A change in an employee’s job description or a move to another department is a common occurrence in businesses employing foreign personnel. Where a foreign national working for a given employer wishes to change the branch at which they are based or the role they perform, the legal avenue to be pursued is the transfer of the work permit.
What a Transfer Is
A transfer is a permit obtained so that a foreign national holding a work permit tied to a given employer may work in a different role at the same workplace or at that employer’s other branches in the same line of business. In practice the application arises in two situations: where the foreign employee changes branch, or where they take on another role within the same workplace.
Attention must be paid here to where the line is drawn. A permit obtained in respect of one employer cannot be transferred so as to permit work at the workplaces of another employer. A transfer (in other words, a change of workplace under a work permit) allows only the branch to which the foreign employee is attached, or their role at the workplace, to be changed.
Requirements for a Change of Workplace
The requirements are set out in Article 26 of the Regulation on the Implementation of the International Labour Force Act. Accordingly:
- The party making the application is not the foreign employee but the employer.
- The request must be submitted before the existing work permit expires.
- The application must be made through the e-permit application and the documents must be uploaded to the system electronically.
- The role the foreign national is to move into, or the work they are to undertake at the new branch, must not be work requiring prior authorisation.
- The new role must not be among the categories of work for which professional qualification is required and must be consistent with the profession stated in the employment contract.
- The branch to which the move is to be made must be recorded in the trade registry entry of the same employer.
- The request must be approved by the Directorate General of International Labour Force.
If it is established that the foreign national is working at a different workplace or in a different role although the transfer request has been refused, the existing permit ceases to be valid and the person concerned is obliged to leave the country within 10 days. Failure to comply with that obligation results in deportation.
NOTE: By way of a transfer, a foreign employee may work only at another branch of the same employer in the same line of business, or in a different role at the same workplace. The employer cannot be changed by this route. Where the foreign employee is to work for another employer, an application must first be made for annulment of the existing permit and a new permit must then be obtained.
How the Application Is Made
The transfer request is submitted by the employer through the e-permit application of the Directorate General of International Labour Force, accessed via the e-Government system. On logging in, information forms to be completed in respect of both the employer and the employee appear on the screen. The employer completes the application by entering the information the system requires and uploading the necessary documents.
Since the process closely resembles a first-time work permit application in procedural terms, the note entitled "how a work permit is obtained" may also be consulted.
Refusal of the Request, Objection and Action for Annulment
Where any one of the conditions required for approval is not met, the application is refused. Examples include the branch to which the move is to be made not being recorded in the trade registry entry of the same employer, the foreign national’s new role being inconsistent with their existing work, or that role being subject to the prior authorisation of the Ministry. Deficiencies in the documents uploaded to the system produce the same result.
Beyond the situations listed, the Ministry may also refuse the request on the ground that it does not find it compatible with international labour force policy. An objection may be lodged, or an action for annulment brought, against the refusal of a transfer application.
An objection is made through the e-permit system, addressed to the Ministry, within 30 days of the date on which the refusal is served on the foreign national. At the objection stage a petition setting out the legal grounds must be prepared, the information and documents supporting those grounds must be added to the file, and everything must be uploaded to the system bearing an electronic signature.
An action for annulment is brought before the administrative court within 60 days, running from the day following service of the decision. If the objection route is taken first, the period for bringing an action is suspended. For example, if the objection was lodged on the 32nd day following service of the refusal, the person concerned has 28 days in which to bring an action, running from the day following service of the decision given on the objection.
In both avenues the petitions must be drafted with reasons. To that end, it must first be established on what grounds the refusal was based. Once the ground of refusal has been identified, a petition must be prepared against the decision setting out the legal basis clearly. In order for the process to be conducted effectively and swiftly, it is useful to consult a lawyer practising in this field.
The note entitled "refusal of a work permit application", which deals in detail with the grounds on which work permit requests are refused and the legal remedies available against a refusal, offers a broader framework on the subject.
Conclusion
A failure to satisfy the requirements sought in a transfer application, or errors in the conduct of the procedural steps, results in refusal of the request. When preparing the application, it must therefore be ensured that the conditions required by law are met in full. If the refusal is considered unjustified, the avenues of objection and of an action for annulment are available; at that stage too, observing the procedural time limits and constructing the petition correctly are decisive. It is advisable to conduct the process with a lawyer experienced in the field of the law on foreign nationals.
Independent Legal Assessment
The most frequent error in transfer applications is overlooking the fact that an internal change of role is an administrative permit procedure. Making the application after the foreign employee has in fact started in the new role, or continuing the employment although the application has been refused, gives rise to consequences extending to the loss of validity of the permit and the ten-day obligation to leave the country.
The second critical point is a correct understanding of the scope of a transfer. Because a change of employer cannot be effected by this route, where a move to a different company is planned the sequence of annulment followed by a fresh application must be followed. The points to be brought to the fore in concrete files are as follows:
- Clarifying before the application whether the new role falls among the categories of work subject to prior authorisation or to professional qualification
- Verifying by documentary evidence that the branch to which the move is to be made appears in the trade registry entry of the same employer
- Supporting the consistency between the professional description in the employment contract and the new role by way of an amendment to the contract
- Making the application while leaving a sufficient margin of time before the existing permit expires
- Where the application is refused, scheduling the thirty-day objection period and the sixty-day period for bringing an action with the suspensive relationship between them in mind
- Where a move to a different employer is in question, choosing the route of annulment and a new permit rather than a transfer
Independent Legal provides advisory and litigation services to businesses employing foreign personnel, from the preparation of work permit transfer applications through to objection and court proceedings pursued against refusals.