Code "17" as a pass to the Czech labor market?

Given the current situation on the Czech labor market, where we have been struggling for a long time with unemployment at the level of historical lows and the resulting shortage of labor, it is not surprising that employers often resort to employing foreigners from third countries. For their employment, however, it is necessary that these foreigners have the necessary residence and work permits or fall under one of the exceptions allowing their employment without a work permit. One of the exceptions is e.g. residence in the Czech Republic for the purpose of family cohabitation according to Section 98 letter l) of the Employment Act [1]. However, what is the situation if a foreigner has a long-term visa or stay for family purposes?

When employing foreigners from third countries, the employer may in practice encounter a situation where a foreigner whom this employer plans to employ presents him with a long-term visa with the code D / VC / 17, or long-term residence permit with the marked type of permit under the numerical code 17. In both cases, these are long-term residence permits (i.e. allow residence in the Czech Republic for more than 3 months) for family purposes, where the holder is a spouse (or same-sex partner or registered partner) of a foreigner from a third country who already resides in the territory and with whom the holder is unified on the basis of this authorization. What do these residence permits mean from a work point of view? Is it possible to immediately employ such a foreigner without having a work permit? Does the exception according to Section 98 letter l) of the Employment Act [2] apply on such foreigner?

Given that the Act on the Residence of Foreigners in the Czech Republic [3], which regulates the conditions of entry and residence of foreigners in the Czech Republic, does not provide an answer to the above questions, this answer should be sought directly in the provisions of the Employment Act, which regulates the above-mentioned exception and allows a foreigner to perform work without a work permit. The provision in question follows that the exception applies to "… a foreigner who resides in the territory of the Czech Republic on the basis of a long-term residence permit for the purpose of family cohabitation…". Although it may not be obvious at first sight, the problem lies in the legal diction of this provision. The provision expressly refers to a long-term residence permit for the purpose of family cohabitation, not to a long-term visa or residence for the purpose of family cohabitation. These are different residence titles, although their purpose is practically the same.

First of all, it is necessary to point out the distinction between a long-term visa and a long-term stay. A long-term visa is issued for a stay whose expected duration is longer than 3 months, but usually not longer than a few months (it is issued for a maximum of 1 year), and takes the form of a visa sticker in a foreigner's travel document issued to foreigners by the representative office of the Czech Republic. Long-term stay is issued for stays with an expected length of more than 3 months, but it is intended for foreigners who are expected to stay longer than a couple of months. The long-term residence permit takes the form of a biometric card issued to foreigners by the Ministry of the Interior of the Czech Republic. Furthermore, it is necessary to focus on the nomenclature of the purpose of residence, where it is necessary to distinguish the purpose of family cohabitation (this purpose is, if the holder is a spouse, partner or registered partner of the same sex, the residence permit is marked with the code 95) and family purpose (this purpose is, if the holder is a spouse, partner or registered partner of the same sex, indicated on the visa or residence permit is under code number 17).

For the above reasons, it is possible to conclude that the exception under Section 98 letter i) of the Employment Act, as a result of the explicit wording of the given provision, applies only to foreigners who have a long-term residence permit for the purpose of family cohabitation; not to foreigners who have a long-term visa or residence for family purposes - they do not have free access to the Czech labor market and for their employment it is necessary that they have a work permit from the Labor Office of the Czech Republic or an employee card.

In this context, it is necessary to point out that the Labor Office of the Czech Republic is often not clear about the code "17". It is therefore possible that a cautious employer asking about the need for a work permit for foreigners with a visa or residence code "17" will mistakenly learn from this office that this foreigner has free access to the Czech labor market. However, the Ministry of the Interior of the Czech Republic is clear in this respect and confirms the above conclusion as it follows from the informative material available on the website of the Ministry of the Interior of the Czech Republic [4].

In conclusion, employers in this case can be recommended that before employing a foreigner who states that he resides in the Czech Republic on the basis of a family residence permit, always request a copyof this permit and thoroughly check what type of permit that is, under which code is marked the purpose of the stay and whether it is necessary to secure a work permit for the employment of this foreigner.

[1] Act No. 435/2004 Coll., on employment, as amended.

[2] A work permit, employee card, internally transferred employee card or blue card is not required for the employment of a foreigner who resides in the Czech Republic on the basis of a long-term residence permit for the purpose of family cohabitation, if it is a family cohabitation with a foreigner according to Section 98 letter a), c) or n) of the Employment Act or with a foreigner who resides in the territory of the Czech Republic on the basis of a valid long-term residence permit.

[3] Act No. 326/1999 Sb., on the Residence of Foreign Nationals in the Czech Republic, as amended.

[4] Available >>> here.