Migration of highly qualified persons

The Official State Gazette (BOE) Today publishes the expected transposition (partial for now) of the European Union Directive on migration of highly qualified persons, of which we highlight:

• Law 11/2023, of 8 May, transposing European Union Directives on accessibility of certain products and services, migration of highly qualified persons, taxation and digitalisation of notarial and registry actions; and amending Law 12/2011 of 27 May 2011 on civil liability for nuclear damage or damage caused by radioactive materials.

(...) Secondly, partially transposes Directive (EU) 2021/1883 of the European Parliament and of the Council of 20 October 2021 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment and repealing Council Directive 2009/50/EC, Article 31 of which sets 18 November 2023 as the transposition deadline

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IV

For its part, the existence of a regulatory environment favorable to competitiveness and internationalization is a key element for the economy of a country, and to this contribute sectoral public policies in the economic, fiscal and migratory fields, among others. The Organization for Economic Cooperation and Development (OECD) has identified the institutional and regulatory environment as a key element for this purpose, in a context in which, at the global level, difficulties would be occurring for the recruitment of talent in certain sectors such as education, health, social services, public administration, information technology, telecommunications, communications and media, banking, finance, insurance and real estate. In this line, the most advanced countries have systems specially designed to attract investment and talent.

In addition to the ambition to internationalise and improve competitiveness, there is a demographic and labour market context in which the recruitment of qualified professionals plays a key role, as reflected in the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Council and the Committee of the Regions on attracting skills and talent to the European Union of 27 April 2022. (...)

This demand for specific skills is likely to increase and change in line with societal and technological developments. The COVID-19 pandemic highlighted the essential role played by migrants in a generalised context of border closures. He also brought with him the digital and green transitions, which has an impact on the composition of the labour market, both in terms of the skills, competences and knowledge required to fill new jobs, as well as replacement and transformation, with new occupations requiring a high degree of specialisation. (…)

In this context, safe and agile labour migration, free of bottlenecks and long and sometimes unnecessary red tape, can actively contribute to meeting some current and future needs of both the Spanish and European labour markets.

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However, the report on the implementation of Directive 2009/50/EC highlighted some conclusions indicating that the directive was not effective as a legal means of attracting talent to the European Union.: uneven transpositions, in some cases excessively rigid, and lack of up-to-date and sufficient information on the EU Blue Card to highly qualified potential candidates and employers.

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Directive (EU) 2021/1883 of the European Parliament and of the Council of 20 October 2021 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment and repealing Council Directive 2009/50/EC was published on 28 October 2021. The directive maintains the parallel national talent attraction regimes and incorporates several elements aimed at improving the effectiveness of the European Blue Card-EU regime compared to the previous directive and promoting, globally, the attractiveness of the European Union in the international race for talent. The deadline for transposition of the directive is 18 November 2023, pit is therefore necessary to incorporate the provisions of the above-mentioned Directive into domestic legislation, which is partly embodied in this Act, in Title II. Articles 3(2)(d), 17(7), 18 and 19 of the Directive, concerning the introduction of derogations from the application of long-term resident status and the issue of autonomous residence authorisations to family members of holders of the EU Blue Card, which are intended to be transposed in a future Royal Decree amending the Regulation of Organic Law 4/2000 of 11 January 2000, are exempted from the transposition carried out in this provision.

Among the novelties of Directive (EU) 2021/1883, of 20 October 2021, is the establishing more inclusive admission criteria for EU Blue Card holders, facilitating mobility and family reunification within the European Union, simplified procedures for recognised employers, granting a higher level of access to the labour market and extending the scope to non-EU family members of EU citizens and beneficiaries of international protection.

In addition to the inclusion in the Spanish legal system of the new elements of the Blue Card-EU regime, Title II of this law introduces improvements to the national regime for the authorisation of entry and residence of highly qualified professionals regulated in Law 14/2013, of 27 September, complementary to the European Union regime, and aimed at attracting professionals and specialists not included in the subjective scope of Directive (EU) 2021/1883, of 20 October 2021. Among the main advances in the national framework are the extension of the subjective framework to graduates of higher vocational training, the elimination of size and invoicing requirements of employers, extending its scope to small and medium-sized enterprises, and the extension of the validity of all residence authorizations regulated in the law to three years renewable for two more.

