Employers and host organisations employing third-country nationals on obligations, applicable aliens policing sanctions
INFORMATION
for
employers and host organisations employing third-country nationals
on
obligations, applicable aliens policing sanctions
Considering that pieces of
legislation on aliens policing set out a number of obligations for employers and host organisations
(hereinafter referred to as employers), the National Directorate-General for
Aliens Policing (hereinafter referred to as NDGAP) seeks to provide assistance
to employers.
GROUNDS OF OBLIGATIONS
Employers also need to understand that it is not
enough for a foreign national to be legally residing in Hungary, (s)he must
also be eligible to undertake employment with the employer.
WHAT ARE THE OBLIGATIONS OF EMPLOYERS AND WHEN IS A REPORT TO BE MADE?
With regards to employment of third-country nationals,
employers and host organisations are subject to the following obligations:
1)
obligation to check: The employer or the host
organisation must ascertain, at the latest on the day the third-country
national starts working, that the third-country national is holding a valid
residence permit authorising him/her to work for the respective employer or the
host organisation.
As employment without a valid residence permit entitling
its holder to work for the employer or host organisation is illegal, with
certain exceptions, it is necessary for the employer to wait for the foreign
national to present the residence permit issued to him/her to the employer,
which entitles him/her to undertake work and perform actual work.
The employer is obliged to check that the foreign
national has a residence permit (i.e., that his/her stay in Hungary is legal)
and must also ascertain that the residence permit entitles the foreign national
to work for the employer.
The employer must also make sure that, on the basis of
the residence permit, (s)he can employ the foreign national in accordance with
the conditions for which (s)he is approved, i.e., the foreign national can only
work for the employer with regards to whom (s)he has applied for a residence
permit, can only work in the job in relation to which his/her work abroad was
approved and can only work in the place of work in relation to which his/her
residence permit is valid.
Please note that if there is a change in the conditions of work, the
employer must report the change to the immigration authority.
2)
obligation to preserve: The employer or the host
organisation must keep a copy of the residence permit presented by the
third-country national for the duration of employment.
The employer must make a copy of the respective residence permit and keep
it.
With regards to aliens policing procedures, it is recommended to keep the
copy for a period of 1 year from the date of expiry of the residence permit.
3) Obligation to report
a) the start of employment by the third-country national
·
if the employer
or host organisation submitted the application for a residence permit entitling
its holder to perform work, within 5 days of receipt of the residence permit
entitling its holder to perform work issued to the third-country national;
·
if the employer
or host organisation submitted the application for a residence permit entitling
its holder to perform work but the third-country national enters Hungary after
the date of receipt (within a reasonable time from the expected start date
agreed in the preliminary agreement), within 5 days of the date of entry;
·
in cases not
covered by the previous two cases, within 5 days of receipt of the residence permit
entitling its holder to perform work issued to the third-country national,
·
in case of
third-country nationals holding a residence permit for the purpose of studies, within
5 days from the start of the work.
Please note that
·
the
decision authorising employment does not entail any reporting obligation for
employers, since, with the exception provided for by law, employment is not
approved solely on the basis of the decision authorising it
·
untimely
and undue reports cannot be accepted as duly made reports
·
if the
third-country national is granted a residence permit based on a different
legislative provision (i.e. a change of legal basis is implemented), the
employer is subject to the obligations under Section 145 of Act XC of 2023 with
regards to the new residence permit
·
in many
cases, the failure of the foreign national to appear before the immigration
authority in order to have the biometric data taken is an obstacle to the
production of the residence permit document. If the biometric data cannot be
recorded by the immigration authority, the document shall not be produced.
In this respect, it is highly recommended that
third-country nationals wishing to be employed should be reminded by their
employers that they cannot work without a residence permit document and that
they should appear before the immigration authority as soon as possible to have
their facial photograph and other biometric data taken.
b) the non-commencement of work by the third-country national
·
if the employer
or the host organisation submitted the application for a residence permit
entitling its holder to perform work and the employer or the host organisation
becomes aware that the third-country national will not start working for the
employer or the host organisation, immediately but at the latest within 5 days
of becoming aware of this information;
· if it was not the employer or the host organisation
that submitted the application for a residence permit entitling its holder to
perform work, but it becomes aware that the third-country national will not
start working for the employer or the host organisation within a reasonable
period of time after the expected starting date specified in the preliminary
agreement for the employment relationship, immediately, but no later than 5
days after the expected starting date specified in the contract of employment.
