We would like to share Evelyn’s story on the unreasonably complex procedure for gaining work-related residence permit in Finland.
Evelyn moved to Finland from the Philippines in 2017. She concluded a permanent employment contract with a Finnish company providing cleaning services. Due to the Finnish immigration policy, she was not allowed to start working until the work-related residence permit was successfully granted.
In order to work in Finland, a citizen outside of EU countries shall hold a residence permit for an employed person. Permission procedure is two-phased: First, TE Services estimate employment conditions, the employer’s ability to fulfil its legal obligations, and establishes whether there is labour force available within a reasonable time in Finland or EU/EEA in accordance with labour market testing. Secondly, Immigration Service decides on the residence permit based on the statement of TE Services. Immigration Service also evaluates the general conditions for granting residence permits in Finland.
TE Services concluded a negative partial decision falsely claiming that the documents proving the accuracy of the employment terms were not submitted within the time limits. However, all documents were delivered on time, and the acquisition of the documents was confirmed in writing by the officer of TE Services. However, Immigration Service dismissed Evelyn’s application referring to the statement of TE Services.
Evelyn decided to seek legal advice and turned to our Attorney-in-law Miro Del Gaudio. Immigration Service re-evaluated Evelyn’s application, but in the end dismissed it claiming that the nature of Evelyn’s employment contract deemed artificial, since Evelyn could not give encompassing answers to the questions presented to her in an oral hearing. Our Attorney Miro emphasized that the questions were very technical by nature. Matters concerning income tax rates, a specific number of annual holidays granted by law could not be reasonably expected to know in detail even by an employee originating from Finland. Finally, after a two-year-battle, Evelyn received an accepted residence permit for an employed person in September 2019.
A procedure consisting of applications, decision-making in different instances and complaints following therefrom may take years. The delay from the first application to the final decision is unreasonably lengthy. Foreigner’s ability to start working is postponed by years which does not meet the needs and expectations of the employer. Thus, it is of high importance to shorten the application procedure of work-related residence permits, which is finally recognized by the current government of Finland.
Source in Finnish: https://www.iltalehti.fi/
On April 2019 the Ministry of Economic Affairs and Employment published a press release regarding amendments to the Aliens Act. According to the Ministry of Economic Affairs and Employment: “Many sectors are experiencing a growing labour shortage. It is therefore necessary to – in addition to other measures – improve the labour mobility of foreign citizens already in the labour market.”
Under the new amendments, the process of determining the availability of labour will no longer apply to those persons who have worked in Finland for at least one year with an employment-based residence permit and are transferring into a completely new sector. In addition to the aforesaid one-year prerequisite, a professional qualification for the new sector is required. The Employment and Economic Development Offices will continue to assess the employer’s operating environment pursuant to the Aliens Act. The amendments to the Aliens Act will be effective as of 1 June 2019.
Should you have any questions regarding the new amendments of the Aliens Act, please do not hesitate to contact Lex Gaudius attorneys at law. We have extensive experience and knowledge in helping our customers with questions regarding the Aliens Act and the employment of migrants.
We often see in different sources that people ask about how the working hours shall be calculated. This questions may be very confusing for employees who work for instance in cleaning companies: cleaners travel from one client to another and they wonder if travel hours should be included in their pay or not.
You are welcome to read Lex Gaudius’ comment on this topic below.
Under the Working Hours Act Section 4. moment 1: “The time spent on work and the time an employee is required to be present at a place of work at the employer’s disposal are considered working hours.” In addition, under moment 3 of the same Section: “Travel time is not included in working hours if it does not constitute work performance.”
Under Section 4 of the Act, it is questionable whether or not the workers’ time spend during transitions from the place of performance to another place of performance is counted as working time within the meaning of the Working Hours Act. The Act itself does not contain any detailed information when travel time constitutes work performance.
The Government’s proposal for the Working Hours Act (HE 34/1996) does, however, shed some light on the issue. Under the proposal, the time spend on transitions between the places of performances counts as working time if it is part of the work performance or forms an integral part of the work performance. Under the proposal, this is the case e.g. when a mechanic or a domestic worker transitions multiple times within a day from one place to another to perform his/her work duties. By analogy, the prior would also apply to workers in the cleaning service sector. The proposal does, however, leave room for discretion in individual cases.
Under the proposal, another fact that influences, whether travel time and transitions are considered to constitute characteristics of work performance, depends on whether the employee has to carry other employees or the employer’s equipment in the vehicle. If the worker carries employer’s equipment or other employees to the place of performance, which would have been the employer’s obligation if the employee would use public transportation or his/her own vehicle, travel time can constitute part of the work performance.