In order to improve legal certainty and complementarity between national and European Union schemes for attracting highly qualified professionals, Directive (EU) 2021/1883 of 20 October 2021 has been transposed into Law 14/2013 of 27 September 2013, unlike Directive 2009/50/EC of 25 May 2009, which was transposed into the general scheme governed by Organic Law 4/2000 of 11 January 2000 and its implementing regulation. This ensures a set of common procedural guarantees, a requirement of the new directive, and exploits the synergies arising from the allocation of the processing by a single specialised team: the Unit of Large Companies and Strategic Collectives.

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TITLE II

Partial transposition of Directive (EU) 2021/1883 of the European Parliament and of the Council of 20 October 2021 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment and repealing Council Directive 2009/50/EC

Article 32. Amendment of Law 14/2013, of 27 September, on support for entrepreneurs and their internationalisation.

Law 14/2013, of 27 September, on support for entrepreneurs and their internationalisation, is amended as follows:

One. The heading and paragraph 1 of Article 22 shall be amended to read as follows:

‘Article 22. Services of the Points of Attention to the Entrepreneur.

1. The natural and legal persons may carry out through the Points of Attention to the Entrepreneur all the administrative procedures necessary for the cessation of the activity of individual entrepreneurs and for the extinction and cessation of the activity of commercial companies.

In particular, the following formalities may be carried out:

(…)

Two. Article 61(2) shall read as follows:

‘2. The provisions of this Section shall not apply to citizens of the European Union and to foreign nationals enjoying rights of free movement equivalent to those of citizens of the Union on the basis of agreements between the European Union and the Member States, of the one part, and third countries, of the other part.’

Three. Article 62(4) shall read as follows:

‘4. The spouse or person with a similar emotional relationship, minor or older children who, depending on the holder, have not themselves formed a family unit and dependent ascendants, who join or accompany the aliens listed in Article 61(1), may apply, jointly and simultaneously or successively, for authorisation and, where appropriate, a visa. To this end, compliance with the requirements set out in the previous section must be demonstrated. Where applications by family members are lodged at the same time as that of the holder, the authorisation and, where appropriate, the visa shall also be granted at the same time.’

Four. A paragraph 7 is added to Article 62 as follows:

‘7. The residence authorizations and visas provided for in this section shall be revoked, refused or not renewed when the foreign person concerned may pose a threat to public order, public security, public health or national security, if so assessed by the competent body to resolve, on the basis of a police report, the National Intelligence Center or the Department of Homeland Security that proves it.’

Five. Article 71 shall read as follows:

‘Article 71. Residence authorization for highly qualified professionals.

1. A residence permit may be requested for highly qualified professionals, which will be valid throughout the national territory, when a company requires the incorporation in Spanish territory of a foreign professional for the development of a highly qualified employment or professional relationship, in the terms established in this article.

The application referred to in the previous paragraph may be submitted by the company or by the foreign professional whose incorporation is required, in which case the Large Companies and Strategic Collectives Unit will notify the company of the receipt of the application.

2. The residence permit for highly qualified professionals will have two modalities:

a) Residence authorisation for highly qualified professionals holding an EU Blue Card. This authorisation will be granted in the case of foreign workers who are going to carry out a work activity for which it is necessary to have a qualification derived from a higher education training of minimum duration of three years and equivalent to at least Level 2 of the Spanish Qualifications Framework for Higher Education, corresponding to level 6 of the Spanish Qualifications Framework for Lifelong Learning and the same level of the European Qualifications Framework (EQF), or who demonstrate a minimum of five years of knowledge, skills and competences backed by professional experience that can be considered comparable to said qualification and that is relevant to the profession or sector specified in the employment contract or in the firm offer of employment.

In the case of information and communications technology professionals and managers, the minimum duration of comparable professional experience relevant to the sector or profession required shall be three years from the seven years preceding the application for the EU Blue Card.

b) National residence permit for highly qualified professionals. This authorization shall be granted in the case of foreign workers who are going to carry out a work or professional activity for which it is required to have a qualification comparable to at least level 1 of the Spanish Qualifications Framework for Higher Education, corresponding to level 5A of the Spanish Qualifications Framework for Lifelong Learning, or knowledge, skills and competences backed by professional experience of at least three years that can be considered comparable to said qualification, in the terms established in the instructions referred to in the twentieth additional provision of this law.

3. The validity of the residence permit shall be three years, or equal to the duration of the contract plus an additional period of three months if the duration of the contract is less than three years, and the validity of the permit may not exceed more than three years. During the sixty days prior to the end of the validity of the residence authorization, it may be requested to renew it for two years if the requirements that generated the right are maintained, being able to obtain long-term residence at five years when the requirements for it are met.»

