FRANCE: More on Stricter Implementation of Regulations
Summary: Professional migration policy has taken a new course with the inter-ministerial circular published 31 May 2011. As a result Prefectures must examine work permit applications for non- European foreigners with greater scrutiny. In the same perspective, the list of jobs for which
workers are in shortage, has been halved. Three months onward, we can confirm the new direction of the professional migration policy, put into practice, has lead to an increase of the number of refusals of work permits and changes of status.
I. A balanced and selective professional migration
Confronted to multiple economical challenges, especially a high unemployment rate, an increase of the number of working people and a great influx of immigrants, the new course taken by the French migration policy aims to implement a balanced and selective professional migration. For this purpose work permit and change of status applications will be processed with more scrutiny (as per the interministerial circular published 31 May 31 2011) and the list of jobs for which workers are in shortage, has been halved (as per the inter-ministerial decree signed 11 August 2011).
Greater scrutiny of work permit applications (the circular published 31 May 2011)
As well as reasserting the elements established by the article R.5221-20 of the French Labour Code (including labour market testing), to be taken into account in order to examine a work permit application, the inter-ministerial circular urges the Prefects to apply these elements very strictly (kindly review our Client alert: Stricter application and scrutiny sent 17 June 2011). The inter-ministerial circular also clarifies the fact that this reinforced control does not apply to temporary workers, seasonal workers, employees on assignment nor high qualified workers.
The list of jobs for which workers are in shortage reduced by half
An inter-ministerial decree signed 11 August 2011 has reduced to half the list of jobs in certain fields where employers encounter difficulties in recruiting workers. The list contains from now on only 14 jobs as opposed to 30 previously. Foreign workers can fill these jobs without being submitted to a labour market test in the framework of their work permit application. The reduced list is unique and applies throughout the French territory unlike the previous regional lists which allowed local specificities to be taken into account. This list will be revised 1st August 2013 at the latest.
We must bear in mind that bilateral agreements regarding the control of migration flows have been signed by France and other countries (Brazil, Burkina Faso, Cameroun, Cape Verde, Gabon, Mauritius, Benin, Congo, Senegal and Tunisia). These agreements allow nationals to obtain work permits under conditions negotiated country by country.
II. The implementation carried out by Préfectures
In order to grant or refuse work permits, the Prefect takes into consideration all the elements mentioned by the article R.5221-20 of the French Labour Code (including labour market testing). In practical terms, the territorial units of the French Labour Office (DIRECCTE) will essentially apply strict labour market tests, except when expressly these do not legally apply (intercompany transfers, high qualified workers, executives, young professionals, holders of the skills and talents card), as well as all the other elements of criteria.
Prior and effective research on the labour market
An employer who wishes to hire a foreign worker must first of all carry out an effective research on the regional and professional labour market in order to prove it could not have hired a worker already on the job market. In practical terms the Préfectures seem to require a two month job advertisement through the Employment Pole (Pôle emploi) or a two to three month advertisement when it is through other organisations.
Estimation of the needs of working force
In practical terms, administration refers to the statistics published by the Pôle Emploi in the “Need of workforce” enquiry (Besoin de Main d’oeuvre, BMO).
The evaluation of the job advertisement and the estimation of the needs of working force carried out by the Labour Office (DIRECCTE) are mainly based on the data provided by the Pôle Emploi. Therefore it is wiser to advertise the job offer with the Pôle Emploi and to check the needs of working force for the job beforehand according to Pôle Emploi’s statistics.
Thorough scrutiny of the change of status applications
This thorough examination of change of status applications mainly concerns the change of status applications made by foreign students.
Only foreign students having obtained a temporary residence permit (autorisation provisoire de séjour, APS) will be spared the labour market test. Four months at the latest, before their current residence permit expires, students following a five year degree course leading to a Master II degree can apply for a temporary residence permit. In practice, the labour market test will not apply under the following
- Temporary residence permit application made 4 months before the expiry of the current residence permit;
- Validation of the Master II degree;
- A work contract with a salary equivalent to at least one and a half times the minimum legal wage (SMIC);
- Job description in accordance with the course the student followed;
- Job offer as a first professional experience in the perspective of return to the home country.
Reinforced control in the framework of “employee” residence permits renewals
It is reminded by the circular published 31 May 2011 that the initial working conditions and salary must at least be maintained when the “employee” work permit renewal application is made. The circular also reminds us that students having obtained an “employee” residence permit after having been granted a temporary residence permit (APS) can claim to fill a new job at the end of their first professional experience, but in this case the examination of their new work permit application will be based on all the elements listed by the article R.5221-20 of the French Labour Code (including labour market testing).
A change of employer application, a renewal of a fixed term contract or the transition to a permanent contract will also be examined in the light of the article R.5221-20 of the French Labour Code.
As a conclusion, the increase of refusals of work permits and changes of status should convey the professional migration control policy, as the labour market tests are applicable and the results are unfavourable to workers already present in the job.
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