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A review of Ordinance 25/2014 on the employment and secondment of aliens in Romania
Andra Bucur, Legal sciences researcher The Society for an open foundation/ CDCDI
10 December 2014
Ordinance 25/2014 on the employment and secondment of aliens in Romania, effective as of 28 November 2014, amends the access conditions of aliens to the labour market. Thus according to the ordinance, aliens with a right to stay may be employed only if the employer obtained the employment certificate which certifies the employer's right to hire an alien on a certain position.
There are however certain categories of aliens who can be employed without such certificate, such as:
• Aliens with free access to the labour market based on treaties signed by Romania
• Aliens who are to perform teaching, scientific activities or other specific activities within accredited institutions - being however not very clear what is understood by "specific activities" - based on bilateral agreements or a temporary right to stay for performing scientific research or artistic activities, following an order of competent institutions (Ministry of Education and Ministry of Culture respectively)
• Aliens who are to perform, on a temporary basis, activities requested by central or local public authorities
• Aliens appointed as managers of a branch, subsidiary, agency of a foreign company in Romania
• Aliens who hold a long term right to stay
• Aliens who hold a residence permit for family reunification
• Aliens who hold a temporary right to stay for studies
• Aliens who hold a temporary right to stay, who are victims of human trafficking or migrant trafficking
• Aliens who held a right to stay for at least 3 years, as family members of Romanian citizens and whose residence permit is extended independently, following the decease of the Romanian citizen, the divorce or the cessation of the partnership, the aliens becoming 21 years of age or reaching the age of consent.
• Aliens with the status of refugee or who benefit from a form a protection (subsidiary or temporary)
• Asylum seekers, from the moment they achieve the legal right to be employed, that is, one year since submitting the asylum application, provided they are still under the asylum procedure
• Aliens whose stay on Romania's territory was granted the status of tolerated, that is, in cases when the aliens cannot be returned to their country of origin for objective reasons
• Aliens with a residence permit for studies, who may only be employed with a labour contract with a maximum duration of 4 hours/day
When a labour certificate is necessary, namely in other cases that those listed above, the employer applies for this certificate from the General Inspectorate for Immigration, provided that certain conditions are met, such as:
• The actual performance of the activity for which the employer applies for the alien's employment
• The employer has paid all their duties to the state budget, for the quarter prior to the application for the certificate
• The employer has not been given a final sentence for a crime and has not been sanctioned for breaching labour legislation
• The contingent of newly admitted workers on the labour market has not been exceeded
• The alien meets the conditions related to aliens' entry, that is, he/she holds a valid document for crossing the border, a visa, no notifications have been issued on their name in the Schengen Informational System and other conditions provided in the regulation of aliens' regime in Romania.
The employer shall bring evidence of fulfilling the above conditions (by submitting a confirmation of company details from the Trade Registry, the registration certificate, the tax certificate and the criminal record) and shall submit the job description, a statutory declaration to the effect that the alien is fit for work, two photos, a copy of the border crossing document, a proof of fulfilling the special conditions, depending on the type of worker, and a copy of the identity card of the alien to be employed.
When the labour contract is extended for a fixed term, a new certificate is no longer required. There are however special conditions to be met, depending on the employee category (for instance, payment of a salary at least 4 times higher than the average gross salary to highly qualified workers). Thus when the employer wishes to employ an alien on a permanent basis, the employer shall demonstrate that the respective position could not be taken by a Romanian citizen or a European Union citizen (for instance, by publishing the announcement in a wide audience newspaper). This is a discriminatory measure, which hinders the employment of aliens and makes this employment process more complicated for the employer. The same special conditions have to be met in the case of interns.
There are however certain categories of aliens who can be employed without such certificate, such as:
• Aliens with free access to the labour market based on treaties signed by Romania
• Aliens who are to perform teaching, scientific activities or other specific activities within accredited institutions - being however not very clear what is understood by "specific activities" - based on bilateral agreements or a temporary right to stay for performing scientific research or artistic activities, following an order of competent institutions (Ministry of Education and Ministry of Culture respectively)
• Aliens who are to perform, on a temporary basis, activities requested by central or local public authorities
• Aliens appointed as managers of a branch, subsidiary, agency of a foreign company in Romania
• Aliens who hold a long term right to stay
• Aliens who hold a residence permit for family reunification
• Aliens who hold a temporary right to stay for studies
• Aliens who hold a temporary right to stay, who are victims of human trafficking or migrant trafficking
• Aliens who held a right to stay for at least 3 years, as family members of Romanian citizens and whose residence permit is extended independently, following the decease of the Romanian citizen, the divorce or the cessation of the partnership, the aliens becoming 21 years of age or reaching the age of consent.
• Aliens with the status of refugee or who benefit from a form a protection (subsidiary or temporary)
• Asylum seekers, from the moment they achieve the legal right to be employed, that is, one year since submitting the asylum application, provided they are still under the asylum procedure
• Aliens whose stay on Romania's territory was granted the status of tolerated, that is, in cases when the aliens cannot be returned to their country of origin for objective reasons
• Aliens with a residence permit for studies, who may only be employed with a labour contract with a maximum duration of 4 hours/day
When a labour certificate is necessary, namely in other cases that those listed above, the employer applies for this certificate from the General Inspectorate for Immigration, provided that certain conditions are met, such as:
• The actual performance of the activity for which the employer applies for the alien's employment
• The employer has paid all their duties to the state budget, for the quarter prior to the application for the certificate
• The employer has not been given a final sentence for a crime and has not been sanctioned for breaching labour legislation
• The contingent of newly admitted workers on the labour market has not been exceeded
• The alien meets the conditions related to aliens' entry, that is, he/she holds a valid document for crossing the border, a visa, no notifications have been issued on their name in the Schengen Informational System and other conditions provided in the regulation of aliens' regime in Romania.
The employer shall bring evidence of fulfilling the above conditions (by submitting a confirmation of company details from the Trade Registry, the registration certificate, the tax certificate and the criminal record) and shall submit the job description, a statutory declaration to the effect that the alien is fit for work, two photos, a copy of the border crossing document, a proof of fulfilling the special conditions, depending on the type of worker, and a copy of the identity card of the alien to be employed.
When the labour contract is extended for a fixed term, a new certificate is no longer required. There are however special conditions to be met, depending on the employee category (for instance, payment of a salary at least 4 times higher than the average gross salary to highly qualified workers). Thus when the employer wishes to employ an alien on a permanent basis, the employer shall demonstrate that the respective position could not be taken by a Romanian citizen or a European Union citizen (for instance, by publishing the announcement in a wide audience newspaper). This is a discriminatory measure, which hinders the employment of aliens and makes this employment process more complicated for the employer. The same special conditions have to be met in the case of interns.
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