Since the employer has attested the purpose of
residence of its future foreign national employee, it is also obliged to follow
up on the procedure for the issuance of the foreign national's residence
permit, to keep in touch with the foreign national in this regard, to have
information on whether the employment has been approved, when the foreign
national will enter Hungary and when (s)he will appear before employer to
commence work. If the employer notices that the foreign national should have
started work but has not appeared before the employer, it is obliged to try to
contact the foreign national. If the employer notices that the foreign national
does not wish to work, in particular if the foreign national can no longer be
contacted, the employer must report this circumstance to the immigration
authority.
c) if the employment relationship is terminated within the validity period
of the residence permit entitling its holder to undertake work.
If the foreign national has commenced work, but has
subsequently stopped showing up before the employer, or has even informed the
employer that (s)he no longer wishes to work for him/her, the employer must
notify NDGAP without delay, but within 5 days at the latest.
HOW CAN REPORTING OBLIGATIONS BE MET?
The employer shall carry out
submission of the abovementioned report via the electronic aliens policing case
initiation platform (EnterHungary) operated by NDGAP.
Please note that by reporting to other authorities (e.g. to the National
Tax and Customs Administration [’NAV’]), the employer shall not be exempted
from his/her obligation to report to the immigration authority.
DATA REQUIRED FOR THE REPORTING
To meet the reporting obligation, the employer or the host organisation
must provide the following information:
a) the employer’s or host organisation’s particulars
(name, address, place of establishment, i.e.,
registered address, place of business, company form, registered number),
b) personal identification data of the third-country
national employee or intra-corporate transferee as a natural person,
c) document number of the residence permit of the
third-country national employee or intra-corporate transferee,
d) position,
e) the date of start or non-commencement of the actual
employment or intra-corporate transfer, or the date of termination of
employment before the expiry of the work permit or single permit.
At the latest within 5 days of
starting the work, the host organisation must report if a third-country
national holding a residence permit issued by a Member State of the European
Union for the purpose of intra-corporate transfer is to work in Hungary for the
host organisation for an intended period not exceeding ninety days. The report
must include natural identification date of the third-country national, the
planned duration of the intra-corporate transfer and the affiliation of group
of companies of the host organisation.
SPECIFIC RULE FOR TEMPORARY WORK AGENCIES
Considering that temporary work agencies are deemed to be preferred
employers under a Government Decree, and that the third-country nationals they
place tend to change their place of work more frequently; and therefore, the
verification of the employees’ purpose of residence in Hungary may be more
difficult, temporary work agencies are required, as a general rule, have
up-to-date data on this.
In order to verify whether the purpose of the employees’ residence in
Hungary is being met, the immigration authority is entitled to carry out checks
at any time on any employer, including temporary work agencies.
The temporary work agency is obliged to report the first placement of the foreign national
in accordance with Section 145 (3) of
Act XC of 2023, and if it fails to met respective obligation, it shall be
subject to a public order fine.
If the residence permit authorising employment by a
temporary work agency only allows for employment in one locality or one county,
i.e., not the whole of Hungary is indicated as the territory of the place of
work or the territory is not indicated as variable, if any placement is to a
territory of a place of employment other than the locality or county, then the
employer is engaged in unlawful employment (which is not sanctioned by
the immigration authority). In addition, the employer is failing to comply with
the obligation under Section 145 (1) of Act XC of 2023, in which case a public
order fine will be imposed on him.
The reason for the above is that having regard to the
changed place of work, the foreign national or the temporary work agency would
have to apply for a new residence permit for the foreign national, and the
foreign national cannot work at the new place of work until the new residence
permit is issued.
LEGAL CONSEQUENCES IMPOSED ON EMPLOYERS AND HOST ORGANISATIONS IF THEY FAIL
TO MEET THEIR OBLIGATIONS
An employer or host organisation that fails to comply with any of its
abovementioned obligations shall be subject to a public order fine by the
immigration authority, in proportion of the number of third-country nationals
employed (on a mandatory basis). The amount of the fine shall be up to HUF
1,000,000 (one million) per employee.
EXEMPTIONS FROM PAYMENT OF THE
PUBLIC ORDER FINE
The employer or the host organisation shall be exempted from the obligation
to pay the public order fine if it proves its compliance with the obligations
to check, keep record and report, as detailed above.
The employer or the host organisation shall not be exempted from the
obligation to pay the public order fine if it knew, or, with due diligence and
attention it could have known that the document presented as a valid residence
permit or other residence permit document was false.
JOINT AND SEVERAL LIABILITY
The main contractor and all intermediate subcontractors shall be jointly and severally liable with the subcontractor employer or the host organisation for the payment of the public order fine if they knew or could reasonably have known that the subcontractor employer was employing a third-country national without a valid residence permit or other permit entitling him/her to residence or a permit entitling him/her to engage in any occupational activity under this Act.