Ministry of Labour and Social Affairs provides easier labour market access for foreigners whose temporary residence ended
The employment of foreigners has long raised a number of practical questions that employers and foreigners themselves often find difficult to answer. The Act on the Residence of Foreign Nationals in the Czech Republic (Foreigners’ Residence Act) or the Employment Act often prove unhelpful as well, as the interpretation of many of their provisions is unclear. The provision of the Foreigners’ Residence Act regulating the termination of the temporary residence of a family member of an EU citizen and their subsequent residence in the Czech Republic is one of them.
Foreigners who are family members of EU citizens usually have free access to the Czech labour market. If the Ministry of the Interior terminates their temporary stay in the Czech Republic for a legally defined reason (e.g. at their own request), it also sets a deadline for their departure. Within this deadline, the foreigner may apply for a long-term residence permit to allow them to continue to reside and work in the Czech Republic. Until their application is decided on, they can stay in the Czech Republic on the basis of the ‘fiction of legal stay’, meaning that during this period, their stay is still considered legal on the basis of the temporary residence permit.
Until recently, the Ministry of Labour and Social Affairs made the foreigner’s free access to the labour market conditional upon their status as a family member of an EU citizen. In addition, this status had to be proven by the relevant residence permit for a family member of an EU citizen. If the foreigner no longer had the residence permit, according to the Ministry of Labour and Social Affairs, they no longer had free access to the labour market, even if still residing legally in the Czech Republic on the basis of the above-mentioned presumed fiction. In practice, this meant that the foreigner could not legally work in the Czech Republic in the period between the loss of the residence permit of a family member of an EU citizen and the issuance of their long-term residence permit. Such situations could last several months during which the foreigner remained without funds, with their employer being forced to find at least a temporary replacement.
Recently, the Ministry of Labour and Social Affairs changed its interpretation. Under its new approach, if a foreigner has applied for a long-term residence permit on time, they may both legally reside in the Czech Republic and have free access to the labour market until their application is decided on. According to information available to us, the Ministry of Labour and Social Affairs has reconsidered its interpretation, taking into account the fact that the legislators have granted to such foreigners the right to legally reside in the Czech Republic until their application is processed. The Ministry of Labour and Social Affairs also took into account their need to secure means for their own subsistence during this temporary period.
The change in the interpretation by the Ministry of Labour and Social Affairs is, in our opinion, a step in the right direction. The relevant provision in the Foreigners’ Residence Act was ambiguous, and the new interpretation by the Ministry of Labour and Social Affairs will help to resolve such problematic situations for both foreigners and employers.