Most Important Amendments of the Aliens Act during the Past Two Months
On 15 August, amendments of the Aliens Act entered into force, according to which, an employer of a foreign country must register the short-term employment of an alien at the Police and Border Guard Board if the alien is sent to Estonia for the purposes of providing a service.
For example, if a Ukrainian employee is employed with a Polish employer on the basis of a residence permit or visa and the Polish employer sends this employee to Estonia to provide a service, then from 15 August the Polish employer must register the short-term employment of the Ukrainian employee in Estonia at the Police and Border Guard Board. Previously, foreign employers were not subject to such notification obligation.
An alien sent to work in Estonia may start working on the same day when his or her short-term employment in Estonia was registered by the employer. Furthermore, the Aliens Act foresees that in case of such assignment, the employer of a foreign country is exempt from the obligation to pay the alien at least the average Estonian salary during the period the alien works in Estonia.
If a foreign employer has not registered the short-term employment of an alien in Estonia, the Police and Border Guard Board may give a new term for the registration and issue a warning that in case of failure to register the short-term employment, a penalty payment may be enforced. The total sum of the penalty payment may not exceed €3,300, whereas in the first occurrence, it must not exceed €1,300 and in the second occurrence €2000.
The amendments can be read here.
On 15 July, several important amendments entered into force, the main aim of which is to prevent illegal working of aliens.
- The period of short-term employment in Estonia is extended from the current nine months to one year. From then on, an alien can work in Estonia for 365 days during 455 consecutive days. Other conditions for short-term employment remain the same. This means that short-term employment in Estonia must still be registered at the Police and Border Guard Board, aliens must be paid at least the Estonian average salary and aliens must have a legal basis for staying in Estonia.
- Aliens who wish to stay in Estonia for a longer period of time are subject to the requirement of commanding Estonian at least at A2 level if they wish to extend the temporary residence permit issued for employment or they apply for a new one. Command of Estonian language at least at A2 level is not required from aliens who had a temporary residence permit granted before 15 July 2018 and who apply for temporary residence permit for employment.
- Aliens who are granted a temporary residence permit for employment as a top specialist are exempt from the immigration quota. A top specialist is an alien with professional qualifications in any area of activity, who is paid at least double the Estonian average salary for working in their field of specialisation in Estonia.
- If an employer employs an alien who is staying in Estonia without a legal basis, fails to fulfil the conditions for alien’s work I Estonia or fails to fulfil the salary requirement arising from the Aliens Act, an employer who is a legal entity may be subject to a fine in the amount of up to €32,000. At the moment, the amount of penalty is up to €3,200.
- The Public Procurement Act will include a principle according to which a tenderer or applicant must be removed from the procurement proceedings if they have been punished for enabling the violation of the conditions of an alien’s employment in Estonia, including for paying a salary that is lower than that established in the law (Section 95(1) 2) of the Public Procurement Act). The current principle according to which a tenderer or applicant must be removed from the procurement proceedings if they have been punished for enabling working of an alien who is staying in Estonia without a legal basis, will remain in force.
- Provisions of the Public Procurement Act, which establish the obligation to check absence of the basis for removal of sub-contractors during the procurement proceedings as well as after the conclusion of the procurement contract during the performance of the procurement contract will enter into force 6 months earlier than initially planned. The obligation concerns procurements organised for concluding construction procurement contracts and construction concession contracts the cost of which is equal to or exceeding the public procurement limit (Section 122(2), (3), (6) and (6) of the Public Procurement Act). Public procurement proceedings started before 15 July 2018 will be completed based on the requirements established in the version of the Public Procurement Act in force until 15 July 2018.
The Police and Border Guard Board will have the right to stop the economic activities of a natural person or legal entity if they have systematically enabled working of aliens staying in Estonia without legal basis, enabled violation of the conditions for employment of an alien in Estonia, paid an alien a salary that is lower than the salary rate establish in this act or failed to pay the salary. Furthermore, the court has the right to impose an additional penalty of prohibition on business if the person has enabled an alien who is staying in Estonia without legal basis to work.