Changes in the Estonian Aliens Act 2016
Several important legislative amendments came to force on 01.01.2016, which concern the working of aliens in Estonia.
Below we will make a selection of the amendments related to registering aliens working in Estonia and applying for and cancelling residence permits as prescribed in the Aliens Act.
Hiring a temporary agency worker without a residence permit
From 01.01.2016 the Aliens Act prescribes an opportunity for short-term hiring of a temporary agency worker (rented labour) without a residence permit. Temporary agency work may be registered as short-term working, if the following requirements have been fulfilled:
- EesThe employer that is registered in Estonia operates as an intermediary of temporary agency work
- the employer has opened a deposit account in a credit institution registered in Estonia and there are funds in deposit on the account in the extent of at least ten per cent of the remuneration fund of the temporary agency worker during the short-term employment period for the entire short-term employment
- the principal activity of the user undertaker (company using the rented labour) in which the alien commences work shall be taken as the basis for payment of remuneration to an alien.
In relation to adding temporary agency work to the short-term employment regulation, the grounds for refusal to register short-term employment have also been supplemented in the Act and the provisions currently applicable to the employer have also been extended to a company using a temporary agency worker.
Grounds for the registration of absence from Estonia
The grounds for the registration of absence from Estonia of the Aliens Act have been supplemented. A new ground – enterprise, has been added to the existing grounds in the Act, which are study, employment, being in the active service of the armed forces of a foreign state and other temporary reason. An alien holding an Estonian residence permit has an obligation to register his or her absence from Estonia for more than a total of 183 days per year and the period of absence from Estonia registered in the Police and Border Guard Board is calculated into the period of permanent residence in Estonia.
As a general rule the Aliens Act prescribes the application for a residence permit through a foreign mission of Estonia. There are several exceptions and grounds in the Act for the submission of a residence permit application in the Estonian Police and Border Guard Board. As amendments the persons have been added, to whom the right to submit an application in Estonia extends, incl. an alien:
- that has the right to temporarily stay in Estonia within the following 90 or 183 days as of the day of expiry of the period of validity of a residence permit
- that is applying for a temporary residence permit for settling permanently in Estonia
- that is applying for a residence permit for study
- kthat has acquired education in Estonia
- in addition the spouse and children of the listed alien
Changes in applying for a permit from the Unemployment Insurance Fund
Applying for a permit from the Unemployment Insurance Fund for hiring a foreigner is no longer personal and an employer can apply for a permit to fill one or several positions. In relation to that the bases for the annulment of a temporary residence permit and from 01.01 the change of a post of an alien with the same employer is not deemed to be the change of the condition of employment determined in the residence permit. In addition it is not deemed to be the change of the condition of employment determined in the residence permit, if an alien commences work for another employer or if a temporary agency worker commences work for another user undertaking.
It is possible to apply for a residence permit on simplified conditions, i.e. without the permission of the Unemployment Insurance Fund and without complying with the salary criterion by an alien that has acquired an education specified in the Act in Estonia.
Temporary residence permit and redundancy
As a novelty a specification for the revocation of a temporary residence permit for employment has been implemented in the Aliens Act. Namely a temporary residence permit granted to an alien is not annulled within 90 days as of the day of becoming unemployed due to redundancy.
The legal basis for an alien staying in Estonia after the expiry of a residence permit has also been amended. If before, the right to stay in Estonia ended on the date of expiry of the residence permit, then the new regulation allows the alien to stay in Estonia after the expiry of the residence permit, if the person applies for the extension of a residence permit, for a new temporary residence permit or for a long-term resident’s residence permit during the period of validity of the residence permit or upon expiry of 90 days or 183 days as of the day of expiry of the period of validity of the residence permit (depending on the bases of the residence permit).
Obligations of an employer hiring an alien
In addition to the aforementioned amendments, the obligations of an employer, incl. an employer using temporary agency work in relation to an alien working for an Estonian employer have also been supplemented:
- an employer is required to verify that an alien who is employed by the employer has a legal basis for the stay and employment in Estonia
- an employer is prohibited to enter into an employment contract with an alien who does not have a legal basis for the stay or employment in Estonia
- an employer is required to terminate the contract with an alien who does not have a legal basis for the stay or employment in Estonia/li>
The employer, who enabled the employment in Estonia of an alien who is staying in the state illegally, is required to pay the total remuneration unpaid to the alien, including the taxes and payments withheld from the remuneration under the law.
It is the employer’s obligation to compensate the expenses of the expulsion of an illegal alien from the country in the sum of up to 32,000 euros, if the alien does not bear the specified expenses.
In addition to amendments to the law, the forms of residence permit applications and registrations have also been changed. Forms can be filled in in Estonian, English and Russian.
In case of questions contact the lawyer of 1Office.
Author: Katrin Allmäe, 1Office Estonia, lawyer