Six. A new Article 71a is inserted to read as follows:

‘Article 71a. Highly qualified professionals holding an EU Blue Card.

1. For the granting of an EU Blue Card, the following requirements shall be met:

a) The foreigner must prove possession of the qualification established in article 71.2 a) and, in the case of the exercise of regulated professions, prove their approval in accordance with the sectoral regulations on the exercise of regulated professions.

b) The applicant must present a valid employment contract or a firm offer of high-skilled employment for a period of at least six months that guarantees the worker a continuous activity during the period of validity of the EU Blue Card.

c) The conditions set out in the employment contract must comply with those established by the regulations in force and the applicable collective agreement. The gross annual salary specified in the employment contract shall not be less than a reference salary threshold to be defined by regulation, after consultation with the social partners in accordance with the rules in force, and which shall be at least 1.0 times and not more than 1.6 times the average gross annual salary.

However, as long as the contract complies with the regulations in force and the applicable collective agreement, the lower salary threshold will be 80. % of the threshold set out in the previous subparagraph, provided that it is not less than 1,0 times the average gross salary, in any of the following cases:

For those professions in which there is a particular need for workers who are nationals of third countries and who belong to groups 1 and 2 of the International Standard Classification of Occupations.

For third-country nationals who have obtained the qualification set out in Article 71.2(a) no later than three years before the submission of the application for an EU Blue Card.

If the EU Blue Card issued during this period is renewed, the salary threshold shall continue to apply if the initial three-year period has not yet ended, or 24 months have not yet elapsed since the issuance of the first EU Blue Card.

Authorisation for an EU Blue Card shall be refused where the requirements set out in this Article are not met, or where the documents submitted have been fraudulently obtained, falsified or adulterated.

2. In the event that the person who has been granted an EU Blue Card requires a visa for entry into Spain, the consular authorities of the country where they are located will grant the corresponding visa without any additional requirement to those provided for in this law and in the current regulations on visas.

3. The renewal of the EU Blue Card shall be revoked or refused, after analysing the specific circumstances and in accordance with the principle of proportionality, where the foreign national is no longer in possession of an employment contract valid for highly qualified employment, and accrues a period of unemployment of more than three months having held the EU Blue Card for less than two years, or accrues a period of unemployment of more than six months having held the EU Blue Card for at least two years. The EU Blue Card will also be revoked when its holder has moved to a Member State of the European Union other than Spain and has obtained an EU Blue Card in this Member State.

Where the circumstances set out in the previous subparagraph apply for the withdrawal or non-renewal of the EU Blue Card, the person concerned shall be granted a period of three months for seeking new employment, or six months where the person concerned has held an EU Blue Card for at least two years.

4. Where the holder of an EU Blue Card issued by a Member State of the European Union travels to Spain for the purpose of carrying out a professional activity for a period of 90 days in any 180-day period, no authorisation other than the EU Blue Card issued by the Member State of the European Union shall be required to carry out that activity.

A person who has resided for at least 12 months in a Member State of the European Union other than Spain as a holder of an EU Blue Card, or six months if he has resided in more than one Member State as a holder of an EU Blue Card, shall have the right to enter, reside and work in Spain, for which he shall apply for an EU Blue Card in Spain. The application may be submitted by the employer or employee to the competent authorities while the EU Blue Card holder is residing in the territory of the first Member State. In the event that the holder of the EU Blue Card issued by a Member State of the European Union other than Spain is already in Spanish territory, the application must be submitted to the competent body for processing before the maximum period of one month has elapsed since his entry into Spain.

The submission of the application shall be accompanied by the EU Blue Card issued in the first Member State, a valid travel document, a work contract or a firm offer of high-skilled employment for a period of at least six months, evidence that it meets the salary threshold referred to in paragraph 2 of this Article and, in the case of a regulated profession, evidence of the recognition of the relevant qualifications in accordance with the applicable sectoral rules.

The holder of an EU Blue Card issued by a Member State of the European Union shall be authorised to start working in Spain from the moment of the complete application for the EU Blue Card in Spain, without prejudice to the meaning of the resolution to be made, after analysing the specific circumstances and in accordance with the principle of proportionality, in the terms of Article 76.

5. The provisions of the preceding paragraph shall apply, as far as they are concerned, to the family members referred to in Article 62(4) accompanying or joining the holder of the EU Blue Card. In the event that the applications of the family members are not submitted simultaneously with that of the holder of the EU Blue Card, they must be submitted within a maximum period of one month from the entry of the family members into Spain.

