On January 25, 2023, was promulgated an Act to Amend and Supplement the Labor Migration and Labor Mobility Act (“AAS the LMLMA”), adopted by the 48th National Assembly on January 19, 2023. The changes concern the conditions for entry and residence of citizens of countries outside the European Union (“EU”) on the territory of the Republic of Bulgaria for the purposes of highly qualified employment, as well as the procedure for issuing a long-term residence and work permit of the “European Union Blue Card” type, which is regulated by the Foreigners in the Republic of Bulgaria Act (“FRBA”) and the regulations for its application.
Among the reasons that require an update of the Bulgarian legislation in this area is the need to adapt to the dynamically changing situation in the field of labor migration, a better coordination between the labor demand and supply and attracting more highly qualified personnel to the Bulgarian labor market and in this way reducing the insufficiency of work force in key sectors of it.
Changes in the regime for admission of citizens of third countries for the purposes of highly qualified employment in Bulgaria
Along with the above, as a member of the EU, Bulgaria has an obligation to synchronize its legislation with the actions taken at an EU level to facilitate the reception of highly qualified workers from third countries and, more specifically, to reflect 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 purpose of highly qualified employment, and repealing Council Directive 2009/50/EC (the “Directive”), which member states must transpose into their national legislation no later than 18 November 2023.
Amendments in the LMLMA
The main amendments to the LMLMA are aimed at expanding the range of persons entitled to apply for an EU Blue Card and to favor the subsequent stay and work performance in the country. In this regard, to the criteria for obtaining a permit for access to the Bulgarian labor market, has been added the option to prove higher professional skills relevant to the position or sector by an official document of acquired professional experience, an alternative to the requirement of acquired higher education. According to recital 23 of the Directive, member states are encouraged to facilitate the recognition of documents attesting the relevant higher professional qualifications.
Next, the period during which highly qualified employment can be exercised only on the territory of Bulgaria has been reduced from two years to 12 months, whereas this limitation does not apply in the cases of residence in an EU member state for the purposes of performing certain business activities (see below).
Amendments in the FRBA
With the final provisions of the AAS the LMLMA, practically more changes have been made to the FRBA. The goals set in them are to ensure greater accessibility upon applying for a residence and work permit of the “European Union Blue Card” type, based on objective criteria and accelerating the process.
Most of the amendments in the FRBA refer to the Blue Card issuing procedure itself. One of the key ones is the provision of the possibility for electronic submission of applications together with the necessary documents, as well as subsequent documents accompanying the procedure. For this purpose the necessary technical conditions will have to be created. The latter will significantly ease and practically speed up the whole process.
To achieve a higher level of efficiency, part of the deadlines in the course of the procedure have also been changed – those for sending submitted applications for the issuance of a Blue Card by the Migration Directorate to the Employment Agency and the State Agency for National Security for written opinions, as well as for providing the relevant opinions have been shortened from 14 to 10 days. Furthermore, in case of legal and factual complexity, the term for consideration of the application can be extended by up to 15 days, and not by one month, as the law used to state before the adoption of the changes.
In accordance with the Directive, the procedure for changing employers is significantly simplified. During the first 12 months of highly qualified employment, the foreigner or the new employer has to submit an application for change of employer, with the set of accompanying documents significantly reduced compared to an initial application, and the deadline for a decision by the Migration Directorate is up to 30 days from the date of submission. After the expiration of 12 months, only a notification by the new employer shall be submitted to the Migration Directorate. Before the introduction of these rules, a change of employer required initiation of a completely new procedure.
In connection with controversial practices regarding the performance of labor duties by employees, holders of a Blue Card, in a remote work mode, the AAS the LMLMA expressly introduces and regulates this possibility, by a stipulation in the employment contract or in an additional agreement between the parties to the employment relationship. Measures for control are also foreseen – the Migration Directorate has to be notified by the employer in case of switching to such a work mode and change of address registration of the foreigner is required, in case the work will be carried out from a town or city other than the one specified in the residence permit.
For the purposes of short-term mobility, the contentious circumstances in connection with the secondment of employees have also been overcome. Holders of Blue Cards issued in Bulgaria will be able to enter and reside in the territory of an EU member state for a period of up to 90 days within a 180-day period for the purpose of carrying out certain business activities, respectively holders of Blue Cards issued in another member state, can reside in Bulgaria under the same conditions.
The conditions for holders of a Blue Card issued in another member state to move to Bulgaria are also simplified, whereas the latter are entitled to start work no later than 30 days after submitting an application. In this regard, with an addition in Art. 8 of Chapter II of the FRBA “Entry and Airport Transit” holders of a Blue Card issued in an EU member state that fully implements the Schengen acquis have the right to enter and reside on the country’s territory without a visa or other permit being necessary. In addition, persons with a long-term residence permit, as well as those granted international protection, whether from the Republic of Bulgaria or another EU member state, will now also have access to the procedure.
Last but not least, there is also a change in the terms of validity of the Blue Card, which is expected to have a positive effect on the attraction of talents to the Bulgarian labor market. The maximum period of validity has been increased from 4 to 5 years and a minimum period of 24 months has been introduced, with certain considerations in case the term of the employment contract is shorter.
Amendments in other laws
According to the supplements to the Health Insurance Act, foreign citizens who have been issued a residence and work permit of the “EU Blue Card” type shall be covered by compulsory insurance provided by the National Health Insurance Fund from the date of its receipt. With this provision, in practice, the obligation to conclude and present medical insurance when applying for the issuance of a Blue Card will drop off.
Amendments have been made to the Bulgarian Personal Documents Act in connection with the simplified procedure for changing employers and aiming to reduce the administrative burden thereof. The plastic holder of the EU Blue Card residence permit will no longer contain the field “workplace” and thus it will not be necessary to submit an application for a new permit and issuance of a new plastic holder.
Obligations or possibilities provided for in the Directive that have not been transposed:
According to the current regulation in the FRBA, even at the stage of submitting an application for the issuance of a Blue Card, evidence of insured housing should be presented. This creates difficulties given the length of the procedure and the fact that the foreigner is usually outside of the country when applying. The Directive states that when the third-country national concerned does not yet know his or her future address, member states shall accept a temporary address, and recital 29 preceding the text of the Directive – that the latter could also be the address of the employer. Adopting such a change would greatly facilitate this aspect of the procedure.
The new amendments to the legislation also do not reflect the more favorable conditions for family reunification provided for in the Directive, according to which, where the conditions for family reunification are fulfilled and the complete applications have been submitted simultaneously, the decisions on the applications of family members shall be adopted and notified at the same time as the decision on the application for an EU Blue Card.
Next, the achievements of long-term mobility have not been fully transposed. The directive enables EU Blue Card holders to cumulate periods of residence in different member states in order to fulfil the requirement concerning the duration of residence. Providing a provision in this sense in the Bulgarian law will facilitate the access of highly qualified specialists to the status of long-term residents in Bulgaria.
There are also texts of the Directive that leave it to member states to decide whether to introduce certain changes or not. These are, for example: to allow Blue Card holders to engage in a professional activity other than their main one and/or in a self-employed activity in parallel to the activity in highly qualified employment, where this activity has an additional character to the main employment activity, or the possibility a recognition procedure for employers to be foreseen, through which they could benefit from a simpler and faster procedure for applying and obtaining Blue Cards by their employees. Currently, no similar texts are provided in the law with the AAS the LMLMA.
Taken as a whole, the current amendments and supplements to the Bulgarian legislation give a new impetus to our country’s efforts to progress as a desired destination for specialists from non-EU countries.
By Margarita Zhivkova, Associate, Attorney-at-Law, Eversheds Sutherland