graduate’s capabilities with a first work experience and provide for a possibility to fill the gap in the Luxembourg workforce on one hand and on the other mitigate the risk of brain drain for the third-country national’s country of origin.Other considerations to allow for switches between categories of statuses were of humanitarian nature, such as Articles 76 (family member), 89 (1) (authorisation of stay for exceptional reasons), 98 (victim of human trafficking) and 131 (2) (medical reasons) of the Law on Immigration. These articles aim to increase the autonomy and legal security of vulnerable third-country nationals. Section 2 details the different statuses taken into account for the purpose of the present study. The table under question 1 also contains categories that do not exist as such in Luxembourg legislation: the separate category of highly qualified worker was replaced by the European Blue Card with the implementation of the Law of 18 December 2011,the categories of business owner, seasonal workers, intra-corporate transferee and investor do not exist autonomously, but third-country nationals falling under these categories are nonetheless covered by other existing statuses. However, a modification of the current legal framework is under way in order to create the categories of intra-corporate transferees and seasonal workers.Therefore the relevant categories of statuses for Luxembourg at this point in time are family member, education (student), researcher, European Blue Card, salaried worker, self-employed worker, international protection applicant, victim of trafficking in human beings, private reasons, athletes, au pairs and beneficiaries of medical treatment. The authorisation of stay for exceptional reasons was included in this study even if not considered a category of stay.Section 3 delves more specifically into the subject matter of the present study and introduces more in detail the changes of statuses that are possible from within the country. The present study excluded from its scope the change into long-term resident, which is the most common change of status in Luxembourg. Several changes, while theoretically possible, are also unlikely to take place in practice as they would lead to a loss of rights for the concerned third-country national. This loss of rights applies to switches into the categories of students, pupils, volunteers, trainees, au pairs, seasonal workers, posted workers and international protection applicants. As a consequence, the main changes of statuses in practice concern the categories of Family member, salaried worker, European Blue Card, Self-employed and Private reasons.The special consideration given to third-country nationals in vulnerable situations, such as victims of trafficking in human beings or third-country nationals with an authorisation of stay for medical reasons, may obtain a permit for private reasons and, if they engage in a full-time salaried activity, may later switch to salaried worker without having to submit to the labour market test.The study also presents the different actors on a national level that might be confronted with changes of statuses as well as the different channels of communication that are available to circulate the information to third-country nationals. The concerned actors may vary from one category of permit to the next, however the Directorate of Immigration will be involved in nearly every case. The Chamber of Commerce also has a part to play in changes into self-employed workers. The main channel of communication, aside from office hours of institutions dealing with migration, is the website www.guichet.lu which centralises all the relevant information.Taking as a basis the different comments during the elaboration of the Law on Immigration as well as interviews conducted with different stakeholders for the purpose of this study, these changes of statuses are generally perceived in a positive light, with several actors, such as the Chamber of Commerce or Fondation Caritas, arguing in favour of lighter requirements to allow for such switches, especially where changes for humanitarian grounds are concerned.The topic of changes of statuses of immigration has not as of yet attracted interest in Luxembourg. There is no data or study available on the topic and it has not triggered any large debate on the national level.Nevertheless, Section 4 puts forward a number of good practices. In fact, whenever the Directorate of Immigration or another organisation providing advice on immigration, notices a possibility for a third-country national to obtain a permit that is more favourable, this will be brought to the attention of the concerned person. The Directorate of Immigration has also proven flexibility and understanding in situations including children. Alternative solutions are also provided by the Directorate of Immigration when a holder of the authorisation of stay for medical reasons falls into irregularity. A further notable good practice is the extensive support provided to third-country nationals aiming to change into self-employed worker by the Chamber of Commerce. Finally, the constant information sharing between the relevant actors consists a good practice with enormous potential as it draws the discussion into practical concerns faced with the implementation of the Law on Immigration.