Change of an employer for employee card holder – appeal against the notification of non-compliance
The holder of the employee card is according to §42g paragraph 7) of the Act on the Residence of Foreigners No. 326/1999 Coll. (hereinafter referred to as the “ARF”) obliged to report a change of employer to the Ministry of the Interior within 30 days before such a change, but at the same time a change of employer of the employee card holder is possible only 6 months after the decision of approval for an employee card. In the notice of change of employer, in addition to personal data and data of the new employer, it is necessary to supply the Ministry of the Interior of the Czech Republic with the documents specified in §42g paragraph 8) of the ARF, in particular:
- Document proving the data for the new vacancy registered in the central register of vacancies.
- A document proving that his current employment relationship lasts, or a document proving the date on which this relationship ended.
- An employment contract or a contract for a future contract, from which it is clear that it is concluded for the job position specified in the notification, which is listed in the central register of vacancies available to the holder of the employee card.
The administrative body must then inform the applicant within 30 days whether he has fulfilled the conditions for employment with a new employer. It is also important to state here that according to § 63 ARF the applicant is in danger of terminating the employee card after 60 days from the end of the last employment relationship if his new job has not been approved. Failure to meet the conditions for a new job could be said in the event of a significant difference between the registered data in the central vacancy register and the new employment contract. For example, if the central register lists a vacancy for the position of “IT engineer”, but according to employment contract, the applicant would work as a “truck driver”.
In cases where there is no conflict and the Ministry of the Interior of the Czech Republic informs the participant and his employer that he has met the conditions for changing employer, the desired goal will be achieved and the employee will easily transfer to a new employer and start working with him under legal conditions.
However, the problem arises if the opposite situation occurs – and thus that the Ministry of Interior informs foreigners that this does not meet the conditions for a change of employer. In fact, in connection with this “notification”, the employee card may be terminated in connection with the provisions of § 63 ARF if the period of 60 days has elapsed from the date of termination of employment in connection with which the employee card was issued. It should be added that it follows from the instructions at the very end of this notice that a foreigner cannot appeal against this notification.
This is no longer the case. In the case of a client who turned to us at the moment when she received a notification of non-compliance with the conditions for a change of employer, we proposed to the client to defend against this “notification” by appeal. The point of this procedure is that, materially, it is in fact a decision, although that document is referred to as a ‘notification’. Moreover – perhaps even a layman feels that it is indeed absurd that a foreigner cannot defend himself against a procedure that results in his loss of residence – such a construction is legally unbearable.
This fact was confirmed to us by the practice of the Commission for Decision-Making in the matters of residence of foreigners in response to an appeal – the Commission dealt with the appeal and finally annulled the “Notification”, although at first it seemed legally impossible (or at least this from the instructions of the Ministry of Interior). Since in this case the notification of non-compliance is a substantive administrative decision, an appeal may be filed pursuant to Section 81 (1) of the Administrative Procedure Code. If the decision not to grant consent does not contain instructions (which it does not contain), an appeal may be filed within 90 days from the date of notification of the decision in the sense of §83 paragraph 2 of the Administrative Procedure Code.
For more information on this subject, please feel free to contact:
Mgr. Pavol Kehl, attorney
rutland & partners, law firm
tel: +420 226 226 026