6. In the event that the applicant or holder of an EU Blue Card is in turn a beneficiary of international protection granted by Spain or another Member State of the European Union, the following specialties shall apply:

a) Family members of an applicant for an EU Blue Card who is a beneficiary of international protection granted by another Member State of the European Union may be reunited under the terms provided for in this law.

b) The reunification of the family members of the applicant for a Blue Card-EU, who in turn has obtained international protection in Spain, will be governed by the provisions of current regulations on international protection.

In the event that Spain processes the granting, withdrawal or non-renewal of an EU Blue Card of a person who is a beneficiary of international protection granted by another Member State of the Union, the Member State that granted the Union shall be requested to confirm that the person concerned continues to be a beneficiary of international protection in that Member State before proceeding, where appropriate, with his expulsion from Spanish territory. If this is the case, the principle of non-refoulement to the country of origin will be preserved in any case.

In the event that a Member State of the Union makes a request to Spain for confirmation of the status of beneficiary of international protection granted by Spain, that request shall be answered within a maximum period of one month.’

Seven. Article 73.2(b) shall read as follows:

‘(b) Higher qualification at least equivalent to level 1 of the Spanish Qualifications Framework for Higher Education, corresponding to level 5A of the Spanish Qualifications Framework for Lifelong Learning, or knowledge, skills and competences attested by professional experience of at least 3 years that can be considered comparable to that qualification.’

Eight. Article 74 shall read as follows:

‘Article 74. Intra-corporate transfers of professional groups and simplified procedure.

1. Undertakings or groups of undertakings may request the collective processing of authorisations, which shall be based on the planned management of a temporary quota of authorisations submitted by the undertaking or groups of undertakings.

For this purpose, they may apply for registration in the Unit of Large Companies and Strategic Collectives. Registration will be valid for 3 years renewable.

Registered companies shall be exempt from proving, at the time of application, the requirements laid down in Article 73(2)(a), (b) and (c). However, the Administration may carry out ex officio verifications of compliance with these requirements for which the entity must have the supporting documentation.

2. This Article shall not apply to undertakings or groups of undertakings which in the three years immediately preceding the application for authorisation:

They have been punished for serious or very serious offences relating to aliens and immigration.

they have not demonstrated compliance with the requirements in ex officio checks carried out by the administration.’

Nine. In Article 76, a new paragraph 4 is added and the current paragraph 4 is renumbered 5 as follows:

‘4. The accreditation of compliance with the requirements by the company in the processing of the authorizations provided for in Chapters IV and V of this section will be carried out only once, leaving the company registered in the Unit of Large Companies and Strategic Collectives. This registration will be valid for 3 years renewable if the requirements are maintained. Any modification of the conditions must be communicated to the Grand Unitis Strategic Companies and Collectives within 30 days. If this change is not communicated, the company will no longer be registered in the Unit.

5. The passport will be a sufficient document to register with the Social Security during the first six months of residence or stay in the categories regulated by this section and in those cases in which the foreigner is not in possession of the alien identification number (NIE), without prejudice to the subsequent application for the NIE’

Ten. The 20th additional provision is amended to read as follows:

‘Twentieth additional provision. Instructions with requirements for visas and residence permits.

1. The competent bodies are empowered to issue instructions setting out the specific requirements to be met by applicants for the visas and residence authorisations provided for in Section 2a of Title V.

2. For the elaboration of these technical instructions, the Government will set up a working group in which representatives of the ministries and the autonomous communities with competence in the matter will participate.

3. The thresholds for the financial amounts used to assess the financial resources of applicants shall refer to the minimum wage between occupations.’

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Eighteenth final provision. Entry into force.

1. This law shall enter into force on the day following that of its publication in the "Official State Gazette", with the exceptions indicated in this provision.

2. Title I shall enter into force on 28 June 2025, with the exception of Article 27(4), which shall enter into force on the twentieth day following that of its publication in the Official State Gazette.

3. Article 32(1), the first and fourth additional provisions and the second final provision shall enter into force on the twentieth day following that of their publication in the Official State Gazette.

4. Title III shall enter into force on 1 January 2024.

5. Articles 34, 37 and 42(9) to (15) shall enter into force six months after their publication in the Official State Gazette.

6. Articles 35, 36 and 38 shall enter into force on the year of their publication in the Official State Gazette.