UDI 2011-038 Posted Workers (seconded employees) and business starters who are not EEA nationals

1. Introduction

Guidelines for processing the right of residence for posted workers and business starters who are not EU/EEA/EFTA nationals (EEA nationals), but who are employed in an enterprise established in an EU/EEA/EFTA country (EEA country). The rules for third-country nationals are set out in Chapter 13 of the Immigration Act, cf. Chapter 19 of the Immigration Regulations (the EEA regulations).

The object of both the service provision and business establishment is that the applicant stays in Norway for a limited period and then returns to the country he or she was seconded from when the service has been provided or business established.

2. Residence for up to three months

Third-country nationals who are employed in an enterprise established in another EEA country, and who are to:

1. carry out work in Norway under the rules in the EEA Agreement relating to free movement of services, or
   
   
2. establish an economic activity in accordance with the rules in the EEA Agreement relating to freedom of establishment, cf. Section 110 fourth paragraph of the Immigration Act,

have a right of residence for up to three months without applying for a residence card, cf. Section 111 second paragraph second sentence of the Immigration Act.

2.1. Same conditions for both groups

It is a condition that the person in question has a valid passport, and is employed in an enterprise established in another EEA country. It is also a condition that the person has legal residence with the right to work in the EEA country he or she is seconded from, and is able to return to that country after the period of residence in Norway. The legal residence in the country which he or she is seconded from must be for a longer period than the duration of the service provision in Norway.

It is also a condition that the establishment concerns a business enterprise. The term business enterprise can be widely interpreted. As a main rule, the activity must be of an economic nature, but there are no requirements concerning whether its object is to make a profit or gain. An example is the activities of a religious organization, as long as its operations are of an economic nature.

There are no requirements concerning how long an employee must have been employed before he or she is seconded to Norway. This means that it is not a requirement that the posted worker has performed work in the country he or she is seconded from before being posted to Norway.

To hold right of residence for three months, a third-country national who is a posted worker or business starter must not become an unreasonable burden for public welfare systems, cf. Section 111 second paragraph of the Immigration Act, cf. first paragraph.

2.2. Posted workers

It follows from the principle of free movement of services that the enterprise that provides services has the right to use its own employees as part of service provision, regardless of the employee’s nationality.

Service provision shall be temporary. Whether a service provision is temporary or permanent is subject to a concrete assessment.

The employee must be a posted worker according to the rules in the Working Environment Act section 1-7 and the Regulations relating to posted employees section 2. In addition, the posted worker must carry out an assignment on behalf of an enterprise that actually performs operations in another EEA country, c.f the Immigration regulations section 19-8 first paragraph.

The term service provider only covers seconded employees, i.e. independent contractors are not covered. A seconded employee is considered a service provider when he or she is seconded from a company in another EEA country to Norway. Seconding of employees can take place in several ways, e.g. as part of the performance of a contract or hiring out labour.

The employee must be seconded as part of the provision of a service of a limited duration.

The term service provider only covers seconded employees, i.e. independent contractors are not covered. Seconding of employees can take place in several ways, e.g. as part of the performance of a contract or hiring out labour.

Temporary work agencies may also post employees to Norway.

2.3. Business starters

An employee who is posted to Norway in connection with the establishment of an enterprise has a right of residence if he or she has a management position in the enterprise, or has special competence that is crucial to the enterprise's ability to become established in Norway.

In accordance with the judgment in the case Centros (C-212/97), it is not relevant whether a company is established in a member state for the sole purpose of being able to establish a company in another member state. This applies even if most of the company’s activities take place in the company that is established in Norway. The reason for choosing to establish a company in a given member state is, in other words, not relevant to the application of the rules concerning the right to establish an economic activity.

3. Residence for more than three months

Posted workers and business starters have right of residence for more than three months as long as this occurs as part of the provision of a service or is necessary for the establishment of an economic activity in Norway, cf. Section 114 second paragraph of the Immigration Act. The conditions set out in section 2 above, with sub-sections, must still be met, cf. Section 19-16 of the Immigration Regulations.

4. Residence cards

For stays above three months, a posted worker or business starter must apply for a residence card, cf. Section 118 first and third paragraphs of the Immigration Act, cf. Section 19-24 of the Immigration Regulations. Application procedures for residence cards are described in UDI 2011-035.

4.1. Documentation requirements

• valid passport

• documentation of legal residence with the right to work in the country the applicant is seconded from (a residence permit or residence card). It must also be clear that he or she has the right to return to that country after the period of residence in Norway.

• employment contract between the applicant and the foreign company which the applicant is employed in.

Posted workers

• an assignment contract between the foreign company the applicant is employed in and the principal in Norway, including information about the duration of the contract. In some cases, a letter from the principal in Norway specifying the assignment and its duration may be sufficient. It is not required that the nature of the service provision is documented.

Business starters

• documentation that the applicant has a management position or has special competence that is crucial to establishing the economic activity in Norway, if this is not stated in the employment contract. This could be documentation of work experience or education, or a letter from a manager of the company.
  
  
• documentation that the enterprise in which the person is employed is establishing an economic activity in Norway. This could be a transcript from the Norwegian Register of Business Enterprises or business plans.

4.2. Content of a residence card

A residence card is documentation that the person has right of residence in Norway.

The residence card is valid for the time the assignment is intended to last, or as long as it can be documented that the applicant is necessary for the establishment of the business, up to one year at a time, c.f the Immigration Regulations section 19-24 fourth paragraph.

Right of residence as a posted worker or business starter does not form the basis for permanent right of residence nor for family immigration, cf. Section 19-16 second paragraph of the Immigration Regulations.

Applicants must apply to renew the residence card before it expires at a police station or a service centre for foreign workers.

When there is no doubt that the conditions for a residence card are met, the police can grant applications for a residence card and applications for a renewal. Otherwise, the case must be sent to UDI for processing.

Applications for a residence card must be decided within six months of submission of a complete application.

4.3. Rejection and expulsion

Posted workers and business starters who do not hold right of residence pursuant to the provisions set out in Section 111 second paragraph or 114 second paragraph of the Immigration Act, can be rejected pursuant to the provisions of Sections 17 and 18 of the Immigration Act, and expelled pursuant to Chapter 8 of the Immigration Act, cf. Section 19-5 second paragraph of the Immigration Regulations.