National Intra-Company Work Permit Applications for Intra-EU Secondments May Not be Available

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At a Glance

• Immigration authorities in Spain are increasingly refusing to accept national Intra-Company Transfer permit applications for non-EU foreign nationals transferring from another EU Member State to Spain on assignment.
• Instead, affected applicants are advised to submit a Van Der Elst visa application at their local Spanish consular post, though their immigration process may be delayed under this process.

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The situation

Immigration authorities in Spain are increasingly enforcing controls on non-EU nationals employed in another EU Member State and temporarily posted to Spain under the national Intra-Company Transfer (ICT) permit, and are re-directing applicants to other options such the Van Der Elst visa process.

Impact for foreign nationals

• Re-assess travel strategy. Affected applicants in Spain are advised to re-assess their immigration strategy before moving to Spain as it may require additional steps such as submitting a Posted Worker Notification and applying for a Van Der Elst visa (residence permit on the basis of a work permit exemption) at the Spanish consular post of their place of residence.
• Drawbacks to Van Der Elst process. Note that there are certain drawbacks to the Van Der Else visa process as compared to the national ICT permit:
  • Foreign nationals cannot be accompanied by dependants.
  • Spanish consular posts may not be fully aware of the Van Der Elst requirements and may therefore refuse or delay applications.
  • Submission of the application is subject to appointment availability at the consular post, which may delay the process as compared to the national ICT process.
  • Processing times for Van Der Elst applications are generally shorter but are subject to appointment availability at the consular post as Van Der Elst applications cannot be submitted in Spain, unlike ICT permit applications.

 

Impact for employers

• Employers must file a Posted Worker Notification prior to the submission of the Van Der Elst visa application, which requires additional information from both the home and host entity and a representative at the Spanish host entity, among other requirements.
• Employers must provide fewer corporate documents for the Van Der Elst visa application as compared to the ICT permit.

 

Background

• Spanish trends. Previously, Spanish authorities accepted national ICT permit applications for intra-EU secondees to Spain. However, Spanish authorities are now becoming increasingly strict. For example, earlier this year, Spanish consular posts started requiring non-EU nationals to apostille supporting documents even though this is not legally needed. In the climate of increasing scrutiny and stricter enforcement, local Spanish authorities have stopped accepting national ICT permit applications for intra-EU secondees for the first time.
• Regional trends. Other countries in the region have also expanded protections for workers and imposed stricter requirements and scrutiny on posted workers. For example, new penalties and rules apply for employers sending posted workers to France, and Greece introduced a new notification requirement for posted workers earlier this year. Stricter employment rules for posted workers are also forthcoming in the Netherlands.
   

Looking ahead

Rules relating to posted workers are likely to become more restricted in Spain and other EU Member States, as Europe increasingly responds to ongoing government concerns and studies showing that companies hiring cheaper labor in Eastern Europe for work in Western Europe are leaving employees unprotected. Read about this issue and how the implementation of the revised EU Posted Workers Directive demontrates that previous rules did not take into consideration new labor trends such as the growing workforce of the European Union and the economic crisis affecting the single market.

Fragomen will continue to monitor and report on further rules regarding posted workers.

This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen or send an email to [email protected].